Allianz Australia Insurance Limited v Pietryga
[2025] NSWPICMP 240
•4 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Pietryga [2025] NSWPICMP 240 |
CLAIMANT: | Matthew Pietryga |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Wayne Mason |
MEDICAL ASSESSOR: | Surabhi Verma |
DATE OF DECISION: | 4 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); whether psychological injury caused by the motor accident is a threshold injury; whether injuries caused by the motor accident give rise to whole person impairment (WPI) greater than 10%; regard made to pain symptoms as opposed to psychological symptoms for the purposes of application of the psychiatric impairment rating scale (PIRS) criteria; Held – diagnosis of major depressive disorder, somatic symptom disorder with predominant pain and alcohol use (resolved); WPI assessed at 15%; MAC revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Gerald Chew dated 20 July 2023. 2. Certifies that the following injury caused by the motor accident: · major depressive disorder; · somatic symptom disorder with predominant pain, and · alcohol use disorder – resolved, is not a threshold injury for the purposes of the Motor Accident Injuries Act 2017. 3. The injury caused by the motor accident give rise to a permanent impairment of 15% and is greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Mr Matthew Pietryga (the claimant) alleges injury from a motor accident occurring on
15 May 20219.He subsequently lodged a claim under the Motor Accident Injuries Act 2017 (MAI Act) upon Allianz Australia Insurance Limited (the insurer), the insurer of the vehicle was considered at fault. The claimant seeks payments of statutory benefits under the MAI Act.
A dispute has arisen between the parties as to whether a psychological injury caused by the motor accident is a “threshold” injury for the purposes of the MAI Act. Additionally, a further dispute arises as to whether the psychological injury caused by the accident gives rise to a whole person impairment (WPI) greater than 10%.
A threshold injury determination is an important one in terms of an injured person’s entitlements under the MAI Act. If a determination finds that the motor accident has caused a non-threshold injury, then the gateway to ongoing statutory benefits and an entitlement to claim damages is opened.
Further, an entitlement to damages for non-economic loss is enlivened if the WPIis more than 10%.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor.
The dispute about whether the injury caused by the motor accident is a threshold injury and a dispute as to WPI, are a medical dispute, as defined by s 7.17 of the MAI Act, and are amedical assessment matter: s 2, cl 2(a) and (e) of the MAI Act.
The threshold injury dispute was originally determined by Medical Assessor Jones dated
31 August 2020, which certified the claimant as suffering a chronic adjustment disorder with depressed mood which was a threshold injury for the purposes of the MAI Act. The claimant subsequently, lodged a further application seeking a further assessment of the threshold injury dispute, together with an assessment of WPI. Medical Assessor Gerald Chew issued a certificate and reasons dated 20 July 2023.
THE REVIEW
The insurer sought a review of the medical assessment of Medical Assessor Chew in accordance with s 7.26 of the MAI Act. On 6 October 2023 the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
Section 7.26(5A) of the MAI Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
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 and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act.
Rules 127 and 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (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 Rules.
The Panel met via video conference on 30 October 2024 and determined that a
re-examination of the claimant was required. A medical examination was arranged to take place on 5 February 2025 with Medical Assessor Mason and Medical Assessor Verma via Microsoft Teams. The examination took place as scheduled.The Panel reconvened via videolink for a teleconference on 19 February 2025.
RELEVANT STATUTORY PROVISIONS
The term “threshold injury” is defined in s 1.6 of the MAI Act. It provides that a threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(b).
Section 1.6 also provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (Regulation) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. For the purposes of
cl 4 “acute stress disorder” and “adjustment disorder” have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl 4(3) of the Regulation.Part 5 of the Motor Accidents Guidelines (Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
THE GUIDELINES
Causation of injury is addressed from cl 1.5 of the Guidelines. Whilst the clauses are set out in respect of permanent impairment they are relevant to a dispute as to threshold injury.[1] Clause 1.6 and 1.7 provide:
“1.6 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.
1.7 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.”
[1] See Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 at [35].
In determining the issue of causation, the Panel is to also have regard to s 5D of the Civil Liability Act 2002 (CL Act):[2]
[2] See s 3B(2) of the CL Act.
“5D General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
ASSESSMENT UNDER REVIEW
Medical Assessor Chew diagnosed the claimant as suffering a major depressive disorder, which is not a threshold injury for the purposes of the MAI Act. In addition, he assessed WPI at 13%.
DOCUMENTATION
The Panel issued directions requiring the parties to lodge bundles of all documentation relied upon in the review. Both parties have lodged bundles in compliance with the directions and the Panel has considered all the material provided therein.
SUBMISSIONS
Insurer’s submissions dated 25 November 2022
The insurer notes the lack of psychological symptoms recorded in the material until
25 October 2019, five months after the motor accident. Further, the insurer submits that a report of Dr Rastogi does not properly differentiate between the claimant’s physical and psychological restrictions.
Insurer’s review submissions dated 21 August 2023
The insurer submits that the medical assessment contains a material error by not engaging with the evidence that was provided by the parties. In particular, the insurer refers to a number of documents that formed part of a late document submission, particularly a report of Dr Levi, psychologist dated 2 February 2023.
The insurer argues that the report of Dr Levi contains a number of differences compared to the claimant’s presentation to the Medical Assessor. Further, the report of Dr Levi is consistent with the medical assessment of Medical Assessor Jones. For instance, it is submitted that Medical Assessor Chew’s findings that the claimant satisfied a Class 3 impairment for “adaption” is inconsistent with Dr Levi who took a history that the claimant did not perceive that his psychological symptoms would be an impediment to employment and that he was highly motivated to return to the workforce. It is submitted that the Medical Assessor failed to properly comply with cl 6.41 of the Guidelines.
Similar submissions are made in respect of the Medical Assessor’s findings in respect of social functioning where a class 3 impairment was found. The Medical Assessor noted that the claimant split with his partner. It is submitted that the Medical Assessor failed to provide the reasons the breakdown is attributable to the psychological symptoms. Inconsistencies are noted in respect of the relationship history and status.
The insurer generally argues that the Medical Assessor has not properly differentiated between physical and psychological symptoms in respect of functioning.
It is submitted that the Medical Assessor failed to sufficiently set out his path of reasoning when reaching his conclusions, including a proper engagement with the material.
Claimant’s review submissions dated 6 September 2023
The claimant submits that the PIRS criteria are: “intended to be illustrative rather than literal criteria.”
RE-EXAMINATION
Brief personal details
Mr Pietryga is a 38-year-old man who lives with his new partner of 12 months, a 29-year-old woman, in a suburb of Cairns Qld. He is not working and has no income. He said he is borrowing money from relatives and friends in order to survive. He is not in receipt of Centrelink payments. He said he would be too ashamed to go to a Centrelink office. His partner is working and he relies on her income to some extent, plus loans from family.
Psychosocial history
Mr Pietryga said he was born in Fairfield Hospital. His 73-year-old father is a retired electrician and his 64-year-old mother has retired from a catering business. He is the middle of three children and has two sisters. His parents separated when he was young; he does not remember exactly when but thinks he was less than four years of age. He described a good childhood growing up in the Liverpool area. He said he saw his father each weekend. He was proud of his father who had been involved in Bullens Circus, had a successful electrical business, and also ran a panel beating shop. His father now lives in Hervey Bay in Qld and his mother remains in Liverpool. He remains close to his parents and sisters.
Mr Pietryga attended Liverpool boys high school. He completed year 10 and then went on to complete a four year apprenticeship as a diesel mechanic. He said he was a diesel mechanic employed with Tri-City Trucks Narellan, Ruttley Freight Line, Wollongong Truck Centre and Vortex Mining in Mackay Queensland.
At the time of the subject motor accident, he had been working with the Interline Bus Company at Leppington for two years. He described being happy there because it was a good job located close to home and did not involve a long commute.
He had been in a relationship with his partner Kylie since third year of school. He said they had been living together since 2000 and no children were born during the first 10 years. They have a 10-year-old son Dominic who has an autistic spectrum disorder condition; he was non-verbal until six years of age, has required intensive speech therapy and is still unable to attend to his own personal hygiene. His daughter Olivia is six years of age; she does not suffer the same problems.
Mr Pietryga was questioned about a report by Medical Assessor Jones that there had been periods of separation from Kylie throughout the relationship. He denied this was the case saying there had been no difficulties until he commenced the fly-in fly-out mining job in Mackay Queensland. He said Kylie was unable to cope during his absence and after three months he returned and commenced work with the Interline Bus Company.
Leisure activities consisted of pig shooting in Western NSW. He also enjoyed fishing and motor cars; he said he had owned a HG Holden Monaro which he described as a hobby.
Past insurance claims consisted of "little accidents" which resulted in scratches. He denied any injuries. He said he was involved in an accident on the way to work in 2016 when a car pulled out in front of him, and he sustained damage to the bull bar on his vehicle; he said the bull bar was replaced after a cash payment from the other driver. He denied any history of problems with the law and acknowledged he has licensed firearms which he keeps in a gun safe.
He noted a previous mild back injury sustained during the course of his work for which he saw a chiropractor; he was off work for between three and six months. He said this was not the subject of a worker's compensation claim.
Past medical history involved the removal of colonic polyps; medical records refer only to prolapsed haemorrhoids. He said blood tests revealed low iron levels and FOBT was positive. He did not think there was a family history although a cousin did have bowel cancer. He denied past and family history of psychiatric illness.
With regard to substances, Mr Pietryga does not use cigarettes or recreational drugs and does not gamble. He consumes five or six cups of coffee per day. With regard to alcohol, he said he has two beers once or twice weekly and does not get drunk. He noted he was using medicinal cannabis and at those times does not drive.
Current medications consist of:
· Duloxetine 60 mg;
· Norgesic (orphenadrine, aspirin and caffeine) 2 tablets 3 times daily;
· Celebrex 100 mg daily;
· Endone 5 mg at night;
· Lyrica as needed twice weekly;
· Norflex (orphenadrine) 100 mg as needed;
· Panadeine Forte as needed;
· CBD 0.3 mL daily;
· CBD flower vape before bed, and
· CBD flower vape during day for pain.
All cannabis products are obtained from Epsilon Clinics on prescription
Mr Pietryga stated he had used both tramadol and tapentadol in the past for pain and has found cannabis more effective.
History of motor accident
Mr Pietryga said he had just left work and was approximately 100-200m away travelling at 80kph when a man driving a BMW came through a stop sign on his left and he was unable to avoid T-boning that car at the level of the driver side door. He said he did not have time to apply the brakes. He described an almighty bang and said it is possible he lost consciousness because his head hit the window. He wore a seatbelt but the 1993 Land Cruiser utility was not fitted with airbags. He stated with significant anger that he had received an email accusing him of not wearing the seatbelt properly. He said the BMW was pushed 100m into a nearby paddock and the driver was unconscious. Mr Pietryga believed the bull bar and the solid chassis of the land cruiser saved him from serious leg injury.
He said he struggled to get out of the vehicle for some minutes and had to support himself by holding onto the back of the utility. He then walked to attend to the other driver.
History of symptoms and treatment following a motor accident
Mr Pietryga said an ambulance attended and took the driver of the other vehicle to hospital. Police also attended. His friend arrived after 10 minutes and then took him to Campbelltown Hospital. He experienced neck pain; chest and T-spine X-rays revealed no fractures.
He was discharged later that evening, and his boss came to drive him home.
He subsequently developed pain in his back and shoulders. He initially consulted
Dr Cywinski of Austral in June 2019 who ordered a CT scan. Later MRI scan revealed T7-T8 and L4-5 bulging discs. He was off work for a month and then resumed on light duties. Pain in his neck, lower back and thoracic spine continued. He first consulted general practitioner GP Dr Wang on 10 October 2019 because insurance cover was ending soon; he revealed he had been seeing a chiropractor and doing hydrotherapy under CTP.
Medications had been anti-inflammatories, tramadol and Norgesic. He was referred to
Dr Michael Davies, neurosurgeon and pain management specialist. At that time, he was using Palexia, Targin, and intermittent aspirin and Nurofen. Dr Davies noted severe depression and extremely severe stress on the DASS scale with marked impairment of
self-efficacy. He noted significant distress and encouraged him to increase the dosage of amitriptyline.
He was referred to psychologist Mr Raymond Hudd on 25 October 2019 who diagnosed both post-traumatic stress disorder and a pain disorder; he noted a PCL-5 score of 76/80. Physical investigations were conducted by his GP, neurosurgeon Dr Renata Abraszko and pain management specialist Dr David Manohar. He described ongoing intercostal rib pain in addition to lower back pain which was treated with Lyrica and Targin.
Dr Manohar suggested cortisone injection followed by radiofrequency ablation of the thoracic nerve. Mr Pietryga said the T7/8 perineural cortisone injection was conducted at a public hospital but was put in the wrong place and resulted in exacerbation of pain rather than relief. This was confirmed by Dr Renata Abraszko in February 2020. In April 2020 Dr Manohar noted cervicothoracic junction pain, thoracic pain, and lumbar pain extending down both legs to the heels. He noted the worst of the pain was in the mid dorsal spine. The radiofrequency ablation was refused by the insurer.
In June 2020 he was using the antidepressant venlafaxine 75 mg daily prescribed by GP
Dr Wang. He was referred to pain management specialist Dr Michael Edwards who was also a psychiatrist; he prescribed duloxetine for depression and as a neuromodulator for pain.
Mr Pietryga described deterioration in his mental state because he was unable to resume normal duties as a diesel mechanic. His employer created a light duties role for him, but his level of frustration, depression and anger resulted in inappropriate behaviour such as smashing a computer and he was let go. He was distressed by his inability to work and to participate in normal family activity such as playing with his 2 year old daughter; he said he could not even pick her up.
In March 2021 he was referred to psychiatrist Dr Warwick Williams; he wanted to end his life because of the severity of his symptoms and was wary of medication use for pain. In May 2021 he was referred to treating psychologist Mr Raymond Hudd. In June 2021 he had been referred by Dr David Lim of Workers Doctors to a psychologist with symptoms of
post-traumatic stress disorder. In August 2021 he was referred to Northside Macarthur clinic Campbelltown because of suicidal ideation. In September 2021 he was referred to the Southwest Sydney Primary Health Network because of concern for welfare. His relationship with his partner deteriorated because of symptoms of depression, anger and alcohol abuse and they separated in early 2023. He noted he had been subjected to not insignificant domestic violence by his partner through that time.
He said he went through a period of significant alcohol abuse when he was drinking up to a carton of beer per day. In mid-2023 he lost his license for six months because of raised alcohol levels. He described ongoing suicidal ideation and said his former apprentice saved his life when he found him with a rope with which he was planning to hang himself. Noting the possession of firearms, Mr Pietryga was asked if there was any risk of shooting himself; he replied he would not do that because his children were protective factors. However, he said the thought of suicide is constantly with him as a solution.
Mr Pietryga moved to Queensland more than a year ago. He said he initially went on a visit to spend two weeks with an aunt in Cairns and decided to stay there. He travelled to Cairns by plane and had a friend drive his car from Sydney. He said he has obtained a new GP in Cairns and consults with him approximately fortnightly. He is in the process of seeking a new psychiatrist. He continues to consult with psychologist Mr Raymond Hudd fortnightly by telehealth. He has been in a new relationship for the last 12 months with a 29-year-old woman with whom he lives. He remains unable to work.
Injuries or conditions since motor accident
Mr Pietryga described the ending of his relationship with partner Kylie in 2023. He also noted the death of a 52-year-old uncle to whom he was close in March 2023; he died following a head injury. These events resulted in excessive alcohol consumption and the loss of his driving licence for six months.
Current symptoms
Mr Pietryga described continuing pain and significant ongoing depression and anger. He said as recently as the day before examination he had punched a wall; his right hand was swollen. He stated there was constant passive suicidal ideation which he did not think he would act on. He said he has problems driving because he cannot look safely from side-to-side due to neck pain; he almost stops prior to an intersection in order to ensure safety. This symptom is partly post-traumatic in nature arising from the subject motor accident. He said he has significant financial stress and has frequently had to borrow money from parents, siblings and his new partner. He remains socially avoidant. He is reluctant to go out with his new partner because of depressed mood. He is unable to enjoy any activities. His concentration is impaired. He is sexually impaired due to both the symptoms of depression and the side effects of antidepressant medication. In addition, he continues to have significant physical disability caused by pain. In addition, he continues to have significant physical disability caused by pain.
Current and proposed treatment
Mr Pietryga continues to consult fortnightly with psychologist Mr Raymond Hudd by telehealth. He continues to use the antidepressant duloxetine 60mg. He consults his new GP in Cairns twice monthly and has been referred to a psychiatrist. He also continues to use pain medication as listed above.
Mental state examination
Mr Pietryga is a 38-year-old ambidextrous man whose appearance is somewhat older than his stated age. He was neatly dressed in a clean t-shirt, shorts and thongs. He was located alone in his lawyer's office in Cairns. He was interviewed using the Microsoft Teams application with a good internet connection. He was identified from his photograph on a Queensland heavy vehicle driver's licence in the same name. The interview commenced at
3.00pm and concluded at 4.40pm.
Mr Pietryga was initially very angry, uncooperative and difficult to interview. Two previous attempts at interview had been unsuccessful, the first because he was confused by the time difference between Queensland and New South Wales, and the second because of Commission technical difficulties in enabling him to access the interview.
Although he became slightly more cooperative throughout the interview, he remained reluctant to elaborate when information was requested and appeared to be blaming of the interviewers for his predicament. He frequently commented he would like us to experience what it was like to be in his body. It was difficult to obtain specific details of what happened and when it happened. Much of this difficulty was due to his significantly depressed state.
He was extremely depressed in appearance and endorsed ongoing passive suicidal ideation. He acknowledged ongoing significantly disabling pain. His anger was often expressed in a self-damaging manner such as punching walls. He described inability to enjoy any life activities. He presented with an air of angry hopelessness and despair. He also described feeling ashamed and dispirited. Although symptoms of post-traumatic stress disorder were mentioned in the documentation, he made no reference to reexperiencing symptoms at interview.
Mr Pietryga was fully oriented in time, person and place and displayed no evidence of psychotic psychopathology.
Current functioning
When asked to describe a normal day he said he goes to bed at different hours. He said he is often woken through the night by pain. He gets up at 4.30am and will have a nap at approximately 12 midday for one hour. He said during the day he simply loses hours at a time. Sometimes he stares at the television but said none of it goes in.
Self-care and personal hygiene: Mr Pietryga said he showers daily but he needs help from a physical point of view. With regard to toileting, he is unable to wipe himself and often requires a second shower. He said he does attempt to wear clean clothing. He has no appetite and does not eat lunch or breakfast. He said he sometimes eats dinner. His weight has gone down from 92kg to 82kg and he is unable to put weight back on. From a psychiatric point of view, he is mildly impaired due to loss of weight and loss of appetite from the impact of depression.
Social and recreational activities: Mr Pietryga said he does not go out because he does not want to be around people because of his depressed mood, anger and inability to enjoy himself. He said he is able to float in the pool of his rental property, but this is more for the treatment of pain rather than recreation. He has no hobbies. He does not attend entertainment venues, hotels, coffee shops or restaurants. He is totally impaired overall, but moderately impaired from a psychiatric point of view.
Travel: Mr Pietryga said he can drive but has to stop while approaching intersections because he cannot look from side-to-side. This is partly due to pain and partly due to the psychological impact of the motor accident. He said he was able to fly to Sydney at Christmas to see his children but was heavily drugged in order to do so. He will travel as a passenger in a car but not by bus or train because of fear of exacerbation of pain due to sudden movement or stopping. He is unimpaired.
Social functioning: Mr Pietryga's relationship with his partner Kylie has ended because of the impact of the motor accident on his mental state and behaviour. He became depressed, withdrawn, socially avoidant and angry. He was unable to meet Kylie’s dependency needs and she was angry his income had stopped. He was also unable to help with the children. She became increasingly violent towards him; he denied he physically retaliated. Currently his access to his children is limited. He said he has entered into a new relationship but is frequently impotent, partly due to pain and partly due to the impact of psychiatric medication. He is reluctant to go out with her due to depressed mood and he has concerns regarding the stability of the relationship. His relationship with his extended family is intact. He is moderately impaired.
Concentration, persistence and pace: Mr Pietryga said this is poor. He said he is unable to read for more than 10 minutes and when he does he forgets what he has been reading. When he attempts to watch television he loses hours. He said his favourite program was "Detroit Power" which is about motor vehicles; he said he does find that interesting but is not able to persist with it and cannot remember what he has watched. Significant concentration and memory difficulties were evident throughout the interview. In this regard he is almost totally impaired due to both pain and psychiatric symptoms. From a psychiatric point of view he is moderately impaired.
Adaptation: Mr Pietryga is totally impaired due to a combination of pain and his psychiatric condition. However, it is necessary to apportion between impairment due to pain and impairment due to his psychological condition. From a psychiatric point of view he is moderately impaired.
Consistency of presentation
Mr Pietryga's presentation was generally consistent with the documentation provided. He was questioned regarding pre-accident separations from his partner Kylie and he denied this had occurred.
Diagnosis and Reasons
Mr Pietryga was involved in a significant and potentially life-threatening motor accident on
15 May 2019, now five years and nine months ago. Physical injuries initially did not appear to be significant but he has continuing difficulties with pain due to cervical spine, shoulder, thoracic spine and lumbar spine injuries.
Initial psychological reports by treating psychologist Mr Raymond Hudd and by Dr David Lim of Workers Doctors suggested he developed post-traumatic stress disorder. He described some trauma related symptoms at that time but these appear to have settled and now involve mainly anxiety at intersections. It is most likely he suffered an acute stress disorder immediately subsequent to the motor accident.
He became suicidally depressed secondary to pain which has been ongoing since the time of the subject motor accident. He continues to experience pain and uses medicinal cannabis and appropriate analgesics and muscle relaxants with very little effect.
At the time of examination, he described ongoing debilitating pain. He also described and displayed severe symptoms of major depressive disorder which have not relented despite the use of appropriate antidepressant medication and ongoing psychological counselling.
The Panel noted the opinion of psychologist Dr Baron-Levi who concluded the claimant was capable of returning to the work force from a psychological point of view but not necessarily from a physical point of view. The Panel is of the opinion, following examination and consideration of all the material, that depressive symptoms alone have resulted in moderate impairment with regard to employment. Whilst Dr Baron-Levi’s opinion is noted, the Panel does not agree with his conclusions.
The claimant is unable to work because of psychiatric symptoms. Depressed mood would result in difficulty in relationships with an employer and fellow workers. Impaired concentration arising from the depression would prevent him from undertaking any task that requires sustained application. He could not be relied upon to perform any function without intense ongoing supervision.
Diagnoses are major depressive disorder, somatic symptom disorder with predominant pain and alcohol use disorder which has resolved.
Mr Pietryga meets DSM-5-T5 criteria for major depressive disorder as follows:
· Criterion A. He has depressed mood most of the day nearly every day; markedly diminished interest and pleasure in almost all activities; significant weight loss; significant insomnia; psychomotor retardation; fatigue and energy loss; feelings of worthlessness and guilt; diminished ability to think or concentrate; and recurrent thoughts of death with suicidal ideation. He is also extremely angry;
· Criterion B. The condition causes distress and impairment in social and occupational functioning;
· Criterion C. It is not attributable to a substance or another medical condition;
· Criterion D. It is not better explained by another major psychiatric disorder, and
· Criterion E. There has never been a manic or hypomanic episode.
Mr Pietryga meets DSM-5-TR criteria for somatic symptom disorder with predominant pain as follows:
· Criterion A. Ongoing pain is distressing and disruptive of daily life;
· Criterion B. Excessive thoughts, feelings and behaviour related to pain are persistent and disproportionate. There is a persistently high level of anxiety about pain;
· excessive time and energy is devoted to the health concerns, and
· Criterion C. The condition has been continuously present for over 5 years.
Degree of permanent impairment, psychiatric impairment rating scale
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
| Psychiatric diagnoses | 1. Major depressive disorder | 2. Somatic symptom disorder with predominant pain |
| 3. Alcohol use disorder (resolved) | 4. | |
| Psychiatric treatment description | Psychiatric consultation | |
| Category | Class | Reason for Decision |
| 1. Self Care and Personal Hygiene | 2 | Mr Pietryga said he showers daily but he needs help from a physical point of view. With regard to toileting he has unable to wipe himself and often requires a second shower. He said he does attempt to wear clean clothing. He has no appetite and does not eat lunch or breakfast. He said he sometimes eats dinner. His weight has gone down from 92 kg to 82 kg and he is unable to put weight back on. From a psychiatric point of view he is mildly impaired due to loss of weight and loss of appetite from the impact of depression. |
| 2. Social and Recreational Activities | 3 | Mr Pietryga said he does not go out because he does not want to be around people because of his depressed mood, anger and inability to enjoy himself. He said he is able to float in the pool of his rental property but this is more for the treatment of pain rather than recreation. He has no hobbies. He does not attend entertainment venues, hotels, coffee shops or restaurants. He is totally impaired overall but moderately impaired from a psychiatric point of view. |
| 3. Travel | 1 | Mr Pietryga said he can drive but has to stop while approaching intersections because he cannot look from side-to-side. This is partly due to pain and partly due to the psychological impact of the motor accident. He said he was able to fly to Sydney at Christmas to see his children but was heavily drugged in order to do so. He will travel as a passenger in a car but not by bus or train because of fear of exacerbation of pain due to sudden movement or stopping. He is unimpaired. |
| 4. Social Functioning | 3 | Mr Pietryga's relationship with his partner Kylie has ended because of the impact of the motor accident on his mental state and behaviour. He became depressed, withdrawn, socially avoidant and angry. He was unable to meet Kylie’s dependency needs and she was angry his income had stopped. He was also unable to help with the children. She became increasingly violent towards him; he denied he physically retaliated. Currently, his access to his children is limited. He said he has entered into a new relationship but is frequently impotent, partly due to pain and partly due to the impact of psychiatric medication. He is reluctant to go out with her due to depressed mood, and he has concerns regarding the stability of the relationship. His relationship with his extended family is intact. He is moderately impaired. |
| 5. Concentration, Persistence and Pace | 3 | Mr Pietryga said this is poor. He said he is unable to read for more than 10 minutes and when he does he forgets what he has been reading. When he attempts to watch television he loses hours. He said his favourite program was "Detroit Power" which is about motor vehicles; he said he does find that interesting but is not able to persist with it and cannot remember what he has watched. Significant concentration and memory difficulties were evident throughout the interview. In this regard he is almost totally impaired due to both pain and psychiatric symptoms. From a psychiatric point of view he is moderately impaired. |
| 6. Adaptation | 3 | Mr Pietryga is totally impaired due to a combination of pain and his psychiatric condition. However, it is necessary to apportion between impairment due to pain and impairment due to his psychological condition. Depressive symptoms alone resulted in the loss of a part-time position with reduced duties with his former employer. From a psychiatric point of view he is moderately impaired. |
| List classes in ascending order: 1 2 3 3 3 3 | ||
| Median Class Value: 3 | ||
| Aggregate Score: 15 | ||
| % Whole Person Impairment: 15% | ||
Apportionment – pre-existing/subsequent impairment
There is no evidence of a pre-existing or subsequent psychiatric condition. There is no requirement for apportionment.
Effects of treatment
There is no evidence that treatment has been effective. No allowances made for treatment effect.
CONCLUSION
The Panel finds that as a result of the motor accident the claimant has suffered psychiatric injury diagnosed as follows:
· major depressive disorder;
· somatic symptom disorder with predominant pain, and
· alcohol use disorder - resolved.
The degree of of permanent impairment arising from the injury caused by the motor accident is 15%.
Permanent impairment ratings take symptoms into account, however the percentage permanent impairment is not a direct measure of disability.
As the diagnosis and level of WPI found differs from Medical Assessor Chew, the certificate of 20 July 2023 is revoked and a new certificate is provided at the beginning of these reasons.
0
1
0