Allianz Australia Insurance Limited v Kim

[2025] NSWPICMP 587

DETERMINATION OF REVIEW PANEL

CITATION:

Allianz Australia Insurance Limited v Kim [2025] NSWPICMP 587

CLAIMANT:

Suyeon Kim

INSURER:

Allianz Australia Insurance Limited (Allianz)

REVIEW PANEL

MEMBER:

Terence Stern OAM

MEDICAL ASSESSOR:

Christopher Rikard-Bell

MEDICAL ASSESSOR:

Thomas Newlyn

DATE OF DECISION:

8 August 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); medical assessment of whole person impairment (WPI) by Medical Assessor; claimant injured in motor vehicle accident; MA determined the claimant’s permanent impairment at 23%; insurer sought a review of the assessment under section 7.26; Review Panel re-examined the claimant; Held – MAC revoked; substituted determination of 6% WPI.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

Issued under Division 7.5 of the Motor Accident Injuries Act 2017

1.     The Review Panel determines that as a result of the accident, Ms Kim sustained WPI of 6%.

2.     The Review Panel revokes the determination of Medical Assessor Hong, dated
9 February 2024, and in lieu determines that as a result of the accident Ms Kim sustained WPI of 6%.

STATEMENT OF REASONS

INTRODUCTION

1. The claimant, Suyeon Kim (Ms Kim), was injured in a motor accident (the accident) on 25 March 2020.

2. Ms Kim has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).

3. Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Kim under the MAI Act.

4. Section 4.11 of the MAI Act provides that there is no entitlement to damages for
   non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.

5. This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.

6. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.

7. The dispute as to permanent impairment in respect of the claimant’s psychological injury was referred to Medical Assessor Hong who assessed her on 6 February 2024 and issued a certificate dated 9 February 2024 certifying that as a result of the accident Ms Kim sustained post-traumatic stress disorder and assessed her degree of whole person impairment (WPI) at 23%.

8. The insurer sought a review.

9. The Review Panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the Review.

RELEVANT LEGAL AUTHORITY

1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).

2. The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[1]

   [1] Section 7.20 of the MAI Act.

3. Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:

   “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.”

4. The Review Panel notes that when considering the issue of causation of injury it had regard to the decision in: AAI Limited t/as AAMI Limited v Jacobs [2024] NSWSC 371. In Jacobs the insurer argued that the Medical Assessor had disregarded all of the contrary views so that the causation issues had not been properly dealt with. In response the claimant submitted that the Medical Assessor found there had been physical injuries which in turn caused psychiatric injuries. The court then held that the Medical Assessor had considered the whole of the material before him and had subsequently reached a conclusion that was available. His Honour stated that:

   “In other words, it is obviously not enough to simply consider one side’s material, but that does not mean that every dispute in the material needs to be described and particularly resolved. This, albeit imperfect, assessment did look at both sides and did reach a conclusion, including specifically on causation.”[2]

   [2] Per Elkaim AJ at [45] – [46]. Refer also to Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 and Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41] – [44].

CERTIFICATE OF MEDICAL ASSESSOR HONG

1. Medical Assessor Hong examined Ms Kim on 6 February 2024 and provided his certificate on 9 February 2024 certifying that the injuries caused by the accident gave rise to a permanent impairment of 23%. The Panel summarises the report:

   [2]     The following dispute was referred for assessment to Medical Assessor Hong,

   ·Psychological condition – Psychological sequelae.

2. Medical Assessor Hong discussed the submissions of Ms Kim and the insurer at [3]-[4]:

   [3]-[4] The applicant submitted Ms Kim's WPI is greater than 10%

3. Medical Assessor Hong stated that he had considered all of the documents provided in the application and reply, and he had also considered any late documents at [5]-[6].

4. Medical Assessor Hong took a psychosocial and pre-accident history at [8]:

   [8]     “Ms Kim reported that she was born in Korea and came to Australia in 2013. Her husband's family and her sister live in Australia. Her two other sisters and a brother, and her mother live in South Korea, and her father has passed away. She grew up with her parents and was one of 5 siblings. She described a happy childhood and was not exposed to any neglect or abuse.

   In terms of general medical history, she does not have cardiac, thyroid or liver disease. She said she was always healthy before the subject accident.

   She does not have drug or alcohol problems.

   She is not aware of a family history of mental illness.

   She does not have a forensic history.

   Ms Kim has not had a previous car accident.

   She does not have a past psychiatric history.”

5. Medical Assessor Hong took a history of the accident at [9]:

   “[9]    On 25 March 2020, Ms Kim was driving and her then-husband was the front passenger. She remembered going straight and was in Frenchs Forest, when a car from the opposite side of the road struck her car. Her car was T-boned and spun, and she remembered she had pain in the right side of her face, her shoulder and arm immediately, and later she developed lower back pain. She was taken to Royal North Shore Hospital and investigated for a day. Her airbags were not deployed and her vehicle was written-off. There were three cars and the car that T-boned her car also hit the car behind her. She is not sure and said that she may have lost consciousness during the accident. I noted that her travelling speed was possibly 60 to 70kph and the police concluded it was a major accident.

   She reported that she had not recovered physically. Physiotherapy has stopped but she still is having problems with her shoulder and lower back. She has not had surgical treatment since the accident.

   In terms of physical restrictions, Ms Kim reported:

   §Walking for 5 minutes then develops significant pain in her back, legs and her toes.

   §Lifting up to 3kg”

6. Medical Assessor Hong took a brief history of Ms Kim’s post-accident symptoms and treatment at [10]:

   [10]   “Ms Kim described the onset of anxiety and depressive symptoms shortly after the subject accident and her psychological symptoms have not substantially remitted.

   She described being fearful in a car since the accident and relying on her sons to transport her or take the train. A couple of years after the subject accident, she bought a new car.”

7. Medical Assessor Hong outlined relevant injuries or conditions sustained since the motor accident at [11]:

   [11]   “A couple of months after she bought a new car, she had another accident in Allambie Heights on 10 March 2023. She reported she was the driver and her husband was also in the car. They were rearended. She said her car was repaired and she continued driving even though she had more anxiety on the road. She did not go to hospital after the second accident and did not think that she even went to a GP, other than for her regular GP visits, and psychologically she said she felt more anxious driving, but otherwise there were no changes.”

8. Medical Assessor Hong then conducted a clinical examination at [14] and his observations as to Ms Kim’s current functioning are set out at [15]:

   [14]   “Ms Kim was assessed by video. She was alone, and her husband was also at home during the assessment. I assessed her from my Sydney office. I have completed a full psychiatric assessment with consent. There was no audio-visual recording of the assessment.

   Ms Nina Kang was the interpreter.

   Ms Kim was attired in plain clothes and spoke in a soft tone. She engaged well. There was no psychomotor slowing or abnormal movements. She was consistently restricted in her affect range and reactivity. She did not speak spontaneously. She was not thought disordered.”

   [15]   Ms Kim is 65 and has two adult sons, who are not living with her. She is living with her ex-husband in a rental property, and said that her sons cannot afford to rent a property for her and her ex-husband separately.

   She avoids her friends now and rarely talks to them.

   She has poor sleep and often wakes up late, and does not do much during the day. She leaves the TV on but does not generally follow it.

   She takes walks sometimes. Her sons live nearby and they tend to visit every couple of weeks and they would bring the grandchildren over. She said she cannot look after grandchildren because of her back problems.

   Ms Kim is close to her sister, but her sister is busy working, so they do not socialise too much. She normally likes to read books, but she cannot focus and does not read now. She normally likes to knit, and she cited poor concentration as well as a shoulder problem and she does not knit now.

   She reported that she and her ex-husband and both sons went on a European trip for about 10 days in November 2023, and recalled they went to Italy and Switzerland, which she enjoyed. She stated she normally likes to travel, but apart from this trip she has not had another holiday since the accident.

   She was married for about 35 years and reported that after the accident, they were arguing too much and started talking about divorce, and that by January 2023, they had formally divorced and financially separated. She said that they were arguing so much and fighting, the relationship could not be reconciled. They are living together for financial reasons and she said that after her claim finishes, she probably will go back to Korea on her own. She described that she is essentially living a separate life from her husband and she does her own shopping, cleans up her own area, and makes breakfast and lunch for herself. She prepares only simple food. They eat dinner together.

9. I provide a summary of the documentation Medical Assessor Hong reviewed and commented at [17]:

   [17]   Dr Kim provided treatment shortly after the accident and diagnosed Ms Kim with Major Depressive Disorder (MDD), Generalized Anxiety Disorder (GAD), and car phobia. Her reports note symptoms including flashbacks, nightmares, sleep disturbances, fatigue, dizziness, irritability, withdrawal, memory and concentration difficulties, and hypervigilance. Treatment included psychological therapy and support between June and September 2020. She completed a PIRS assessment resulting in a 24% WPI. Dr Kim’s reports did not clearly reference a second accident and may not have had full awareness of Ms Kim’s divorce prior to 2023. An Allied Health Recovery Request was also submitted citing MDD, GAD, and car phobia. Dr Kim’s ratings differed from the independent assessment for areas such as travel and self-care.

   Dr Peter Whetton assessed Ms Kim on 31 December 2021 and diagnosed Adjustment Disorder, primarily due to physical injuries and limitations. He reported that she had been in shock and received treatment from June 2020, with symptoms including anxiety in cars, poor concentration, and reduced social engagement. He found no past psychiatric history and noted no psychiatric barrier to her returning to work. He assessed a 7% WPI using the PIRS scale. An internal review relied on his opinion and noted that Ms Kim’s last psychologist session was in November 2020. The insurer maintains, based on his findings, that her WPI is not greater than 10%.

   Dr Nicholas Argyle assessed Ms Kim and diagnosed PTSD due to the accident, assigning a final WPI of 25% based on a PIRS rating. He noted no other contributing stressors or personal changes and stated she had poor concentration, minimal recreational activity, and significant functional limitations. However, the insurer contends that he took an inaccurate history—claiming she lost consciousness, which was not supported by ambulance or hospital records—and failed to distinguish between psychological and physical impairments. The insurer also disagreed with his impairment ratings, suggesting they overstated Ms Kim’s limitations in self-care, travel, and adaptation.

   The handwritten application described the accident, indicating rear-end impact on the driver’s side, causing the car to spin and hit a rock. It stated there were no pre-existing injuries to the same or similar body parts. Ms Kim has not returned to work since the accident.

   The certificates confirmed Ms Kim was certified as having no work capacity due to psychological injuries. Pre-existing factors were recorded as nil. Later certificates also referenced diagnoses of MDD, GAD, car phobia, and post-traumatic anxiety.

   Clinical notes from various GPs, including Dr Joseph Lee and Dr Con Costa, and entries from Now Medical Focus, documented ongoing psychological symptoms, including fatigue, anxiety, low mood, and poor concentration. Prescription history showed use of Lexapro, Endep, and Mirtazapine to manage symptoms.

   Ambulance records noted Ms Kim had a GCS of 15, self-extricated from the vehicle, and denied any head strike. The vehicle was travelling 60–70 kph and hit a rock. Royal North Shore Hospital records stated no amnesia, no airbags deployed, and no head strike.

   The police reported the accident as a major traffic crash, confirming the third driver struck a rock wall to avoid collision. Photographs from the scene were reviewed and M&A investigation materials were also noted.

   Ms Kim stated she came to Australia in 2013, cannot speak English, and suffers from shock, anxiety, and depression following the accident. She listed numerous ongoing symptoms and functional impairments. She also noted that by January 2023, she had divorced her husband.

10. Medical Assessor Hong set out his diagnoses at [18]:

    (a)    Ms Kim has been referred for the assessment of “Psychological condition – Psychological sequelae” in relation to the accident on 25/3/2020;

    (b)    Ms Kim had no prior psychiatric problems and after the 2020 accident, she suffered a driving phobia and developed symptoms consistent with Post-traumatic stress disorder. She has had treatment but has not gained significant improvement, and

    (c)    there was another accident after she purchased a new car, which was overall minor. Her car was repaired and she did not need extra treatment or suffer any additional psychiatric injury - her driving anxiety was heightened for a period of time but her driving endurance was not changed. Her psychological condition has now stabilised.

11. At [24], Medical Assessor Hong set out his opinion on the permanent impairment psychiatric impairment rating scale (PIRS) as applicable with ratings of 2 for self care and personal hygiene and travel. Social and recreational activities, concentration, and adaptation were all give 3, arriving at a median value of 3 and WPI of 22%. 1% was added at [27] as there had been symptomatic relief and mild improvement with treatment and she returned to driving.

REVIEW PROCEDURE

1. The insurer has sought a review of the medical assessment of Medical Assessor Hong.

2. On 31 May 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel). The insurer provided three grounds for review:

   (1)    Errors in Psychiatric Diagnosis (DSM-5).

   (2)    Errors in PIRS Scale/WPI Assessment.

   (3)    Failure to Properly Engage with Evidence or Provide Adequate Reasons.

3. In relation to the first ground, the Delegate accepted the insurer's submission that although the Medical Assessor set out the claimant's current symptoms and current functioning, he did not set out the diagnostic criteria upon which his diagnosis was based.

4. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after
   1 March 2021, the new review provisions apply.

5. The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).[3] Accordingly, the President’s delegate referred the matter to this Panel to assess.

   [3] Section 7.26(5A) of the MAI Act.

6. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[4]

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

7. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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.[5]

   [5] Rule 128 of the PIC Rules.

8. The review is by way of a new assessment of all matters with which the medical assessment is concerned.

9. On 11 April 2025 the Panel agreed an examination was necessary. All Panel members have had no previous involvement with the claimant or with this matter.

EVIDENCE BEFORE THE REVIEW PANEL

1. The Panel issued a Direction to the parties on 11 April 2025 requiring each party to file an indexed, paginated bundle of documents. Those directions also requested Ms Kim to make herself available for re-examination by the Medical Assessors on 6 June 2025 at 9:00am by Microsoft Teams.

1. A Korean Interpreter was provided and facilitated the medical examination on 6 June 2025.

2. The review panel had the documentation which had been made available to Medical Assessor Hong and the additional documentation loaded to Pathways.

3. The Panel briefly indexes the documents which were available and which the members of the Panel perused.

DOCUMENTS PRODUCED

1. The parties produced the following documents to Pathway:

   Claimant

   (a)    Claimants submissions of 4 May 2024

   (b)    a bundle dated 13 March 2025 containing:

   (i)Claimant’s submission to the President’s delegate dated 4 May 2025

   (ii)Decision of the President Delegate dated 31 May 2024

   (iii)Claimant’s submissions made to Assessor Hong dated 27 April 2023

   (iv)Assessor’s decision dated 9 February 2024

   (v)Report of Dr Peter Conrad (General Surgeon) dated 11 February 2022

   (vi)Clarification report by Dr Peter Conrad dated 21 June 2022

   (vii)Report of Dr Nicholas Argyle (Psychiatrist) dated 7 October 2022

   (viii)Report of Dr JS Kim (Psychologist) dated 27 April 2023

   (ix)Letter of instruction to Dr Peter Conrad dated 28 January 2022

   (x)Letter of instruction to Dr Nicholas Argyle dated 27 September 2022

   (xi)Letter of instruction to Dr JS Kim dated 24 April 2023

   (xii)Statement of Suyeon Kim dated 7 April 2022

   (xiii)Documents from M&A Investigations including Statement of Suyeon Kim dated 5 May 2020

   (xiv)Ambulance Report dated 25 March 2020

   (xv)Police Report dated 4 May 2020

   (xvi)Worker’s Injury Claim Form dated 21 October 2020

   (xvii)Discharge Summary from Royal North Shore Hospital dated 25 March 2020

   (xviii)Radiology Report from Dr Wasantha Dassanayake dated 14 April 2020

   (xix)Physiotherapy Progress Reports from Acecore Physiotherapy dated 16 May 2020, 3 September 2020, and 23 September 2020

   (xx)Progress Report from Dr JS Kim (Psychologist) dated 28 September 2020

   (xxi)Clinical notes from Now Medical Focus (Dr Joseph Lee, Miss Rebekah Chang, and Dr Daniel Oh) dated various

   (xxii)Clinical notes from Dr Con Costa (GP) dated various

   (xxiii)Clinical notes from Dr JS Kim (Psychologist) dated various

   (xxiv)Certificates of Capacity dated 26 March 2020, 2 April 2020, 7 December 2020, 12 January 2021, and 15 February 2021

   (xxv)Report of Dr Peter Whetton dated 31 December 2021

   (xxvi)Report of Dr Andrew Keller dated 14 October 2022

   (xxvii)Allied Health Recovery Request by John Sung (Physiotherapist – Acecore Physiotherapy) dated 15 April 2020

   (xxviii)Initial Assessment Report by Peak Conditioning dated 25 June 2020

   (xxix)Letter of Determination of Internal Review from Allianz dated 1 October 2020

   (xxx)Updated Certificates of Capacity dated 15 March 2021, 13 April 2021, 13 July 2022, 21 April 2023, 19 August 2024, and 12 February 2025

   (xxxi)Clinical notes of Dr Jung Sook Kim (Psychologist) dated various as of 5 February 2024

   (xxxii)Clinical notes of Dr Con Costa (GP) dated various as of 2023

   (xxxiii)Certificate of Capacity dated 21 March 2025

   (c)    Additional documents of 11 July 2025 including:

   (i)Clinical notes of Dr Jung Sook Kim (psychologist)

   (ii)Clinical notes of Dr Con Costa (G.P.)

   (iii)Updated Certificate of Capacity dated 21 March 2025

   Insurer

   (a)    bundle dated 21 March 2024 containing:

   (i)insurer’s submissions date 21 March 2024

   (ii)certificate of Assessor Michael Hong (WPI – Psychological) dated 9 February 2024

   (b)    review bundle dated 20 March 2025 containing:

   (i)Insurer’s Review Application Submissions (WPI – Psychological) dated 21 March 2024

   (ii)Determination of a Review Application (WPI – Physical) dated 31 May 2024

   (iii)Insurer’s WPI Submissions dated 2 March 2023

   (iv)Certificate of Assessor Michael Hong (WPI – Psychological) dated 9 February 2024

   (v)Application for Personal Injury Benefits dated 30 March 2020

   (vi)Section 4.11 Notices dated 17 June 2022, 26 September 2022, and 10 January 2023

   (vii)Internal Review Determinations (WPI) dated 5 July 2022 and 24 January 2023

   (viii)Report of Dr Andrew Keller, Occupational Physician dated 30 June 2022

   (ix)Report of Dr Peter Whetton, Psychiatrist dated 31 December 2021

   (x)NSW Ambulance Report dated 25 March 2020

   (xi)Royal North Shore Hospital – Discharge Summary dated 25 March 2020

   (xii)X-Ray Right Hand, Wrist and Forearm dated 25 March 2020

   (xiii)CT Scan Brain dated 25 March 2020

   (xiv)X-Ray Chest dated 25 March 2020

   (xv)CT Cervical Spine and X-Ray Right Hand dated 14 April 2020

   (xvi)Ultrasound Both Shoulders dated 28 April 2020

   (xvii)X-Ray Thoracic/Lumbar Spine dated 1 September 2020

   (xviii)MRI Lumbosacral Spine dated 12 October 2020

   (xix)MRI Brain dated 11 May 2021

   (xx)Referral to Dr Jung Sook Kim, Psychologist dated 28 May 2020

   (xxi)Greenlight Human Capital Report dated 20 May 2020

   (xxii)Peak Conditioning Report dated 25 June 2020

   (xxiii)Questionnaire Completed by Dr Costa, GP dated 3 August 2020

   (xxiv)Reports of Dr Jung Sook Kim, Treating Psychologist dated 6 August 2020 and 28 September 2020

   (xxv)Reports of Acecore Physiotherapy dated 16 May 2020, 3 September 2020, and 23 September 2020

   (xxvi)Report of Dr Robin Mitchell, Occupational Physician (Injury Management Consultant) dated 12 August 2021

   (xxvii)Certificates of Capacity dated 26 March 2020, 2 April 2020, 16 April 2020, 28 July 2020, 18 August 2020, 11 September 2020, 29 September 2020, 23 November 2020, 7 December 2020, 12 January 2021, 15 February 2021, 15 March 2021, 13 April 2021, 18 May 2021, 8 June 2021, 12 July 2021, 6 September 2021, 11 October 2021, 1 November 2021, 30 November 2021, 17 January 2022, 15 February 2022, 15 March 2022, 22 March 2022, 19 April 2022, 17 May 2022, and 7 June 2022

   (xxviii)Allied Health Recovery Requests (AHRR) dated 15 April 2020, 18 June 2020, 25 June 2020, 2 September 2020, 14 September 2020, 8 May 2021, 24 July 2021, 23 October 2021, 9 November 2021, 20 January 2022, 31 March 2022, and 13 June 2022

   (xxix)Records of Dr Con Costa, GP dated various

   (xxx)Records of Dr Joseph Lee, GP dated various

   (xxxi)Records of Dr Jung Sook Kim, Treating Psychologist (JSK Mental Health Centre) dated various

   (xxxii)Records of Dr Prakash Damodaran, Treating Neurosurgeon dated various

   (xxxiii)Records of Hurlstone Park Specialist Centre dated various

   (xxxiv)Letter to Adams & Co Lawyers dated 10 August 2023

   (xxxv)Certificate of Assessor Alan Home (WPI – Physical) dated 4 March 2024

   (xxxvi)Records of Royale Eastwood Medical Centre dated 10 February 2025

   (xxxvii)Records of Dr Con Costa (Updated to 11 February 2025) – Clinical Notes only dated various

2. The Panel has not referenced or summarised all of the records relating to Ms Kim’s symptoms or injuries. If some of those medical records and reports are not referred to in the Panel’s review, it should not be assumed that the Panel was unaware of that medical material or that the Panel failed to take the material into account. In its review the Panel is endeavouring to carry out its statutory function and promote the objects of the legislation it operates under including the legislator’s guiding principle that proceedings in the Commission be a just, quick and cost-effective resolution of the real issues in the proceedings. Consistent with this guiding principle, the Panel has not referred to every item of medical evidence but has done its best to refer to them sufficiently but briefly.

3. In conducting this medical review the Panel has sought to follow and implement the words of Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance  who stated:

   “[63] The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. (Providing it to the court is also commonplace, though misconceived.) Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”

SUBMISSIONS

Submissions of the insurer (WPI – Psychological) dated 21 March 2024

1. The Panel summarises the submissions of the insurer by reference to paragraph numbers:

   [1] - [3]The insurer seeks a review under s 7.26 of the Motor Accident Injuries Act 2017 for the claimants alleged psychological injuries from a motor vehicle accident on 25 March 2020. The insurer submits the assessment of Medical Assessor Hong is materially incorrect.

   [4] – [5] The insurer submits Medical Assessor Hong’s assessment had allege three major errors:

   (a) incorrect psychiatric diagnosis,

   (b) PIRS/WPI assessment errors, and

   (c) failure to engage with evidence or provide adequate reasons.

   Error 1

   [6] – [9] The insurer submits Medical Assessor Hong did not properly explain the post-traumatic stress disorder diagnosis, merely stating symptoms and history without referring to DSM-5 criteria. The insurer submits there is no reference to diagnostic criteria under ‘Causation and Reasons’ or elsewhere in the certificate.

   [10] – [11] Clause 6.213 of the Guidelines requires DSM-5 criteria to be specified. The insurer submits that the Medical Assessor failed to comply.

   [12] The DSM-5 post-traumatic stress disorder diagnostic criteria are listed in detail by the insurer for reference.

   [13] – [14] The insurer asserts that it is not their responsibility to reconstruct the Medical Assessor’s reasoning; it must be set out clearly in the certificate.

   [15] – [17] Clause 6.213 emphasises that diagnostic criteria must be specified. Without this, the insurer submits that parties cannot understand or scrutinise the diagnosis, and the matter should be referred for review.

   Error 2

   [18] – [19] The insurer submits the Medical Assessor’s use of the PIRS scale was flawed, particularly in not distinguishing physical from psychological impacts.

   [20(a)] Self-Care: The Medical Assessor rated Class 2 based on neglect but noted the claimant lived independently. The insurer submits this supports Class 1, and no distinction was made between physical and psychological restrictions.

   [20(b)] Social and Recreational Activities: The Medical Assessor rated Class 3 despite the claimant travelling to Europe and planning a trip to Korea. The insurer submits the Medical Assessor did not explain how these activities supported a Class 3 rating.

   [20(c)] Travel: Rated Class 2, but physical pain (back and legs) was noted as a factor affecting driving. The insurer submits the Medical Assessor made no distinction between causes.

   [20(d)] Social Functioning: Rated Class 3 due to anxiety and relationship issues, the insurer submits physical limitations (e.g. back pain preventing lifting) were ignored in the assessment.

   [20(e)] Concentration: Rated Class 3 due to poor focus, the insurer submits physical causes (right hand, shoulder pain) were also recorded and not accounted for.

   [20(f)] Adaption: Rated Class 5 due to lack of work capacity, the insurer submits no distinction was made from physical limitations which both the Medical Assessor and other psychiatrists noted.

   [21] The insurer claims these inconsistencies and lack of distinction support reasonable cause to suspect material error.

   [22] – [24] The Medical Assessor applied a 1% treatment adjustment, citing symptom relief from driving. The insurer disputes this as inconsistent with the record and notes a contradiction (psychiatrist listed in PIRS vs. recorded absence of psychiatric treatment).

   Error 3

   [25] – [26] The insurer submits the Assessor failed to meet the legal obligation under s 7.23(7) to provide reasons for findings.

   [27] – [28] The insurer submits cases like AAI v Fitzpatrick and Sadsad v NRMA affirm that assessors must show their reasoning. Gaps cannot be assumed to be lawful.

   [29] – [30] The insurer submits that while assessors are not held to an overly strict standard, they must outline how they reached conclusions.

   [31] – [32] The insurer submits that the Medical Assessor did not address relevant medical evidence, such as Dr Kim’s notes about physical limitations impacting psychological symptoms.

   [33] – [34] The insurer submits no proper reasons were given for psychiatric diagnosis or WPI assessment, and inconsistencies remain unresolved.

   [35] – [36] The insurer submits these failures create reasonable cause to suspect material error.

Submissions of the insurer (WPI) dated 2 March 2023

1. The Panel summarises the submissions of the insurer by reference to paragraph numbers. The Panel has not included a summary of paragraphs [8] - [87] as they discuss physical injuries which are not a subject of review in this assessment.

   [1]–[2] The claimant alleges injuries to the cervical spine, right upper extremity, lumbar spine, and psychological sequelae arising from a motor vehicle accident on 25 March 2020.

   [3]–[5] The insurer issued multiple s 4.11 notices stating that it could not yet determine WPI or that WPI was less than 10%. Internal review upheld those decisions.

   [6]–[7] The insurer seeks a medical assessment by the Commission to resolve the dispute as to whether WPI exceeds 10%, and submits that it does not.

   Alleged Psychological Injury

   [88] – [90] The insurer submits that initial reports of anxiety were made in April–May 2020. The claimant was referred to Dr Kim for treatment of driving-related anxiety.

   [91] – [93] The insurer submits that psychological diagnoses included Generalised Anxiety Disorder and Major Depressive Disorder; however, Dr Kim attributed these largely to the claimant’s physical impairments.

   [94] – [96] The insurer submits that although the claimant described trauma-related symptoms such as flashbacks and hypervigilance, her treating psychologist consistently linked her psychological distress to ongoing physical pain.

   [97] – [100] The insurer submits that the claimant’s psychological symptoms did not significantly improve with treatment, as Dr Kim reported ongoing and consistent distress throughout consultations in 2020–2022.

   [101] – [105]   The insurer submits that Dr Peter Whetton diagnosed the claimant with Chronic Adjustment Disorder with Anxiety, assessed 7% WPI, and properly considered physical impairments in his PIRS assessment, in accordance with the Guidelines.

   [106] – [107]   The insurer submits that although the claimant relied on Dr Nicholas Argyle’s opinion, his report contained inaccuracies and failed to differentiate between psychological and physical impairments in the PIRS assessment.

   [108] – [109]   The insurer submits that the report of Dr Whetton should be preferred over Dr Argyle’s, as it properly incorporates the impact of physical symptoms in line with Clause 6.215 of the Motor Accident Guidelines.

Submissions of the claimant dated 4 May 2024

1. The Panel summarises the submissions of Ms Kim by reference to paragraph numbers:

   [1] - [2] The claimant is a 65-year-old Korean woman who submits she was a passenger in a vehicle involved in a serious multi-vehicle accident on 25 March 2020. Her vehicle was travelling at
   60–70kph and was written off. Police classified it as a major accident.

   [3] – [4] The claimant submits she sustained physical injuries to her face, neck, shoulder, and lower back, and developed psychological injuries shortly after, for which she has been treated by psychologist Dr J S Kim and prescribed medication.

   [5] – [6] The claimant submits Medical Assessor Hong recorded her psychological symptoms, which include poor sleep, chronic low mood, irritability, memory and concentration difficulties, disengagement, reduced eating, panic attacks, driving anxiety, insomnia, nightmares, and social withdrawal.

   [7] – [8] The claimant submits she has been prescribed medications including Loxalate, Axit, Amitriptyline, Panadeine Forte, Panadol, and Somac, and has received continuous treatment from Dr J S Kim since mid-2020.

   [9] – [10] The claimant submits her marriage ended in January 2023 due to constant arguments stemming from the psychological effects of the accident. Despite their divorce, she and her former husband live in the same household due to financial constraints. Prior to the accident, she worked 50 hours a week as a cleaner but has not returned to work, due to an inability to drive or focus.

   [11] – [12] The claimant submits that Medical Assessor Hong assessed her by video link on 6 February 2024 and issued a certificate on
   9 February 2024, diagnosing post-traumatic stress disorder and assessing her permanent impairment at 23% after allowing for treatment.

   [13] – [14] The claimant submits that the insurer challenges the assessment on grounds that: (a) diagnostic criteria for post-traumatic stress disorder were not set out; (b) no distinction was made between physical and psychological impairments; and (c) reasons were inadequate. The insurer claims a right of review under s 7.26 of the MAIA 2017.

   [15] The claimant submits she does not accept that Assessor Hong made any errors, nor that any potential error amounts to a material error justifying a review.

   Alleged Failure to Set Out Diagnostic Criteria

   [16] – [17] The claimant submits that Medical Assessor Hong accepted her account as credible, including her current symptoms (referenced in paragraph 12 of the certificate).

   [18] – [20] The claimant submits the Medical Assessor also accepted her medication history and long-term treatment with Dr J S Kim. He noted her divorce due to psychological impacts and considered the expert opinions of Drs Kim, Argyle, Whetton, and So.

   [21] – [22] The claimant submits the Medical Assessor correctly observed that Dr Whetton failed to record relevant history, including post-accident relational strain, driving difficulties, and concentration issues. The Medical Assessor took a comprehensive history, cross-referenced it with other records, and found her to be a credible historian. The PTSD diagnosis was based on accepted symptomatology.

   [23] The claimant submits that when the certificate is read as a whole, it shows the Medical Assessor properly identified the diagnostic criteria for PTSD.

   Alleged Errors in the PIRS Assessment

   [24] The claimant submits that the PIRS table must be read alongside the entire certificate, and the Medical Assessor is not required to list supporting findings under each rating category.

   [25] The claimant submits there is no inconsistency between the Self-Care rating and her living arrangements. Though she lives in the same home as her ex-husband, she functions independently and sees her sons only occasionally. She eats less, has gained weight, and prepares only simple food.

   [26] The claimant submits that although she went on a 10-day trip to Europe with her sons, this single outing over four years does not undermine the Social and Recreational Activities rating. She no longer reads, watches TV, knits, or engages with grandchildren or friends, and her marriage has ended.

   [27] The claimant submits her travel limitations are due to psychological trauma. She only drives locally and is anxious, hyper-vigilant, and fearful near other cars. The Medical Assessor correctly attributed these restrictions to her psychological condition, not physical impairments.

   [28] The claimant submits that the marriage breakdown was caused by psychological strain and constant conflict, and that there is no evidence linking it to physical injuries.

   [29] The claimant submits that while Dr Whetton attributed her cessation of knitting to a physical issue, this was not the history presented to Medical Assessor Hong. The Medical Assessor correctly accepted her version and dealt with Dr Whetton’s contrary view.

   [30] The claimant submits the same response applies to the challenge regarding the Adaption rating. The Medical Assessor accepted her history and properly explained the factors underpinning his assessment.

   Alleged Failure to Engage with Evidence or Provide Adequate Reasons

   [31] The claimant submits that the Medical Assessor fully engaged with the medical evidence, including Dr Whetton’s report. He explained in detail why he did not accept Dr Whetton’s conclusions and highlighted that his differing assessment stemmed from taking a more complete and relevant history, particularly concerning the claimant’s divorce, driving anxiety, and concentration difficulties.

   [32] The claimant submits that the insurer has not demonstrated any material error in Medical Assessor Hong’s certificate. Even if a minor error were found, it would not rise to the level required to trigger a reasonable suspicion of material error under s 7.26.

Further submissions of the claimant dated 27 April 2023

1. The Panel summarises the submissions of the insurer by reference to paragraph numbers:

   [1] – [3] The claimant submits that the Motor Accident Guidelines require assessors to apply the PIRS methodology and determine a diagnosis using DSM-5 criteria.

   [4] – [6] The claimant submits that she suffers from a recognised psychiatric illness as a result of the subject motor vehicle accident and is entitled to WPI assessment.

   [7] – [10] The claimant submits that Dr Jung Sook Kim, a treating psychologist, diagnosed her with Major Depressive Disorder with anxious distress and PTSD symptoms.

   [11] – [14] The claimant submits that her psychological condition is causally linked to the subject accident, given that her symptoms arose shortly after and were noted by treating practitioners.

   [15] – [17] The claimant submits that Dr Whetton’s diagnosis of Adjustment Disorder fails to account for the trauma she experienced and lacks proper clinical justification.

   [18] – [21] The claimant submits that the PIRS assessment conducted by Dr Whetton was flawed, as it failed to adequately consider the severity and duration of her psychological symptoms.

   [22] – [25] The claimant submits that Dr Argyle conducted a valid psychiatric assessment that aligns with the DSM-5 and Motor Accident Guidelines, and that his PIRS ratings accurately reflect her impairment.

   [26] – [30] The claimant submits that her impairment is permanent and stable, with ongoing symptoms despite extended psychological treatment.

   [31] – [35] The claimant submits that she meets the criteria for a WPI rating over 10%, based on PIRS category ratings provided by Dr Argyle.

SUMMARY OF RELEVANT DOCUMENTATION

Post-accident treating medical evidence

Dr Andrew Keller, Psychiatrist

1. Dr Keller assessed Ms Kim on 22 June 2022.

2. Dr Keller recorded physical injuries to the right hand and cervical and lumbar spine.

3. Dr Keller noted that her physical injuries would have restricted her working capacity during April and May 2020.

4. Dr Keller, in his opinion, stated there were no objective signs of lasting injuries which would restrict her capacity to return to work.

Dr Nicholas Argyle, Psychiatrist

1. Dr Argyle saw Ms Kim by video on 6 October 2022 to conduct an independent medico-legal examination.

2. Dr Argyle found a “a significant amount of post-traumatic damage in Ms Kim” and concluded a diagnosis of post-traumatic stress disorder was appropriate.

3. Dr Argyle in support of his decision referred to Ms Kim’s nightmares of the accident, avoidant behaviour, chronic anxiety, fatigue, poor sleep and low self-esteem.

4. Dr Argyle concluded Ms Kim would not be able to return to work for the foreseeable future due to her psychological problems. 

5. Dr Argyle found WPI of 25%.

Dr Peter Whetton, Psychiatrist

1. Dr Whetton conducted an independent medical examination of Ms Kim on
   

   [6] Insurer’s bundle p91-100.

   22 December 2021 upon request of the insurer.[6]

2. Dr Whetton commented that Ms Kim “warrants the diagnosis of Chronic Adjustment Disorder with Anxiety.” He noted she possessed “some PTSD symptoms” but not the “full cluster of symptoms to warrant that diagnosis”.

3. Dr Whetton observed the bulk of Ms Kim’s symptoms related to her physical pain and limitations. Dr Whetton deemed Ms Kim as fit to return to work as a cleaner from a psychological perspective.

4. Dr Whetton assigned a Whole Person Impairment of 7%.

Ambulance Report

1. The incident occurred as a result of a motor vehicle accident where the patient, a 60-year-old female driver, swerved to avoid a collision and hit a rock wall.[7]

   [7] Insurer’s bundle p101-105.

2. She self-extricated from the vehicle and reported injury to her right hand only.

3. The initial assessment noted a closed fracture, joint swelling, and a laceration above the right pinky finger.

4. On examination, she was alert (GCS 15), with stable vital signs, no neck or chest pain, and no shortness of breath.

5. The injury was isolated to the right hand; the hand was neurovascularly intact with some bleeding and swelling.

6. She was treated with paracetamol and declined morphine.

7. The patient was transported in a stable condition to Royal North Shore Hospital due to the mechanism of injury (traveling 60–70 km/h).

8. Seatbelt was worn; airbags were not activated.

9. Past medical history, medications, and allergies were recorded as nil known.

Royal North Shore Hospital Discharge Summary

1. Ms Kim was admitted to Royal North Shore Hospital 25 March 2020 following the accident.[8]

   [8] Insurer’s bundle p107-110.

2. Ms Kim did not hit her head and remembered the whole accident with no amnesia.

3. On examination Ms Kim was alert and orientated with normal vitals.

4. Ms Kim’s injuries were an injury to her right hand, haematoma to the dorsum, multiple small abrasions with glass still in them.

5. Ms Kim had a CT Brain scan with no abnormalities found.

6. Ms Kim was discharged the same day, 25 March 2020.

Reports of Dr Jung Suk Kim, Psychologist

1. Dr Jung Suk Kim found Ms Kim’s symptoms met the criteria for:[9]

   (1)    Major Depressive Disorder.

   (2)    Generalised Anxiety Disorder.

   [9] Insurer’s bundle p480-532.

MEDICAL EXAMINATION BY PANEL

1. Ms Kim was examined via video teleconference on 6 June 2025 using the MS-Teams platform by Medical Assessor Thomas Newlyn and Medical Assessor Christopher Rikard-Bell.

2. A Korean interpreter was provided who facilitated the assessment.

HISTORY

Psychosocial history and pre-accident history

1. Ms Kim is a 64-year-old woman who is one of five siblings and was born in Korea. Her father is deceased and her mother, two sisters and one brother reside in South Korea. There is one sister in Australia. Ms Kim arrived in Australia in 2013 to be with her sons, while her husband arrived in 2019. Ms Kim and her husband were working in a cleaning business until the accident of 25 March 2020.

2. Since the accident, Ms Kim or her husband has not returned to work. Before the accident, Ms Kim was working full-time as a cleaner in her husband’s business. She was a confident driver, and she enjoyed reading. She could concentrate and liked crocheting, playing golf, knitting, and walking. She socialised at golf and relationships with her children and husband were good. Ms Kim was working up to 50 hours per week as a cleaner, 5-10 hours per day.

History of the motor accident

1. Ms Kim was involved in a motor vehicle accident on 25 March 2020.

2. Ms Kim reported that she was driving to work in Manly on 25 March 2020 at around 60km/h when another car crossed the centre line and collided with her vehicle. She lost consciousness and only remembered people being around when she woke up. Her husband, who was in the passenger seat, also lost consciousness and sustained injuries. He continues to experience low back pain and headaches. Neither Ms Kim or her husband have returned to work since the accident.

3. Emergency services attended, Ms Kim and her husband were taken to Royal North Shore Hospital. She had glass fragments in her face and hand, which were removed, and she underwent scans. She identified shoulder pain as her most persistent and distressing symptom.

Details of subsequent injuries and/or conditions

1. Ms Kim was involved in a subsequent motor vehicle accident on 10 March 2023 as the driver of a new vehicle when another driver collided with the rear of her vehicle. The accident was minor and there were no ongoing major issues. The insurer of the vehicle at fault covered the cost of repairs to Ms Kim’s vehicle within a week of the accident.

History of symptoms and treatment following the accident

1. After the motor vehicle accident, Ms Kim has received psychological treatment with Jung Sook Kim since June 2020 on a weekly basis, but ceased treatment in 2024 when treatment was no longer funded by the insurer. Ms Kim stated that the treatment was helpful and she was feeling better. She explained the advice received was to utilise music, eat warm food and exercise, which she found helpful. There has been no psychiatric treatment received. Ms Kim was with her husband at the time of the accident and had only just reunited when he arrived in Australia in 2019, having last been together in Korea in 2013. After the accident, they continued to cohabitate; however, in 2024, Ms Kim and her husband divorced and she moved to live with her son. Ms Kim stated she and her husband argued a lot after the accident as they were both experiencing pain; nevertheless, they remained together. There was a family holiday to Europe for 10 days in November 2023, which she enjoyed, apart from the pain that restricted her ability to be as physically active as she would have liked.

CURRENT ROUTINE

1. Ms Kim gets up at 9.00am and will go for a walk, then comes home and rests in bed until lunchtime. She will go for a walk in the afternoon, but is normally restricted by right shoulder pain and lower pain, as well as cramping in her legs. Ms Kim cooks simple food, such as boiling an egg, but does not cook elaborate meals and most food is prepared. She will see her grandchildren and watch them play, but cannot lift them due to physical restrictions.

CURRENT SYMPTOMS

1. Currently, Ms Kim wakes up three times during the night due to shoulder and back pain. There are intrusive dreams approximately five times per year about driving, which disturb her sleep and cause her to feel upset. At times, the dreams include visions of seeing blood everywhere. She is fearful when in the car and avoids other vehicles, although she is able to drive well and is a confident driver. The main restrictions relate to physical symptoms with pain in her shoulder and lower back restricting her from lifting, cleaning, driving and walking for long periods. Ms Kim rated shoulder pain as up to 8/10 and back pain as 10/10 and said she finds it difficult to enjoy herself because of the pain. Her appetite has increased and she has gained 5kg in weight. She is irritable and does not enjoy interacting with her ex-husband and children, although she did smile when talking about her grandchildren. Ms Kim explained that the main reason she cannot enjoy herself is due to pain. She said she would like to go bushwalking more and do other activities, but the pain is a problem and restricts her from activities she enjoys. She has difficulty concentrating and her memory is reduced, as well as finds it hard to read. When thinking about the accident, there are intrusive recollections and she can become panicky.

CURRENT FUNCTIONING

1. Ms Kim is able to dress, feed and manage her self-care to a certain degree, although she does not shower regularly as she feels she has no reason. In addition, there are restrictions with showering due to pain in her right shoulder and lower back. Nevertheless, she can manage her self-care reasonably well, but not as well as she would like. Therefore, there is mild impairment of self-care and personal hygiene.

2. In terms of social functioning, it is the Panel’s view that although there was strain in the relationship, separation and divorce could not be causally linked to the accident. In addition, it is worth noting that Ms Kim had not cohabited with her husband since 2013 and had only just begun cohabiting again in 2019, some months before the accident. As Dr Argyle noted, the relationship appeared to be “a positive relationship” as late as October 2022. Although Medical Assessor Hong concluded the accident was instrumental in leading to separation and divorce, this is not supported by the reports by Dr Whetton on 31 December 2021 and Dr Argyle on 7 October 2022. The Panel is of the view that there were no marital separations and the separation and divorce subsequently occurred in 2023 and 2024, which is three years after the accident. Therefore, it is the Panel’s view that the impact of the accident on the marital relationship was mild.

3. In terms of concentration, Ms Kim reported difficulties with focus and pain contributes to concentration difficulties. However, she has lost interest in reading and does not follow movies. She loses track when attempting to manage complex tasks and does not like to cook or knit any longer, partly due to pain but also due to the fact that she cannot focus. She feels she is unable to remember things well and is unable to complete tasks. Therefore, there is moderate impairment of concentration, persistence and pace.

4. In terms of adaptation, Ms Kim was quite adamant that if it were not for the pain, she would be able to continue working. At the time of the accident, Ms Kim was working as a cleaner; however, the pain in her shoulder and lower back restricted working. She stated it is a strong disappointment to her that she is unable to work. It is worth noting that Dr Keller reported that had it not been for the accident, she would have been able to return to work. Therefore, there is no impairment of adaptation from a psychological perspective.

5. In terms of travel, Ms Kim indicated that apart from pain, there is some anxiety when in the car, but she is able to drive despite some anxiety and hypervigilance. It is noted that Ms Kim was the driver of the vehicle when the second motor vehicle accident occurred on 10 March 2023. In addition, Ms Kim was able to travel to Europe on a family holiday in 2022, which she enjoyed, but would have enjoyed much more if it were not for the pain and restrictions with walking. Therefore, there could be no more than mild impairment of travel.

6. In terms of social and recreational activities, Ms Kim previously enjoyed playing golf and bush walking as well as an active social life. After the accident, she became very withdrawn and she does not see friends. She does not engage in actively seeking social interaction and there is only contact with close family members. She still likes to walk each day but is restricted due to pain symptoms. However, it is the Panel’s view a holiday to Europe where she enjoyed travelling to Italy and Switzerland which she acknowledged was enjoyable and positive apart from the pain, in addition to the process of organising such a trip with flights and other modes of transport as well as sightseeing indicating motivation to enjoy the holiday despite being hampered by pain, there is no more than mild impairment of social and recreational activities even though there is no active engagement in social activities other than with her children and grandchildren.

ADDENDUM TO CURRENT FUNCTIONING

1. The Certificate of Medical Assessor Hong dated 9 February 2024, obtained the history that there were arguments between the couple in January 2023, leading to separation and divorce, inconsistent with the report of Dr Argyle. Although Dr Hong noted the marital relationship eventually ended in separation and divorce, Dr Hong did not refer to the fact that the couple resided separately from 2013 to 2019. After the motor vehicle accident, they appeared to cohabitate with no threat of separation or divorce at least until the end of 2022, raising the question as to whether there is a causal link between the motor vehicle accident and the marriage ending.

2. The report of Dr Argyle dated 7 October 2022 did not outline significant issues in the marital relationship and reported “… she maintains a positive relationship with her husband, though both of them feel very low in mood.”

3. It is worth noting in the report dated 31 December 2021 by Dr Whetton, the history obtained was that the relationship between Ms Kim and her husband was good. Dr Whetton stated, “… she relates well to her children, although indicated some strain in the relationship with her husband, but no separations." Dr Whetton diagnosed an adjustment disorder and there would be capacity to return to full-time pre-injury duties.

4. The Greenlight report by Kerry Miller dated 21 May 2020, indicated that Ms Kim and her husband commenced working together in December 2019. The clinical notes of Jung Sook Kim, psychologist, reported on 23 September 2020 that Ms Kim’s husband was unwell and their “… lifestyle was very chaotic.” On 14 June 2022 there were no significant issues noted in the relationship with her husband and symptoms were related to anxiety and pain.

5. The report of Dr Keller dated 30 June 2022 noted “… in my opinion there are no objective signs of lasting injuries attributable to the accident that restrict her capacity for return to work.”

MENTAL EXAMINATION

1. Ms Suyeon Kim was involved in a serious motor vehicle accident on 20 March 2020, which was frightening and potentially life-threatening. Before the accident, she was functioning well. After the accident, there were nightmares and some flashbacks and there was avoidance of driving and cars as noted by Jung Sook Kim, psychologist. There was irritability, difficulties with mood, as well as hypervigilance, particularly to loud noises and reminders of the accident. Subsequently, with treatment, there has been improvement in overall mood and there has been partial remission. Therefore, on balance, the Panel formed the view that there is evidence to support post-traumatic stress disorder in partial remission (309.81, F43.10). The criteria according to DSM-5-TR are outlined below:

   (1)    A traumatic event (frightening & potentially life-threatening accident of 20.03.20)

   (2)    Re-experiencing phenomena with nightmares, intrusive thoughts of the accident and some flashbacks

   (3)    Avoidance behaviours, avoiding driving and some car phobia

   (4)    Negative cognitions with irritability and diminished interest in activities

   (5)    Marked alterations of mood with hypervigilance to loud noises and reminders of the accident

   (6)    Duration of more than one month

   (7)    Significant impairment of functioning in social, occupational and other important areas of functioning

   (8)    Not due to substance use or other medical condition

CAUSATION

1. The psychological condition is causally related to the subject motor vehicle accident.

WHOLE PERSON IMPAIRMENT

Psychiatric diagnoses	1. Post-traumatic stress disorder
Psychiatric treatment description	Psychological counselling, nil current

Category	Class	Reason for Decision
1.        Self-Care and Personal Hygiene	2	Ms Kim is able to dress, feed and manage her self-care to a certain degree, although she does not shower regularly as she feels she has no reason. In addition, there are restrictions with showering due to pain in her right shoulder and lower back. Nevertheless, she can manage her self-care reasonably well, but not as well as she would like. Therefore, there is mild impairment of self-care and personal hygiene.
2.        Social and Recreational Activities	2	In terms of social and recreational activities, Ms Kim previously enjoyed playing golf and bush walking as well as an active social life. After the accident, she became very withdrawn and she does not see friends. She does not engage in actively seeking social interaction and there is only contact with close family members. She still likes to walk each day but is restricted due to pain symptoms. However, it is the Panel’s view a holiday to Europe where she enjoyed travelling to Italy and Switzerland which she acknowledged was enjoyable and positive apart from the pain, in addition to the process of organising such a trip with flights and other modes of transport as well as sightseeing indicating motivation to enjoy the holiday despite being hampered by pain, there is no more than mild impairment of social and recreational activities even though there is no active engagement in social activities other than with her children and grandchildren.
3.        Travel	2	In terms of travel, Ms Kim indicated that apart from pain, there is some anxiety when in the car, but she is able to drive despite some anxiety and hypervigilance. It is noted that Ms Kim was the driver of the vehicle when the second motor vehicle accident occurred on 10 March 2023. In addition, Ms Kim was able to travel to Europe on a family holiday in 2022, which she enjoyed, but would have enjoyed much more if it were not for the pain and restrictions with walking. Therefore, there could be no more than mild impairment of travel.
4.        Social Functioning	2	In terms of social functioning, it is the Panel’s view that although there was strain in the relationship, separation and divorce could not be causally linked to the subject motor vehicle accident. In addition, it is worth noting that Ms Kim had not cohabited with her husband since 2013 and had only just begun cohabiting again in 2019, some months before the motor vehicle accident. As Dr Argyle noted, the relationship appeared to be “a positive relationship” as late as October 2022. Although Dr Hong concluded the motor vehicle accident was instrumental in leading to separation and divorce, this is not supported by the reports by Dr Whetton on 31 December 2021 and Dr Argyle on 7 October 2022. The Panel is therefore of the view that there were no marital separations and the separation and divorce subsequently occurred in 2023 and 2024, which is three years after the accident. Therefore, it is the Panel’s view that the impact of the subject motor vehicle accident on the marital relationship was mild.
5.        Concentration, Persistence and Pace	3	In terms of concentration, Ms Kim reported difficulties with focus and pain contributes to concentration difficulties. However, she has lost interest in reading and does not follow movies. She loses track when attempting to manage complex tasks and does not like to cook or knit any longer, partly due to pain but also due to the fact that she cannot focus. She feels she is unable to remember things well and is unable to complete tasks. Therefore, there is moderate impairment of concentration, persistence and pace.
6. Adaptation	1	In terms of adaptation, Ms Kim was quite adamant that if it were not for the pain, she would be able to continue working. At the time of the accident, Ms Kim was working as a cleaner; however, the pain in her shoulder and lower back restricted working. She stated it is a strong disappointment to her that she is unable to work. It is worth noting that Dr Keller reported that had it not been for the motor vehicle accident, she would have been able to return to work. There is minimal impairment of adaptation from a psychological perspective.
List classes in ascending order: 1,2,2,2,2,3,
Median Class Value: 2
Aggregate Score: 12
% Whole Person Impairment: 6%

*%WPI ^{= Percentage Whole Person Impairment}

REASONS FOR DETERMINATION

1. The Review Panel took a different view of the outcome of the accident to that taken by Medical Assessor Hong.

2. Although it was a serious accident that gave rise to a post-traumatic stress disorder, which the Panel considered to be in partial remission, there were significant areas which the Review Panel considered it was justified departing from Medical Assessor Hong’s assessment of 23% WPI.

3. These are summarised in the report of the Review Panel above, but there were significant differences of emphasis and conclusion by the Review Panel.

4. In terms of social functioning, the Panel was of the view that the strain in the relationship and divorce could not be causally linked to the accident.

5. Ms Kim had not cohabited with her husband since 2013 and had only began cohabiting again in 2019.

6. The accident was not instrumental in leading to the separation and divorce (the Review Panel references the reports by Dr Whetton on 31 December 2021, and Dr Argyle on 7 October 2022).

7. Generally, it was the Panel’s view that the impact of the accident on the martial relationship was mild.

8. The Review Panel took into account Dr Keller’s report that it was the physical injuries which prevented Ms Kim from returning to work, and the Panel was therefore of the view that there was minimal impairment of adaption from a psychological perspective.

CLAIMANT SUBMISSIONS

1. The Panel outlines its view on the claimant’s submissions:

2. The claimant at [9] - [10] of her submissions of 4 May 2024 submits that her marriage ended in January 2023 due to constant arguments stemming from the psychological effects of the accident.

3. Having considered this submission carefully, the Review Panel took the view that although there were strains in the relationship of the couple, separation and divorce could not be causally linked to the accident.

4. The Panel further noted that Ms Kim had not cohabitated with her husband since 2013 and had only just begun cohabiting again in 2019, some months before the accident. Further, the Panel noted that although Medical Assessor Hong found that the accident was instrumental in leading to separation and divorce, this was not supported by either Dr Whetton [31 December 2021] or Dr Argle [7 October 2022]. The Panel was of the view that there was no marital separation and the separation and divorce which subsequently occurred in 2023 and 2024, 3 years after the accident, was not causally connected.

5. The Review Panel had a different view to Medical Assessor Hong in respect of the appropriate classification for category 2, social and recreation activities. The Review Panel, for example, took a different approach to the relevance of the family holiday to Europe, saying:

   “…However, it is the Panel’s view a holiday to Europe where she enjoyed travelling to Italy and Switzerland which she acknowledged was enjoyable and positive apart from the pain, in addition to the process of organising such a trip with flights and other modes of transport as well as sightseeing indicating motivation to enjoy the holiday despite being hampered by pain, there is no more than mild impairment of social and recreational activities even though there is no active engagement in social activities other than with her children and grandchildren.”

6. Both the Review Panel and Medical Assessor Hong assigned 3 for concentration, persistence and pace.

7. The Review Panel assessed 1 for adaptation as against 5 by Medical Assessor Hong. The Review Panel said this:

   “…In terms of adaptation, Ms Kim was quite adamant that if it were not for the pain, she would be able to continue working. At the time of the accident, Ms Kim was working as a cleaner; however, the pain in her shoulder and lower back restricted working. She stated it is a strong disappointment to her that she is unable to work. It is worth noting that Dr Keller reported that had it not been for the motor vehicle accident, she would have been able to return to work. There is minimal impairment of adaptation from a psychological perspective.”

8. This allocation of 1 for adaptation was as the result of the psychiatric assessment and clinical judgment of two very experienced psychiatrists who conducted their own assessment of adaptation and gave their reasons. They obviously disagreed with Medical Assessor Hong on this and the value they gave was the result of their own examination and assessment.

DETERMINATION

1. The Review Panel determines that as a result of the accident, Ms Kim sustained WPI of 6%.

2. The Review Panel revokes the determination of Medical Assessor Hong, dated
   9 February 2024, and in lieu concludes that as a result of the accident Ms Kim sustained WPI of 6%.