Allianz Australia Insurance Limited v Denny
[2025] NSWPICMP 674
•5 September 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Denny [2025] NSWPICMP 674 |
| CLAIMANT: | Michael Denny |
| INSURER: | Allianz Insurance Australia Limited |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Steven Yeates |
| MEDICAL ASSESSOR: | Surabhi Verma |
| DATE OF DECISION: | 5 September 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of degree of permanent impairment dispute; claimant was walking to the local shops; claimant looked left and saw there was no oncoming traffic and proceeded to cross the road when the insured vehicle suddenly started reversing at speed; claimant turned his body and was struck on the left side as the vehicle continue to reverse; claimant says that he suffered in the accident full thickness supraspinatus tear in the left shoulder; fracture of the left humerus; frozen left shoulder; injury to the left arm; significant aggravation of pre-existing foot injury now requiring the use of a walking stick; aggravation of pre-existing psychological condition including the onset of significant post-traumatic stress disorder symptoms; claimant underwent surgery a year later; Medical Assessor (MA) diagnosed accident-related major depressive disorder and assessed 13% whole person impairment (WPI) utilising the psychiatric impairment rating scale (PIRS); Held – Review Panel found major depressive disorder and somatic symptom disorder with predominant pain; Review Panel made different ratings scores to original MA and found 7% WPI; certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the certificate dated 13 May 2024 and issues a new certificate determining that: (a) the following psychiatric injuries caused by the motor accident give rise to a permanent impairment of 7% and IS NOT GREATER THAN 10%: · major depressive disorder; · somatic symptom disorder with predominant pain, and · alcohol use disorder, in sustained remission. |
(a)
STATEMENT OF REASONS
INTRODUCTION
The subject motor accident occurred about 6.40pm on 28 April 2022 at the corner of Belmore Lane and Philip Street in Enmore. Michael Denny (the claimant) was walking from his home to the local shops. He exited Belmore Lane and intended crossing to the other side of Philip Street to enter Thurnby Lane. He looked right and noticed cars had stopped at the traffic lights further down the road at the intersection with Enmore Road. The insured vehicle passed in front of him and stopped at the traffic lights. The claimant looked left and saw there was no oncoming traffic. He proceeded to cross the road intending to walk down Thurnby Lane. He reached the middle of the road when the insured vehicle suddenly started reversing at speed. He saw the vehicle approaching and did not have enough time to get out of the way. The claimant turned his body and was struck on the left side as the vehicle continue to reverse. The claimant started banging on the vehicle for it to stop. He was being dragged underneath the vehicle when the driver stopped, drove forwards and pulled over to the side of the road. The claimant was taken by ambulance to Royal Prince Alfred Hospital where he underwent diagnostic scans. He was discharged into the care of his treating GP early the next day.
The claimant says that he suffered the following injuries in the accident:
(a) full thickness supraspinatus tear in the left shoulder;
(b) fracture of the left humerus;
(c) frozen left shoulder;
(d) injury to the left arm;
(e) significant aggravation of pre-existing foot injury now requiring the use of a walking stick, and
(f) aggravation of pre-existing psychological condition, including the onset of significant post-traumatic stress disorder symptoms.
The claimant was treated with a POP cast for eight weeks for his fractured humerus. He underwent surgery a year later.
Allianz Insurance Australia Limited (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the Act). The insurer admitted liability for payment of statutory benefits beyond twenty-six (26) weeks but declined to accept that the claimant exceeds the 10% whole person impairment (WPI) threshold.
ASSESSMENT UNDER REVIEW
As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the claimant was referred to Medical Assessor Abishek Nagesh for assessment of the following psychiatric conditions:
(a) chronic pain disorder;
(b) aggravation of pre-existing adjustment disorder with anxiety, and
(c) post-traumatic stress disorder.
Medical Assessor Nagesh certified on 13 May 2024 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 13% and IS GREATER THAN 10%:
- Major Depressive Disorder
Medical Assessor Nagesh made no deduction for pre-existing impairment as he found 0% WPI for the claimant’s pre-existing condition of major depression. He stated that the subsequent condition did not give rise to any new psychological injury. Hence, there is no subsequent impairment, and he did not deduct portion of the WPI. Medical Assessor Nagesh made no adjustment for treatment effects as he found that the claimant’s symptoms had not improved with treatment.
Medical Assessor Nagesh made ratings under the various categories of the psychiatric impairment rating scale (PIRS) as follows:
List classes in ascending order: 1, 2, 2, 3, 3, 3
Median Class Value: 2.5 = 3
Aggregate score: 14
% WPI: 13%
Medical Assessor Nagesh found that the following injuries WERE NOT caused by the motor accident:
(a) post-traumatic stress disorder;
(b) adjustment disorder, and
(c) chronic pain disorder.
He did not so certify.
OTHER ASSESSMENT
Medical Assessor Alan Home certified on 19 June 2024 as follows:
The following injuries caused by the motor accident gives rise to a permanent impairment of 10% and IS NOT GREATER THAN 10%:
- Cervical spine – soft tissue injury with musculoskeletal neck pain secondary to his shoulder complaint;
- left shoulder – supraspinatus tear, subdeltoid bursitis, greater tuberosity fracture, and
- left ankle – soft tissue injury.
Medical Assessor Home found 10% WPI for the left shoulder. He made no adjustment for pre-existing/subsequent impairment, apportionment or treatment effects. He found no separate injury to the left arm. It is not known if Medical Assessor Home’s certificate is the subject of a separate review application.
THE REVIEW
The insurer sought a review of Medical Assessor Nagesh’s certificate, on the ground that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The insurer relied upon the particulars set out in the application and supporting documentation.
The insurer brought the application within the time prescribed by s 7.26(10) of the Act and
cl 34 of Procedural Direction PIC 7 (28 days).The insurer submitted there are reasonable grounds to suspect that Medical Assessor Nagesh erred on the basis of his:
(a) failure to adequately consider the relevant material;
(b) failure to provide sufficient reasons, and
(c) failure to consider or address a substantially made argument in relevant submissions made on behalf of the insurer regarding the relevant material.
Those submissions are particularised as follows:
Failure to adequately consider the relevant material
The insurer takes issue with the ratings made by Medical Assessor Nagesh under the Adaptation and the Concentration, persistence and phase Categories of the PIRS. The insurer refers to the evidence of its qualified consultant psychiatrist, Dr Rastogi, and the records of Uplift Psychological Services.
The insurer submits that a class 2 or 3 rating more accurately reflects the claimant’s pre-accident capacity for adaptation. Correctly assessing the claimant’s pre-accident impairment results in a reduction of the claimant’s overall accident-related impairment.
In relation to pre-existing impairment for concentration, persistence and phase, the insurer notes the Medical Assessor considered the claimant satisfied class 1, no deficit on the basis that his cognitive ability was intact. The insurer submits that, in circumstances where there is objective evidence of pre-existing diagnosed conditions which result in concentration issues and slowing of cognition, a class 1 rating is inappropriate for pre-accident impairment.
Failure to provide sufficient reasons
The insurer submits that, in allocating class 2 impairment (mild impairment) for self-care and personal hygiene, Medical Assessor Nagesh did not make clear whether the claimant’s difficulties with cleaning, showering and activities of daily living are associated with his physical injuries or the alleged psychiatric injuries. The insurer notes cl 6.215 of the Motor Accidents Guidelines (which provides that the PIRS must not be used to measure impairment for somatoform disorders associated with pain arising from physical injuries). Further, in circumstances where the claimant’s difficulties arise in the context of psychiatric injuries, the insurer submits a class 2 rating may well be appropriate, but that is unclear, from the Medical Assessors’ reasoning, in the insurer’s submission.
Failure to consider or address a substantially made argument in relevant submissions made on behalf of the insurer regarding relevant material
(a) the insurer submits that the Medical Assessor’s failure to consider relevant material equates to a material error, constitutes a denial of procedural fairness and renders the assessment invalid;
(b) the insurer submitted to the Medical Assessor that the claimant’s subjective self-reporting should only be accepted in circumstances where there is objective evidence to support the same. The insurer notes that the claimant’s statement made no mention of pre-existing mental health complaints. However, the objective clinical records evidenced a long-standing history of mental health issues. The insurer submits that the Medical Assessor accepted a number of statements made by the claimant in circumstances where they are not supported by objective evidence. Particulars are given. The insurer submits that the Medical Assessor’s conclusion that the claimant’s major depression and anxiety was in remission, at the time of the accident, is entirely at odds with the clinical records, and
(c) the insurer maintains that the Medical Assessor ignored relevant material, specifically the insurer’s further submissions and failed to respond to a substantial, clearly articulated argument, thereby denying the insurer procedural fairness.
Materiality of the error
The insurer submits that the failures it has identified and particularised are not trivial, insignificant or immaterial errors.
The insurer’s review application was opposed by the claimant on various grounds. As those submissions were not accepted by the President’s delegate, it is not necessary to summarise them in detail. The claimant submitted that Medical Assessor Nagesh did not fall into any material error.
In relation to alleged failure to adequately consider the relevant material, the claimant’s submissions firstly addressed the findings made by the Medical Assessor under the various categories of the PIRS.
In relation to the alleged failure to provide sufficient reasons, specifically the insurer’s submission it is unclear whether the claimant’s difficulties with self-care and personal hygiene are associated with his physical or psychological injuries, the claimant submits it is clear that his psychological symptoms, as described by the Medical Assessor, directly impact the assessment of self-care and personal hygiene. The claimant says it is obvious that the Medical Assessor’s reasons, pertaining to self-care and personal hygiene, relate to his psychological injuries.
In relation to the alleged failure to consider insurer’s argument, the claimant refutes the insurer’s submission. The claimant refutes the insurer’s submission that the Medical Assessor failed to consider the insurer’s argument that the claimant’s “self-reporting should only be accepted in circumstances where there is objective evidence to support same” because of alleged inconsistency between the claimant’s evidence and a GP entry of
21 April 2022 in the clinical notes of Enmore Medical Practice disputing that the major depression and anxiety was not in remission. The claimant submitted that it was open for the Medical Assessor to determine the value of the reported history when compared to the clinical records and to make his own determination, exercising his clinical judgment, as to whether or not it should be accepted.President’s delegate, Rachel Brittliff, issued a Determination of an Application for Review of a Medical Assessment on 30 July 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect the medical assessment was incorrect in a material respect. The basis of that decision was stated to be that Medical Assessor Nagesh found that the claimant’s depressive and anxiety symptoms had been in remission when the accident occurred. He did not explain how he arrived at that finding.
Accordingly, the review application was accepted and was referred to the Panel, which is to reassess all the injuries referred to Medical Assessor Nagesh, unless the parties otherwise agreed. Pursuant to cl 128(1) of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel is to conduct and determine the proceedings, in accordance with procedures determined by the Panel.
What has been referred for assessment in these proceedings is psychiatric condition. The Panel notes that the Medical Assessors on the Panel are required, in accordance with the Motor Accident Guidelines (the Guidelines), to determine if the claimant has a psychological or psychiatric injury, within DSM-5, caused by the accident, and then make a diagnosis of that injury.
The Medical Assessors may, in their clinical judgment, diagnose a condition that is the same as, or different to, the diagnosis of Medical Assessor Nagesh or the diagnosis of the treating doctors or Medico-legal experts, or the particular diagnosis that may have been included in the application or reply form for the Panel referral.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the the PIC Rules are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
See Briggs v IAG Limited t/as NRMA Limited.[4] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] wherein his Honour Justice Wright stated at (35):
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.
[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.
Wright J then described the Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination;
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
BUNDLES OF DOCUMENTS
The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”. The Panel has come to its own conclusions and has taken its own history.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Panel has considered:
Doc
Document Name
Date
Page
1
Claimant’s review submissions (see previously)
18.07.2024
1
2
Delegate’s determination of review application
30.07.2024
10
3
Claimant’s WPI submissions
20.03.2024
13
· Claimant relies upon the Medico-legal report dated 26 September 2023 by
Dr Richa Rastogi who opined that the claimant sustained injuries in the form of:(a)Chronic pain disorders;
(b)Aggravation of pre-existing adjustment disorder with anxiety; and
(c)post-traumatic stress disorder,
as a result of the subject accident.
· Dr Rastogi utilised the PIRS to assess 15% WPI (see later).
4
Certificate and Reasons of Medical Assessor Abishek Nagesh (see previously)
27.05.2024
17
5
Claimant’s signed statement
06.11.2022
31
6
Application for personal injury benefits
24.05.2022
35
7
Application for common law damages
24.04.2023
41
8
NSW Ambulance report
07.07.2022
70
9
NSW Police report
06.07.2022
78
10
Report from Uplift Psychological Services
Undated
96
11
Report from Uplift Psychological Services
13.10.2022
97
12
Medico-legal report of Dr Richa Rastogi to claimant’s lawyers
26.09.2023
124
Dr Rastogi described the claimant’s Previous Psychiatric History as follows:
“There was a history of depression and anxiety most of his adolescence life and adulthood associated with physical and mental trauma. He has seen multiple psychiatrist and psychologist over the years. He was trialled on anti-depressants before for short periods of time. He has self-medicated with alcohol as a coping mechanism. There is history of polysubstance abuse in the past but alcohol was his main preference.”
After describing the Mental State Examination, Dr Rastogi makes the following Diagnosis:
·chronic pain disorder;
·aggravation of pre-existing adjustment disorder with anxiety, and
·post-traumatic stress disorder.
Dr Rastogi states that the claimant has continued to have chronic pain with deconditioning and the dilatation despite surgery and physiotherapy. His physical functioning has deteriorated and impacted his psychological well-being with secondary adjustment disorder that has been persistent and ongoing.
Utilising the PIRS, Dr Rastogi assesses permanent impairment as follows:
Description
Rating
Self-care and personal hygiene
2
Social and recreational activities
3
Travel
3
Social functioning and relationships
2
Concentration, persistence and pace
3
Adaptation
5
Classes in ascending order: 2, 2, 3, 3, 5
Aggregate Score Impairment: 16
WPI: 17%
Pre-existing impairment – there is 2% deduction for pre-existing impairment
Effects of treatment: 0%
Final WPI: 15%
The Panel notes that there appears to be an error in Dr Rastogi’s calculation in that his aggregate score was 18, rather than 16, as stated. That would result in a WPI of 22% before adjustment for pre-existing impairment.
The insurer relied upon the following material which the Panel has considered:
Doc
Document Name
Date
Page
1
Insurer’s submissions in reply to claimant’s WPI application
15.04.2024
3
(a) the insurer notes that, in his statement dated 6 November 2022, the claimant made no mention of any pre-existing mental health complaints. Notwithstanding, the claimant contends he suffered a “significant aggravation of pre-existing psychological condition including most traumatic stress disorder symptoms”;
(b) the insurer notes that records from Uplift Psychological Services referred to a GP Mental Health Plan dated 16 September 2018 which includes a diagnosis of anxiety, depression and alcohol addiction issues. Further mental health based attendances are referenced. The insurer observes there is a well-documented pre-existing history of psychological complaints which are not insignificant;
(c) the insurer queries the accuracy of Dr Rastogi’s assessment and notes his recording the pain is debilitation. The insurer references cl 6.215 of the Guidelines which provides that the PIRS must not be used to measure impairment due to somatoform disorders or pain. Accordingly, the insurer submits that Dr Rastogi has erroneously included an allowance for pain, contrary to the Guidelines;
(d) the insurer then take issue with Dr Rastogi’s ratings under the Social Functioning and Adaptation categories of the PIRS, and
(e) the insurer reserves the right to make further submissions after it has obtained a Medico-legal report from Dr Honey, psychiatrist, who examined the claimant on
13 June 2024. (The Panel notes that no such report has been provided by the insurer).
2
Complete records – Enmore Medical Practice
Various
11
3
Records – Royal Prince Alfred Hospital
05.02.2024
663
4
Records – Centrelink
22.11.2023
893
5
Records – Uplift Psychological Services
22.03.2024
907
6
Insurer’s review submissions
(see previously)
12.06.2024
951
6
Certificate of Medical Assessor Home
(see previously)
19.06.2024
961
EXAMINATION REPORT
The report of Medical Assessor Steven Yeates and Medical Assessor Surabhi Verma is as follows:
“Claimant: Michael Denny
Examination Report
1. Psychosocial history and pre-accident history
Mr. Denny was born in Camden Hospital, in Southwest Sydney, and raised with his mother, father, brother, and sister. He is the youngest of three. His father worked on the railway, and his mother was on home duties. The family home was in Campbelltown. Mr. Denny said that the family had enough money, food, clothing, and other essentials. He was a healthy child and young person, except for asthma and several fractures. Mr. Denny said that his memories of early life were happy before age 10, when they moved to a new house and his father became physically violent. Mr. Denny stated that his father was repeatedly physically violent towards him. He said he never sustained serious injury or hospitalisation because of the physical assault, which was recurrent and accompanied by a feeling that “he just didn’t like me.” Mr. Denny reported some alleged potential improper sexual contact while he was a young school student, but denied any other physical, sexual, or emotional trauma inside or outside the family.
Mr. Denny attended John Thierry School in Rosemeadow and St John’s Catholic High School in Campbelltown. He completed Year 12, had a circle of friends, and was never suspended or expelled. He described himself as a reluctant student who achieved less than satisfactory results due to disinterest. After finishing high school, he completed a one-year cultural course at TAFE specialising in gardening and landscaping. He then worked intermittently in landscaping jobs for several years and moved out of home at 19 with friends. During his early life, Mr. Denny described that he “worked on and off and drank.” Later, he began working in hospitality, doing bar work at music gigs and private functions. He characterises himself as a consistent and hardworking man who worked five or six days a week throughout most of his working life in the hospitality industry.
Seventeen years ago, Mr. Denny moved to a rented house in Enmore, where he still lives. He has not had long-term intimate relationships but has had several girlfriends. He has no children. He described his closest relationship as being with his cat. His most recent job was at the Duke Hotel until just before the COVID-19 pandemic, which coincided with his diagnosis of cirrhosis. Afterwards, he started working at a bottle shop while also working at a bowling club three days a week. Mr. Denny began drinking alcohol in his adolescence, with his alcohol consumption increasing in early adulthood. He became alcohol dependent in his 40s, drinking up to 10 litres of cask wine daily before developing liver cirrhosis and stopping alcohol four years ago. He started using cannabis early in his adult life and has continued to use it every few days to this day. He has also tried other recreational drugs such as MDMA and cocaine but never used them habitually or frequently. He has never injected drugs. He does not gamble.
Just before the accident, Mr Denny was living alone in a rented home. He was working in two positions, one at a bowling club and another at a bottle shop. He described a long history of alcohol misuse before becoming sober around 2021. He had an active social life and could travel without psychological symptom limitations. He reported a longstanding degree of mild strain with his family of origin. He said his concentration had improved significantly since becoming abstinent from alcohol.
Mr. Denny remembered being taken to a general practitioner around the age of 12 or 13 due to persistent rage, but could not recall any ongoing psychiatric diagnosis, treatment, or psychological therapy. He first saw a psychologist in his 30s for persistent anxiety. Before the accident, he had seen a psychologist for approximately five to ten years on a roughly fortnightly basis, intermittently, for alcohol dependence. He has never been admitted to a psychiatric facility. In 2023, he attempted suicide by going to a park with the intention of drowning himself, but this was interrupted by a bystander. He reported never having been suicidal before the last few years. He is under the care of his GP, Dr Richard Lee, and has seen a pain specialist, Dr Trudy Richmond. He does not currently have a psychologist. His liver needs are managed by the liver clinic at the Royal Prince Alfred Hospital, following an episode of ascites in 2021. He has previously taken citalopram and mirtazapine but is not currently on any antidepressants or psychotic medication. His current medications are pre-gambling and thyroxine, the latter for Hashimoto’s thyroiditis. Mr. Denny also reported a car accident approximately 20 years ago[DV1] .
There is no history consistent with a primary psychotic illness or bipolar disorder. The family history includes probable post-traumatic stress disorder in Mr. Denis's grandfather, a World War II veteran. Mr. Denny reported that his mother made five suicide attempts. He also said that his father drank heavily, but it was unclear whether he was alcohol dependent. There is no family history of completed suicide or forensic history.
2. History of the motor accident
On 28 April 2022, Mr. Denny was walking down Belmore Lane, the street where his home is located. While crossing the road towards a shop he intended to enter, Mr. Denny looked to his right and saw that a car had stopped. The vehicle then reversed into him, and he was hit, feeling himself “going under the car.” He did not fall to the ground nor lose consciousness. He was not intoxicated. He estimated the car was travelling at 10 to 15 km/h. Mr. Denny said that he manoeuvred his way to the side of the road, and the vehicle began driving off. He said he hit the side of the car several times until it stopped and then approached the driver's window to discuss the incident, but they wouldn’t talk to him. Eventually, the driver presented their driver’s licence, which Mr. Denny photographed before the driver left the scene. Mr. Denny returned home on foot and called an ambulance due to persistent pain in his foot and left elbow. Police did not attend the scene.
3. History of symptoms and treatment following the motor accident
Due to pain in his left foot and left elbow, Mr. Denny presented to Royal Prince Alfred Hospital, where he was treated in the emergency department. He had X-rays taken, but was not provided with any other pain relief. He returned to his general practitioner two days later with pain in his left foot and arm. Mr. Denny repeatedly emphasised the ongoing pain, particularly in his left shoulder, which disrupts his sleep and led him to seek help from a pain specialist, Dr. Tanya Richmond, who injected his shoulder with steroids and prescribed other pain treatments. There was a clear theme of pain contributing to low mood.
Alongside his ongoing pain, Mr. Denny said he experiences low mood, feels demotivated and hopeless, which relates to the chronicity of his pain. He also finds it difficult to leave the house due to persistent anxiety, which has caused at least one panic attack and worsens when he goes out. Mr. Denny has some ongoing reminiscences of the accident, but denied nightmares. He described himself as “on edge all the time.” He experiences guilt and self-recrimination over his difficulties with living and being productive. He stopped employment after the accident and has not returned since. He mentioned that his weight and appetite have fluctuated. He also experiences intermittent suicidal ideation and passive wishes of death.
4. Details of any relevant injuries or conditions sustained since the motor accident
Mr Denny has been diagnosed with liver cirrhosis and a long history of alcohol dependence. He experienced several significant bereavements in 2024, including the death of his best friend. He describes being under a considerable amount of personal debt.
CLINICAL EXAMINATION
1. Mental state examination
The mental state examination revealed a man of Anglo-Saxon background dressed casually, with a beard and long hair tied back, showing a grey streak at the front. His social behaviour was generally appropriate, and rapport was established to a moderate degree. He appeared to be in a low mood, with an anxious, flat, and slightly irritable affect, fluctuating without spontaneous levity. His thought content was grounded in reality, with no signs of psychosis or current suicidality, though he expressed ongoing frustrations and limitations due to chronic pain and functional issues linked to poor mood. The thought form was normal, and his speech was well-structured, grammatically correct, and of normal quantity. His judgement was not significantly impaired at the time, and there were no perceptual disturbances. Cognitive functioning appeared broadly normal, with no need for formal testing, and insight was modest.
2. Current functioning
Mr. Denny currently wakes at around 10 am and said that he “stands around” for several hours before going to the shops. He tries to do a small amount of exercise but spends the rest of the day watching television and doing some artwork from his bed. He plays with his cat and then goes to sleep very late, as late as 5 a.m. He said his sleep is consistently disrupted by pain and difficulty getting comfortable. Mr. Denny showers twice a week and eats three microwave meals per day. He lives independently, managing his rented home but is limited by pain and demotivation. His social and recreational activities include meeting a friend weekly or fortnightly for coffee, but he generally avoids socialising. He engages in a small amount of creative output in the form of painting and drawing. He is not a member of any other clubs or organised social activities. He will venture out of his home for groceries and to attend physiotherapy appointments. He does not drive as he does not have a car but also described some fear of driving. He does not take public transport due to panic but will travel locally on foot. Mr. Denny’s last intimate relationship began after the accident and ended in 2023, lasting about a year. He has minimal contact with his family or siblings, describing longstanding tension. He can concentrate on television and comic books, the latter of which he is an avid collector. He reports a subjective concentration deficit, though there was no evidence of concentration difficulties during the interview. Mr. Denny receives jobseeker payments and has not worked in paid or unpaid roles since the accident.
Determinations
3. Diagnosis
Mr. Denny presents with symptoms and signs consistent with multiple psychiatric conditions. The first is alcohol use disorder, which is in sustained remission and predates the accident by many years. There is also evidence of major depressive disorder with anxious distress caused by the accident. This manifests as chronic low mood, hopelessness, passive and active suicidal ideation, and pathological guilt. There is a further diagnosis of Somatic Symptom Disorder with predominant pain secondary to the accident. Please see the criteria of each condition and descriptions of how Mr Denny meets them.
Major Depressive Disorder – DSM 5-TR
A. Five (or more) of the following symptoms have been present during the same 2-week
period and represent a change from previous functioning; at least one of the symptoms
is either (1) depressed mood or (2) loss of interest or pleasure.
Note: Do not include symptoms that are clearly attributable to another medical condition.
1. Depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g., feels sad, empty, hopeless) or observation made by others (e.g., appears tearful). (Note: In children and adolescents, can be irritable mood.)
This criterion is satisfied as Mr. Denny has both subjective and objective features of persistent low mood.
2. Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation).
This criterion is satisfied as Mr. Denny has clear features of diminished interest in pleasurable activities on more days than not.
3. Significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day.
(Note: In children, consider failure to make expected weight gain.)
There is no evidence of major weight loss; this criterion is not satisfied.
4. Insomnia or hypersomnia nearly every day.
Mr. Denny described features of mood-driven insomnia, satisfying this criterion.
5. Psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down).
There was no evidence of psychomotor agitation; this criterion is not satisfied.
6. Fatigue or loss of energy nearly every day.
Mr. Denny has persistent feelings of anergia on nearly every day, satisfying this criterion.
7. Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick).
Mr. Denny feels persistently worthless and has clear evidence of pathological guilt, satisfying this criterion.
8. Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others).
This criteria is satisfied as Mr. Denny describes subjective concentration deficits.
9. Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide.
Mr. Denny has experienced recurrent suicidal ideation and made a single suicide attempt in 2023.
B.The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
There is evidence of impairment in social and occupational function.
C. The episode is not attributable to the physiological effects of a substance or another medical condition.
The condition is not otherwise attributable to another medical condition or substance use.
Mr Denny also shows signs of somatic symptom disorder with predominant pain, as indicated by persistent and difficult-to-manage pain, especially in his left shoulder. He exhibits a significant level of distress related to his pain and a disruption to his daily routine. Additionally, he is preoccupied with his pain and has excessive thoughts about it. There is evidence of him dedicating considerable energy and time to his symptoms, which have persisted for several years.
Somatic Symptom Disorder – DSM 5-TR
A. One or more somatic symptoms that are distressing or result in significant disruption of daily life.
B. Excessive thoughts, feelings, or behaviours related to the somatic symptoms or associated health concerns as manifested by at least one of the following:
1.Disproportionate and persistent thoughts about the seriousness of one’s symptoms.
2.Persistently high level of anxiety about health or symptoms.
3.Excessive time and energy devoted to these symptoms or health concerns.
C.Although any one somatic symptom may not be continuously present, the state of being symptomatic is persistent (typically more than 6 months).
Specify if:
With predominant pain (previously pain disorder): This specifier is for individuals
whose somatic symptoms predominantly involve pain.
Causality
Causality of the psychiatric conditions and the accident is established by the temporal relationship between the symptoms and the accident, with a clear functional impairment, particularly in social and occupational functioning, commencing in the aftermath of the accident[DV2] . There is a congruent mechanism between the accident and its sequelae.
Psychiatric diagnoses
1. Major depressive disorder
2. Somatic Symptom Disorder with predominant pain
3. Alcohol use disorder, in sustained remission
4.
Psychiatric treatment description
Category
Class
Reason for Decision
1. Self-care and Personal Hygiene
2
Mr. Denny showers twice per week and eats three microwave meals per day at his home. He lives independently managing the domestic duties for his rented home but is limited by pain and demotivation.
2. Social and Recreational Activities
2
Mr Denny is not a member of any structured social activities or groups. He receives invitations but rarely attends events. He meets a friend for coffee approximately weekly or fortnightly. He does painting and drawing as an independent creative pursuit in his home. He can go out without a support person.
3. Travel
2
Mr Denny can travel on foot without a support person but is hypervigilant regard the danger of cars. He does not drive because he does not have a car. He can go to the local shops or see a friend for coffee.
4. Social Functioning
2
Mr Denny recommenced an intimate relationship with an old friend after the accident which terminated. Mr Denny has longstanding tension with his family which he said was exacerbated by the accident and its sequelae.
5. Concentration, Persistence and Pace
2
Mr Denny watches television and can concentrate on his comic books or artwork for up to half an hour. He has undertaken no specific training courses. There was no evidence of concentration deficit at interview.
6. Adaptation
3
While Mr Denny has not worked in a paid or
unpaid capacity since the accident and is
limited by pain and low mood his limitations
are due to both pain and low mood. The
limitations due to low mood preclude his
working in the same position as previously
and he could not perform more than 20
hours per week due to low mood and
demotivation in a simpler less strenuous
position.
List classes in ascending order: 2,2,2,2,2,3
Median Class Value: 2
Aggregate Score: 13
% WPI: 7%
*%WPI = Percentage WPI
Pre-existing impairment
Psychiatric diagnoses
1. Alcohol use disorder – in remission
2.
3.
4.
Psychiatric treatment description
Category
Class
Reason for Decision
1. Self-care and Personal Hygiene
1
Mr Denny lived independently and managed his own home.
2. Social and Recreational Activities
1
Mr Denny was socially active and had a circle of friends with whom he interacted regularly.
3. Travel
1
Mr Denny travelled by public transport to the places he required. He did not drive by choice.
4. Social Functioning
2
Mr Denny had some pre-accident strain in his relationships with his family.
5. Concentration, Persistence and Pace
1
Mr Denny reported unimpaired concentration and could work gainfully.
6. Adaptation
1
Mr Denny had two jobs, one at a Bowling Club and another at a bottle shop. He managed and attended these positions within the normal range for patterns of attendance.
List classes in ascending order: 1,1,1,1,1,2
Median Class Value: 1
Aggregate Score: 7
% WPI: 0%
= Percentage WPI
Effects of Treatment
There has been no substantive improvement from treatment thus an adjustment for the effects of treatment is not indicated.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the Act
The Panel is not required to choose between medical opinions and is required to form its own opinions.[7] The Panel reconvened on 21 August 2025 to consider the examination findings and to finalise its decision. The Panel adopts the findings and opinions of the Medical Assessors who concur with one another and adds the following further reasons.
[7] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31
The Panel notes that the insurer has not provided any expert medical evidence in support of its case relating to psychiatric injury.
The Medical Assessors have explained the basis and rationale of their assessments. The Medical Assessors agree with the diagnosis made by Medical Assessor Nagesh of major depressive disorder. They also agree with him that it is not appropriate, in the circumstances of this case, to make a deduction for pre-existing impairment.
The medical assessment of permanent impairment is made at the time of examination. In that respect, the assessments made by Medical Assessor Nagesh and Dr Rastogi are outdated, and does not reflect current symptomatology, in the Medical Assessors’ opinion. The Medical Assessors have stated their reasons for making different ratings to those made by Medical Assessor Nagesh under some of the categories of the PIRS resulting in a different Median Class Value and thus % WPI.
CONCLUSION
For the above reasons, the Panel concludes the certificate dated 13 May 2024 should be revoked. The new certificate appears at the commencement of these reasons.
[DV1]Can we add something about his premorbid fuctioning ?mental health/symtpoms /alcohol use
[DV2]Can we please add any other stressors like physical illness,death of freinds
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