Allianz Australia Insurance Limited v Prasad
[2024] NSWPICMP 257
•24 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Prasad [2024] NSWPICMP 257 |
| CLAIMANT: | Nitesh Prasad |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Christopher Canaris |
| MEDICAL ASSESSOR: | Matthew Jones |
| DATE OF DECISION: | 24 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s application for review of 26% whole person impairment (WPI) assessment by Medical Assessor Samuell; claimant’s father seriously injured waiting for a bus and died nine days later; claimant, his brother and parents all lived together in the same house very close to where the accident happened; insurer conceded claimant sustained psychological injury as a result of the accident but disputed the nature and extent of the claimant’s current impairment relying on material which suggested significant improvement with support of rehabilitation advisors; Held – claimant satisfied the criteria for a persistent depressive disorder but not a post-traumatic stress disorder; claimant’s apparent better functionality earlier or is explained by the fact he was being supported by the insurer’s rehabilitation efforts; his current situation was entrenched and there was unlikely to be any improvement; WPI assessed at 22%; no matter of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Samuell dated 29 March 2019. 2. Certifies that Mr Prasad’s whole person impairment resulting from the psychological injury sustained by him caused by the motor accident on 29 March 20219 is greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Mahindra Prasad was killed in a motor accident which occurred on 29 March 2019. Mr Prasad, was waiting at a bus stop close to the family home when an out-of-control car collided with him causing serious injury. Mr Prasad died over a week later in hospital.
Nitesh Prasad, Mahindra’s elder son attended the scene of the accident, saw his father being treated and was with him in hospital. Nitesh Prasad says he developed a psychological injury as a result of his father’s death. Nitesh Prasad made a claim against Allianz, the third-party insurer of the vehicle whose driver caused the accident that led to his father’s accident.
The Review Panel understands that Allianz has admitted liability, including fault, on the part of its insured driver who apparently had a medical episode shortly before the crash.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and Mr Prasad referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 22 August 2023, Medical Assessor Samuell determined the degree of Mr Prasad’s WPI is 26% which is of course greater than 10%.
The insurer then lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 1 November 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 6 February 2024 the President’s delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Mr Prasad’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In accordance with the common law as modified by the MAI Act, an injured person can make a claim for damages for both economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Dispute resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Samuell’s, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect”
(sub-s (1)).If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
The Guidelines include a chapter entitled “Mental and behavioural disorders” and require the assessment to be undertaking in accordance with the psychiatric impairment rating scale (PIRS) and that the AMA 4 Guides are to be used as “background or reference only”.[5]
[5] Clause 6.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with whatever the current edition of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD).[6]
[6] Clause 6.213 of the Guidelines.
The PIRS provides[7] for the consideration of any psychiatric condition present before the accident in question:
“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.”
[7] Clause 6.218 of the Guidelines.
The PIRS provides in clause 6.219 for six areas of function:
(a) self-care and personal hygiene;
(b) social and recreational activities;
(c) travel;
(d) social functioning (relationships);
(e) concentration persistence and pace, and
(f) adaptation.
The PIRS then provides at 6.220 for five classes with a descriptor for each which is “illustrative rather than literal criteria” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury”.
The impairment may be adjusted for treatment[8] that is treatment such as medication being consumed to treat the psychiatric condition.
[8] See clauses 6.222-6.223 of the Guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage.[9]
[9] See clauses 6.225-6.228 and Table 17.
ASSESSMENT UNDER REVIEW
Medical Assessor Samuell examined the claimant on 10 August 2023 and issued his certificate on 22 August 2023. He confirms at [2] that he was asked to assess the claimant’s psychological injury. At [3] and [4] he refers to the competing medico-legal experts (Dr Rastogi for the claimant and Dr Newlyn for the insurer).
Medical Assessor Samuell took an employment history from the claimant, the claimant could not remember his age because of memory problems and said he had no psychological issues before the accident.
Mr Prasad told Medical Assessor Samuell he was drinking five to six schooners of full-strength beer per day but could not explain why. He smoked.
The claimant said he lived with his brother, has bought land but has not yet built a house on it. He is married with four children.
The claimant gave a history of what he understood about the accident. His father was a
70- year-old retiree at the time of his death, living with the claimant and his family. The claimant said he remembered his father being on a stretcher with “blood everywhere” and that he died nine days later.
The claimant says he has developed anxiety and depression as a result of his father’s death and has had psychological treatment two to three months after the accident on a weekly basis. He has been seeing a psychiatrist for more than a year and has been prescribed three different medications.
He reported that his wife had a car accident two years ago which did not impact his mood at all. Mr Prasad said he has poor concentration and memory and uncontrolled anger and that he has hit his wife. He has had self-harming thoughts.
Medical Assessor Samuell notes the claimant was difficult to interview.
The claimant said he has not worked since March 2019, that his family does things for him and that he is reminded by his family to shower. He says he has not seen friends for over a year and has not been on a holiday since the accident.
Medical Assessor Samuell diagnosed a post-traumatic stress disorder.
Medical Assessor Samuell assessed the claimant’s impairment as follows:
(a) Self care and personal hygiene class 3
(b) Social and recreational activities class 3
(c) Travel class 3
(d) Social functioning class 3
(e) Concentration persistence and pace class 3
(f) Adaptation class 5.
The ascending order of scores was 3, 3, 3, 3, 3, 5 which provides a median score of 5, an aggregate score of 20 which translates to a WPI of 26%
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer submits that the Medical Assessor failed to consider the relevant material for example the material concerning the claimant’s ability to work. The insurer says the Medical Assessor did not put to the claimant the alternative view from the insurer’s rehabilitation advisors who note the claimant has some capacity to work.
The insurer says Medical Assessor Samuell has not engaged with and appears to have ignored the insurer’s clearly articulated arguments.
The insurer says the assessments of adaptation, travel and social and recreational activities do not include consideration of the claimant’s activities as reported to the medico-legal experts.
The insurer says the claimant’s history given to the Medical Assessor is inconsistent with the other histories he has given, and these inconsistencies should have been put to the claimant.
Claimant’s submissions
The claimant says the Medical Assessor is not required to engage with each and every document. The claimant says the insurer has not identified with any particularity the documentation the Medical Assessor has ignored.
The claimant points out that the histories the claimant relies on were contained in the medical reports of Dr Rastogi and Dr Newlyn dated November and September 2021 nearly two years earlier than Medical Assessor Samuell. The claimant says this is a difference in presentation and not a consistency issue.
The claimant also submits the insurer has not explained how the errors are material to the outcome.
Procedural matters
The application for review was expedited by the Director Roberts on 2 February 2024. As a result, the Panel met on 28 February 2024 and issued a report to the parties on the same date. An early re-examination date was arranged and the Panel met again on 23 April 2024 in order to finalise the assessment.
REVIEW OF THE EVIDENCE
The insurer provided a bundle comprising 99 pages with the application for review. The claimant provided a bundle of 226 pages on 18 March 2024.
Claim form and claim documents
The claim form is dated 27 July 2019. The claimant says his father was hit by a car while waiting at the bus stop. “I rushed over and saw him laying on the ground unable to provide assistance.”
The first certificate of capacity was completed by Dr Karavandra and is dated 25 June 2019.[10] It discloses the claimant had been a patient of the practice since 17 May 2017 and that he was diagnosed with a Bereavement – adjustment disorder. He was advised to have counselling and was certified as fit for work from 25 June to 25 July 2019 for six hours a day three days a week. A further certificate dated 24 July 2019 also diagnoses a bereavement and adjustment disorder, advises counselling was needed and certified the claimant fit for work for six hours a day three days a week. A third certificated dated 23 August 2019 is in similar terms.
[10] Page 64 of the insurer’s bundle.
The claimant provided a statement in support of his claim dated 28 October 2021.[11] He says he “witnessed my father suffer horrific injuries,” he saw his father on the ground and could not provide him with assistance.
[11] Page 23 of the claimant’s bundle.
The claimant said he loved his job and was performing well. He says before the accident he was fit and athletic. He said he lived with his extended family and would regularly meet friends. He said he cleaned his car regularly and helped out with the housework and mowing the lawn.
After the accident he said he could not return to work for a month, he found it difficult to concentrate and was terminated from his work. He says they gave no reason, but he thinks it was because of his depression and the leave taken from work. He said he challenged the dismissal, but they still terminated his employment.
Mr Prasad says he has nightmares, his family relationship is damaged, he constantly argues with his wife, he has panic attacks, he has not resumed playing football, does not play temple instruments, he has lost concentration and no longer helps out around the house.
The claimant has provided a copy of the letter of termination letter he received from his employer (GTK) dated 10 May 2019[12] which says “Following monitoring of your work performance and assessment of your ability to integrate with the wider GTK team, I regret to inform you that…”
[12] Page 56 of the claimant’s bundle.
Treating medical records and reports
Dr Jain, psychologist, has provided his records and a letter dated 17 September 2019.[13] This sets out the criteria of post-traumatic stress disorder and explains why he is of the view the claimant satisfies those criteria.
[13] Page 94 of the claimant’s bundle.
A letter from Mr Ahern, psychologist is relied on by the insurer.[14] This letter was written to the insurer following a meeting with the claimant on 1 July 2020:
(a) the claimant reported poor memory and attention;
(b) he could remember the name of his counsellor but not his doctor;
(c) he scored 57 out of 80 on a test used to diagnose post-traumatic stress disorder and that his symptoms have improved;
(d) he has good days, and on those days goes for walks, watches documentaries and takes his son to football. He still drives, shops and does things for his family;
(e) he could not remember his work history, and
(f) the trial of the driver who caused the accident that led to his father’s death was approaching.
[14] Page 73 of the insurer’s bundle.
Mr Ahern wrote another email to the insurer on 9 November 2020 after meeting with the claimant and his doctor:
(a) the claimant was “feeling much brighter”, gardening more and getting increased support from friends;
(b) he has started at a gym with a trainer;
(c) there was a festival coming up which would be a trigger for him, and
(d) the claimant was “assertive in stating he is recovering well, but not ready for any discussions of [return to work] planning.”
A third email dated 3 December 2020 notes that the claimant was going to the gym (independently). The Diwali festival affected the whole family, the claimant felt he was improving, his nightmares were less frequent, and he was picking his children up from school and doing jobs around the house. The claimant considered work a “long-term goal”.
The claimant relies on another email from Mr Ahern possibly dated 29 January 2021.[15] There was discussion at a meeting about the recent crash involving the claimant’s family which increased his symptoms, he had recently lost his wallet on a walk, there was some work done on job seeking, his psychologist was helping him with scheduling and the claimant was looking on a website (Seek) for roles but felt too unwell to apply. His sleep had recently deteriorated but he was improving in diet, exercise and relationships.
[15] Page 96 of the claimant’s bundle.
Mr Ahern completed a formal rehabilitation document for the insurer on 3 June 2021.[16] Mr identified three vocational options and completed a job seeking program with the claimant although acknowledging the claimant struggled to motivate himself. The claimant was given support to access psychological services.
[16] Page 76 of the insurer’s bundle.
The insurer engaged Mr Shu an exercise physiologist to work with the claimant improving his physical fitness in order to improve his mental state. The insurer relies on a report from Mr Shu dated 15 July 2022 which notes the claimant was looking for volunteering opportunities.
Dr Karavadra wrote a referral to Dr Singh on 17 February 2022.[17] The terms of this referral include post-traumatic stress disorder, flashbacks, upsetting memories and anxiety since the death of his father. The accident claim was also mentioned as was the counselling with the psychologist. “Discussions re medications have taken place at various times but Nitesh was not ready for same previously.” There is then a reference to recent increased anxiety and nightmares a trial of paroxetine (20mg) with minimal improvement.
[17] Page 72 of the claimant’s bundle.
Medico-legal reports
The insurer relies on a report of Dr Newlyn dated 28 September 2021. Dr Newlyn has a report of the accident and the claimant attending the scene and seeing his father on an ambulance stretcher. He went to the hospital and his father was in a coma for nine days before he died.
The claimant’s brother arranged the funeral (in accordance with cultural norms). The claimant said it took 20 days before he realised his father was dead.
The claimant said he could not make decisions for months and cannot now make decisions. He says he was unable to sleep. He says he thinks about his father every day and feels helpless, sad and unwanted.
The claimant says he drank 10-12 stubbies nearly every day for the first year but now drinks less. He has started smoking. He buys more Lotto tickets than he did before. He drinks up to 20 cups of coffee a day.
The claimant was taking medication for high cholesterol but no medications for mental health issues. The claimant said he was having weekly treatment with a psychologist, Dr Jain which he found helpful.
He refers to his wife’s two car accident in the last two years. This “triggered me.” He describes other family deaths in recent years.
Mr Prasad said he owned the block of land next door but has not built a house on it. He said he took a month off after the accident and went back to work for about a week, but he was not needed. He said he has tried to find work but cannot and it is hard to do job applications.
Dr Newlyn took a detailed report of the claimant’s daily activities before and after the accident and reviewed the documentation.
Dr Newlyn notes there was no history of mental health issues before the accident. He diagnosed Bereavement caused by the death of his father which he says, “is a phase of life problem and not a clinical psychiatric disorder.”
The claimant’s solicitors retained Dr Rastogi to prepare a report dated 9 November 2021 in this matter.[18] Both the claimant and the insurer rely on this report.
[18] Page 57 of the claimant’s bundle.
Dr Rastogi diagnosed depression with anxiety and post-traumatic stress disorder. The claimant complained of disturbed sleep and insomnia, poor motivation, ongoing panic attacks, aroused and vigilant, triggered by seeing accidents, social isolation, impaired concentration, hopelessness and worthlessness and frustration.
Dr Rastogi documents the claimant’s current functioning and notes the claimant is able to shower but requires prompting, drives but only to familiar places, he is socially withdrawn, does not engage in any household chores, has poor concentration and has strain in his relationships.
Dr Rastogi has a history of treatment and the recent prescription of Paroxetine.
Dr Rastogi assessed WPI at 17%.
RE-EXAMINATION FINDINGS
The Panel examined Mr Prasad via audio-visual link through the MS Teams platform. Mr Prasad was at home and the examiners; Dr Christopher Canaris, and Dr Matthew Jones, were in their respective rooms. The technical quality of the audio-visual link was sufficient to undertake the examination.
General history
Mr Prasad told the examiners that he is 49 years old and lives in a suburb near Blacktown, Sydney. He lives in his brother’s house, with his brother, his brother’s wife and two children, as well as their mother. He says he also lives with his wife and two children: a son aged 19 and a daughter aged 16. His daughter is at the local high school and doing well, and his son is in second year university studying commerce and works one to two days a week. Mr Prasad’s wife is working full-time in a warehouse.
Mr Prasad himself is not working and has been receiving no income since last year when his weekly benefits ceased, however he has since received some back payments.
Mr Prasad last worked approximately five years ago. He says he went back to work after the accident, worked for a few weeks, however he was in a six-month probation period and his work was not up to standard and he was terminated. He was working as a purchasing and inventory controller. The Panel notes the evidence from his employer of the claimant’s termination but there is no evidence of the claimant’s pre-accident performance from that employer. Prior to this, he has worked in similar roles, including for Tasman Tanks, which manufacture commercial tanks, for a little less than two years. He left this job and applied for his most recent job to be closer to home and receive more pay. Prior to working at Tasman Tanks, he worked in a similar role, at another manufacturing company for about seven to eight years.
Personal and developmental history
Mr Prasad was born in Fiji and his family is of Indian background. He was born in Suva, the capital, and his family was middle-class. His mother and father were together in their marriage and his father was a cabinetmaker and his mother did not work. He is the eldest of two brothers. Mr Prasad lived in Fiji until he came to Australia at the age of 29.
Mr Prasad had no perinatal complications, nor any major illnesses as a youngster. As far as he remembers, he walked and talked at developmentally appropriate times and commenced his early schooling without incident. He described himself as “pretty smart.” He went to a private primary school near home and went to a selective high school. He completed his Year 12 equivalent around the age of seventeen or eighteen and then acquired employment in a government department. He said this was similar to work he later went on to do in the area of procuring and inventory in a warehouse. Mr Prasad said his father was building the family home at the time and he remained in this government job for about three years. Mr Prasad then went on to study a bachelor degree in public administration and economics, which was initially one to two years part-time and then two years full-time. After his studies he went back to government work, but in more of a management role. He did this job for three or four years before coming to Australia.
Mr Prasad came to Australia with his wife whom he had met at university. They were married in 2004. His brother was already in Australia, and the claimant came under the skilled migration program. He remembers that they had to pay a bond. He reported that he, along with his brother sponsored his parents who then came to live in Australia a few months after Mr Prasad arrived.
After coming to Australia, the family lived all together in Wentworthville. Mr Prasad’s first job in Australia was for a company called EDS, which would buy computers and provide information technology services for other companies such as banks. He was with this company for three years and then they closed down. He then started with Water Co, which was a swimming pool manufacturer, and he was overseeing buying and production.
Mr Prasad’s wife went back to work when their younger child, their daughter, was in a stroller. He reported his elder child, a son, was born during the first year in Australia and their daughter was born in their fourth year in Australia. He remembers that his parents helped look after the children.
History of the motor accident
The motor vehicle accident was confirmed by Mr Prasad as occurring on 29 March 2019 not far from home. Mr Prasad reported that on that day he was running late home from work, and he remembers that his mother phoned him and told him that his father had had an accident and was not talking. Mr Prasad drove to the accident site, which took about 10 minutes. When he arrived, he saw, “a big accident scene.” He said it was “a massive accident” with ambulance, police and a helicopter in attendance. He remembers his father was unconscious and his mother was crying. Mr Prasad said he “lost it.” He commented that his lower legs “didn’t have the power”, indicating that he felt like collapsing.
Mr Prasad reported that the accident occurred two houses away from where they live and he “can see it every time.” He said after an hour his wife came home.
Mr Prasad reported his father was in the intensive care unit (ICU) in hospital for 10 days and never regained consciousness.
Mr Prasad explained that a lady had driven over his father in a car. She had said the accident occurred because she had had a blackout. Mr Prasad reiterated that every day he sees the accident scene and that this was a problem he has had for the last five years. He said he has been talking to his psychologist and doctors about it, and that he feels “the guilt.” He said he “should have come earlier.” He went on to say that he can hear his mother’s voice in his ears every night and he will “start shouting.”
Mr Prasad went on to explain his feelings of guilt and that his father was at the bus stop where the accident happened intending to travel to school to pick-up the children. His father did this because Mr Prasad was running late and could not collect the children himself.
Mr Prasad reported that the 10 days his father spent in ICU was “the bad part.” He reported that every two hours a doctor would call and say that his father was not going to survive and ultimately, he never woke-up.
There was a court process about this accident related to the driver, and the adjudication was that the driver had had a medical episode and had blacked out. He said, “she walked free.” He said the court case occurred “after 2020.”
With respect to the funeral, it was occurred two weeks after the accident. He said that, consistent with their cultural tradition, there were 13 days when the family would gather together for prayers. His father was cremated, and they ultimately took the ashes home.
History of symptoms and treatment following the accident
Mr Prasad said that he did not eat for five or six days when his father was in hospital. He said it was a highly traumatic period and that he “didn’t know” and “couldn’t find [him]self.” He reported he was not capable of doing anything and “couldn’t come to reality.” He said it took him many days after the funeral until he “realised he was dead.” He said this feeling of shock took a while to pass.
Mr Prasad was not able to remember exactly the treatment he has received, but he did see his family doctor after the funeral. He reported that as time passed, he found himself “going deeper and deeper.” Mr Prasad reported he still experiences panic attacks and shouts every night, and his family has to wake him up.
With respect to medications, Mr Prasad has been taking Valdoxan (agomelatine) an antidepressant, one tablet at night, for over a year. He started on a new antidepressant, Escitalopram, at a dose of 20mg over the last month. He said he takes this any time he needs to, if he is angry. He reported that all of a sudden, since the accident he will get angry for no reason. He also takes Clonazepam 500mcg every evening, as well as anti-cholesterol and antihypertensive medications, which he has been on for approximately three years.
Mr Prasad sees a psychiatrist, Dr Singh, every six weeks to two months. He started seeing him over one to two years ago.
Mr Prasad also sees a psychologist, Dr Jain, every week or sometimes more often. He started seeing Dr Jain not long after his father’s death, and although he was not able to be accurate conceded he had seen her around 100-200 times. He said he did not particularly like her at first, but realised he needed help. He said seeing her gives him ways to manage things.
Mr Prasad sees his general practitioner every month to obtain certificates of capacity and fitness as part of the claims process.
Mental state examination
Mr Prasad was a gentleman of Indian appearance, with long, wavy hair and a scruffy beard and moustache. He wore a brown t-shirt. His hair was greyed. He was polite and cooperative and appeared somewhat distracted by his emotional experience. He was, for example, often wiping tissues on his face due to teariness. His speech was essentially normal, if not disjointed. There was no evidence of formal thought disorder or delusional thought processes. He made poor eye-contact during the assessment.
He described his mood as angry, however he appeared significantly depressed. His affect was dysphoric and despondent, and he appeared despairing. He was somewhat disability focused in his narrative. There was no evidence of perceptual abnormalities consistent with psychosis. His cognition, insight and judgment appeared grossly intact at assessment. Rapport was reasonable and facilitated the assessment.
Recent symptoms and functioning
When asked about his appetite, Mr Prasad responded that he had “an eating disorder.” The Medical Assessors asked Mr Prasad to expand on this and he said that some days he will eat a lot and over-eat and then other days he will not eat much. He was not sure of his weight but a couple of months ago he weighed 86kg. His height is 174cm. He reported his energy levels are low and he sleeps in the daytime, having a nap for up to an hour at a time.
When asked how Mr Prasad passed his time, he initially shook his head. He described having “no energy at all” and said he was normally like how he was today (the day of the re-examination); when he did not feel like talking to anyone or picking-up the phone. He acknowledged that sometimes he has good days and if he is feeling better, he will go somewhere with his son, for example to watch his son who plays football for Blacktown City. He feels safe in the presence of his son. Mr Prasad does however have negative feelings and he is nervous that his son will injure himself.
When asked about self-care and personal hygiene, Mr Prasad reported that he does his own showering, but added spontaneously “after so many reminders.” He also commented that he does not “do [his] toothbrush”, indicating he does not brush his teeth very often. He said his wife gets upset about this. He said he simply does not want to have a shower or brush his teeth.
Mr Prasad said he will get up and have his breakfast, but he does not go outside of the house because he does not want to see the accident site. He does not watch television because if he watches the news he gets upset. He spontaneously added that he cannot concentrate for more than a couple of minutes.
Mr Prasad has maintained his driver’s licence. He said he was not currently driving but he normally goes with his son and wife and does not normally go by himself. He said he will have panic attacks if he hears horns beep or sees an ambulance. When asked how long ago it was that he last drove by himself he responded that it was only short distances, and it maybe could be months ago. He went on to say that normally his son, wife or mother does the shopping.
Mr Prasad added that he wants to run away from his house every day, and when asked why he had not moved he said, “the rental market is so bad.”
Mr Prasad spontaneously added that the family does not have any celebrations and the household is “like a graveyard” and that nobody talks to each other. He said his father used to unite everyone.
Mr Prasad lives day-by-day. He will simply wake-up every day. He reported that if something starts to worry him, the worry can go for weeks and weeks, “for nothing”.
Mr Prasad reported he has problems with his mood, and he gets “so mad.” He said the only safe place is inside his house. He said he has very low motivation and then added that this was the case today. He does not feel like going out. He tells himself that he should, but he does not.
Mr Prasad reported that his mother is not well and is starting to forget a lot. He spends his time in the home with his mother, as well as his son and daughter when they are home. He said this is most days. He said they will not talk for days. Mr Prasad gave an ambivalent answer when asked whether he spent time thinking about his father saying, “yes and no.”
The Panel asked about the presence of re-experiencing phenomena and Mr Prasad said he will have flashbacks where he sees his father in the park, and he talks to him. He said it feels like he can talk to him.
The Panel crosschecked with Mr Prasad about a period of time when he seemed to be getting better, going to the gym and his capacity for work had increased. He did not respond to this question but said that when he has an assessment like this it affects him for a few weeks. The gym membership was at the recommendation of Dr Singh and the insurance company provided it. He conceded that he went regularly for a year or so and he felt better but stopped with the insurance company stopped paying for it.
Mr Prasad reported that he had never really looked for work, there was just attempts to find work done with the insurer’s rehabilitation people. He said for a while he thought he perhaps could go back to work, but he says he cannot.
Mr Prasad reported he had problems with concentration which he found very difficult. He said he forgets what he goes to the kitchen for, he is unable to think about tasks and he will forget his wallet. He said thirty or forty times he has had to look for his phone. He gets very annoyed at his loss of memory.
Drug and alcohol history
Mr Prasad has no history of recreational drug use. He said he smokes a lot of tobacco. He will drink alcohol in the form of beer and will drink five to six cans or more in a sitting. He tries not to drink every day but if he takes his medications later he will drink a few beers. He said his wife is not happy about this. He tells his wife to buy the beer for him and she has not refused. He said she understands now because if she says no, they “end up in a problem.”
Relevant injuries or conditions sustained since the motor accident
Mr Prasad said there had been no additional injuries since the motor accident and no additional medical conditions.
His wife and family were involved in minor a motor accident or accidents some time ago, but while the claimant accepted that this “rocked” him at the time, Mr Prasad denied this had any long-term effect on him.
CONSIDERATION OF THE ISSUES
General observations and consistency
The Panel notes that the medico-legal evidence from the parties was obtained in September and November 2021, more than two and a half years ago. The Panel makes a general observation that the claimant’s condition appears to have worsened since then. It is the Medical Assessor’s clinical experience that mental health can decline or deteriorate over time without a triggering event.
The Medical Assessors note that it has been five years since the accident and Mr Prasad has received considerable psychiatric and psychological treatment during that time. While he had some improvement early on, this could not be maintained. He appears to have had a prolonged experience of debilitating symptoms and it is the Panel’s conclusion that he had stabilised from a psychiatric perspective and was unlikely to change in his level of psychiatric impairment in the upcoming twelve months by any significant degree. It is the clinical judgment of the Medical Assessors that Mr Prasad has a permanent psychiatric impairment.
The Panel has considered the insurer’s submissions concerning the claimant’s certification three years ago of having the capacity to work up to 18 hours per week. The claimant was at that time heavily supported by the insurer. Mr Prasad was, with that support, unable to find work including voluntary work. It is the Medical Assessor’s clinical judgment that the longer a person, particularly a person with depression, is inactive, out of work and having difficulty with activities of daily living, the more hopeless they become and the more entrenched their illness becomes. It is now five years since the claimant worked and while it is possible that at the conclusion of his claim, Mr Prasad’s mental state might improve slightly, it is the clinical judgment of the Medical Assessors that his current state is entrenched, and he is unlikely to secure full-time employment.
The Medical Assessors note the claimant’s self-report of memory loss however he demonstrated a good recall of his childhood, early life and pre-accident home life and career. The Medical Assessors found Mr Prasad demonstrated significant concentration difficulties during the re-examination and obtaining a coherent history from him was difficult. His train of thought was often interrupted by his emotional response to the matters being raised and the Medical Assessors had to probe and persevere to elicit the information they did obtain.
This apparent inconsistency can be explained by considering the nature of injury and the different types of memory loss. It is the clinical judgment of the medical assessors that short term memory loss is a common occurrence in people with psychological injury or mental health conditions. Long term memory on the other hand is less affected by current mental health conditions.
The Panel has considered Dr Jain’s clinical notes for the period 16 July 2019 to 6 August 2021. Essentially these are consistent with Mr Prasad’s reported history. There is mention of significant symptoms experienced over time and particular problems with anniversaries such as family celebrations or the time of year of the accident (the fifth anniversary of the claimant’s father’s death was around the time of the Panel assessment).
Finally, the Panel notes that Covid with its associated lock downs has affected the claimant. The limits on social gatherings during the pandemic further impaired the claimant’s ability to maintain friendships which in more recent years has become entrenched behaviour due to the claimant’s accident-related lack of motivation and depressed state.
Overall, the notes attest to a longstanding period of consistent and debilitating symptomatology.
Diagnosis
The Panel concluded that Mr Prasad reported a narrative and presented at assessment as consistent with having a longstanding mood disorder. The Panel concluded that Mr Prasad’s psychiatric condition exceeds, and is not simply, a bereavement reaction. He satisfies DMS-5 diagnostic criteria for Persistent Depressive Disorder (Dysthymia) that is a PDD as follows:
(a) he reports, and the Medical Assessors accept he has a depressed mood for most of the day, for more days than not, as indicated by subjective account or observation by others, for at least two years;
(b) based on the history given there is the presence, while depressed, of two or more of the following:
(i)poor appetite or overeating;
(ii)insomnia or hypersomnia;
(iii)low energy or fatigue;
(iv)low self-esteem;
(v)poor concentration or difficulty making decisions, and
(vi)feelings of hopelessness;
(c) during a two year period of the disturbance, the person has never been without symptoms from the above two criteria for more than two months at a time.
(d) the disturbance is not better accounted for by Major Depressive Disorder (MDD) or MDD in partial remission. The Medical Assessors did consider Mr Prasad could also have Major Depressive Disorder, although it is not necessary to address this in the context of a WPI assessment and the Panel is of the view that a PDD is a better fit;
(e) there has never been a manic episode, a mixed episode, or a hypomanic episode and the criteria for cyclothymia have never been met. Mr Prasad’s symptoms are not better explained by a psychotic disorder;
(f) the disturbance is not due to the direct physiological effects of a substance (e.g., a drug of abuse or a medication) or a general medical condition, and
(g) the symptoms cause clinically significant distress or impairment in important areas of functioning.
The Panel notes Medical Assessor Samuell diagnosed a post-traumatic stress disorder. While the claimant did see the aftermath of the accident involving a close family member, he did not report to the Medical Assessors at the re-examination any or any significant intrusive symptoms which would be necessary for such a diagnosis. The overall clinical picture was more consistent with a longstanding mood disorder.
The Panel assessed WPI utilising the PIRS taking into account cl 6.21 of the Guidelines that “the evaluation should only consider the impairment as it is at the time of the assessment”.
Degree of permanent impairment
Psychiatric diagnoses
Persistent Depressive Disorder
Psychiatric treatment description
Ongoing psychiatric reviews.
Ongoing psychiatric medications.
Ongoing psychological therapy.
Category
Class
Reason for Decision[19]
1. Self-Care and Personal Hygiene
3
It is the clinical judgment of the medical members of the Panel that there is a class 3 moderate impairment.
Mr Prasad looked unkempt at the re-examination and reported that he rarely showers or brushes his teeth and requires multiple reminders to do so. He says he does little in the way of domestic activities and appears, on the evidence before the Panel to currently require the assistance of family members.
2. Social and Recreational Activities
3
It is the clinical judgment of the medical members of the Panel that there is a class 3 moderate impairment.
Mr Prasad reported that there was nothing of significance that he did for recreational or social enjoyment, apart from occasionally watching his son play football. Post Covid and currently, Mr Prasad reported that there was considerable social withdrawal, he rarely left the house and that there was even a lack of conversation and interaction within the family unit at home.
3. Travel
2
It is the clinical judgment of the medical members of the Panel that there is a class 2 mild impairment.
Mr Prasad is able to drive, particularly in the company of family members. He reported that he was able to drive short distances by himself and although he preferred to spend most of his time at home, he was not housebound.
4. Social Functioning
2
It is the clinical judgment of the medical members of the Panel that there is a class 2 mild impairment.
Mr Prasad maintains supportive relationships with his family and extended family, although there was a reduction in communication. There is some strain at home. Mr Prasad indicated significant social withdrawal with respect to friends outside of the family.
5. Concentration, Persistence and Pace
3
It is the clinical judgment of the medical members of the Panel that there is a class 3 moderate impairment.
Although Mr Prasad was able to give his full attention to the re-examination for over an hour, there were some difficulties in obtaining the history and the claimant was easily distracted. He said he was unable to concentrate for more than a few minutes when it came to watching something on television or even reading. He gave little evidence of any cognitively demanding activities in his day-to-day routine.
6. Adaptation
5
It is the clinical judgment of the medical members of the Panel that there is a class 5 total impairment due to Mr Prasad’s psychological state.
Due to his ongoing symptoms, Mr Prasad would be unable to attain or retain full-time employment, or regular part-time employment, in the open labour market. He was previously reportedly competent and capable of maintaining full-time employment. The Panel considered Mr Prasad totally incapacitated with respect to any paid employment, or even voluntary employment.
Mr Prasad’s reported social withdrawal, poor self-care and personal hygiene, and poor concentration with lack of motivation are all consistent with being totally impaired in this category.
List classes in ascending order: 2 2 3 3 3 5
Median Class Value: 3
Aggregate Score: 18
Whole Person Impairment: 22%
[19] This table provides the key features of the claimant’s presentation from the history and examination conducted in the previous pages.
Adjustments
Pre-existing/subsequent impairment
There is no evidence of any pre-existing symptomatic impairment and insufficient evidence for any adjustment for a subsequent impairment. The claimant’s wife was involved in an accident but there is no evidence this resulted in any ongoing exacerbation or aggravation of the claimant’s condition.
Effects of treatment
Although Mr Prasad has undertaken assertive community treatment and is currently seeing a psychiatrist, psychologist and taking psychiatric medications, there is no reported improvement in his experience of symptoms or functionality.
The Panel considered that it is likely that Mr Prasad would deteriorate from his current state, were this treatment removed, and decided that there was likely a 1% mild treatment effect due to the current ongoing treatment.
CONCLUSION
The Panel is satisfied on the balance of probabilities that the claimant’s WPI is 23%.
The Panel has come to the same conclusion of Medical Assessor Samuell, that is that Mr Prasad has a whole person impairment of greater than 10% which suggests that his certificate should be affirmed. However the Panel notes that Medical Assessor Samuell diagnosed post-traumatic stress disorder which he included in the certificate along with the
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