Allianz Australia Insurance Limited v Ndaba
[2023] NSWPICMP 651
•1 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Ndaba [2023] NSWPICMP 651 |
| CLAIMANT: | Bekezela Ndaba |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Anthony Scarcella |
| MEDICAL ASSESSOR: | Samson Roberts |
| MEDICAL ASSESSOR: | Glen Smith |
| DATE OF DECISION: | 1 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Mason who determined that the claimant had a WPI of greater than 10%, that is, 16% WPI; review sought by insurer under section 7.26; claimant suffered a psychological injury in the motor accident on 14 July 2019; consideration and application of clauses 6.201 to 6.228 of the Motor Accident Guidelines in respect of mental and behavioural disorders considered and applied; Held – the Panel revoked the certificate issued by MA Mason dated 11 May 2022; the Panel certified that claimant suffered a post-traumatic stress disorder caused by the motor accident on 14 July 2019 that gave rise to a WPI which is greater than 10%, that is, 15%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate issued by Medical Assessor Wayne Mason dated 11 May 2022. 2. Certifies that the claimant sustained a post-traumatic stress disorder caused by the motor accident on 14 July 2019 that gives rise to a whole person impairment which is greater than 10%, that is, 15%. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Ms Bekezela Ndaba, is a 53-year-old woman who was involved in a motor accident on 14 July 2019 whilst a front seat passenger in a bus (the motor accident).
On 19 July 2019, Ms Ndaba made a claim for personal injury benefits on Allianz Australia Insurance Limited (the insurer).
Ms Ndaba claims that she suffered injuries to her eyes, left leg and a psychological injury as a result of the motor accident.
Ms Ndaba’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
A medical dispute about the degree of Ms Ndaba’s whole person impairment (WPI) has arisen in connection with her claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Wayne Mason for assessment.
On 11 May 2022, Medical Assessor Mason determined that Ms Ndaba suffered a
post-traumatic stress disorder and delusional disorder caused by the motor accident and assessed her as having a WPI greater than 10%, that is, 16% (the Medical Assessment).
REVIEW PROCEDURE
The insurer sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).
The President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
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.
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 Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
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: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
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: Rule 128 of the PIC Rules.
On 4 May 2023, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle on which they relied in the Review (the insurer by 22 May 2023 and Ms Ndaba by 5 June 2023).
On 20 June 2023, the Panel made the following directions:
“1. Ms Ndaba is, by close of business on 4 August 2023, to provide the Panel with the following:
(a)an updated copy of her general practitioners’ clinical records (Parramatta Medical Centre), noting that the most current records lodged with the Commission were printed on 25 July 2022;
(b)copies of her treating psychiatrists’ clinical records;
(c)copies of her treating psychologists’ clincal records, and
(d)any final submissions in response to any matters raised by this report and directions.
2. The insurer is, by close of business on 9 August 2023, to provide the Panel with the following:
(a)a copy of the President’s delegate’s decision in respect of the Review, and
(b)any final submissions in response to any matters raised by this report and directions.”
On 20 June 2023, the Panel informed the parties that it considered a re-examination of Ms Ndaba was required. Arrangements were made for Ms Ndaba to be re-examined by Medical Assessor Samson Roberts and Medical Assessor Glen Smith by video link (MS Teams) on 14 August 2023.
LEGISLATIVE FRAMEWORK
General provisions
Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Sections 5D (duty of care – general principles) and 5E (onus of proof) of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Ms Ndaba’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
Permanent impairment assessment
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 version 9.2 effective from 10 November 2023 (the Guidelines).
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 in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“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.”
Clause 6.7 of the Guidelines states:
“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.”
The assessment of permanent impairment in respect of mental and behavioural disorders is addressed in cls 6.201 to 6.228 of the Guidelines.
Clause 6.203 of the Guidelines states:
“The assessment of mental and behavioural disorders must be undertaken in accordance with the psychiatric impairment rating scale (PIRS) as set out in these Guidelines. Chapter 14 of the AMA 4 Guides (pages 291-302) is to be used for background or reference only.”
Clause 6.213 of the Guidelines states:
“The impairment must be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic & Statistical Manual of Mental Disorders (DSM-5-TR) or the current edition of the International Statistical Classification of Diseases & Related Health Problems (ICD). The impairment evaluation report must specify the diagnostic criteria on which the diagnosis is based.”
In respect of the PIRS, cl 6.219 of the Guidelines states that the behavioural consequences of psychiatric disorders are assessed on the following six areas of function, each of which evaluates an area of functional impairment:
(a) self-care and personal hygiene (Table 6.11 of the Guidelines);
(b) social and recreational activities (Table 6.12 of the Guidelines);
(c) travel (Table 6.13 of the Guidelines);
(d) social functioning (relationships) (Table 6.14 of the Guidelines);
(e) concentration, persistence and pace (Table 6.15 of the Guidelines ), and
(f) adaptation (Table 6.16 of the Guidelines).
Tables 6.11 to 6.16 of the Guidelines identify the five classes of assessment within each of the six areas of function.
Clauses 6.225 to 6.228 and Table 6.17 of the Guidelines address the three step procedure involved in calculating psychiatric impairment.
Clauses 6.222 to 6.224 of the Guidelines address the adjustment for the effects of prescribed treatment to the assessment of WPI.
Clause 6.218 of the Guidelines states:
“In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.
Subsequent injury is addressed in cl 6.34 of the Guidelines which states:
“The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of a subsequent impairment, its possible presence should be ignored.”
ASSESSMENT UNDER REVIEW
Medical Assessor Mason examined Ms Ndaba on 10 May 2022 and issued a certificate under s 7.23(1) of the MAI Act on 11 May 2022.
Medical Assessor Mason was asked to assess the dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the MAI Act in respect of psychiatric conditions – psychological injuries.
Medical Assessor Mason took a detailed psychosocial and pre-accident history from Ms Ndaba that included:
(a) Ms Ndaba lived alone in a rented granny flat;
(b) Ms Ndaba was born in Zimbabwe being the fourth of 10 children;
(c) Ms Ndaba described a good childhood and denied any form of abuse throughout childhood;
(d) Ms Ndaba completed four years of high school;
(e) Ms Ndaba was married in 1992 and there were three children of the marriage;
(f) Ms Ndaba worked for 20 years as a bank teller in Zimbabwe whilst she was married;
(g) Ms Ndaba went to Johannesburg in 2008 to train as a chef for two years and subsequently worked as a head chef at a motel, as a pastry chef at a Holiday Inn, as a head chef in Zambia and then in her own cooking business back in Zimbabwe;
(h) Ms Ndaba divorced her husband in 2013 because he had been abusive and had physically beaten her, threatened her with a gun at times and had had an affair;
(i) Ms Ndaba fled Zimbabwe and came to Australia in 2018 because she feared her husband, who had continued to look for her and threaten her;
(j) Ms Ndaba had never suffered from psychological or psychiatric conditions and had never consulted a mental health professional, and
(k) Ms Ndaba agreed that the marriage and separation from her husband was traumatic and that she had been frightened of him but stated that she was relieved when she left him and came to Australia.
Medical Assessor Mason took the following detailed history of the motor accident from Ms Ndaba:
“At about 9:45 PM on 14 July 2019 Ms Ndaba said she was coming home from work and boarded a government bus at Parramatta railway station. She said everyone else was seated in the rear of the bus so she sat in the front across the aisle from the driver. When the bus started she was looking in her bag for her card when she heard people screaming and looked up to see smoke in the bus and she thought it was burning. She said the driver had run away and the doors were locked. She stood up to see what had happened. People were screaming for the doors to be opened. She said the bus had hit a female pedestrian and a wall and the girl was stuck under the bus. She said she became angry that the doors were locked because she thought the bus was on fire and she was afraid she would be burned to death. She said the passengers wanted to break the emergency exit window but could not find it. She described being in a panic and said it was all too much for her. She said they were all at the doors screaming hysterically to get out and trying to open the doors.
Ms Ndaba said the driver came later and opened the door. She said the passenger side windscreen had hit the wall and shattered and she had glass all over her. She said she was not bleeding but she had particles of glass in her hair, her clothes, her face, her mouth and her eyes. She said later it was necessary to cut her hair and throw away her clothes.
When she got out of the bus she attempted to pull out the girl who was stuck under the bus but was not able to do so. She said she was not able to understand why the other passengers just ran away and did not try to help. The girl was pinned under the front of the bus for 1 hour during which she was crying and screaming. Ms Ndaba said she wanted to run away too but she could not walk because she had glass in her shoes. She said a woman held her back and advised her to be checked out by the paramedics. She said police attended the accident scene. She was then transported by ambulance to Liverpool Hospital.”[1]
[1] Medical Assessor Mason’s certificate issued on 11 May 2022.
Medical Assessor Mason took a history of symptoms and treatment following the motor accident from Ms Ndaba. She was treated in the emergency Department of Liverpool Hospital and released at about 7.00am the following day. There were scratches in her eyes from the small fragments of glass. She was referred to an ophthalmologist. She was off work for two days. She went back to work as quickly as possible because she needed the money for rent and to pay her daughter’s school fees.
Ms Ndaba told Medical Assessor Mason that she presented to Westmead Hospital on two occasions in an attempt to visit the girl who had been trapped under the bus. She believed the girl’s name to be Joanne. She was not given access to the girl. She wrote to the insurer but they would not reveal her identity. She believed that the girl was the same age as her daughter. She could hear the girl screaming in her dreams every day until she was commenced on the antidepressant, sertraline. Ms Ndaba thought about the motor accident all the time and whenever she sees a girl of the same age, she thinks it was the one that was under the bus. She hopes that the girl is still alive.
Ms Ndaba told Medical Assessor Mason that she is afraid of walking beside roadways because the girl in the motor accident was hit on the footpath and Ms Ndaba was afraid of a vehicle leaving the road and hitting her.
Ms Ndaba told Medical Assessor Mason that her mood had changed and that she was now unable to talk to her children because they irritated her. She loves them and misses them but finds it difficult to tolerate them. She blames herself and often thinks that maybe she should have stayed in Zimbabwe with her children. If she had, she would not have been involved in the motor accident.
Ms Ndaba told Medical Assessor Mason that, after the motor accident, her daughter wrote a letter to her teacher saying that she could not keep going and she became afraid of using a school bus. Ms Ndaba denied that there had been any trauma for her daughter prior to the motor accident.
Ms Ndaba told Medical Assessor Mason that kitchen staff at work would tease her about being in the motor accident which resulted in her fighting with them. A family she worked with would take her to and from work in their car because, for almost one year, she was unable to use a bus. She prefers to use the train and is still uncomfortable using a bus but will do so if she has to. She now has a car and can drive to and from work and the nearby shops. She hates buses and when she sees them on the road she wants to hit them with her car. The only thing stopping her from doing so is the picture of her daughter in her car.
Ms Ndaba told Medical Assessor Mason that she consulted her general practitioners, Dr Renuka Makalandawa and Dr Sandy Dong. She was referred to Dr Bianca Heng, psychologist, and consulted her every week in 2019 and 2020. Dr Heng went on maternity leave in December 2020 and Ms Ndaba started to see shattered particles of glass again in various places, including traffic lights. She had the sensation of small particles of glass in her hair, mouth, eyes and clothes. She found it necessary to shower two to three times per day to get rid of the glass. She endeavoured to avoid situations where she would see the shattered glass and even talked about it with her workmates. However, they could not see the shattered glass and began to make fun of her. On one occasion, she took photographs of the shattered glass in the traffic lights but when she did, the shattered glass was not there.
Ms Ndaba told Medical Assessor Mason that she was referred to Dr Adnan Younus, psychiatrist, and consulted him on about five occasions. Dr Younus prescribed her the antidepressant sertraline and increased the dosage to 200mg. She found that the medication stopped her traumatic dreams. She was prescribed olanzapine 5mg to help her sleep. However, this made her too drowsy and she reduced the dosage to 1.25mg. She was referred to Dr Raymond Way, psychiatrist, and told him about seeing shattered glass everywhere. He prescribed her the antipsychotic agent aripiprazole 5mg. Initially, she consulted him monthly and then every three months. The medication had the effect of reducing her experience of seeing shattered glass everywhere and believing that there were fragments of glass in her hair, clothes, eyes and mouth.
In respect of current symptoms, Medical Assessor Mason noted that Ms Ndaba sees fragments of glass in her bed and in her hair. She feels fragments of glass in her mouth and when she cleans her teeth, she is chewing on glass. As a result, she is unable to drink from a glass. Her sleep is significantly disturbed. On a number of occasions, she had tried to cut herself and she showed Medical Assessor Mason healed lacerations on both forearms. She continues to hear the crying sound of the girl trapped under the bus and it reminds her of the bus crash. Talking to her daughter reminds her of the girl. She tries to talk to people at work about the glass and they think she is strange.
In respect of current and proposed treatment, Medical Assessor Mason noted that Ms Ndaba was not undergoing psychological counselling but has regular reviews with Dr Way. Medications consist of sertraline 100mg, aripiprazole 5mg and olanzapine between 1mg and 5mg.
On mental state examination, Medical Assessor Mason observed that Ms Ndaba was cooperative and provided information willingly and without prompting. She did not appear to be anxious or depressed. She spoke without insight about her experience of shattered glass in her hair, eyes, mouth and clothes and could not understand why other people could not see this. She described ongoing trauma related symptoms from the bus accident. She was fully oriented in time, person and place. She displayed no evidence of organic or psychotic psychopathology. Specifically, she did not report the presence of hallucinations and her behaviour was not obviously bizarre or odd. There had been no manic symptoms.
In respect of current functioning, Medical Assessor Mason reported that Ms Ndaba stated that she sat at home and did not go anywhere when she was not working because her house was safe and she preferred to stay there.
In respect of self-care and personal hygiene, Ms Ndaba stated that, because of the glass, she showered two or three times daily and washed her clothes very frequently. She did not bother to cook and ate junk food. She did not bother to eat all day and just ate bread at night. Her weight had increased from 85kg to 103kg. Medical Assessor Mason opined that Ms Ndaba was moderately impaired in this regard.
In respect of social and recreational activities, Ms Ndaba stated that she had no friends and that when she attempted to speak to her friends about the glass, they sent her messages saying that she was mad and needed to get some therapy. She did not go out sightseeing and did not participate in any activities. She did not watch television because she did not feel like it. Medical Assessor Mason opined that Ms Ndaba was moderately impaired in this regard.
In respect of travel, Ms Ndaba stated that she was able to drive to and from work, being a distance of 2.5km. She drove to nearby shops and could use a bus if she had to but with great anxiety. She felt safer on a train. Medical Assessor Mason opined that Ms Ndaba was mildly impaired in this regard.
In respect of social functioning, Ms Ndaba stated that she was not involved in a relationship prior to the motor accident and had not been in a relationship since the motor accident. She had withdrawn from contact with her children because they irritated her. She had some insight that this was unreasonable but could not help it. She worried about her daughter’s health and appeared to have identified with the girl injured in the bus accident. She had lost all her friends. She was fearful of engaging in another relationship. Medical Assessor Mason opined that Ms Ndaba was moderately impaired in this regard.
In respect of concentration, persistence and pace, Ms Ndaba stated that she had attempted to do a certificate in disability work with TAFE but was unable to do so because she could not concentrate. She had commenced a course at a private college in counselling psychology but dropped out because she was afraid. She was able to participate in the interview satisfactorily. Medical Assessor Mason opined that Ms Ndaba was mildly impaired in this regard.
In respect of adaptation, Ms Ndaba stated that she was working full-time, although, she said that the head chef was reducing her hours because of the beliefs about broken glass. The head chef commented that she was not fit to be at work. She does not keep the house tidy because she is not motivated to do so. Medical Assessor Mason opined that Ms Ndaba was mildly impaired in this regard.
Medical Assessor Mason reported that Ms Ndaba’s presentation was internally consistent, consistent with the documentation provided to him and consistent with the diagnoses he had made.
Medical Assessor Mason referred to and reviewed the documentation that had been provided to him.
Medical Assessor Mason diagnosed Ms Ndaba as having suffered a delusional disorder, a post-traumatic stress disorder and a major depressive disorder caused by the motor accident. The depressive disorder was both a direct consequence of the motor accident and a reaction to the delusional disorder and post-traumatic stress disorder.
Medical Assessor Mason assessed the degree of permanent impairment caused by the motor accident as 16% WPI.
EVIDENCE BEFORE THE PANEL
The evidence before the Panel consisted of the following:
(a) the insurer’s indexed and paginated bundle of documents identified as AD5 on the Commission’s portal (insurer’s documents);
(b) Ms Ndaba’s indexed and paginated bundle of documents identified as AD6 on the Commission’s portal (Ms Ndaba’s documents);
(c) the insurer’s application to admit late documents dated 9 August 2023 (insurer’s AALD);
(d) Ms Ndaba’s application to admit late documents dated 14 August 2023 (Ms Ndaba’s AALD dated 14 August 2023;
(e) Ms Ndaba’s application to admit late documents dated 9 September 2023 (Ms Ndaba’s AALD dated 9 September 2023), and
(f) Ms Ndaba’s application to admit late documents dated 1 November 2023 (Ms Ndaba’s AALD dated 1 November 2023).
REVIEW OF EVIDENCE
Applications for personal injury benefits
On 19 July 2019, Ms Ndaba completed an application for personal injury benefits in respect of the motor accident (the application form).[2]
[2] Ms Ndaba's documents at pages 12-17.
The application form set out the basic particulars of the motor accident and Ms Ndaba described the accident as follows:
“I was a front seated passenger on the bus, it was travelling to Parramatta station bus stop. The bus driver lost control and injured a pedestrian and collided into a shed wall. The window glass at the front shattered and the debris from the glass went into my face and eyes.”[3]
[3] Ms Ndaba's documents at page 14.
In the application form, Ms Ndaba described the injuries she received in the motor accident as lacerations/cuts in her right eye and left eye; difficulty with vision; and a left leg injury.
On 16 May 2023, Ms Ndaba completed an application for personal injury benefits in respect of a motor accident that occurred on 13 April 2023.[4]
[4] Insurer’s AALD at pages 18-25.
The application form dated 16 May 2023 set out the basic particulars of the motor accident. Ms Ndaba was the driver of a motor vehicle. She sought to turn right. A woman driver gave her passage to cross her path. Ms Ndaba checked that there was no bus in the kerbside bus lane and proceeded but there was a car speeding in the bus lane. The latter vehicle collided with the front passenger door of the vehicle Ms Ndaba was driving.
In the application form dated 16 May 2023, Ms Ndaba described the injuries she received in the motor accident on 13 April 2023 as left breast bruising and swelling; painful chest; painful and swollen right side of the neck; swelling to the right forehead; headache; and pain and swelling in the right hand and the joints.
Treating medical records and reports
On 5 August 2019, Dr Dong of Parramatta Medical Centre issued a certificate of capacity to Ms Ndaba that provided a diagnosis of acute stress disorder and right corneal abrasion. Dr Dong referred to Ms Ndaba as having been traumatised by the motor accident having witnessed a pedestrian being injured.[5]
[5] Ms Ndaba's documents at pages 44-46.
On 3 October 2019, Dr Dong issued a certificate of capacity to Ms Ndaba that provided a diagnosis of acute stress disorder and right corneal abrasion. Dr Dong referred to the factors affecting recovery as being difficulty focusing, forgetfulness, distraction and flashbacks.[6]
[6] Ms Ndaba's documents at pages 50-52.
On 1 January 2020, Dr Dong issued a certificate of capacity to Ms Ndaba that provided a diagnosis of acute stress disorder and right corneal abrasion. Dr Dong referred to the factors affecting recovery as being ongoing difficulties concentrating, slowness in movements and reactions and intrusive thoughts and memories.[7]
[7] Ms Ndaba's documents at pages 57-59.
On 8 January 2020, Dr Dong issued a certificate of capacity to Ms Ndaba that noted a recent flare-up of her acute stress disorder.[8]
[8] Ms Ndaba's documents at pages 60-64.
On 13 March 2020, Dr Dong issued a certificate of capacity to Ms Ndaba that provided a diagnosis of acute stress disorder and post-traumatic stress disorder. Dr Dong noted that Ms Ndaba had been referred to Dr Adnan Younus, psychiatrist. Dr Dong referred to factors affecting recovery as being memory lapses, feeling overwhelmed and flashbacks.[9]
[9] Ms Ndaba's documents at pages 65-67.
On 9 April 2020, Ms Ndaba consulted Dr Younus by telephone. She complained of experiencing flashbacks of the motor accident and that she had seen glass on her jacket and in its pocket and became stressed. That night, she experienced a nightmare. She complained of nightmares after speaking about the motor accident. She reported that her headache was getting better and that she was sleeping better. She was not working and mostly, stayed home. Dr Younus noted that Ms Ndaba was displaying ongoing avoidance behaviour.[10]
[10] Insurer's documents at pages 43-44.
On 10 August 2020, Dr Dong issued a certificate of capacity to Ms Ndaba that provided a diagnosis of stress and post-traumatic stress disorder. Dr Dong certified Ms Ndaba as fit for pre-injury duties as of 10 August 2020.[11]
[11] Insurer's documents at pages 38-40.
On 14 August 2020, Ms Revadhi Dowling, psychologist, of Rehab Management reported to the insurer that Ms Ndaba presented content and confident at their last meeting. Ms Ndaba was observed to be smiling more and excited when speaking of her recovery. She had been proactive in utilising her coping strategies and had regularly made successful attempts to move forward in her recovery by proactively trialling pre-accident duties or attempting her goals. Ms Ndaba reported that she enjoyed working as a chef and had successfully managed her interpersonal difficulties at work by proactively challenging unhelpful thinking. Ms Dowling opined that Ms Ndaba would be successful in maintaining her pre-accident functioning and employment due to her continued proactive use of coping strategies.[12]
[12] Insurer's documents at pages 34-36.
On 10 September 2020, Ms Ndaba consulted Dr Younus complaining of feelings of running away while sleeping. They discussed anxiety and its symptoms and relaxation and breathing. Dr Younus noted that Ms Ndaba was attending work and that she was seeing a psychologist.[13]
[13] Insurer's documents at page 43.
On 25 November 2020, Dr Bianca Heng, clinical psychologist, responded to an email from Rehab Management.[14] Dr Heng advised that she would be going on maternity leave from 21 December 2020, at which time, Ms Ndaba’s psychological treatment would cease as she was progressing well. Dr Heng stated that she felt that Ms Ndaba would benefit from the support of a rehabilitation consultant in January 2021.
[14] Insurer's documents at pages 58-59.
On 2 March 2021, Dr Makalandawa referred Ms Ndaba to Dr Sylvia Barber, psychiatrist of Dr Way and Associates.[15]
[15] Ms Ndaba's documents at page 34.
On 5 April 2021, Dr Dong issued a certificate of capacity to Ms Ndaba that provided a diagnosis of post-traumatic stress disorder. Dr Dong referred to factors affecting recovery as being the response to the medication Ms Ndaba was taking.[16]
[16] Ms Ndaba’s documents at pages 68-70.
On 8 May 2021, Dr Way prepared a report at the request of the insurer.[17] Dr Way reported a history of the motor accident that was consistent with the evidence. He stated that Ms Ndaba had consulted him on 15 April 2021, when he carried out a full psychiatric assessment and again on 8 May 2021 to review her medications. Dr Way noted that Ms Ndaba reported low mood, irritability, bouts of crying and recurrent panic attacks since the motor accident. She also experienced flashbacks, increased startle response to loud noises and sleep disturbance with nightmares. In December 2020, she began to experience visual images of scattered pieces of glass all around, causing her distress. She was upset and embarrassed that other people could not see the glass. She reported increasingly depressed mood and found it difficult to cope at work. She admitted to deliberately burning her arms with hot objects, causing several wounds, in an attempt to distract herself from the distressing visual images.
[17] Ms Ndaba's AALD dated 8 September 2023 at pages 12-14.
On mental state examination, Dr Way observed evidence of depressed mood with restricted affect and perceptual disturbances marked by visual hallucinations. Concentration and attention were poor. Dr Way diagnosed Ms Ndaba with post-traumatic stress disorder and major depression. He increased her dose of antidepressant, sertraline 250mg and added an antipsychotic, olanzapine 5mg. When Dr Way reviewed Ms Ndaba on 8 May 2021, she was much more settled and reported that her symptoms of seeing pieces of glass had almost completely subsided. She also reported less frequent panic attacks. He continued her on the same medications and provided her with psychoeducation about the symptoms of post-traumatic stress disorder and depression and commenced her on supportive psychotherapy.
On 6 July 2021, Ms Ndaba consulted Dr Makalandawa of Parramatta Medical Centre complaining of chest pain that had started three weeks earlier. The doctor queried a sudden panic attack at work. Dr Makalandawa noted that it had happened before and that it was most likely an underlying panic disorder.[18]
[18] Insurer's documents at pages 137-138.
On 8 July 2021, Ms Ndaba consulted Dr Makalandawa complaining of chest pain, panic disorder and visual hallucinations. Dr Makalandawa noted that Ms Ndaba was crying and had long-standing issues around post-traumatic stress disorder and depressive illness with panic disorder following the motor accident. She was improving whilst under cognitive behavioural therapy. She described an ongoing low mood; being confined to her home; social isolation; marked anhedonia; poor appetite; marked sleep disturbance; intermittent visual hallucinations involving pieces of glass; marked anxiety symptoms; chest pain; pain disorder; and sensitivity to stressors such as loud noise. The doctor reassured Ms Ndaba that her chest pain was not heart related. He discussed Ms Ndaba with Dr Dong, who was happy for him to take over Ms Ndaba’s care.[19]
[19] Insurer's documents at pages 138-139.
On 13 July 2021, Ms Ndaba consulted Dr Makalandawa complaining of ongoing low mood, social isolation, marked anhedonia, poor appetite followed by binge eating and marked sleep disturbance. Dr Makalandawa commented in Ms Ndaba’s clinical records: “Mentally ill and still managing to hold a job!!!”[20] Dr Makalandawa diagnosed Ms Ndaba with post-traumatic stress disorder and major depressive disorder.
[20] Insurer's documents at page 139.
On 28 August 2021, Ms Ndaba consulted Dr Makalandawa complaining of being stressed about living alone during the COVID-19 lockdown. The doctor noted a lot of past trauma related to family violence back in Africa and the fact that her children were living in various unsafe places. She felt upset thinking of her circumstances. The motor accident and related post-traumatic stress disorder had aggravated her current symptoms. Dr Makalandawa noted that Ms Ndaba remained on medications, cognitive behavioural therapy and exposure therapy under Dr Way. The doctor reinforced a crisis plan with her.[21]
[21] Insurer's documents at pages 142-143.
On 9 September 2021, Ms Ndaba consulted Dr Makalandawa advising that her moods were better and that she was sleeping well after halving the dosage of olanzapine. The doctor commented in Ms Ndaba’s clinical records that she had gone through tremendous stress and family violence which was not believed and supported by the systems in her country and in Australia. He opined that this may be one of the most important factors to consider in her treatment plan. Dr Makalandawa recommended that she continue with cognitive behavioural therapy and reinforce the importance of exercise.[22]
[22] Insurer's documents at page 143.
On 31 March 2022, Ms Ndaba consulted Dr Makalandawa complaining of a worsening of her symptoms and an inability to focus on her work. Dr Makalandawa advised her to reduce her work hours and noted that she was debilitated with a relapse of post-traumatic stress disorder and major depressive disorder symptoms.[23]
[23] Insurer's documents at page 147.
On 19 May 2022, Ms Ndaba consulted Dr Makalandawa complaining of auditory hallucinations of a baby crying in the background and feeling like there were pieces of glass on her breasts, which caused her not to wear her bra. Dr Makalandawa opined that it was likely that her post-traumatic stress disorder symptoms were recurring. He noted no psychosis. He discussed a crisis plan with her.[24]
[24] Insurer's documents at page 148.
On 23 June 2022, Ms Ndaba consulted Dr Makalandawa advising that she had panicked when she heard a loud noise at work. She then found that she could no longer focus and left work. Dr Makalandawa increased her dosage of olanzapine from 1.25mg to 2.5mg nightly.[25]
[25] Insurer's documents at page 149.
On 7 October 2022, Dr Makalandawa referred Ms Ndaba to Ms Lydia Ghaly, psychologist, of Sydney Centre for Psychological Medicine.[26]
[26] Ms Ndaba's documents at page 85.
Ms Ndaba first consulted Ms Ghaly on 20 October 2022 and provided a history of the motor accident that was consistent with the evidence. They discussed goals to manage her anxiety and depression and to improve motivation.[27]
[27] Ms Ndaba's AALD dated 14 August 2023 at pages 34-35.
In an allied health recovery request by Ms Ghaly dated 22 October 2022, she reported Ms Ndaba’s current signs and symptoms as low mood, low motivation, marked sleep disturbance, chest tightness, hopelessness, panic and anhedonia. Ms Ghaly’s clinical assessment was one of major depressive disorder, panic disorder and post-traumatic stress disorder following the motor accident.[28]
[28] Ms Ndaba’s AALD dated 14 August 2023 at pages 18-22.
Ms Ndaba underwent further consultations with Ms Ghaly on 2 November 2022, 8 November 2022, 15 November 2022, 29 November 2022, 8 December 2022, 14 December 2022 and 10 January 2023.[29] In each of these consultations, they engaged in discussion about underlying thoughts and feelings regarding the motor accident.
[29] Ms Ndaba's AALD dated 14 August 2023 at pages 36-42.
In the consultation with Ms Ghaly on 8 December 2022, Ms Ndaba reported that she had hallucinations of seeing glass on the floor, on her bed sheets or at work. She said that she felt the need to swerve her car because she thought there was glass on the road. She asked her colleagues and they said that there was no glass on the road. She described several recollections of seeing glass on the road.[30]
[30] Ms Ndaba’s AALD dated 14 August 2023 at page 41.
In the consultation with Ms Ghaly on 14 December 2022, Ms Ndaba reported that she had wanted to walk on the previous Monday but was fearful and preferred to stay at home because she felt safe there. They worked on managing unhelpful thoughts around perceiving outside as unsafe.[31]
[31] Ms Ndaba's AALD dated 14 August 2023 at page 40.
On 18 January 2023, Dr Makalandawa referred Ms Ndaba to Ms Allison Bausse, psychologist.[32]
[32] Ms Ndaba's documents at page 86.
In an allied health recovery request by Ms Bausse dated 5 March 2023, she reported Ms Ndaba’s current signs and symptoms as sleep disturbance, irritability, low frustration tolerance, decreased appetite, feelings of hopelessness, feelings of low motivation, visual hallucinations and flashbacks associated with the motor accident. Ms Bausse diagnosed Ms Ndaba with a post-traumatic stress disorder. In respect of current capacity, Ms Bausse opined that Ms Ndaba had some work capacity working reduced hours; could perform most activities of daily living without significant difficulty; reported an inability to drive due to trauma symptoms; and an inability to socialise due to anxiety and depressed mood.[33]
[33] Ms Ndaba’s AALD dated 1 November 2023 at pages 4-8.
Ms Ndaba’s updated schedule of work hours and earnings
In evidence, there was an updated schedule of Ms Ndaba’s work hours and earnings with Coolibah Hotel together with payslips attached.[34] The schedule commenced with the pay date ending 22 January 2019 and ended with the pay date ending 23 July 2023.
[34] Insurer's AALD at pages 428-506.
In the 26 pay weeks preceding the motor accident (22 January 2019 to 16 July 2019), Ms Ndaba worked an average of 40.4 hours per week.
In the 33 pay weeks following the motor accident from 23 July 2019 to 10 March 2020, Ms Ndaba worked an average of 34.65 hours per week. Thereafter, it was apparent the COVID-19 restrictions at the time had an effect on her earnings between about 17 March 2020 to the pay week of 2 June 2020 when she received Centrelink JobKeeper payments. Ms Ndaba received top-up JobKeeper payments for the pay weeks 2 June 2020, 11 August 2020 and 29 September 2020.
In the 54 pay weeks from 9 June 2020 to 29 June 2021, excluding JobKeeper weeks, Ms Ndaba worked an average of 37.86 hours per week. There were no work hours or earnings recorded for the period following 29 June 2021 until 12 October 2021.
In the 55 pay weeks from 12 October 2021 to 22 January 2023, Ms Ndaba worked an average of 36.71 hours per week. The schedule noted that, on 28 January 2023, Ms Ndaba sustained a fall at work injuring her right knee. She worked at reduced hours and was paid workers compensation benefits from the pay week ending 12 February 2023 until 28 May 2023.
In the eight pay weeks from 4 June 2023 to 23 July 2023 (the latter date being where the schedule ends) Ms Ndaba worked an average of 23.66 hours per week.
By the time of the Panel re-examination, Ms Ndaba stated that she was then working around 20 hours per week.
Medico-legal reports
Dr Ben Teoh: 4 May 2021
On 4 May 2021, Ms Ndaba consulted Dr Ben Teoh, psychiatrist, at the request of her lawyers. Dr Teoh prepared a report dated 4 May 2021.[35]
[35] Ms Ndaba's documents at pages 36-43.
Dr Teoh took a history of the motor accident that was consistent with the evidence. Ms Ndaba reported that she was a front seat passenger of a bus. The bus lost control and drove into a wall, injuring a pedestrian. The impact of the bus with the wall caused the front windscreen of the bus to shatter. The glass went into Ms Ndaba’s face and eyes. She recalled hearing the pedestrian screaming. Some of the passengers tried to run away because they were worried. She was anxious and confused.
Dr Teoh provided a brief history of Ms Ndaba’s treatment following the motor accident noting that she was taken by ambulance to Liverpool Hospital; consulted an eye specialist; consulted a psychologist; consulted a psychiatrist; and was commenced on antidepressant medication and an atypical antipsychotic.
In respect of current symptoms, Dr Teoh reported that Ms Ndaba felt depressed and preoccupied with negative thoughts. She has insomnia. She has intrusive memories of the motor accident. She is worried about glass and checks for glass by sweeping the floor at work. She can only drive short distances for about five minutes. She is anxious when driving. She experiences nightmares with vision of the girl trapped under the bus. The girl was the same age as her daughter. Following the motor accident, she went to the hospital looking for the pedestrian because she was worried about her. She is easily startled and has avoidant behaviour. She worries about her safety and further accidents.
On mental state examination, Dr Teoh observed that Ms Ndaba appeared casually dressed; her speech was coherent; she was not thought disordered; and she was cooperative and spontaneous during the interview. She was preoccupied with negative thoughts and had been worrying about her future and her physical condition. Ms Ndaba reported significant anxiety symptoms with avoidant behaviour. She had been worrying about further accidents and her safety. Ms Ndaba reported insomnia and nightmares, with images of the motor accident. She has intrusive memories of the motor accident, seeing the pedestrian being hit by the bus and screaming. She admitted to being easily startled and irritable. There was no evidence of psychotic symptoms or suicidal ideation. Cognitive functions were intact and there was no evidence of short or long-term memory impairment.
Dr Teoh noted that Ms Ndaba reported significant anxiety and depressive symptoms. He opined that her psychiatric condition was caused by the motor accident, which resulted in physical injury and psychological trauma. Ms Ndaba’s symptoms had become chronic and her impairment had become permanent. She had attained maximum medical improvement.
Dr Teoh opined that Ms Ndaba had suffered a chronic post-traumatic stress disorder caused by the motor accident.
In respect of self-care and personal hygiene, Dr Teoh noted that Ms Ndaba has been lacking motivation to care for herself and assessed that she had a minor deficit in this regard.
In respect of social and recreational activities, Dr Teoh noted that Ms Ndaba reported significant loss of interest in her usual activities and social isolation. She was only able to drive short distances for about five minutes and had anxiety when driving. Dr Teoh assessed that Ms Ndaba was moderately impaired in this regard.
In respect of travel, Dr Teoh noted that Ms Ndaba reported being able to travel on her own with some apprehension and he assessed that she had a mild impairment in this regard.
In respect of social functioning, Dr Teoh noted that Ms Ndaba reported a strained relationship due to irritability and a lack of communication. She reported a depressed and irritable mood. She admitted that she is easily startled and irritable. Dr Teoh assessed that Ms Ndaba was moderately impaired in this regard.
In respect of concentration, persistence and pace, Dr Teoh noted that Ms Ndaba reported poor concentration and a persistent preoccupation with negative thoughts. She reported significant anxiety symptoms with avoidant behaviour and had been worrying about further accidents and her safety. Dr Teoh assessed that Ms Ndaba was moderately impaired in this regard.
In respect of adaptation, Dr Teoh noted that Ms Ndaba had managed to return to work but that she was struggling with her employment. Dr Teoh assessed that Ms Ndaba was mildly impaired in this regard.
Dr Teoh did not identify any pre-existing impairment and assessed the degree of permanent impairment caused by the motor accident as 13% WPI.
Dr Ben Teoh: 4 April 2023
On 4 April 2023, Ms Ndaba again consulted Dr Teoh at the request of her lawyers. Dr Teoh prepared a report dated 4 April 2023.[36]
[36] Ms Ndaba's documents at pages 76-84.
Dr Teoh summarised the history he had taken in his report dated 4 May 2021.
Dr Teoh noted that Ms Ndaba had managed to work with reduced hours as a chef for 24 hours per week. Ms Ndaba reported that she had stopped consulting a psychiatrist but continued to consult a psychologist on a weekly basis. Medications included sertraline 150mg, olanzapine and aripiprazole.
Dr Teoh noted that Ms Ndaba reported persistent depressive symptoms; avoidant behaviour; and intrusive memories of the accident, particularly of the pedestrian under the bus. She had lost interest in her usual activities and had become socially withdrawn. She reported insomnia and nightmares. She had been feeling agitated and worried about her future. She hears voices of people screaming. She admitted that, at times, she felt that people were laughing at her.
On mental state examination, Dr Teoh observed that Ms Ndaba was reactive during the interview. Speech was coherent. She was not thought disordered. She was cooperative and spontaneous. She reported persistent anxiety and depressive symptoms, with avoidant behaviour. She had intrusive memories of the motor accident. She reported hearing voices in thinking that people were talking about her. Dr Teoh opined that the latter was likely related to disassociation rather than psychosis, as part of the post-traumatic stress disorder symptoms. Ms Ndaba had been hypervigilant and easily startled. There was no evidence of suicidal ideation. Cognitive functions were intact. There was no evidence of short or long-term memory impairment.
Dr Teoh noted that Ms Ndaba presented with significant anxiety symptoms with avoidant behaviour, hypervigilance and agitation. Those symptoms have persisted and become chronic and were likely to persist. Ms Ndaba’s impairment had become permanent and she had attained maximum medical improvement. Dr Teoh opined that Ms Ndaba’s condition was caused by the motor accident and noted that she had no pre-existing psychiatric condition.
Dr Teoh confirmed his opinion that Ms Ndaba had suffered a chronic post-traumatic stress disorder caused by the motor accident.
In respect of self-care and personal hygiene, Dr Teoh noted that Ms Ndaba has been lacking motivation to care for herself and again assessed that she had a minor deficit in this regard.
In respect of social and recreational activities, Dr Teoh noted that Ms Ndaba reported significant loss of interest in her usual activities and social isolation. She has been lacking motivation and interest in her usual activities and has avoidant behaviour. Dr Teoh again assessed that Ms Ndaba was moderately impaired in this regard.
In respect of travel, Dr Teoh noted that Ms Ndaba reported being able to drive but feels anxious. Dr Teoh again assessed that Ms Ndaba was mildly impaired in this regard.
In respect of social functioning, Dr Teoh noted that Ms Ndaba admitted being irritable and argumentative. Dr Teoh again assessed that Ms Ndaba was moderately impaired in this regard.
In respect of concentration, persistence and pace, Dr Teoh noted that Ms Ndaba reported persistent anxiety and depressive symptoms with avoidant behaviour. She has intrusive memories of the motor accident. She hears voices and thinks that people are talking about her, which is most likely related to disassociation rather than psychosis, as part of her post-traumatic stress disorder symptoms. She has been hypervigilant and easily startled. Dr Teoh again assessed that Ms Ndaba was moderately impaired in this regard.
In respect of adaptation, Dr Teoh noted that Ms Ndaba is fit for suitable work duties. On this occasion, Dr Teoh assessed that Ms Ndaba was moderately impaired in this regard.
Dr Teoh assessed the degree of permanent impairment caused by the motor accident as 15% WPI.
SUBMISSIONS
Insurer’s submissions
The insurer did not dispute Medical Assessor Mason’s diagnosis of post-traumatic stress disorder. However, it disputed the diagnosis of delusional disorder and the assessment of 16% WPI under the PIRS.
Ms Ndaba’s presentation to the medical practitioners who examined her were inconsistent with her employment records that were in evidence.
The fact that Ms Ndaba has remained in continuous employment with the same employer in a commercial kitchen environment was not consistent with the reported incapacities across all the PIRS categories.
There were inconsistencies between the history provided by Ms Ndaba and the clinical records in respect of her weight gain.
There were inconsistencies between the history provided by Ms Ndaba in the clinical records in respect of the issues regarding her daughter. The consultation with Ms Ndaba’s general practitioner on 2 July 2019, prior to the motor accident, when she presented with atypical chest pain in the context of thinking about her teenage daughter at boarding school in Zimbabwe reporting that she had been abused, was a clear symptom of anxiety for which her general practitioner provided counselling.
The symptoms of physical self-harm, obsessional bathing and urges to drive her car into people reported to Medical Assessor Mason did not appear in any of Ms Ndaba’s clinical records.
Having regard to the inconsistencies referred to above, there is reason to doubt the accuracy of the symptoms of obsessive washing and weight gain, in particular.
Quite clearly, Ms Ndaba can and does live independently without support. She holds down a full-time job. She single-handedly supports her young daughter at boarding school. She is managing an ongoing visa process. She drives to work independently. On her own account she is independent in hygiene and does not require prompting. If she does not cook at home and chooses to eat bread for dinner, that may be a function of having to cook for more than 40 hours per week at work.
Ms Ndaba’s submissions
Ms Ndaba was involved in a serious and traumatic motor accident on 14 July 2019. Following the initial collision, Ms Ndaba believed she was trapped in a burning vehicle and would burn to death. There was hysteria in the bus on the part of other passengers attempting to escape.
Ms Ndaba was covered in broken glass when escaping the bus. The glass was in her hair, clothes, face, mouth and eyes. When she got out of the bus, she witnessed a teenage girl pinned under the bus. She attempted to assist her and to pull her out from under the wheel of the bus. The girl was understandably very distressed.
Ms Ndaba’s report of symptoms to Medical Assessor Mason was consistent with having been involved in a serious and traumatic accident.
Ms Ndaba’s employment records were not inconsistent with her presentation and she readily reported to Medical Assessor Mason that she was working full-time hours.
On 31 March 2022, Ms Ndaba’s general practitioner noted her worsening symptoms and her inability to focus on work. She was advised her to reduce her hours. On 19 May 2022, the general practitioner noted that Ms Ndaba’s employer was only providing her with three days of work because she fell asleep due to the anti-psychotics she took during the day. Accordingly, the clinical records were consistent with Ms Ndaba’s presentation to Medical Assessor Mason.
Ms Ndaba did not work in an executive type of role which would perhaps require a higher level of functioning in the other PIRS categories in order to attend and work effectively.
On the basis of Ms Ndaba’s general practitioner clinical records, there was no inconsistency in her presentation to Medical Assessor Mason and her ability to work.
Regardless of the insurer’s submissions with respect to the amount of weight Ms Ndaba had put on after the motor accident, she has put on weight since the motor accident. There was only inconsistency with respect to her report of her actual weight prior to and after the motor accident. Such inconsistency was minor.
Further, the general practitioner clinical records were consistent with the reporting to Medical Assessor Mason that Ms Ndaba did not bother to eat all day and just ate bread at night. On 13 July 2021, the general practitioner records noted that Ms Ndaba described poor appetite followed by binge eating.
Ms Ndaba did not dispute that she had a traumatic experience in Zimbabwe. That much was apparent from the clinical records and on her presentation to Medical Assessor Mason. Any trauma involving her daughter is properly to be viewed in the context of her history in Zimbabwe and would not make a material difference to the outcome of the assessment.
The symptoms of physical self-harm, obsessional bathing and urges to drive her car into people reported to Medical Assessor Mason were not inconsistent with the general practitioner clinical records.
THE RE-EXAMINATION
Who attended?
The Panel re-examination and assessment of Ms Ndaba was undertaken via audio-visual link (MS Teams). Medical Assessor Roberts and Medical Assessor Smith undertook the
re-examination and assessment jointly.
Psychosocial history and pre-accident history
Ms Ndaba is a 53-year-old woman. She described herself as single. She has three children, a 30-year-old and a 26-year-old who live in South Africa and a 17-year-old who is at boarding school in Zimbabwe. Ms Ndaba lives alone in Merrylands. She currently works part time and receives assistance with her household tasks as will be described further below.
Ms Ndaba was born in Shurugwi in Zimbabwe. Her father died when she was nine years of age. Her mother died in 2016. Ms Ndaba is the seventh of 10 children. A younger brother died of kidney failure in January 2022 following a two year illness. He was the ninth of the siblings.
Ms Ndaba grew up on a farm. She had a close relationship with her parents and siblings. She completed high school and performed well, obtaining employment in a bank where she continued to work for 10 years. On leaving the bank, she worked in private catering and then decided to pursue formal training at age 38 years, completing a Diploma in Professional Cookery and Culinary Art in South Africa. On her return to Zimbabwe, she obtained a position at the Holiday Inn and then worked as a head chef in a different role in Zimbabwe before opening her own restaurant. She then worked for a period in Zambia before returning to Zimbabwe, then travelling to Australia in 2018 on a visitor’s visa. She did not know anyone in Australia and no work had been arranged. She is currently on a bridging visa.
Ms Ndaba’s marriage ended in 2014 or 2015. Her husband, the father of her three children, had been repeatedly violent towards her.
In terms of past medical history, Ms Ndaba did not recall any childhood health concerns, past injuries, accidents or medical conditions of significance. She did not recall any obstetric complications.
Ms Ndaba did not report a history of cigarette smoking, alcohol use or the use of illicit drugs.
Ms Ndaba did not report any past psychiatric history. She was asked regarding the circumstances that arose with respect to her daughter and she recounted that her daughter wrote a letter to a teacher referring to suicide. Ms Ndaba became worried about it but did not engage in any counselling or see any mental health professionals.
History of the motor accident
Ms Ndaba explained that, on 14 July 2019, she was returning from work by bus. She was sitting at the front of the bus on the opposite side to the driver. She recalled that she was in the process of taking out a card in order to pay for the journey when she heard a loud noise and people screaming both inside and outside the bus. She stated that she did not know what was happening and she could not open her eyes because there was glass in her eyes. She further explained that the passengers sought to get off the bus but found that the doors were locked. The driver had “ran away” and she raised the prospect that he believed that the bus was burning and she stated, “I think I saw something like smoke.”
After 10 minutes, Ms Ndaba and her fellow passengers were allowed off the bus. She recalled that there was a young woman under the bus screaming and Ms Ndaba could not understand why no one was helping her. She tried to pull the woman from under the bus but she screamed more and Ms Ndaba therefore “ran away”. She then recalled that someone held her hand and sat her down.
Ms Ndaba explained that she took off her shoes because she was unable to walk as there was glass in her shoes and “everywhere”. She recalled that she was taken to an ambulance. Meanwhile the girl under the bus was still screaming. She recalled the police and Fire Brigade were in attendance.
History of symptoms and treatment following the motor accident
Ms Ndaba recalled that she was conveyed by ambulance to Liverpool Hospital. Medical staff checked her eyes and it was found that she had a scratched cornea. She was prescribed ointment and eye drops. Following her discharge, she attended a follow-up appointment. A rash had developed in her eye. She recalled that both her eyes were swollen for a few weeks. She returned to work even though her eyes were swollen. She could not recall the number of hours she was working at that time.
Ms Ndaba reported experiencing nightmares and panic. She explained that she attended the hospital two weeks after the motor accident because she wanted to see the girl who had been injured by the bus. Specifically, she went to Westmead Hospital. Staff refused to allow her to see the girl. Ms Ndaba confirmed that she has not contacted her despite her efforts to obtain her contact details.
Ms Ndaba referred to the scary nature of the motor accident. She spoke of seeing glass in the kitchen at work and she feels as if there is glass everywhere. She repeatedly undertakes to sweep in the belief that there is glass around. She stated that she cannot drink from a glass because her teeth “react” and her “body reacts”. She spoke of changing her linen, sometimes twice a night, because she feels glass in her bed. If she takes olanzapine, she sleeps well. She added that she touches her eyes, seeking to open them, and to remove glass that she perceives to be there.
On speaking of travel by bus, Ms Ndaba stated that she is very careful. She clarified that she means by this that she seeks to be alert because she wants to see if the driver is going to brake suddenly. She described being alert to the prospect of a sudden stop, sudden braking or a car coming close to the bus. She stated that she has no choice but to use the bus. She travels by bus to work and, when she goes to her general practitioner, she uses the train and the bus.
Details of any relevant injuries or conditions sustained since the motor accident
In January 2023, Ms Ndaba sustained a fall in the kitchen in which she was working. She had slipped on a plastic lid and fallen. She injured her knee and required a month off work. She engaged in physiotherapy.
Ms Ndaba explained that, in April 2023, she was driving to work. She sought to turn right and a woman driver gave her passage to cross her path. Ms Ndaba checked that there was no bus in the kerbside bus lane and proceeded but there was a car speeding in the bus lane. Following the impact, a policeman attended the scene. Ms Ndaba stated that she did not sustain injuries other than bruising on her breasts from the seat belt. She attended Auburn Hospital and underwent an X-ray. She stated that she has not driven since the motor accident. She has not bought a new car and she stated that she would drive if she had a car.
Current symptoms
Ms Ndaba stated that she feels sad on an ongoing basis. She explained that she wanted to engage in further study and she wanted to work a second job. She explained that she used to go to see friends but friends have given up on her because she does not visit them. She added that new people at work have been getting promoted and are given more work than her. She acknowledged that she gets “lost” during service and she becomes argumentative. She added that she sees that other staff are using glass platters and she becomes upset at the staff. She then explained that they do not have glass platters at the workplace. It became apparent that she in fact imagines that they are using glass and this distresses her.
When her daughter is on holidays, Ms Ndaba speaks to her regularly. She enjoys speaking to her daughter and she enjoys shopping for her daughter. She stated that she has energy but she described a lack of motivation. She sleeps a lot but is nevertheless tired on waking. She attributed her appetite to the medication that is prescribed to her but otherwise she lacks appetite. She further explained that when she eats, she tends to overeat.
Ms Ndaba describes herself as a quiet person who does her job at work yet, also acknowledged an increase in temper and her account reflected her irritability. She explained that she wanted to be working in more complicated roles but she is currently only undertaking preparation work.
Ms Ndaba reported that she thinks about the motor accident because it has “changed (her) life a lot”. She stated that she does not think about the more recent car accident. She stated that she does not think about it because no one was injured. She stated that she still experiences nightmares of the bus accident and she hears someone calling “Joanna, Joanna” and therefore she thinks that the girl’s name must have been Joanna.
When asked regarding other consequences of the motor accident, Ms Ndaba stated that she could not eat her usual diet after the accident because her teeth were very sensitive. She saw a dentist and was recommended mousse and Sensodyne toothpaste following which she resumed eating and gained weight. She now weighs 108kg.
Current and proposed treatment
Ms Ndaba is currently prescribed olanzapine 5mg half a tablet at night but she sometimes takes a whole tablet. She is prescribed aripiprazole 5mg in the morning. She is also prescribed sertraline 150mg in the morning. These medications were prescribed by her psychiatrist, Dr Way. The current medications have been unchanged for several months.
Ms Ndaba could not state when she began seeing her psychiatrist, Dr Way. She stated that she was supposed to attend a follow up but her general practitioner has suggested that she sees someone else. She spoke of seeing a psychologist named Alison, who recommended Eye Movement Desensitisation and Reprocessing (EMDR). Ms Ndaba could not recall the number of sessions or the period of time over which she saw Alison.
Mental state examination
The assessment was undertaken using the MS Teams audio-visual platform. The quality of the audio-visual connection was satisfactory for the purposes of a psychiatric assessment. Ms Ndaba presented as a casually attired woman with appearance reflective of her African background. She was noted to fidget restlessly. She twirled her hair, chewed on the drawstring from the top she was wearing and fiddled with her clothes including the zipper. At one stage, she also sucked on her fingers in a manner that is somewhat unusual in a middle-aged adult. No deficits of personal care were apparent. It could not be discerned that Ms Ndaba was wearing makeup during the interview. She was hesitant in the manner in which she presented her account and overtly vague regarding timeframes. Efforts of clarification were inconsistently beneficial and effective.
Ms Ndaba presented a restricted range of emotional expression but did not report anhedonia. Her account reflected a dysthymic mood. Intrusive recollections of the motor accident were apparent. She gave an account of hypervigilance. Her description of hearing the accident victim and hearing her name called was considered to represent a flashback phenomenon rather than a psychotic experience. No information to indicate overt hallucinations or delusional ideas were apparent.
Current functioning
As stated above, Ms Ndaba lives alone. She explained that a woman comes to help her out. She explained this woman is also from Zimbabwe and she likened her to a sister. She attends Ms Ndaba’s home on Monday, Tuesday, Wednesday and Saturday and has done so since 2022. She cleans, does laundry and puts her clothes away. She also cooks and Ms Ndaba freezes the food. Ms Ndaba could not explain the basis upon which she does not clean her own home. Before her friend came, Ms Ndaba would clean once a week. She would bring food from work. Her friend helps her pay her bills on time and takes Ms Ndaba to the shopping mall to withdraw money to pay her rent. Ms Ndaba stated that she cannot go alone and attributed this to the fact that she has not been driving since April 2023, reiterating that she ceased driving following the 2023 motor accident.
Ms Ndaba is currently working as a chef for four and a half hours per day, three days per week, at the Coolibah Hotel in Merrylands. She has been working there since 2019. She previously worked on the pan section and the hot pas. As stated above, she currently undertakes simple preparatory work. Previously, she was working more hours. Her current hours have been consistent since the bus accident. She has tried working more hours but “was always seeing a lot of glass in the kitchen” and was always sweeping. Prior to the bus accident, she was working up to seven days a week and would ask for extra shifts. There was no change in her work hours following the April 2023 motor accident.
Contrary to her account of reliance on her friend for outings, Ms Ndaba stated that she catches the bus or walks to work independently.
With respect to her personal care, Ms Ndaba stated that she showers regularly and dresses daily. She may shower three times per day because of her concern about the presence of glass. She does stretches. She does not engage in any further formal exercise. She reheats frozen food and eats once per day. She does not eat at work. Ms Ndaba speaks to her
17-year-old daughter on a daily basis when her daughter has holidays. She speaks to her 30-year-old son but not daily and she also speaks to her 26-year-old son but not daily. She stated that her children would prefer to talk for longer but she does not want to. She also has contact with her younger sister. She has not returned to Zimbabwe since her arrival in Australia in 2018 and she has not been visited by any relatives from overseas.
When she is not working, Ms Ndaba sleeps. She may wake at 1.00pm and have a shower. She may go to the shops. She has a television but she has lost interest in watching it. She has no visitors to her home other than the woman who helps her. She does not visit anyone. She stated that she used to have visitors but they stopped coming because she would decline their invitations.
Ms Ndaba stated that she would like to be in another intimate relationship but expressed the opinion that no one would “take (her) on” because she is unwell.
Consistency of presentation
No inconsistencies were apparent in Ms Ndaba’s account nor on mental state examination.
Diagnosis and reasons
The history presented by Ms Ndaba reflects her involvement in a traumatic bus accident, in July 2019, in which she found herself covered in broken glass and locked in the bus in which she believed there was smoke. She described her efforts to assist a young person who had been hit by the bus and she described her distress in this context. She described intrusion symptoms, hypervigilance and avoidance behaviour consistent with the DSM-5-TR criteria for post-traumatic stress disorder.
The above diagnosis took into account the DSM-5-TR criteria. The Panel considered that all criteria were met based on the available information and material.
Causation and reasons
Ms Ndaba did not describe other events of a nature consistent with a Criterion A trauma that could be construed as having contributed to the causation of post-traumatic stress disorder. She reported upset in the context of her daughter having expressed suicidal thoughts but did not give an account indicative of the development of psychiatric symptoms. She reported her involvement in a subsequent motor accident but it is not apparent that this contributed to the causation or influenced the course of post-traumatic stress disorder. She did not report a change in her level of functioning following the motor accident in April 2023.
The Panel is satisfied that the unchallenged circumstances of the motor accident as described by Ms Ndaba and summarised in [166-168] above could have caused or contributed to Ms Ndaba’s post-traumatic stress disorder and further, the Panel is satisfied that it did cause such injury.
Psychiatric diagnosis Post-traumatic stress disorder Psychiatric treatment description Olanzapine 2.5mg to 5mg at night.
Aripiprazole 5mg in the morning.
Sertraline 150mg in the morning.
Past psychological therapy.
Past psychiatric consultations.
Category Class Reason for Decision 1. Self-care and Personal Hygiene 3 Ms Ndaba described receiving significant support with respect to household tasks including cooking, cleaning, laundry and financial management. She reported attending to her personal care but showering multiple times a day because of her fear about glass and her physical perception that there is glass on her body. Her account indicated that if not for the support provided to her in her home, her ability to live independently would be tenuous and likely unsustainable. The Panel concluded that her psychiatric condition has caused moderate impairment in this area. 2. Social and Recreational Activities 3 Ms Ndaba tolerates her carer’s attendance at her home but she does not socialise. She declines invitations. She does not go anywhere to pursue social or recreational activity and she did not describe participating in solitary recreational activities at home. Her account was considered reflective of moderate impairment. 3. Travel
1 Ms Ndaba continues to travel by bus and, when necessary, by train. She utilises buses despite her anxiety. She stated that if she had a car she would be driving. Notwithstanding her experience of anxiety, she did not report limitations on her ability to travel. The Panel considered Medical Assessor Mason’s certificate, nevertheless concluding that the anxiety has not impeded Ms Ndaba from driving to the extent to which her lifestyle requires. 4. Social Functioning
3 Ms Ndaba described the loss of friendships due to the extent to which she has become reclusive. She maintains positive relationships and regular contact with her children. Her last intimate relationship ended well prior to the motor accident. She expressed interest in an intimate relationship but expressed the likelihood that no one would be interested in pursuing a relationship with someone who was unwell. It is unlikely that she would have been able to sustain an intimate relationship due to the severity of her symptoms. Although this has not been tested, the Panel determined that an assessment of moderate impairment was appropriate based on Ms Ndaba’s history and clinical presentation. 5. Concentration, Persistence and Pace 2 Aside from work, Ms Ndaba did not report engaging in any activities of a nature that would demand persistence and pace. She was at times vague at interview but no overt deficits with respect to memory were apparent. The Panel concluded that based on her overall functioning and having regard for the nature and severity of her symptoms, it was appropriate to conclude that she was mildly impaired in this area. 6. Adaptation
3 Ms Ndaba reported a reduction in her work hours and a reduction in the sophistication of the work that she is currently undertaking. She is now working around 20 hours per week and undertaking a more menial role than that in which she was previously working. She is sufficiently unwell that, if she were not working in a familiar environment, she would demonstrate a greater degree of impairment. Her condition would be expected to prevent her from acclimatizing to a new workplace, new processes and new colleagues. It is the familiarity of her current workplace that has likely supported her ability to sustain herself, even at this level. Given the above, the Panel concluded that it was appropriate to consider her moderately impaired. List classes in ascending order: 1, 2, 3, 3, 3, 3 Median Class Value: 3 Aggregate Score: 15 % Whole Person Impairment: 15%
Pre-existing/subsequent impairment
No objective evidence of pre-existing or subsequent impairment was identified.
Ms Ndaba reported that her marriage ended in 2014 or 2015. Her husband, the father of her three children, had been violent towards her repeatedly. However, she did not give an account indicative of the development of psychiatric symptoms.
Ms Ndaba reported upset in the context of her daughter having expressed suicidal thoughts but did not give an account indicative of the development of psychiatric symptoms.
Ms Ndaba reported her involvement in a subsequent motor accident in April 2023 but it is not apparent that this contributed to the causation or influenced the course of post-traumatic stress disorder. She did not report a change in her level of functioning following the motor accident in April 2023.
Accordingly, the Panel is satisfied that apportionment is not required.
Effects of treatment
The Panel could not identify that there has been any meaningful improvement in terms of symptomatology in response to treatment nor could any change in WPI be identified.
Assessment of permanent impairment
The Panel assesses Ms Ndaba’s permanent impairment as follows:
(a) current percentage permanent impairment: 15%;
(b) pre-existing/subsequent percentage permanent impairment: 0%, and
(c) adjustments for the effects of treatment: 0%
Accordingly, the Panel assesses Ms Ndaba’s final WPI as 15%.
FINDINGS
The Panel adopts the re-examination findings and conclusions of Medical Assessor Roberts and Medical Assessor Smith based on their examination and specific findings pertaining to diagnosis, causation and assessment of permanent impairment.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[37] and Insurance Australia Ltd v Marsh.[38]
[37] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[38] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel revokes the certificate issued by Medical Assessor Mason dated 11 May 2022.
The Panel determines that Ms Ndaba sustained a post-traumatic stress disorder caused by the motor accident.
The Panel determines that Ms Ndaba sustained a WPI greater than 10%, that is, a WPI of 15%.
CONCLUSION
The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.
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