Allianz Australia Insurance Limited v BMO

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v BMO [2024] NSWPICMP 320
CLAIMANT:	BMO
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
SENIOR MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	21 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment under section 7.26; degree of permanent impairment that has resulted from psychiatric injury caused by motor accident ; where Medical Assessor (MA) found permanent impairment of 24%; surveillance evidence relied on by insurer; claimant’s reliability in issue; Held – while the Panel has given the surveillance weight, the whole of the evidence has been taken into account; the claimant suffered psychological injury as a consequence of the accident; the psychological injury gave rise to a permanent impairment of 11%; as different findings made with respect to the diagnosis and permanent impairment MA’s certificate revoked and new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Mason dated 28 October 2022 and certifies that: (a) the claimant’s permanent impairment that has resulted from Persistent Depressive Disorder caused by the motor accident is 11%, and (b) the claimant’s permanent impairment that has resulted from Persistent Depressive Disorder caused by the motor accident is greater than 10%.

STATEMENT OF REASONS

BACKGROUND

BMO (claimant) was injured in a motor accident at Strathfield, NSW, on 13 February 2018 (accident). Following the accident he made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer).
Disputes arose between the claimant and the insurer about certain treatment and whether the degree of permanent impairment of the claimant as a result of a psychological injury caused by the accident was greater than 10%. These disputes are about medical assessment matters[1] and are medical disputes.[2]
[1] Schedule 2 cl 2(a) and (b) MAI Act.
[2] Section 7.17 MAI Act.
The medical disputes were referred to Medical Assessor Mason for assessment. The Medical Assessor gave a certificate dated 28 October 2022 in which he certified that a Major Depressive Disorder was caused by the accident, gave rise to a permanent impairment of 24%, and that the impairment as a result of this injury was greater than 10% (Assessment).
The Medical Assessor also gave certificates with respect to the disputed treatment. As discussed further below, there are no longer disputes about that treatment.
The insurer sought a review of the Assessment under s 7.26 of the MAI Act. The President’s Delegate subsequently determined that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. The review application was accepted and referred to a review panel.
The Review Panel (Panel) has been constituted by the President of the Commission to conduct the review of the Assessment.

THE REVIEW

The Panel is to conduct the review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the panel is to be constituted by two medical assessors and a member assigned to the Motor Accidents Division of the Commission.
The review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128.

DIRECTIONS AND CASE MANAGEMENT

The Panel made directions for the provision of a joint bundle that contained all material relied on by the parties for the purposes of the review, together with written submissions for the purposes of the review. A joint bundle was subsequently provided by the parties.
On 21 November 2023 the Panel informed the parties that it considered a re-examination of the claimant was required, and advised the parties that the re-examination would be conducted by Medical Assessors Baker and Hong on behalf of the Panel on 23 February 2024.
On 22 November 2023 the insurer was given leave to refer surveillance to the Panel, and to rely on the surveillance in the review. Reasons for that decision were provided in writing to the parties.
A case management conference was conducted with the parties on 4 December 2023. It was confirmed that the review being undertaken by the Panel relates to the medical assessment conducted by Medical Assessor Mason, who gave three certificates together with reasons dated 28 October 2022. The parties confirmed that there was now no dispute between them in relation to the treatment with respect to which Medical Assessor Mason gave certificates. Consequently, there is no medical dispute about those medical assessment matters. The parties agreed that the only medical disputes between them, in the context of the assessment carried out by Medical Assessor Mason, are with respect to the degree of permanent impairment of the claimant that has resulted from a psychological injury caused by the accident, and whether the degree of permanent impairment is greater than 10%. That being the case, it was confirmed and agreed that the review conducted by the Panel would be limited to those matters.

LEGAL FRAMEWORK

No damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%: s 4.11 of the MAI Act.
If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a medical assessor under Division 7.5: s 4.12(1) of the MAI Act.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1)    The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2)    Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3)    In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4)    A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
Version 9.2 of the Motor Accident Guidelines (Guidelines), effective from 10 November 2023, applies to the review. The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5    An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with ‘Mental and behavioural disorders’ within the Guidelines, namely clauses [6.201]-[6.228] of the Guidelines.

ASSESSMENT UNDER REVIEW

Medical Assessor Mason gave a certificate and reasons on 28 October 2022. Relevantly, the Medical Assessor certified that Major Depressive Disorder was caused by the accident and gave rise to a permanent impairment that is greater than 10%.
In his reasons, the Medical Assessor recorded a history that the claimant was in receipt of the age pension, and was not working. He lived alone, having separated from his wife. The claimant reported coming to Australia in 1996 and that he has subsequently become a permanent resident. He said his second wife owns the painting company in which he worked until the accident. The claimant gave a history that the accident occurred when his vehicle, that was stationary, was hit from behind by another vehicle and pushed into the vehicle in front. Airbags did not deploy. He believes he was blacked out for about 10 seconds. Neither police nor ambulance attended the scene.
The claimant told the Medical Assessor that he suffered pain in his shoulder, neck, spine and elbows as a result of the accident. He said he was unable to sleep at night because of pain. When asked about psychological symptoms he said they began two or three months after the accident. The initial difficulties involved trouble falling asleep because of the pain. Difficulties with his wife are documented. The claimant said that he became very angry and depressed, and that he was referred to, and received treatment from, two psychologists.
The claimant reported experiencing nightmares, but did not describe other trauma-related symptoms. He reported feeling that his life is pointless, meaningless and not worth living. He does not enjoy anything. He has passive suicidal ideation but did not believe he will act on it. He had no interest in participating in any activities or events, and sees only one friend who looks after him. He said he does not go out to do his own shopping. His only outing is to see his general practitioner and he said he travels to Lidcombe by train because he is too afraid to drive.
The Medical Assessor’s reasons record that the claimant was “difficult to interview”. A Mandarin to English interpreter was present at the assessment. The claimant was depressed in appearance, was slow to respond to questions, frequently required questions to be repeated, and gave the appearance of being affected by psychomotor retardation. He offered nothing spontaneously and responded to questions with very little information. He frequently said he did not know, could not remember and could not provide English names for medications. He described ongoing suicidal ideation and one very minor suicide attempt involving five tablets of some form of medication. He described loss of appetite and loss of interest in activities. There was no overt pain behaviour but he did not move his right arm throughout the interview. He described frightening nightmares involving the accident. The content of the nightmares was largely depressive in that it involved multiple dead bodies and often his own death.
In the Medical Assessor’s opinion, the claimant did not appear to be anxious throughout the interview; rather he was shut down and unresponsive. His range of affective expression was extremely limited and he displayed no positive or humorous emotion. He frequently repeated that life was pointless and meaningless. He was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.
When asked about daily activities the claimant said he rarely went out and he rarely did anything. He showers twice weekly, and mostly stays in his pyjamas if he does not have to go out to a doctor's appointment. A friend does his shopping, and helps him with laundry, cleaning and cooking. He was unable to drive both because of fear and because he could not use his right arm. When this was challenged he said the only time he has driven was to move the car from one car park to another to avoid a parking fine. He is able to use public transport. He has not been overseas since the accident.
The claimant told the Medical Assessor that his marriage broke up because he was unable to work following the accident and his wife became angry with him and threw him out. He said he did like reading in the past but now he is unable to read half a page because of his concentration difficulties. He is unable to persist with tasks and relies on a friend to do his shopping. There was clinical evidence in the interview of impaired concentration and memory. The claimant was unable to work because of his physical injuries but is also incapable of working because of his depressive condition. The claimant was found to be totally impaired from a psychiatric viewpoint.
The Medical Assessor found that the accident did not meet The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criterion A for post-traumatic stress disorder because it was not life threatening. That being the case, that diagnosis was excluded. In the Medical Assessor’s opinion, the claimant met the DSM-5 criteria for Major Depressive Disorder. He provided the following psychiatric impairment rating scale (PIRS) ratings:
Self Care and Personal Hygiene            3
Social and Recreational Activities          3
Travel  2
Social Functioning  3
Concentration, Persistence and Pace     3
Adaption  5.

A 24% permanent impairment was assessed. There was no pre-existing or subsequent condition requiring apportionment. No treatment effect allowance was made because there was, in the Medical Assessor’s opinion, no evidence that treatment has been effective.

EVIDENCE

As recorded earlier, the parties have provided a joint bundle that contains the evidence they rely on in the Review. The Panel has considered all the material in the joint bundle, and has viewed, on multiple occasions, the surveillance footage of the claimant that is relied on by the insurer.

Medical Assessments

Medical Assessor Menogue gave a certificate and reasons dated 27 November 2018. He certified that annular tears at C4/5 and C6/7 were not minor injuries. The Medical Assessor’s reasons record that the claimant worked as a self-employed painter with one employee up to the time of the accident. The claimant complained of pain in his cervical spine, numbness in his right forearm and hand, discomfort in his right interscapular region, and lumbar spine pain. The Medical Assessor found that there was insufficient evidence to establish a causal relationship between the right shoulder symptoms and right elbow symptoms and the accident. Radiculopathy and nerve root impingement in the lumbar spine were not caused by the accident. The annular tears, however, were found to have been caused by the accident.
On 15 November 2019 Medical Assessor Menogue gave a further certificate and reasons. The Medical Assessor again certified that annular tears at C4/5 and C6/7 were caused by the accident and were not minor injuries. He also found that injuries to the claimant’s right elbow and shoulder were not caused by the accident.
Medical Assessor Gorman gave a certificate and reasons dated 18 March 2021. The Medical Assessor certified that a specialist consultation with Dr Herald was reasonable and necessary. He also certified that referral for an MRI of the right elbow and physiotherapy for the right shoulder and right elbow were not reasonable and necessary. The Medical Assessor’s reasons record that the claimant walked with a limp favouring his right leg, and that on occasions he walked with an almost “hemiplegic” gait with the right arm not swinging and the right leg “dragging”. There were marked “pain behaviours” associated with movement of the cervical spine.
The Medical Assessor found that the claimant had suffered an injury to his cervical spine, with discomfort referred to the right upper limb, as a result of the accident. While pain was referred to the right elbow, in the absence of direct injury to the right elbow, the Medical Assessor did not believe that “one can relate any right elbow care to the motor accident.” The referral to Dr Herald was reasonable and necessary to clarify the cause of the right shoulder treatment and suggest treatment. As to the physiotherapy sessions involving the right shoulder and elbow, the Medical Assessor thought that continued focus on these regions has increased hypervigilance to symptoms and fear avoidance. In his opinion, further treatment will perpetuate the disability. In terms of the right elbow MRI, there was no right elbow injury and it would be very unlikely that investigations would reveal any injury caused by the accident in the absence of direct injury.
Medical Assessor Home gave a certificate and reasons dated 26 June 2022. The Medical Assessor certified that the accident caused cervical spine injury gave rise to a permanent impairment (5%) that was not greater than 10%. He also gave certificates with respect to disputed treatment. The reasons record that the claimant described constant neck pain with an average intensity of 8-9 out of 10. He reported constant pain in the right shoulder and difficulty moving the right shoulder at all, and right elbow pain with an intensity of 7 out of 10. Midline lower back pain, with an average intensity of 6-7 out of 10, increasing to 9 out of 10 with activity and prolonged static posture, was also reported.
The claimant described a sitting tolerance of 20 minutes, a driving tolerance of 20 minutes, and a walking tolerance of no more than three to five minutes. The claimant reported being unable to crouch due to back pain. His sleep pattern is markedly disturbed. He reported being able to lift 2-3kg in a small bag with his left hand, and denied undertaking any activity with his right hand whatsoever. He does not use his right hand for feeding himself, brushing his teeth, toileting or lifting. He had not undertaken any form of work since the accident.

The Medical Assessor reported that the claimant walked with an asymmetrical gait, dragging his right foot. In his opinion, the claimant’s gait was inconsistent with the remainder of the clinical findings. Neurological examination of the upper extremities was confounded by pain behaviour. There was no evidence of disuse wasting of the right upper limb. The Medical Assessor made a number of comments with respect to the claimant’s consistency, including that the claimant “could barely shrug the right shoulder during the assessment”, which the Medical Assessor thought was “implausible, noting that the shoulder girdle elevators are supplied by the 11^th cranial nerve”.
In Medical Assessor Home’s opinion, the claimant suffered a whiplash disorder of the cervical spine as a result of the accident, and that there may have been referred pain to the right shoulder and arm. The right shoulder and elbow pain was not related to injury caused by the accident. Further, there was no medical evidence that the claimant suffered injury to his lumbar spine as a result of the accident. The claimant’s clinical presentation was “compounded by fear avoidance behaviour with marked restriction of active motion of the neck, right shoulder, right elbow, right upper limb as a whole and with a rather bizarre asymmetric gait.”

Medical records and reports

The records from Associated Medical have been considered. The first entry in the progress notes relates to a consultation on 10 July 2006, and the last to a consultation on 20 September 2019.
The progress notes include an entry on the day of the accident in which Dr Lam recorded a history that the claimant had been involved in a motor accident that day. The notes state that the claimant’s glasses came off and his head bumped the headrest. Complaints of neck pain are recorded. On examination, rotation, flexion and extension of the neck were “nearly normal but with pain”. There was mild tenderness at the C7 spinous process.
Campsie Centre Medical Clinic clinical notes commence in March 2018 and end in December 2019. An entry on 12 July 2018 includes a history of the accident, and refers to, among other things, “shocking anxiety”. An entry on 1 August 2018 refers to “psychological issue”, “anxiety and nightmare after injury”, “insomnia”, “worried”, “worried cripple”. The entry records that there was a need to refer the claimant to a psychologist for treatment, and that he was “showing depression mood”. Similar notes were recorded on 12 August 2018, at which time it was recorded that a psychological referral had been made. Psychological symptoms are recorded on 22 August 2018, 23 September 2018, 8 November 2018, 10 January 2019, 7 March 2019, and 21 May 2019.
Ada Wong, psychologist, reported to the claimant’s solicitor on 12 November 2018. The report records that the claimant was referred to Ms Wong by Dr Zeng, and was first assessed on 28 August 2018. There had been two subsequent sessions. Intrusive distressing memories of the accident were reported, as were occasional distressing dreams, “[i]ntense and prolonged psychological distress to cues that symbolize the [accident]”, and dissociative reactions. Persistent avoidance, negative alterations in cognition and mood, and alterations in arousal and reactivity were reported. There had been significant impairment in the claimant’s functioning within family, social and work areas.
In Ms Wong’s opinion, the claimant’s symptoms were consistent with post-traumatic stress disorder. A DASS-21 (Chinese version) was administered by the provisional psychologist. The claimant is reported to have experienced extreme levels of depression, however Ms Wong did not address the diagnosis of any depressive disorder in her report. Her report does not address all of the criteria for post-traumatic stress disorder. The provisional psychologist does not report her findings in relation to exclusion criteria G. and H. For these reasons the conclusions provided in this report were given lesser weight as was the diagnosis of post-traumatic stress disorder. This is important, as it is likely to have had significant clinical impact on how the claimant was treated during the course of his psychological injury.
There is an Allied health recovery request (AHRR) related to physiotherapy dated 17 December 2018 that includes references to the claimant’s physical capacity.
A Future Fit Vocational Assessment report dated 3 April 2019 includes various job options identified following a vocational assessment. The report records a range of physical complaints, including pain. It is recorded that the claimant’s wife is very supportive and that she completes most of the household chores including cooking and cleaning. The claimant reported that he is not very social and does not go out very often, and that he experienced psychological symptoms including poor sleep, low mood/depression, and feelings of frustration. He indicated that he likes to be busy and feels that since he is no longer busy his psychological symptoms have worsened. The claimant stated he:
“…would love to return to work since he has been working his whole life however he does not believe that his [sic] is capable of returning to any type of duties whilst experiencing ongoing persistent pain in his right side. He indicated that the pain is constant and cannot imagine how he can return to work with such high levels of constant pain.”
The Panel noted that in the Future Fit report’s executive summary the following was recorded in the last paragraph: “BMO advised there is limited suitable duties available due to the nature of the job, he did however gradually return to managerial and administrative duties on average of 20 hours per week since August 2018.”
A “Suitable Employment Options Medical Approval” dated 8 September 2019, has been considered.
Dr Virgona, psychiatrist, reported to the insurer on 19 May 2020. The doctor reported that the claimant lived with his wife, and had not returned to work as a painter since the accident. He described the accident as being “like an earthquake”. He reported problems in the cervical area, right elbow, right shoulder and lower back. Pain at night stops him from sleeping and he wants to cry. Problems in his marriage had arisen since the accident, details of which are provided. The claimant reported not being able to work or cook for himself. When asked why he couldn't look after himself, he stated that he can't shower himself because he can only use his left hand. He can only do something simple like milk or bread for breakfast and he can't cook rice. He hadn't had any pleasure or happiness in his life since the accident. He doesn't know what time he gets up. If there's no need he will stay in bed. He will have his bread and milk for breakfast and after breakfast will put the TV on but doesn't really watch it. If his wife gets up he will then leave the place to go to the park and he will sit there until she leaves home and then he will go back and watch TV. He stated that last December it was very hot, so he went to the library at Lakemba and read the newspaper and if he felt sleepy he would nap there. He'd walk to the library. He is not driving because he felt “he might be dangerous”. He stated that sometimes when he's walking somewhere and sees a car he feels scared and will "hide in a safe place". When he's driving, he can be scared that someone will hit him in the back. His only other anxiety is with respect to his wife. If he sees her, he's scared she will say bad things to him. He doesn't have any friends, and doesn't want to see anyone because he doesn’t want to let them know about his story. He saw a psychologist once a week. He stated that before the accident he was working full time, and had a harmonious relationship with his wife; they would go out once a week, meet with friends, have something to drink and talk or go to the place of one of his wife's friends for a meal.
Dr Virgona expressed the opinion that the claimant was suffering symptoms consistent with a Persistent Depressive Disorder with Anxious Distress in the context of chronic pain, “which dominates the clinical picture”. His symptoms “were not of the quality or severity to warrant a diagnosis of [post-traumatic stress disorder]”. In the doctor’s opinion, the more significant psychological symptoms appear to have developed due to the pain and associated restrictions, and their consequences, as well as the deterioration in his relationship with his wife.
Dr Virgona thought that the claimant required a single psychiatric assessment to determine a medication management plan, with a focus on reducing depressive and anxiety symptoms and improve sleep. In his opinion, the claimant should remain on psychotropic medication for 12-18 months. It was not, in his opinion, clear that the claimant will respond to any psychological intervention. He was more likely to benefit from multidisciplinary pain management approaches, which include psychological intervention.
Dr Virgona assessed the following PIRS ratings:
Self Care and Personal Hygiene            2
Social and Recreational Activities          3
Travel  2
Social Functioning  2
Concentration, Persistence and Pace     2
Adaption  2.
The doctor assessed a 7% permanent impairment as a result of the accident caused psychiatric condition.
Clinical Notes of Hansen Li, psychologist, cover the period from August 2019-July 2021. The notes contain references to the claimant reporting nightmares, flashbacks of the accident, issues sleeping, feeling extremely stressed, a lack of concentration, skipping meals, social isolation, feeling that life is meaningless, and ongoing difficulties in the relationship with his wife.
The Alliance Medical Healthcare Centre records contain Dr Lam’s clinical notes. The notes commence on 25 June 2019 and end on 13 May 2022 (when the notes were printed). The consultation on 25 June 2019 is described as being a “CTP consultation”. A history of the accident is recorded. Reference is made to physical injuries, “shock” and “PTSD”. On 23 September 2020 there is reference to “[w]orsening MH symptoms”. The Panel has inferred that “MH” refers to “mental health”. On 22 October 2020, it was recorded that the claimant “has had severe deterioration in depression”, that he has experienced “MH” symptoms since the accident, and that the symptoms have “mostly manifest[ed] as the more irritable, anxious, angry symptoms of PTSD.” Reference was made to frequent conflict with his wife, and suicidal thoughts. Seroquel was ceased and Diazepam prescribed. On 15 March 2021 the doctor recorded “Mentally- seems more stable, but getting more sedated…”.

Other material

The joint bundle contains a schedule, prepared by the insurer’s solicitors, that summarises the claimant’s tax returns from 2013-2022. The schedule records that in the years 2013-2018 the claimant received income from Sunlight (Aust) Pty Ltd (Sunlight). His individual returns record that he received no such income in 2019. In 2020-2022 he again received income from Sunlight.
There is an “Amended liability notice” dated 6 December 2022, that records that the insurer had determined that the claimant had: made false declarations on the Certificates of Capacity; was paid weekly benefits based on his deception; as a result of his deception, obtained financial advantage in connection with the motor accident injuries scheme; failed to notify the insurer of his change of employment circumstances; made statements to the medical practitioners involved in his case, including “PIC medical assessors and PIC Member”, that he had not worked since the accident, which were false and misleading. The notice asserts that as a result of his deception, the claimant obtained financial advantage in connection with the scheme, “that this is fraud pursuant to section 6.41 of the Act”, and that benefits ceased on 9 February 2021 and will not re-commence.
The Medical Assessors asked the claimant at the re-examination about the Amended liability notice, and he confirmed that he understood its meaning.

Surveillance

The insurer relies on an investigator’s report dated 27 October 2022, together with surveillance footage. The report records that surveillance was undertaken on 15,19, 20, and 22 September 2022. The only footage of the claimant was exposed on 20 September 2022. The footage is clear and of good quality. The time stamp on the footage records that it was taken between 10.01am and 12.41pm, and the footage exposed is 1 hour and 12 minutes in length.
The surveillance footage exposed on 20 September 2022 has been viewed by the members of the Panel. Among other things, the claimant is seen:
(a)    picking up and carrying a rake with his right hand;
(b)    carrying items and placing them on the ground using both hands;
(c)    opening the tailgate of a vehicle using both hands;
(d)    placing items in the vehicle and closing the tailgate with both hands;
(e)    bending at the waist on multiple occasions;
(f)    walking with an apparently normal gait;
(g)    pulling on a hose using his right arm;
(h)    using a hose with his right arm to clean two vehicles;
(i)    clean two vehicles with a cloth using his right arm;
(j)    moving two vehicles to different parking spaces;
(k)    using the hose with his right arm at and above shoulder height;
(l)    squatting on multiple occasions to clean the vehicles;
(m)     reaching across the bonnet of the vehicle and using his right arm to polish the bonnet;
(n)    standing on the wheel of a vehicle while cleaning the roof of the vehicle;
(o)    cleaning the rim of a door using his right arm;
(p)    bending at the waste to pick up a hose;
(q)    operating a hand-held vacuum to clean a vehicle while leaning into the vehicle through the driver’s door, and
(r)    applying detail to the tyres of a vehicle while crouching and squatting.
The Panel is of the view that there was no apparent restriction or limitation in the claimant’s use of his right arm, back or neck. He is depicted on his feet while undertaking these activities for over an hour.
There is also a “static surveillance” report dated 3 November 2022. The report records that a static vehicle was deployed in the vicinity of the claimant’s address on 22 October 2022 and retrieved on 27 October 2022. The report records that during this period, the claimant was sighted on 22, 23, 25 and 26 October 2022. He was not sighted on 24 and 27 October 2022.
The Panel has considered the images in the report. The Panel is satisfied that the claimant is depicted in the images, and that the images are of sufficient clarity to enable the Panel to determine the activities he is undertaking.
Among other things, the images depict the claimant on 22 October 2022 moving a large bin using his right hand and arm, uncoiling a hose using both hands and arms, bending, and lifting a bucket using his right hand. On 23 October 2022 images depict the claimant dragging a bucket using his right hand and arm, and emptying a bucket. On 24 October 2022 images depict the claimant remove a cover from an object in a yard wearing gloves, clearing items from the yard of a property and place the items on the kerb, lift items including tubs, planks of wood, and a door, using both hands and arms, bend, sweep using a broom, and wash a path with a hose. The claimant is also seen interacting with a female at the property.
When they re-examined the claimant the Medical Assessors asked him about the nature of the activity and images recorded in the video and static surveillance and he confirmed that he was the person depicted.

SUBMISSIONS

Insurer’s submissions

The insurer relies on written submissions dated 8 August 2023 in which it puts in issue the claimant’s reliability, particularly in light of the surveillance footage, and causation of the physical injuries the claimant says were caused by the accident. The insurer’s submissions refer to evidence it relies on with respect to these matters.
At [24] the insurer states that while it relies on the opinion of Dr Virgona, as recorded in his report of 19 May 2020, it:
(a)    disputes the history that following the accident the claimant drove himself to a hospital at Campsie. In this regard, the insurer submits the claimant attended Dr Ricky Lam, general practitioner, at Campsie Medical Centre;
(b)    submits the history provided by the claimant as to the friction and arguments between him and his wife are not causally related to the accident, and
(c)    submits the diagnosis of Persistent Depressive Disorder made by the doctor “must be treated with extreme caution in light of the credit issues and video footage depicting the claimant functioning without any visible restrictions, contrary to his presentation to medical practitioners and …medical assessors…”
The insurer submits that the claimant’s presentation must be approached with caution, and that his credit is in issue, particularly in light of the video surveillance showing him functioning without any visible restrictions.
The insurer disputes the history of symptoms, limitations, and disability provided by the claimant to various medical practitioners and Medical Assessors, including Medical Assessor Mason.
At [45]-[54] the insurer makes submissions that address the PIRS, and argues that the claimant has demonstrated gross inconsistency in presentation which must be considered in the context of the psychological symptoms alleged to be causally related to the accident. The insurer submits there is no impairment in each area of function and the claimant, contrary to the history provided, is able to carry out usual daily activities and work activities, “consistent with the video surveillance”.
The insurer submits that the claimant’s presentation at medical assessments, including: not being able to move his right arm or shrug; walking with a limp so that he dragged his foot; reporting that he was not able to leave his house at all; that he relied on a friend to do his shopping and bring him food; is contrary to the fact that he has continued to operate a painting business since the accident (as shown in the tax summary), and contrary to his ability to undertake the activities he is seen performing in the surveillance.

Claimant’s submissions

At the case management conference on 4 December 2023, it was confirmed that the only written submissions the claimant relies on in the review are those dated 1 December 2022 and 7 September 2023.
The claimant’s submissions dated 1 December 2022 are directed to s 7.26(2) and (5) of the MAI Act. The claimant argues that Medical Assessor Mason’s assessment and comments were “entirely correct”, including his PIRS assessment. He takes issue with the insurer’s submissions directed to the reliability of his evidence, and disputes the relevance of Medical Assessor Home’s reasons dated 26 June 2022.
It is argued that the insurer has failed to establish any inconsistency with the surveillance footage that affects Assessor Mason’s determination, and that the surveillance footage neither demonstrates nor depicts his “emotions/feelings and psychological injury”. It is submitted that the surveillance footage is out of date, is not a true reflection of his condition at the time of the assessment undertaken by the Medical Assessor, and that the footage would only establish physical inconsistencies, not psychological inconsistencies, as it would not be capable of revealing the claimant’s psychological injury. Further, it is argued that the claimant’s condition has deteriorated since the time the surveillance footage was obtained.
In written submissions dated 7 September 2023, the claimant again argues that the surveillance relied on by the insurer is irrelevant to the assessment. It is submitted that it is “difficult to comprehend how video surveillance is able to identify whether [he] is emotionally suffering from Major Depression”; that the surveillance footage has not identified any issues in contradiction to Assessor Mason’s certificate; and the footage does not depict the claimant not suffering Major Depression. Further, it is argued that whilst the surveillance footage has identified the claimant being active, the Panel should review “the entirety of the surveillance footage to determine the dispute of psychological injuries and not be misled or misguided by the insurer’s submissions of [his] physical activity.”

The claimant argues that the surveillance on 20 September 2022 only depicts him washing his vehicle which, it is submitted, has little relevance as to whether he is suffering Major Depression.
The claimant also disputes the insurer’s allegation of gross inconsistencies, argues that the insurer’s submissions in relation to his physical injuries are irrelevant, and that the insurer’s analysis and reliance on “old medical records and documents from 2018 to 2021 should not have any weight to represent inconsistency if the claimant’s condition had improved physically at the time of the assessment on 28 October 2022”.
It is submitted that Medical Assessor Mason’s assessment should not be referred to a review panel, that the President should be satisfied that there is no reasonable cause to suspect that the medical assessment was incorrect in a material respect, and that the insurer’s application should be dismissed. These submissions were made despite the fact that the President’s delegate had found, on 13 December 2022, that there was reasonable cause to suspect that the medical assessment of Medical Assessor Mason was incorrect in a material respect, and referred the assessment to the Panel for review. Further, the review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) MAI Act.

RE-EXAMINATION

Who attended the assessment.

The claimant attended the assessment alone, via videoconference (MS Teams). The assessment was conducted by Medical Assessors Baker and Hong (Medical Assessors) on 23 February 2024 and 27 March 2024. A competent Mandarin to English speaking interpreter attended each assessment, the claimant’s primary language being Mandarin Chinese.

Surveillance

The surveillance footage from 20 September 2022 was shown to the claimant, who was able to identify himself in the footage. The claimant provided the following explanation of the behaviour documented in the footage: he said he was living outside of the house where his ex-wife lived. He was only about 10 minutes walk from her house. He had on the day of the surveillance taken his analgesic medication and gone for a walk in the nearby park. His ex-wife approached him whilst he was in the park and asked him to assist with washing her cars, and he obliged.
The claimant was informed that he had static surveillance taken of his movements. He said he was aware of the photography of him. The claimant was, by way of example, asked about a photograph that showed him holding a hose. He confirmed that it was him holding the hose.

History

Psychosocial history and pre-accident history

The claimant said he was 68 years old. He is in receipt of the aged pension. He arrived in Australia for the first time in 1996. He lived alone in rented accommodation. He left the house where his second wife lived in about February 2022, his second wife having lodged a complaint to the local police about the claimant’s behaviour since the accident.
The claimant confirmed that the process of divorce from his second wife was ongoing. Her complaint about domestic violence did not result in any criminal matter proceeding to the court. He left the house and has lived alone in a two-bedroom rented apartment since February 2022. There is no expectation of reconciliation.
The claimant confirmed that his second wife was the owner of the painting company that he had worked in as an employee. He said he had not worked as a painter since the accident.
The claimant reported he first married in 1981 and subsequently divorced in 2001. He had a son to this union. He had little contact with his first wife and son. The claimant said he had a sister living in Sydney and she would visit him.
The claimant confirmed that he was not exposed to any childhood trauma, abuse or neglect. He said both his parents were deceased. He said he was the second child of four children. The claimant’s highest level of education was a bachelor’s degree in Chinese language and literature. The degree enabled him to have a career working in the government as an office worker.
Prior to the accident the claimant lived with his second wife. He worked as a painter. He organised work crews and painted himself. He was happy in the marriage and the business was successful in supporting the couple’s needs.
The claimant reported that he did not have any legal problems prior to the accident. He said he would drink a glass of wine with his evening meal with his wife. He reported that he does not smoke tobacco. He was not allergic to any medication and he did not gamble.
The claimant stopped his consumption of alcohol in about 2021 due to the risk of interaction with his analgesic treatment. He said he had also sought the advice and support of his local Buddhist monk. The claimant received his western medication from a Chinese pharmacy that would provide traditional simplified Chinese instruction on the usage of the medication prescribed by his general practitioner.

History of the motor accident

The claimant reported that he was the driver and only occupant of his car, and that he was returning home from work when the accident happened. He was waiting to turn left and was stationary. There was a car in front of him. Unexpectedly, a car behind him failed to stop and struck the rear of his vehicle. He said he was in shock and said the experience was like “an earthquake”. He moved his car out of the carriage way and the two drivers exchanged details. The claimant then notified his wife, who came to assist him travelling home. No police or ambulance services were called.

History of symptoms and treatment following the motor accident

The claimant stated he had difficulty with pain in his right shoulder, neck, spine and elbows. He said he had to ask a number of general practitioners before he found his general practitioner Dr Lam. She organised his medical treatment. He was assessed and recommended to have surgical treatment to his right shoulder by an orthopaedic surgeon. The claimant was unable to afford the cost of surgery and the insurer declined to pay. The surgery was not completed.
The claimant said he had trialled a number of different pain medications. His pain medication at the time of this assessment was Celebrex 200mg in the morning. He experienced a commonly known gastric side effect from this medication. He was prescribed medication that relieved the dyspepsia.
The claimant reported suffering from the following psychological symptoms after the accident for the first time. He said that his mood became depressed. He felt depressed and worthless most days. He would have angry outbursts as his condition did not improve. His sleep was poor with initial insomnia. He lacked energy and would easily fatigue. He reported he had suicidal thoughts. He had sought guidance from a Buddhist monk who provided advice regarding the effects of suicide on him and his family.
The claimant reported that he had suffered from panic with difficulty breathing, chest pain and fear he was having a heart attack. At the time of his most recent panic he tried to telephone his ex-wife and friends. No one answered his call. He said, “I have no purpose living.”
The claimant reported that his energy level was low. His libido was low. He reported he had lost interest and lacked the energy to work. He had arguments with his wife. They separated after she reported him to the police.
The claimant reported that he had not been admitted to a psychiatric hospital. He did attend his general practitioner with whom he had good rapport. The claimant said his general practitioner had initially prescribed escitalopram 10mg for his depressive disorder. The antidepressant was not successful in improving his mood. He was changed to Duloxetine initially 30mg, then 60mg each morning. He had quetiapine 25mg to 50mg prescribed for insomnia. He said he continued to suffer from early morning wakening with the antidepressant medication. His usual length of sleep was two to three hours. He had low energy and fatigue due to his early morning wakening. He was not interested in any social or recreational activities since the motor accident.

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

The claimant reported that he had no other injuries or conditions sustained since the accident.

Current symptoms

The claimant was asked open questions regarding his psychological condition. He said that he gradually developed a deterioration in his mental state. He became depressed and increasingly irritable in his mood. He suffered from poor sleep, waking frequently at night, he felt always depressed. The claimant had low energy with feelings of exhaustion most days. He reported suffering from insomnia, sleeping short periods of two to three hours. He reported he was irritable and had separated from his wife due to his loss of intimacy in the marriage and increased arguments. The claimant had reported past symptoms of suicidal thought. He reported his sister brought him food as he was not interested in cooking. The claimant had periods of improvement in his persistent depressed mood and periods of deterioration.
The Medical Assessors were aware that the diagnosis made by Medical Assessor Mason as part of his assessment of the claimant in 2022 was Major Depressive Disorder, and the diagnosis of Persistent Depressive Disorder with Anxious Distress arising in the context of chronic pain made by Dr Virgona as documented in his report.
Review of the medical records demonstrated that there was a division in the diagnostic opinion between the psychiatric assessments and the treating psychologist reports. The provisional psychologist Ms Ada Wong first attended the claimant on 28 August 2018 in her Burwood rooms. The Chinese version of DASS-21 was performed. The claimant self-reported experiencing extreme levels of depression, anxiety and stress. The provisional psychologist noted that the claimant was anxious and wandering the street having difficulty finding the psychologist rooms on the third visit. The psychologist endorses a diagnosis of Post-Traumatic Stress Disorder DSM5TR F43.10 in her 12 November 2018 report. Whilst the Chinese version of the DASS-21 was reported as having been endorsed with “extreme depression” this aspect of the claimant’s condition was not commented on further in the report. Further, the provisional psychologist had not provided an evaluation of the severity of the motor accident and this resulted in criterion A for post-traumatic stress disorder having not been assessed as to the eligibility of the motor accident trauma to meet the criteria of experienced severe injury.
The diagnosis of post-traumatic stress disorder, made by the provisional psychologist, appeared not to have been reviewed by a supervising psychologist prior to forwarding[3].
[3] Joint bundle pages 122-129.
The Future Fit report dated 3 April 2019 records, under the heading “Psychosocial factors”, that the psychological symptoms the claimant reported were poor sleep hygiene, low mood/ depression and feelings of frustration. The claimant is reported to have indicated that he preferred to be busy and felt that he is no longer busy, and that his psychological symptoms have worsened.[4]
[4] Joint bundle page 132.
In the section “Injury History and Return to work” the claimant is reported to have advised Ms Joseski, rehabilitation consultant, that there were “limited suitable duties available due to the nature of the job, he did however gradually return to managerial and administrative duties on average 20 hours per week since August 2018.”[5] The general practitioner advised that the claimant had capacity for some type of employment six hours a day, four days per week.
[5] Joint bundle page 131.
After transfer from the provisional psychologist to Mr Li, psychologist, the focus of the documentation was about the diagnosis of post-traumatic stress disorder. Close and careful reading of the clinical record provided by Mr Li was first noted in Medical Assessor Mason’s reasons dated 28 October 2022, in which he recorded:
“He [the claimant] said Mr Li [the psychologist] talked a lot, but it did not help much. Mr Li was able to speak only a little Mandarin and used an interpreter for sessions. I asked what symptoms he had reported to Mr Hansen Li and he said he told him he could not sleep and he was in a bad mood. He said he had a very heavy feeling in his chest, which he felt like a rock.”
The primary concern from the psychologist was in relation to post-traumatic stress disorder. Reading the record provided by the psychologist there is no further evidence that the claimant was exposed to a criterion A stressor. Whilst the claimant had been previously diagnosed with post-traumatic stress disorder there was no identifiable new information in the record to confirm the first diagnostic requirement of a criterion A stressor for post-traumatic stress disorder using DSM5TR code F43.10.
Mr Li’s records provide evidence of the claimant having spoken to the psychologist about depressive symptoms. In this regard, the following depressive symptoms are recorded:[6]
[6] Joint bundle pages 160-199.
·        wife keeps accusing him of being depressed;
·        was quite annoyed wife told others about his mood;
·        reported sleeping a lot to avoid overly negative thoughts;
·        feels extremely terrible;
·        reported the medication is a strong sedative;
·        reporting of suicidal thoughts;
·        multiple (suicidal thoughts) over the last few weeks;
·        has reported he would do it;
·        feels overdosing on sleeping medications or hanging would work;
·        general practitioner contacted and phone number for lifeline given;
·        wife accused him of being crazy;
·        sleeping two to three hours a night;
·        broken sleep;
·        still having sleeping issues;
·        sleeps three hours a night;
·        often falling asleep due to exhaustion during breakfast, and
·        feels too exhausted to argue with his wife.
The repeated history the claimant provided about complaints from his wife is clinically more in keeping with the clinical phenomena of negative attribution commonly seen in depressive disorders.
The Medical Assessors proceeded with extreme caution in the assessment of the claimant’s diagnosis at the time of this assessment. The claimant was asked open questions regarding his psychological condition. The claimant in his responses to questions did not provide the minimum necessary criteria for a diagnosis of post-traumatic stress disorder DSM5TR F43.1.
The severity of the accident as reported by the claimant at this assessment did not meet eligibility for the confirmation of a criterion A post-traumatic stress disorder DSM5TR code F43.10 stressor. This is supported by the immediate behaviour of the claimant at the scene of the accident. The priority of the people, including the claimant at the time, was to clear the carriage way of the car by the claimant, and exchange details with the other driver. The claimant then rang his wife for assistance with transport. No police or ambulance were called. The claimant went to his general practitioner on the same day and saw Dr Lam. The incident was recorded as a truck running into the claimant’s car boot. The claimant bumped his head on the head rest. The claimant complained of neck pain. He gradually developed deterioration in his mental state with increased irritability, poor sleep, always being depressed, recurrent suicidal thoughts, low energy with feelings of exhaustion in the morning.
Exercising their clinical judgement, the Medical Assessors determined that the claimant’s psychological symptoms satisfied the diagnosis of Persistent Depressive Disorder DSM5TR code F34.1. The use of this diagnosis is due to the improvement in the mental state and functioning seen since Medical Assessor Mason assessed the claimant in 2022. The depressive disorder assessed at the time of this assessment did not meet criteria for DSM5TR code F32.0 major depressive disorder. The variation in the severity of symptoms and the use of the surveillance information demonstrated a depressive disorder more in keeping with Persistent Depressive Disorder DSM5TR code F34.1.

A. Depressed mood for most of the day, for more days than not, as indicated by either subjective account or observation by others, for at least 2 years.
In addition to the claimant’s subjective account of his symptoms, that the Medical Assessors accepted, there are also consistent complaints of psychological symptoms in the Campsie Centre Medical Clinic records. The first complaints of this nature were recorded on 12 July 2018, at which time reference was made to “shocking” anxiety. On 1 August 2018 and 23 September 2018 the notes record “showing depression mood”, “anxiety and depression symptoms”. There are similar complaints recorded on 8 November 2018, 10 January 2019, 7 March 2019, 21 May 2019, 2 June 2019. The 2 June 2019 note appears to be the last attendance. Dr Lam’s clinical records also refer to psychological symptoms (for example “shock”, “PTSD”, “feeling anxious, distressed”, “deterioration in depression”) being recorded by the doctor from 25 June 2019 – 23 June 2021. Further, there are the notes of Mr Li, psychologist, that record symptoms consistent with depression.
B. Presence, while depressed, of two (or more) of the following:
1. Poor appetite or overeating.
2. Insomnia or hypersomnia.
As evidenced by initial and terminal insomnia (early morning wakening at 2 to 3 hours after initiating sleep), that required ongoing treatment with prescribed quetiapine 25mg to 50mg at night.
3. Low energy or fatigue.
As reported by the claimant and evidenced by Mr Li documenting “Feels… exhausted to argue with his wife…Often falling asleep due to exhaustion during breakfast.”
4. Low self-esteem.
5. Poor concentration or difficulty making decisions.
6. Feelings of hopelessness.
As evidenced by the claimant’s distressed, irritable, angry and disorganised behaviour with recurrent suicidal ideation of such severity that Mr Li psychologist notified his medical practitioner and provided the claimant with the emergency support number to Lifeline.

C.      During the 2-year period of the disturbance, the individual has never been without the symptoms in Criteria A and B for more than 2 months at a time.
As evidenced by the claimant’s reported symptoms, and his continued attendance with his general practitioner, Mr Li, psychologist, and a Buddhist monk who provided support, spiritual advice and traditional Chinese medication.
D.      Criteria for a major depressive disorder may be continuously present for 2 years.
The Medical Assessors did not endorse this criterion as the claimant was not demonstrating all of the necessary symptoms to meet DSM5TR code F32.0 major depressive disorder criteria.
E.      There has never been a manic episode or a hypomanic episode, and criteria have never been met for cyclothymic disorder.
As evidenced by the absence of these conditions in the medical records.
F.      The disturbance is not better explained by a persistent schizoaffective disorder, schizophrenia, delusional disorder, or other specified or unspecified schizophrenia spectrum and other psychotic disorder.
As evidenced by the absence of these conditions in the medical records.
G.     The symptoms are not attributable to the physiological effects of a substance (e.g., a drug of abuse, a medication) or another medical condition (e.g. hypothyroidism).
As evidenced by the absence of these conditions in the medical records.
H.      The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
As evidenced by the claimant’s reported symptoms, the separation from his second wife, and the difficulties in his relationship with his second wife that are recorded in the treating records, including the psychologist Mr Li’s notes.

Current and proposed treatment

The claimant reported that he continued to attend for follow-up treatment with his general practitioner. He reported a strong rapport with this clinician. The use of pharmacotherapy including the evidence-based antidepressant Duloxetine 60mg daily and Quetiapine 25mg to 50mg at night.
The claimant also received traditional medicine from a Buddhist monk. He had three different dispensed treatments with instruction only to use the small spherical pellets when his depressed mood was very bad.

CLINICAL EXAMINATION

Mental state examination

The claimant was seated alone. He was assessed by videoconference. He was irritable during the initial part of the assessment. Rapport was difficult to establish and required active maintenance throughout the assessment to enable the claimant to speak freely about his experiences related to the accident. He spoke slowly and deliberately. He was unkempt.
The claimant remained angry and depressed in his mood. He was orientated in time, place and person. He complained of difficulty concentrating for long periods. He had lost interest in reading novels and literature in Mandarin.
The claimant was labile in his affect and was tearful during the assessment. He did not report any self-harm ideas or plans at the time of this assessment. He did describe ideas of hopelessness and worthlessness. He said his life had no purpose. He said he had accepted the advice of his Buddhist monk and had no plan to complete suicide. His judgment was normal. His insight was normal. He did not report any psychotic symptoms or delusions.

Current functioning

The claimant’s current functioning was as follows:

Selfcare and personal hygiene

The claimant relied on his sister to cook food and bring it to him most days. He could live independently at the time of this assessment. He did shower and tidy his unit. His sister did the daily activities of cleaning and laundry. He looked unkempt at the time of this assessment. He said he could order food for himself. He was not interested in his diet. He stated he was able to maintain a minimum standard of self-care and personal hygiene independently. He was assessed as having a minor class 1 impairment.

Social and recreational activities

The claimant rarely attends social and recreational events. Prior to the accident he was able to attend social and recreational events alone. In the medical records he was reported in 2021 to have attended a Moon Festival alone. In September 2023 he was unable to attend his extended family’s social event. He said he could not attend due to not been able to explain why he has not recovered from his psychological injury. He was unable to accept the support of his sister should he go out to this type of festival. He was too irritable would be distressed and was not able to go out and enjoy festivals or other recreational events that had given joy and happiness prior to the injury. Exercising their clinical judgment, the Medical Assessors assessed the claimant as having a moderate class 3 impairment.

Travel

The claimant was observed to drive a car and manoeuvre cars between different parking locations whilst cleaning the cars as shown in surveillance footage created in 2022. The claimant reported that he had restrictions driving due to the pain he experienced in his dominant right hand. He is restricted in his travel due to pain not his psychological injury. The restriction due to pain was not included in the PIRS assessment.
The claimant was able to travel independently. This was assessed as a class 1 minor impairment.

Social functioning

The claimant separated from his second wife in February 2022. There had been no reconciliation. The claimant said he is compliant with his ex-wife’s requests such as washing the car as he fears she would call the police if he said no. The claimant said he had lost friends. They no longer answer his calls when he is alone and distressed. The claimant had experienced some marital discord prior to the injury. Each period of prior marital discord was resolved without divorce and continuation of all the claimant’s activities of independent living. The contribution of the psychological injury caused by the accident, whilst not the sole cause of the marital discord, aggravated the claimant’s marriage to such an extent his now ex-wife demanded he leave the family home as he was always depressed. The actual date of separation was after the onset of the psychological injury and more than 2 years after the accident. The claimant is now living in rented accommodation outside the marital home. There had been no reconciliation prior to this examination. The Medical Assessors, exercising their professional judgement, assessed this as a class 3 moderate level of impairment.

Concentration, persistence and pace

The claimant reported he could not concentrate or persist with complex tasks such as reading traditional Chinese text. He said he would stop reading after about 20 minutes. He said he no longer read newspapers as he had lost interest with current affairs or news. He was able to concentrate during the assessment for periods up to about 20 minutes prior to requiring short breaks. He was assessed as having a mild class 2 impairment.

Adaptation

The claimant told the Medical Assessors that he is no longer working as a painter. It is documented in the medical records that he had worked in 2018 as a supervisor on a part time schedule. At the re-examination the claimant reported that in 2018 he returned to a supervising role with the same employer. Due to his ongoing depressed mood he was not able to persist in his work role for less than 20 hours per week. He had deteriorated in his capacity to adjust to his psychological injury.
The claimant was able to attend and supervise workers. He would fatigue due to his low energy and his lack of interest due to his depressed mood. The claimant’s fatigue was noted to be in the mornings after a night of poor sleep. The inability to work in the mornings is likely to have significantly impaired his capacity to work normal fulltime hours of employment. These psychological symptoms due to the psychological injury impaired his capacity to work.
The claimant is now 68 years of age. Despite the conflict with his wife, it appears from the tax records that the claimant continued to be involved in the company (Sunlight) after the accident. The involvement is reflected in the summary of his personal income tax returns for 2018, 2020, 2021 and 2022 that is relied on by the insurer. There is the surveillance (footage and static), and the continuing involvement in the business as recorded by other Medical Assessors. For example, Medical Assessor Menogue, in his reasons dated 27 November 2018, recorded a history that while the claimant stated he had not worked since the accident, he visited the worksites where painting was taking place. The claimant was reported to supervise other painters, and that there were three employees working for the company. Further, the claimant is reported to have stated that “his business is as busy as it was, however he does not draw an income from painting per se but more so for managing the business.” Medical Assessor Gorman’s assessment dated 18 March 2021 also described the claimant visiting worksites and supervising three employees.
The Medical Assessors have taken all of these matters into consideration and find that at the time of this assessment the class of impairment that described the claimant’s current functioning was class 3, a moderate impairment. The assessment of a moderate impairment is supported by the fluctuation in the claimant’s capacity to work as a supervisor compared to his past capacity to function in a dual role as a painter and supervisor.

Comments of consistency

The claimant identified himself in the surveillance footage. He said he was fearful of his wife calling police should he not perform the required task of washing the cars. The marital relationship with his second wife remained permanently impaired at the time of this assessment. They were separated and lived in two different dwellings. The claimant had reported wanting to divorce prior to the surveillance being completed. The claimant explained he had used his daily analgesic medication prior to washing the cars, and that he only washed the cars so as to avoid complaints from his ex-wife.
The Medical Assessors were cognisant of the medical reports, including reasons of other Medical Assessors, in which the claimant reported physical restrictions and limitations that are not consistent with the activities he is seen to perform in the surveillance. The Medical Assessors took into consideration the insurer’s submissions with respect to the claimant’s reliability and credit. The Medical Assessors note that in the clinical setting patients with persistent depressive disorder frequently present with recurrent somatic complaints such as pain, that are frequently not able to be objectively verified. The Medical Assessors were aware of the limitations of the cross sectional nature of the assessment, the variable language skills of clinicians tasked with assisting the claimant as well as other factors specific to assessment of cultural expressions of pain and stigma associated with psychological illness.
The Medical Assessors separated the pain reports from the symptoms of depression. They concluded that neither Medical Assessor Mason nor Dr Virgona had separated the depressive condition diagnosed from the pain.
The mental state examination observations of Medical Assessor Mason and Dr Virgona demonstrated that the claimant was more depressed about the time when he was assessed by Medical Assessor Mason than at the time he was assessed by Dr Virgona. Such fluctuations observed in clinical presentation in clinical psychiatric assessment are common.
The Medical Assessors separated the symptoms of anxious distress from the symptoms of a definable DSM5TR condition in compliance with the Guidelines.

Diagnosis and reasons

The Medical Assessors were of the opinion that the best diagnosis that provided a complete understanding of the claimant’s psychological presentation at the time of this assessment and that could be supported by the medical record viewed over the entire period since the accident was Persistent Depressive Disorder DSM5TR code F34.1.
The claimant provided a history of his life and circumstances prior to, and subsequent to, the accident, similar to that provided to other practitioners.
The claimant was able to identify that his current antidepressant medication improved his mood. He remained fearful of his wife as she had notified police about his disorganised behaviour whilst ill.
The Medical Assessors have not included any loss of functioning due to physical injury or pain into the assessment of psychiatric whole person impairment. The claimant is now in receipt of the aged pension. The assessment of adaptation does not include the claimant’s loss of functioning due to age related factors.
Additional reasons in support of the conclusion that the diagnostic criteria for Persistent Depressive Disorder is satisfied have been provided earlier.

Causation and reasons

The Medical Assessors determined that the accident could have caused the Persistent Depressive Disorder, and consequential impairment.
The claimant had not suffered from any psychiatric condition prior to the accident. While there was some marital discord prior to the accident, he has experienced constant verbal disagreements and increased marital discord since, and that were exacerbated by, the accident. After the accident the first record of “yelling” and marital discord due to his depressed mood was the claimant’s reporting on 23 September 2020 when he saw Dr Lam. On that occasion, Dr Lam noted a worsening of mental health symptoms with the claimant becoming irritable in his mood and that he “[f]inds self losing temper over very small things.” The claimant is reported to have angry outbursts and that he was shouting at his now ex-wife. The claimant reports feelings of guilt commonly associated with depressive disorders such as persistent depressive disorder. The medical practitioner documents “V low mood”. The claimant is described as diligent in his attendance at his psychologist. The medical practitioner reports that mirtazapine, an antidepressant medication, has failed to improve the claimant’s persistently depressed mood over two years since the motor accident in February 2018. The claimant’s mental state continues to decline. Due to the psychological symptoms the claimant’s ex-wife demanded that he leave the house in about February 2022.
Applying their clinical judgement, the Medical Assessors are satisfied that the accident did cause the claimant to develop Persistent Depressive Disorder. There is no history of the claimant suffering from this condition, or associated symptoms, prior to the accident. The claimant first complained of symptoms five months after the accident. The onset of the persistent depressive disorder was initially noted by the treating medical practitioners who identified depression with anxiety in the referral to the psychologist. Dr Lam noted on 8 November 2018 that the claimant suffered from anxiety and depression. There are other reports throughout the file including: “[he] has had severe deterioration in depression”[7], concerns regarding depression[8] and the referral to Hansen Li. Depression, Anxiety and Stress Scale (DASS-21; Chinese version) indicated BMO experienced extreme levels of Depression).[9]
[7] Joint bundle page 231.
[8] Joint bundle page 197.
[9] Joint bundle page 122.
The claimant has continued to report symptoms of depression in his presentation after the accident. He had sought both Chinese medicine and western medicine as well as spiritual advice from a Buddhist monk who also provided medication for very bad depressed mood. He has sought and been provided with treatment, including medication. Exercising their judgment, the Medical Assessors accept the claimant’s reported depressive symptoms as being present and persistent in nature.

Summary of injuries referred by the parties.

The following injury was caused by the motor accident:
Persistent Depressive Disorder DSM5TR code F34.1.

PERMANENCY OF IMPAIRMENT

Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (page 315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
The claimant’s condition had become permanent and is unlikely to improve for any reason with or without medical, psychological or other interventions. He was injured in 2018. The claimant’s psychological injury is now permanent.

Degree of permanent impairment PIRS

The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.

Psychiatric diagnoses Persistent depressive disorder DSM5TR code F34.1.

Psychiatric treatment description The claimant received evidence based psychiatric treatment from his general practitioner as well as psychological treatment for this psychological injury.

Category Class Reason for Decision

1. Self-Care and Personal Hygiene 1 The claimant relied on his sister to cook food and bring it to him most days. He could live independently at the time of this assessment. He did shower and tidy his unit. His sister did the daily activities of cleaning and laundry. He looked unkempt at the time of this assessment. He said he could order food for himself. He was not interested in his diet. He stated he was able to maintain a minimum standard of self-care and personal hygiene independently. He was assessed as having a minor class 1 impairment.

2. Social and Recreational Activities

3

The claimant rarely attends social and recreational events. Prior to the accident he was able to attend social and recreational events alone. In the medical records he was reported in 2021 to have attended a Moon Festival alone. In September 2023 he was unable to attend his extended family’s social event. He said he could not attend due to not being able to explain why he has not recovered from his psychological injury. He was unable to accept the support of his sister should he go out to this type of festival. He was too irritable, would be distressed, and was not able to go out and enjoy festivals or other recreational events that had given him joy and happiness prior to the injury. The claimant was assessed as having a moderate class 3 impairment.

3. Travel
1 The claimant was able to travel independently. This was assessed as a minor class 1 impairment.

4. Social Functioning
3 The claimant had separated from his second wife in February 2022. There had been no reconciliation. The claimant said he is compliant with his ex-wife’s requests such as washing the car as he fears she would call the police if he said no. The claimant said he had lost friends. They no longer answer his calls. There is marked deterioration in his relationship with his wife and the relationship is severely strained as evidenced by their separation and living in separate homes. There are multiple complaints regarding marital discord throughout the psychologist’s clinical record, including the marriage deteriorating after the motor accident. This area of function was assessed as a class 3 moderate impairment.

5. Concentration, Persistence and Pace 2 The claimant reported he could not concentrate or persist with complex tasks such as reading traditional Chinese text. He said he would stop reading after about 20 minutes. He said he no longer read newspapers as he had lost interest with current affairs or news.

6. Adaptation
3 The claimant told the Medical Assessors that he is no longer working as a painter. It is documented in the medical records that he had worked in 2018 as a supervisor on a part time schedule. At the time of this re-examination the claimant reported that in 2018 he returned to a supervising role in the business. Due to his ongoing depressed mood he was not able to persist in his work role. He had deteriorated in his capacity to adjust to his psychological injury.
The claimant was able to attend and supervise workers. He would fatigue due to his low energy and his lack of interest due to his depressed mood. The claimant’s fatigue was noted to be in the mornings after a night of poor sleep. The inability to work in the mornings is likely to have significantly impaired his capacity to work normal fulltime hours of employment. The psychological symptoms due to the psychological injury have impaired his capacity to work. Noting that the claimant has stopped working, consideration has been given to his pre-accident role and a work-like setting. It is considered that due to his depressive disorder he could not work in his pre-accident role and could not work full time. He may be able to work in a different position for less than 20 hours a week.
The Medical Assessors have taken all of these matters into consideration and find that at the time of this assessment the class of impairment that described the claimant’s current functioning was class 3, a moderate impairment.

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

Median Class Value: 3

Aggregate Score: 13

% Whole Person Impairment: 11%
*%WPI ^{= Percentage Whole Person Impairment}
Apportionment – pre-existing/subsequent impairment

The Medical Assessors determined that there is no pre-existing psychological condition. No apportionment for pre-existing condition was made.

Effects of treatment

The claimant had received psychiatric treatment. He also received psychological counselling. The effects of treatment had not placed the psychological injury into remission. No adjustment for treatment effects has been made.

CONCLUSION – PERMANENT IMPAIRMENT

Degree of permanent impairment caused by the motor accident = 11%.

DETERMINATION

The insurer has squarely put the claimant’s credit and reliability in issue; its submissions record that the main controversy is the “gross” inconsistency between the claimant’s presentation to medical practitioners and Medical Assessors and the surveillance.
The Panel is satisfied that physical limitations reported by the claimant to medical practitioners, and his physical presentation when examined by those practitioners, are not consistent with the activities he is seen performing in the surveillance.
The Panel is cognisant that the surveillance footage was recorded approximately three months before the claimant was assessed by Medical Assessor Home. The Panel has compared the findings of Medical Assessor Home, including those under the headings “Current symptoms” and “Activities of Daily Living”, together with his examination findings, with the activities the claimant is seen undertaking in the surveillance. Likewise, the Panel has taken into consideration the history and symptoms recorded by Medical Assessor Mason following his assessment of the claimant on 25 October 2022. The Panel notes that the static surveillance, and related images, were captured on 22, 23 and 24 October 2022, days before Medical Assessor Mason assessed the claimant.
The accident occurred six years ago. The surveillance footage lasts for a little over an hour, and was recorded on a single day in September 2022. The static surveillance images were captured over four days in a single week in October 2022. While the Panel has given the surveillance weight, it has taken into account the whole of the evidence when arriving at its findings with respect to diagnosis, causation, and impairment.
The Panel notes that the claimant’s tax records indicate that he received income from Sunlight for the years 2018, 2020, 2021, and 2022. As to whether this income was the result of the claimant working in some capacity, or as a result of the tax arrangements as between the claimant and his wife, the Panel is not in a position to make findings.
Because diagnosing a psychological condition is predominantly subjective, acceptance or otherwise of the history and symptoms provided by the claimant is critical, particularly where the claimant carries the onus of establishing that he has a psychological condition that was caused by, or materially contributed to by, the accident.
The Panel has approached the history and symptoms reported by the claimant to the Medical Assessors when they re-examined him with care, and has sought to validate his subjective complaints against the other evidence available.
On the basis of:
(a)    the claimant’s reported symptoms and history provided by him when he was assessed by Medical Assessors Hong and Baker on two occasions (23 February 2024 and 27 March 2024);
(b)    the professional judgment of the Medical Assessors, together with their findings and conclusions recorded earlier in these reasons, and
(c)    the complaints recorded since the accident by treatment providers, including Mr Li, Dr Zeng and Dr Lam
the Panel is satisfied, on the balance of probabilities, that the claimant does suffer symptoms that support a diagnosis of Persistent Depressive Disorder.
The Panel finds that, for the following reasons, but for the accident, the claimant would not have developed Persistent Depressive Disorder and consequential impairment:
(a)    there was no pre-accident history of the claimant suffering from this psychological or psychiatric condition;
(b)    the claimant reported depressive symptoms within five months of the accident and has continued to report symptoms since that time;
(c)    the claimant has sought and been provided treatment for that condition;
(d)    the accident could have caused the condition and impairment, and
(e)    the Medical Assessors on the Panel determined that he suffers from that condition and consequential impairment.
The Panel finds, on the balance of probabilities, that the accident caused the Persistent Depressive Disorder.
The Panel notes that the clinical judgement of the Medical Assessors, both of whom are psychiatrists, is the most important tool in the application of the psychiatric impairment scale (PIRS): cl 6.217 Guidelines. The Panel also notes that the evaluation of impairment should only consider the impairment as it is at the time of the assessment: cl 6.21 Guidelines. The Panel adopts the precise examination findings and conclusions of the Medical Assessors based on their examination of the claimant, and the specific findings pertaining to PIRS ratings, and permanent impairment.
The Panel finds that the accident caused a Persistent Depressive Disorder that gives rise to an 11% permanent impairment. The Panel therefore finds that the claimant’s permanent impairment that resulted from this injury is greater than 10%. Because the Panel has made different findings to Medical Assessor Mason with respect to the diagnosis of the claimant’s injury and permanent impairment we have revoked the Medical Assessor’s certificate and issued a new certificate.

Psychiatric diagnoses	Persistent depressive disorder DSM5TR code F34.1.
Psychiatric treatment description	The claimant received evidence based psychiatric treatment from his general practitioner as well as psychological treatment for this psychological injury.

Category	Class	Reason for Decision
1. Self-Care and Personal Hygiene	1	The claimant relied on his sister to cook food and bring it to him most days. He could live independently at the time of this assessment. He did shower and tidy his unit. His sister did the daily activities of cleaning and laundry. He looked unkempt at the time of this assessment. He said he could order food for himself. He was not interested in his diet. He stated he was able to maintain a minimum standard of self-care and personal hygiene independently. He was assessed as having a minor class 1 impairment.
2. Social and Recreational Activities	3	The claimant rarely attends social and recreational events. Prior to the accident he was able to attend social and recreational events alone. In the medical records he was reported in 2021 to have attended a Moon Festival alone. In September 2023 he was unable to attend his extended family’s social event. He said he could not attend due to not being able to explain why he has not recovered from his psychological injury. He was unable to accept the support of his sister should he go out to this type of festival. He was too irritable, would be distressed, and was not able to go out and enjoy festivals or other recreational events that had given him joy and happiness prior to the injury. The claimant was assessed as having a moderate class 3 impairment.
3. Travel	1	The claimant was able to travel independently. This was assessed as a minor class 1 impairment.
4. Social Functioning	3	The claimant had separated from his second wife in February 2022. There had been no reconciliation. The claimant said he is compliant with his ex-wife’s requests such as washing the car as he fears she would call the police if he said no. The claimant said he had lost friends. They no longer answer his calls. There is marked deterioration in his relationship with his wife and the relationship is severely strained as evidenced by their separation and living in separate homes. There are multiple complaints regarding marital discord throughout the psychologist’s clinical record, including the marriage deteriorating after the motor accident. This area of function was assessed as a class 3 moderate impairment.
5. Concentration, Persistence and Pace	2	The claimant reported he could not concentrate or persist with complex tasks such as reading traditional Chinese text. He said he would stop reading after about 20 minutes. He said he no longer read newspapers as he had lost interest with current affairs or news.
6. Adaptation	3	The claimant told the Medical Assessors that he is no longer working as a painter. It is documented in the medical records that he had worked in 2018 as a supervisor on a part time schedule. At the time of this re-examination the claimant reported that in 2018 he returned to a supervising role in the business. Due to his ongoing depressed mood he was not able to persist in his work role. He had deteriorated in his capacity to adjust to his psychological injury. The claimant was able to attend and supervise workers. He would fatigue due to his low energy and his lack of interest due to his depressed mood. The claimant’s fatigue was noted to be in the mornings after a night of poor sleep. The inability to work in the mornings is likely to have significantly impaired his capacity to work normal fulltime hours of employment. The psychological symptoms due to the psychological injury have impaired his capacity to work. Noting that the claimant has stopped working, consideration has been given to his pre-accident role and a work-like setting. It is considered that due to his depressive disorder he could not work in his pre-accident role and could not work full time. He may be able to work in a different position for less than 20 hours a week. The Medical Assessors have taken all of these matters into consideration and find that at the time of this assessment the class of impairment that described the claimant’s current functioning was class 3, a moderate impairment.
List classes in ascending order: 1,1,2,3,3,3
Median Class Value: 3
Aggregate Score: 13
% Whole Person Impairment: 11%

[2024] NSWPICMP 320

21 May 2024