Allianz Australia Insurance Limited v Tirant
[2025] NSWPICMP 266
•16 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Tirant [2025] NSWPICMP 266 |
CLAIMANT: | Mark Tirant |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Christopher Canaris |
MEDICAL ASSESSOR: | Himanshu Singh |
DATE OF DECISION: | 16 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); degree of permanent impairment dispute; Medical Assessor (MA) diagnosed post-traumatic stress disorder and persistent depressive disorder; MA calculated 15% whole person impairment (WPI) on the psychiatric impairment rating scale; Review Panel made similar diagnoses but assigned a higher rating for adaptation; Held – Review Panel assessed 17% WPI; no issues of principle; MAC revoked and new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the Certificate of Medical Assessor Abhishek Nagesh dated (a) The following injuries caused by the motor accident give rise to a permanent impairment of 17% and IS GREATER THAN 10%: (i) distant depressive disorder (dysthymia) with some post-traumatic symptoms; (ii) alcohol use disorder in partial remission, and (iii) gambling disorder in remission. |
STATEMENT OF REASONS
INTRODUCTION
Mark Tirant (the claimant) sustained injuries in a motor vehicle accident on 18 August 2019 (the accident) as the seat-belted driver of a Hyundai i30 hatchback, accompanied by his wife who was sitting in the rear driver’s side seat, and his 5-year-old son sitting in the left rear in a child restraint. As he was driving along Grand Parade in Brighton Le Sands, the claimant observed two cars in front of him swerving, then he saw one of the cars veer into his lane, approaching head on. The claimant took evasive action, swerving to the left. However, there was impact between the front of the other vehicle and the driver’s side of the claimant’s vehicle. He recalls that his car span clockwise approximately 90°. His airbags were not deployed. The car was a complete write off. His head hit the windshield. The claimant and his family were extricated from the vehicle by emergency services personnel. He was transferred to St George Hospital where he was admitted for a period of up to 24 hours. X-rays and scans were performed. He was not diagnosed with any head injury. There were no fractures. He did not undergo any surgeries. He was discharged the following day for follow-up treatment by his general practitioner (GP) with physiotherapy and pain relief.
The claimant reports nightmares developed very soon after the accident. He was having flashbacks. He felt that he could have been killed and started to worry about having another motor vehicle accident. The thought of sitting in a car made him anxious. He stopped driving for six months. He avoided driving past the accident site. He started to become irritable and frustrated with himself. His ability to concentrate declined. He was not able to sleep, his appetite fluctuated, he lacked energy and motivation, he felt worthless with his situation. He lost interest and pleasure in things he normally enjoyed. The claimant consulted his GP for his psychological symptoms. He was prescribed anti-depressant medication and for insomnia. He was referred to a psychologist. He has been treated with cognitive behaviour therapy and supportive psychotherapy.
Allianz (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the Act). The insurer declined to concede entitlement to common law damages for physical and psychological injuries on the basis of insufficient information.
ASSESSMENT UNDER REVIEW
As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the claimant was referred to Medical Assessor Abhishek Nagesh, who certified on 12 December 2023 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 15% and IS GREATER THAN 10%:
· Post-traumatic stress disorder
· Persistent depressive disorder
Medical Assessor Nagesh made no adjustment for any pre-existing or subsequent mental conditions. As the claimant’s symptoms had not improved with treatment, Medical Assessor Nagesh made no adjustment for treatment effects.
THE REVIEW
The insurer sought a review of Medical Assessor Nagesh’s certificate, under s 7.26 of the Act, on the grounds that the medical assessment was incorrect in a material respect. The insurer relied on the particulars set out in the application and supporting documentation. The application was made within the time prescribed by s 7.25(10)(a) of the Act (28 days).
The insurer submitted that Medical Assessor Nagesh made a material error in his assessment of concentration, persistence and pace within Class 3 under the psychiatric impairment rating scale (PIRS) and cls 6.225 – 6.228 of the Motor Accident Guidelines (Guidelines).
The insurer further submitted that the Medical Assessor’s categorisation of the claimant’s concentration, persistence and pace is not consistent with the claimant’s history. Detailed particulars were given in support of that submission. It was further submitted that the claimant’s ability to maintain full-time professional employment since the accident is inconsistent with the Medical Assessor’s categorisation of concentration, persistence and pace, and there is no path reasoning addressing that inconsistency.
The insurer finally submitted that, if it is the case that the claimant’s ability to maintain full-time employment is now in jeopardy, then it would be likely that the claimant’s permanent impairment may change substantially within the next year. If so, the insurer submits, the Medical Assessor should have found that the impairment was not permanent, pursuant to cl 6.19 of the Guidelines, as did Dr Michael Prior in his report dated 27 March 2023 (see later).
The insurer’s review application was opposed by the claimant on various grounds. The claimant submitted that the insurer failed to demonstrate any reasonable cause for suspicion of material error. The claimant also submitted that the insurer’s application “is merely a frivolous attempt to protect its own best interest”.
In relation to the Medical Assessor’s findings in relation to concentration, persistence and pace under the PIRS, the claimant submits that the insurer’s position “is plainly unfounded”. The claimant submits that the classes outlined in Table 6.11 – 6.16 of the Guidelines are described through use of common examples, and “are intended to be illustrative, rather than literal criteria”. The claimant notes that the Guidelines go on to state that a Medical Assessor should obtain a history from the claimant and assess the extent to which these have changed as a result of the subject injury.
The claimant submitted that the insurer drew its own, unqualified, opinion in submitting that the claimant’s losing his earlier employment and securing a new role “in such a short amount of time, are again entirely inconsistent with a person demonstrating such poor concentration that they cannot read a newspaper article or watch a television show”. The claimant says this is merely a conclusion drawn by the insurer that would be more favourable to itself, rather than one based on the evidence at hand.
The claimant notes that Medical Assessor Nagesh, at page 10 of his certificate, provides the following rationale for his categorisation:
“I have assessed him as Class 2, mild impairment. My rationale is Mr Tirant is able to work full-time, but he is struggling at work. A month ago, he lost his previous job, and he resigned himself as he was about to be sacked. He was working in a senior advisory role, but he has taken a demotion and is now working as an HR officer. His ability to handle stress has been reduced significantly.”
The claimant submits that the above statement of reasons, or rationale, is sufficient in accordance with the applicable statutory and common law principles. (The Review Panel notes that the quoted statement relates to the Medical Assessor’s findings under the Adaptation class, as to which the insurer takes no issue).
The claimant submits there is no material error in the Medical Assessor’s certificate and there is no reasonable cause to suspect an error.
President’s delegate Stephanie Wigan issued a Determination of an Application for Review of a Medical Assessment on 13 February 2024 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that medical assessment was incorrect in a material respect. The basis of that decision was stated to be the Medical Assessor failed to provide a path of reasoning for his categorisation of concentration, persistence and pace within the PIRS.
Accordingly, the review application was accepted and was referred to the Panel, which is to reassess the following injuries:
· post-traumatic stress disorder, and
· depression.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
Document
Author
Date of Document
Doc #
Submissions
Law Partners
1 July 2021
1
Review Reply submissions
Law Partners
29 January 2024
4
(Previously summarised)
Statement
Claimant
9 February 2021
9
Supplementary Statement
Claimant
31 January 2025
13
Medico-legal report to claimant’s lawyers
Dr Paul Teychenné, consultant neurologist
14 March 2021
33
Dr Teychenné says that the claimant’s injuries were:
· concussion (memory and cognitive deficits);
· a neck injury;
· right shoulder contusion;
· right hip contusion;
· an injury to the lower back, and
· post-traumatic stress disorder.
Dr Teychenné was of the opinion that the claimant was at considerable risk of an incomplete cervical cord lesion as a result of a whiplash injury to the neck suffered during the subject accident. Dr Teychenné says that he reviewed a note by the psychologist, Dr Di Prinzio dated 28 July 2020. The claimant indicated he was trapped in the vehicle for 2-1/2 hours until freed by the Fire Brigade. He had post-traumatic amnesia. He was not sure of the length of time. He was seen by a neurologist 10 days later without any clear neurological explanation for the amnesia. Dr Teychenné then records as follows:
“He subsequently had regular nightmares. He was checking that he had his limbs particularly his right foot which was struck/trapped in the accident. He was still able to drive but had significant anxiety. He avoided driving for a short time after the accident. He was edgy, irritable and short tempered. He had become socially withdrawn. He was off work for five weeks and returned to work on reduced hours. He had intrusive thoughts and image of the accident. His concentration was poor. He struggles to focus for any length of time. He was feeling hopeless at times. He could not cope. His responses were elevated on all measures administered such a DASS-21, the K 10 and the PCL-C Checklist. He was experiencing intrusions, avoidance, numbing and arousal. He required considerable support to understand and developed insight into the nature of his traumatic stress.”
Dr Teychenné reviewed a report by Dr Wheatley who concluded that the claimant’s psychological and cognitive profile was strongly suggestive of a mild traumatic brain injury secondary to the motor accident. Dr Teychenné says that the claimant’s severe depression and probable post-traumatic stress disorder would further exacerbate his cognitive symptoms. Dr Teychenné records that the claimant endorsed severe symptoms associated with depression. Memory malingering test did not indicate any exaggerated false negative or malingering response.
As the remainder of Dr Teychenné’s report deals with the claimant’s physical injuries, disabilities and impairments, it is not relevant for the Review Panel’s consideration.
Medico-legal report to claimant’s lawyers
Dr Michael Prior, consultant psychiatrist
1 March 2021
52
Dr Prior says that the claimant described affective symptoms, anxiety symptoms and post-trauma symptomatology. Under the heading SUMMARY OF PSYCHIATRIC DIAGNOSIS, Dr Prior records as follow:
“Treating GP Dr C Lii, in a Certificate of Capacity dated 19 September 2019, states ‘post-traumatic stress disorder….. concussion’, and in a medical certificate dated
2 September 2019 mentions “mental health impact….. nightmare…. interrupted sleep….. poor concentration.”Previous treating psychologist Di Prinzo, in a letter dated 28 July 2020, mentions: “nightmares…. drive with significant anxiety…. irritability…. intrusive thoughts and images…. concentration… poor… hopeless.”
Neuropsychologist Dr Miskovic - Wheatley, in a report dated 29 October 2019, mentions “psychological and cognitive profile…. strongly suggestive of mild traumatic injury…. .severe depression and probable post-traumatic stress disorder.”
In the same report, the neuropsychologist quotes treating neurologist Dr Mobbs from a Review dated 19 September 2019 as stating “likely post-concussional syndrome…. post-traumatic stress disorder features……. amitriptyline for both mood and migraine.”
There are no reports by a previous treating psychiatrist, Dr Saeed, nor reports from medico-legal psychiatrists or psychologists.
Under the heading DIAGNOSIS, Dr Prior states:
· chronic post-traumatic stress disorder, and
· co-morbid major depressive disorder.
He opines that the cause of the claimant’s post-traumatic stress disorder was the traumatic nature of the subject motor accident itself. Dr Prior opines that the cause of the claimant’s co-morbid major depressive disorder is that major depressive disorder is a common complicating and co-morbid condition to associated post-traumatic stress disorder. Dr Prior says that the claimant’s chronic pain perception and physical limitations are likely to have some input into his depressive syndrome.
Dr Prior declined to assess whole person impairment because he did not think that the claimant’s condition had stabilised.
Medico-legal report to claimant’s lawyers
Dr Michael Prior
27 March 2023
80
Dr Prior essentially restated the findings in his previous report. He references the report by Dr Chow dated 25 August 2021 and notes that Dr Chow’s diagnosis of “post-traumatic stress disorder and major depressive disorder” is consistent with his own diagnosis, which is as follows:
· chronic post-traumatic stress disorder;
· co-morbid persistent depressive disorder (persisting major depressive disorder type) with associated generalised anxiety symptoms, and
· secondary alcohol use disorder (in remission).
Dr Prior relates all of those diagnosis to the subject motor accident.
Dr Prior again declines to assess whole person impairment as he does not believe that the claimant’s condition had stabilised. He does provide an estimation of impairment for the purposes of record which should not be taken to be a measure of permanent whole person impairment. Dr Prior’s calculations equate to 19% whole person impairment.
Request for neuropsychological treatment
Dr Rowena Mobbs
19 September 2019
135
Neuropsychological report
Dr Anna Miskovic-Wheatley
29 October 2019
137
Under the heading OPINION, Dr Miskovic-Wheatley says as follows:
“‘The claimant’ is a 46-year old HR Adviser who returned to work two weeks ago after being involved in an MVA on 18/8/2019, which resulted in right-sided shoulder and neck injuries and given a history of dyscognitive symptoms and severe headache, there is suspected concussion. Your recent neurology review indicated a likely post-concussion syndrome with post-concussion headache. The physical, emotional and cognitive sequalae post-MVA had been debilitating and have understandably increased the stress within the household and made it challenging for Mark to return to work.
Mark’s result from the cognitive testing revealed that he is significantly below his Average to Low Average expectation in working memory, delayed verbal memory, the executive functions of category fluency, mental flexibility, set-maintenance, set-shifting, unstructured planning and cognitive inner vision, with highly fluctuating attentional capacity. Mark’s physical, psychological and cognitive profile are strongly suggestive of mild-traumatic brain injury secondary to MVA. In addition, Mark’s experience of severe depression and probable PTSD would be further exacerbating his cognitive symptoms and should be a primary treatment target….. Mark’s recovery is in the early stages and further improvements should be noted in the twelve months following mild-traumatic brain injury.”
Electroencephalography results
Dr Alexis Selby
5 December 2019
143
The EEG is within normal limits.
The insurer relied upon the following material which the Review Panel has considered:
Doc No.
Document
Date
Page No.
1
Insurer’s submissions in support of Application for review
9 January 2024
1
Previously summarised
2
Insurer’s further submissions
14 February 2025
6
The insurer submits that the claimant tax records from 2016 to 2023 (as particularised) should be considered in the context of the claimant’s capacity to maintain full-time work in a professional setting for the five years following the accident.
3
Copies of Individual Tax Returns
2016 – 2019
8
4
Copies of Individual Tax Returns
2021 – 2023
20
Medical reports
5
Medico-legal report prepared by Dr Kai Tai (Frank) Chow, consultant psychiatrist, for the insurer
25 August 2021
82
Under the heading Summary and Opinion, Dr Chow says that:
“He reports experiencing sufficient symptomology that warrants a diagnosis of post-traumatic stress disorder and major depressive disorder. He will need ongoing psychological and psychiatric treatment. He is fit to work full-time, but he continues to struggle with concentration and performance. Prognosis of his condition is likely to remain ongoing.”
In a separate report of the same date to the insurer, Dr Chow provides the following whole person impairment assessment using the PIRS:
Category
Class
Reason for Decision
Self-care and Personal Hygiene
2
Mr Tirant is not looking after himself as well as he was. He is showing every three days, wearing the same outfit regularly, only able to do some light house chores at home and needing help from his wife and mother-in-law.
Social and Recreational Activities
3
He is not engaging in hobbies/activities.
Travel
2
He can travel alone out of home, but he is easily anxious.
Social Functioning
2
He is not seeing friends. He makes excuses with invites. His relationship his wife estrange due to his irritabilities but she remains supportive. He has regular phone contact with family.
Concentration, Persistence and Pace
2
He has poor concentration. He is easily forgetful. He makes mistakes. He works seven or eight hours a day on emails.
Adaption
2
He is fit for full-time, but he would have occasional days off work due to his psychological difficulties.
List classes in ascending order: 2, 2, 2, 2, 2, 3
Median Class Value: 2
Aggregate score: 13
Pre-existing: 0%
Whole Person Impairment: 7%
6
Medico-legal report by Dr Ross Mellick, consultant neurologist, to the insurer’s lawyers
23 November 2021
95
“It is clear from the factual information that Mr Tirant recalled events up until the impact and was reported by the Ambulance Officer to be alert and cooperative without any indication of disordered consciousness. The distribution of the right-sided symptoms at the site of the accident indicates the probability of impact to the right side of his body from the inside of the cabin. No deeply sited, intracranial, spinal or specific neurological injuries were identified.
He is now experiencing a chronic pain syndrome involving constant headache and severe mood disorder associated with neck pain and pain at the top of the right shoulder without evidenced radiologically or on examination of abnormal physical signs or structural injury.
The wide distribution of symptoms occurring at the time of the accident indicates the distribution of the impact and of soft tissue injuries. The known natural history of that type of disorder is of improvement to full resolution ….. On the basis of the evidence available to me, I am not able to establish that Mr Tirant suffered a head injury of sufficient severity to evoke concussion or a mild traumatic brain injury at the time of the motor vehicle accident.
The clinical evidence available does not identify any definite deeply sited intracranial spinal cord, spinal, nerve root or peripheral nerve injury which might explain the symptoms in the region of the right shoulder and right neck. These symptoms are likely to be due to increased muscle tension secondary to anxiety.
The headache does not have any specific features of a vascular component and is not migraineurs. Because of its constant nature and the associated symptoms, it is more likely they not a variant of tension headache as a result of increased muscle tension. The investigations done do not provide any evidence of a cranial or intracranial cause for the headache due to the injury in question. It should be regarded to be arising because of increased muscle tension and is a secondary consequence of the mood disorder.
A full symptomatic recovery can be expected – there is on structural or neurological condition.”
7
Medical report of Associate Professor Michael Shatwell, orthopaedic surgeon, to the insurer’s lawyers.
10 February 2022
103
Associate Professor Shatwell diagnoses soft tissue injuries to the right ribs, right shoulder, and root of the neck on the right side. He says there was no evidence of any significant head injury and that the prognosis for the soft tissue injuries is good. Associate Professor Shatwell says that the claimant’s condition has stabilised. As to whole person impairment, Associate Professor Shatwell says as follows:
“There is no whole person impairment, as there is no diagnosis of injury to the right shoulder relating to the accident. The discrepancy in range of movement is not due to a diagnosis related to the accident. There is no asymmetry in neck movement on which to base any cervical spinal impairment.”
The remainder of Associate Professor Shatwell’s report is not relevant for the Review Panel’s consideration.
8
Medico-legal report of Dr Thomas Newlyn, Consultant Family and Child Psychiatrist, to the insurer’s lawyers.
22 March 2022
115
Dr Newlyn gives a diagnosis of post-traumatic stress disorder arising from the claimant’s being injured in a collision and involving motor accident litigation (DSM-5). Dr Newlyn says that the claimant has a permanent impairment that has stabilised. Utilising the PIRS, he assesses whole person impairment as follows:
Category
Class
Reason for Decision
Self-care and Personal Hygiene
2
Mild impairment. His appetite is reduced and he showers less frequently when working from home. He is able to prepare his own food.
Social and Recreational Activities
2
Mild impairment. There has been a change in his social and recreational activities to family base social and recreational activities. He can be involve in these activities. He can go out alone.
Travel
1
No deficit. He is able to drive in his local area. He can take public transport alone but would prefer not to.
Social Functioning
1
No deficit. He has a positive intrafamilial engagement but has been unable to meet with close friends because of COVID-19. He plans to meet with these two friends when restrictions ease. He has lost contact with occasional friends. Clinically, there is no deficit.
Concentration, Persistence and Pace
2
Mild impairment with reported memory problems and difficulties with persistence and pace. There were no observable concentration difficulties during the assessment interview
Adaption
2
Mild impairment because he changed his job within the public service to reduce stress. He works full-time.
Aggregate score: 10
List classes in ascending order: 1, 1, 2, 2, 2, 2
Median Class Value: 2
Aggregate score: 10
Percentage WPI: 5%
Pre-existing WPI from conversion tables: 0%
Adjustment for Effects of Treatment: 0%
Adjusted percentage WPI: 5%
9
Clinical records of Dr Rowena Mobbs
As of
15 November 2021134
10
Clinical records of Anxiety Solutions CBT
As of
15 November 2021146
11
Clinical records of The Balmain Practice
As of
9 February 2024162
EXAMINATION REPORT
The report of Medical Assessor Canaris and Medical Assessor Singh is as follows:
Mark Tirant DOA: 18 August 2019
Personal History
The claimant is a 52-year-old married former human resources advisor who is currently not working and is “trying to look for work”. He has one boy who will shortly turn 11 years.
He denied any other history of psychiatric illness. He had been otherwise medically well apart from “slight asthma” when he was young which is no longer a problem.
He had at one point drunk heavily though his wife would hide alcohol away though when he does find some, he could easily drink a six pack and “if I see it, I’ll grab it”. He might have a triple shot of spirits and tend to drink until he feels sick – he could get through a six pack over an hour – a triple shot over less than an hour. He says he drinks wanting to have “something that would help me be in another world… to help me calm down… though it usually doesn’t”. He does not smoke. He does not use drugs. He does not gamble – his wife looks after the finance but for a time gambled a good hundred dollars a day in one day.
He denied any history of problems with the law. He had no other claims history.
He knew of no family history of psychiatric illness.
He has one brother. His parents are alive and together. His parents both works as leading hands. His mother works for Arnott’s sand his mother for Toohey's.
He had a good childhood. He completed year 12 and then worked in retail and then studied HR and business at TAFE with a diploma in both.
Before his accident, he was in a senior advisory role in HR with IPART (the independent pricing tribunal). He had “been learning in that role” and was working to toward a promotion but lost the promotion. He had been 11 years with IPART.
He married in 2005 and had been with his wife some three years before that. She works for Westpac as a manager.
History of the accident
On the day in question, he was heading home from a family picnic with some friends. his son and his wife were in the back seat – his son was in a capsule. The lights when green “and the other person hit us head on”. He has been told he had “blacked out for a short period”. Airbags may not have deployed. He had to be helped out of the car.
He was taken by ambulance to St George Public where he remained overnight.
Symptoms and treatment
He has been “not very good” physically. His “[right] shoulder still gives me issues” as does his neck. He is on some painkillers such as Nurofen and takes Maxalt for migraines.
He “just can’t sleep – not motivated – always fighting – can’t concentrate”. He added, “I just don’t remember things – I can’t get back to what I used to do – socialising – sport”.
He finds it very hard to get to sleep saying, “I get all these things running through my head”.
He admits to “a mixture of sadness – just giving up – a lot of anger” and he admits to feeling as though life was not worth living (“Very much so”) and while he has not tried harming himself, he has “thought about it” including “just stupid things – drinking alcohol – just running in front of a bus”. He is often teary and “very emotional”.
He is “very” anxious saying, “there’s some issues – I can’t keep a job… it’s a tough life at the moment”.
He finds himself contending with “flashbacks” involving fragmentary recall of the accident.
He had been receiving treatment “but I just feel nothing’s going to help me – I've tried to speak to people about it – it just doesn’t work”.
He had been on psychotropic medication but has an appointment with his GP to ask to go back on his medication. He had gone off his medication “probably about a year ago” saying, “I just felt I was getting too addicted to it”. He did not recall what he had been prescribed other than that “it made me really tired”.
Subsequent injuries
There have not been any subsequent accidents or stressors.
MENTAL STATE EXAMINATION
The claimant was assessed via Microsoft Teams. He was at his home. Assessors Canaris and Singh were in their respective offices. A good audiovisual connection was established. His head and shoulders were visible. He presented as an unshaven man of appearance consistent with his stated age who provided the history documented above. His narrative was coherent and consistent. There was no evidence of psychosis. However, his demeanour was depleted and tinged with sadness consistent with depressed affect and distinctive lack of reactivity. The Panel administered brief cognitive testing. He was able to state the date and day correctly as Wednesday 6 March 2025 and while further formal testing of memory was not done his capacity to provide a coherent history consistent with the documentation on hand suggested no significant deficit. When administered the serial sevens test (take away seven from 100 and continue subtracting seven), he responded , “93, sorry I can’t do it off the top of my head – 86, 78, 71, 60 something – sorry I can’t do it”. When asked to re recite the months of the year backwards, he responded, “December, November, October, September, August, July, June – I can’t remember what comes before June”. His responses were delivered in a slow and effortful manner more consistent with depression than with cognitive impairment.
Current functioning
He tried getting back to work and then worked four hours a week five days a week. He was demoted following the accident and had lost jobs. He can interview reasonably for a job application “because I motivate myself to do it” although “it’s hard work for me to do so”. He lost his last job as an HR advisor which was with the Port Authority of NSW about one month to six weeks ago. This was a less senior role with a considerable pay cut. He was told that he “wasn’t concentrating – didn’t have attention to detail – not remembering things – I wasn’t working up to their standard”. He had been with his last employer since October 2024 and did not last out the probationary period. He lasted “only three or four months” in his last three roles and was let go each time. He hopes to find “anything where I don’t have to concentrate so much – I don’t think I’ll be able to get back to the HR space – I’m really lost at the moment”. He has had three significant periods without work and was always let go before his probationary period expired. His longest period at work had been about six months. He said that he had to often ask to ask questions to clarify “and they didn’t like that”. His GP has given him capacity to work full time but to let his employer know about his medical condition which he sees as an obstacle. He hopes to work full time but thinks he would have to do “some simple admin stuff”.
He would typically sit around at home sometimes crying “or I just sit and stare at the sky – I go into the garden, but I have to make sure that I don’t forget the keys – my neighbour has a spare key. He “just can’t get motivated” when people ask him to do things “and if I don’t write it down, I just forget it… that’s in my personal life as well – when I go to collect my son, I forget where to pick him up or what time – or I go to buy some milk, and I end up buying something else – I can’t sit down and read anything for a period of time – I just lose motivation”. He can read “probably no longer than five minutes”. He said, “Even if I try to read to my son, I read only for four or five minutes and I doze off or go into another world”. He would no longer assemble a flatpack – his wife takes on those tasks. His wife looks after the family finances which she has relegated to her over the last couple of years “because I don’t trust myself”. He has tried making lists and keeping notes on his phone “because if I didn’t do that, I completely forget stuff apart from one or two things”.
He gets anxious when he drives saying, “I just get really scared” and of late does only short distances and avoids driving at night because of his anxiety. He would “get very nervous” and would “sometimes be getting flashbacks”. His wife would usually be in the car with him although he can force himself if he has to drive.
He said of his extended family saying, “I don't want to see anyone” and he knocks back invitations. He would “hardly go” out socially “because I don't want to see anyone – seeing everyone happy – even to school functions”. In the last three months, he has been out only the once to his mother’s birthday for what was meant to be a six-hour event where he stayed an hour and a half catching an Uber home leaving his family behind. He “just wasn’t motivated to see people” and was “getting very anxious and nervous and abrupt – I didn’t like showing that side of me”. He has not had any holidays or vacations – his wife will go on her own with his son.
He is “always arguing and fighting with my wife” over “silly things – like she’ll say you need to eat, and I don't want to”. He can be very abrupt with his son. There has been talk of separation. There has been no violence (“Just loud screaming” mainly on his part because he is very irritable).
He does not look after himself well saying, “I don’t eat – I don't shower that much” and might shower “on average once every two weeks” when he is “forced to do it” after his wife and his son get on his case. He often skips meals and would “only eat if I’m forced to eat – like I’m home on my own now – I’ll only have a glass of water – that’s it”. He does not cooking and has been “banned from the oven from leaving it on” and would “hardly do any housework”. He doubts he would manage living on his own in his current condition and cannot see himself doing any shopping “because I forget what I want to get”.
Consistency
The Panel had noted significant variation between assessments of individual PIRS category is by different independent psychiatrists. It ask the claimant whether he could account for these discrepancies. He responded that he simply couldn’t recall. The Panel also took note of his responses to brief cognitive testing of concentration and noted that he appeared to make a genuine effort.
The Panel also noted the insurer’s submissions in relation to the claimant’s income as per his tax records over 2019 to 2023. However, these were not representative of his current functioning.
Documentation
The Panel noted the claimant’s statement dated 9 February 2021 and the claimant’s description of the accident:
On this day, at about 4:00PM, my family and I were heading back home along the Grand Parade in Brighton Le Sands after spending the day at a picnic in Sutherland. I recall saying to my wife words to the effect of “look at these two vehicles in front of us swerving quickly to their left”. Suddenly, I saw another vehicle traveling in the opposite direction approaching our vehicle head-on at a high speed. I attempted to swerve to avoid the other vehicle, however I was unsuccessful, and the other vehicle collided into the front of our vehicle. Our vehicle spun around due to the impact of the collision. I recall that I asked my wife and our son if they were alright. I was unable to move the right side of my body or turn my head to check on my wife and son. Due to the severity of my injuries, I was conveyed by ambulance to St George Hospital Emergency Department Hospital, where I remained overnight.
The Panel noted his supplementary statement dated 31 January 2025. It stated that he had been obliged to resign from his job with IPART and then from his job with the Department of Planning of Housing & Infrastructure where he worked four days a week but felt as though he was being targeted because of his injuries and being made to fail as a way of being pushed out the door. He then found a job with Jemena Energy but struggled with focusing on remembering information, multitasking, and making errors and did not pass his probationary period and was let go at the end of March 2024. It took him six months to secure another position in November 2024 as a People and Culture Administrator With the Port Authority of NSW where he is able to work two days a week from home and three days a week in the office. Thus far, he stated he is doing well with a supportive manager and team but is very anxious about making mistakes. The statement goes on to describe his limitations in self-care, memory and motivation, and irritability.
The Panel noted his application for personal injury benefits which describe the accident while describing his injuries as “Body Pain, Possible Concussion, Neck Pain, Limited right side body movement”.
The Panel noted the report of Dr Paul Teychenné, IME neurologist, dated 10 February 2021. While this relates predominantly to physical injuries, it noted the findings of Dr Miskovic-Wheatley, neuropsychologist.
The Panel noted the report of Dr Ross Mellick, IME neurologist, dated 23 November 2021. Dr Mellick did not think the claimant had sustained a traumatic brain injury but noted his main problem to be “a high degree of nervousness and anxiety and associated mood disorder” with “a change in personality and a high degree of fear when he is driving such as he drives only very short distances” as well as “depression and early evening insomnia, together with a tendency to wake in the early hours of the morning”. He noted to be taking Lexapro (escitalopram – an antidepressant).
The Panel noted the report of Dr Rowena Mobbs, treating neurologist, who diagnosed a post-concussion syndrome with post-concussion headache and possible post-concussional migraine noting there had “been some residual mild memory impairment”. She noted him to be irritable with low mood and some sleep disturbance with “intermittent flashbacks both nocturnally and during the day” of the accident.
The Panel noted the results of the Modified Montréal Cognitive Assessment (MOCA) as per Dr Mobbs letter to the claimant’s GP dated 12 September 2019 of 18/26.
The Panel noted the report of Dr Ross Mellick, IME neurologist, dated 23 November 2021. Dr Mellick noted that on MRI scan of the brain on 28 August 2019 was found to be unremarkable as was an EEG performed on 5 December 2019. He noted his capacity to give a clear history with no abnormality of cognition evident. He noted evidence of a mood disorder, a high degree of apprehension, and a change in his personality in that he was no longer outgoing. Dr Mellick did not consider that he had “suffered a head injury of sufficient severity to over concussion or a mild traumatic brain injury at the time of the motor vehicle accident”.
The Panel noted the report from Dr Anna Miskovic-Wheatley, neuropsychologist, dated 19 September 2019. The claimant had been referred to her by Dr Rowena Mobbs, neurologist, because of concerns relating to a possible traumatic brain injury. This concluded:
Mark's results from the cognitive testing revealed that he is significantly below his Average to Low Average expectation in working memory, delayed verbal memory, the executive functions of category fluency, mental flexibility, set-maintenance, set-shifting, unstructured planning and cognitive inhibition, with highly fluctuating attentional capacity. Mark's physical, psychological and cognitive profile are strongly suggestive of mild-traumatic brain injury (mTBI) secondary to MVA. In addition, Mark's experience of severe depression and probable PTSD would be further exacerbating his cognitive symptoms and should be a primary treatment target. Both Mark and Helga are very concerned about his current cognitive and functional capacity, though they should be reassured that given the recency of the mTBI (≈2.5 months), Marks recovery is in the early stages and further improvements should be noted in the 12 months following the mTBI.
The Panel noted sundry reports and documents related to physical issues.
The Panel noted a medical certificate of Dr Charles Lai, treating GP, dated to September 2019 which notes the presence of nightmares within interrupted sleep pattern, poor concentration, and low energy.
The Panel noted a referral from his GP to Dr Daud Saeed, psychiatrist, dated 19 September 2020.
The Panel noted a mental health care plan prepared by his GP giving a diagnosis of “Generalised anxiety”.
The Panel noted clinical notes of Kirsten Sacks, psychologist, from 20 April 2021 to 3 November 2021.
The Panel noted a clinical note from Rachel Pendlebury, psychologist, dated 31 July 2023.
The Panel noted referrals to psychologists dated 31 January 2024, 11 May 2024, and 18 September 2024.
The Panel noted a series of certificates of capacity. While the initial certificate referred only to physical issues, subsequent certificates notes psychiatric issues including posttraumatic stress disorder and cognitive issues.
The Panel noted the allied health recovery request dated 12 September 2023 from treating psychologist. This provides the following diagnosis:
She recorded current signs and symptoms as “Low mood, sadness, poor sleep hygiene and nightmares, suicidal ideation, poor appetite, severe anxiety and stress”.
The Panel noted the report of Dr Michael Prior, IME psychiatrist, dated 1 March 2021. Dr Prior noted evidence of agitation in the setting of a dysphoric and restricted affect and noted evidence of on testing of attention, concentration, orientation, and short-term memory. He noted he was seeing a psychologist but not on any psychotropic medication. Dr Prior diagnosed chronic posttraumatic stress disorder with comorbid major depressive disorder and made recommendations in relation to treatment. He did not think his condition had stabilised.
The Panel noted Dr Prior’s subsequent report dated 27 March 2023. He has stopped seeing his treating psychologist and reported that he had had trauma informed cognitive behaviour therapy with Eye Movement Desensitisation and Reprocessing. He had not had further psychological therapy but had had some dealings with the Employee Assistance Program. He had been prescribed temazepam, a sedative-hypnotic, and more recently lorazepam, another sedative-hypnotic, but was not in any other psychotropic medication. He noted the time that he had been sneaking alcohol at night although this had ceased about nine months previously. He maintained his diagnosis of chronic posttraumatic stress disorder with a comorbid persistent depressive disorder (persisting major depressive disorder type) with associated generalised anxiety features as well as secondary alcohol use (in remission). He did not consider his condition to have stabilised as he did not think that the claimant had received adequate treatment but provided an assessment of his current functioning across a range of PIRS categories comprising Class 2 for travel and social functioning and Class 3 for remaining categories which the Panel noted would have equated to 17% whole person impairment had his condition been considered to have stabilised.
The Panel noted the report of Dr Kai Tai (Frank) Chow, IME psychiatrist, dated 25 August 2021. Dr Chau diagnosed posttraumatic stress disorder and major depressive disorder. He assessed them at 7% whole person impairment with no deduction for pre-existing impairment or adjustment for treatment effects rating him as Class 2 for all categories apart from social and recreational activities which he rated as Class 3.
The Panel noted the report of Dr Thomas Newlyn, IME psychiatrist, dated 22 March 2022. Dr Newlyn noted that he was seeing a psychologist and taking Lexapro (escitalopram – an antidepressant). Dr Newlyn diagnosed posttraumatic stress disorder and considered his condition to be stable. He assessed them with 5% whole person impairment with no deduction for pre-existing impairment or adjustment for treatment effects. He rated him as Class 1 for travel and social functioning and Class 2 for remaining categories.
The Panel noted the certificate of Assessor Abhishek Nagesh dated 12 December 2023. This provided a diagnosis of posttraumatic stress disorder and persistent depressive disorder rating the claimant as having 15% whole person impairment. He noted that he had been prescribed antidepressant medication and that he has seen two different psychologists receiving cognitive behaviour therapy and supportive psychotherapy. Assessor Nagesh assessed the claimant at Class 2 for travel, social functioning, and adaptation and Class 3 for remaining categories with no deduction for pre-existing impairment or adjustment for treatment effect.
The Panel noted the insurer’s submissions in relation to Assessor Nagesh’s assessment of whole person impairment focused on the seeming inconsistency between Class 3 impairment in which the claimant was reported as being unable to read a newspaper article or watch television show and his capacity to maintain full time work for 4.5 years.
The Panel noted the insurer’s further submissions drawing attention to the claimant’s gross and net annual earnings and net weekly average earnings from 2016 to 2023 which “do not demonstrate any significant change between pre-and post-accident earnings” and “do not suggest any significant amount of time out of the workforce and show a steady growth and income”. It noted accompanying tax records.
Diagnosis
The Panel considered a diagnosis of posttraumatic stress disorder. However, while posttraumatic symptoms around driving were present, there were not a prominent feature of his presentation.
The Panel noted the claimant’s persistently depressed mood and determined that his presentation was consistent with a diagnosis of persistent depressive disorder (dysthymia) with some posttraumatic symptoms. In terms of DSM-5-TR criteria, there was evidence of depressed mood for most of the day for more days than not over several years (Criterion A) with evidence of poor appetite, insomnia, low energy, low self-esteem, poor concentration, and feelings of hopelessness (Criterion B). He had never been without these symptoms for any significant period of time (Criterion C), and he may well at times have met criteria for a major depressive disorder although this is not essential to the diagnosis (Criterion D). He had never had a manic, hypomanic, or cyclothymic presentation (Criterion E) and there was no evidence of schizoaffective disorder, schizophrenia, delusional disorder, or other specified or unspecified schizophrenia spectrum or other psychotic disorder (Criterion F). His symptoms were not attributable to the physiological effects of a substance or to another medical condition (Criterion G) and cause him clinically significant distress and impairment in psychosocial and occupational functioning (Criterion H).
There was evidence of hazardous use of alcohol in the past and he was noted to have difficulty in controlling drinking, but he had limited access to alcohol. Nevertheless, he warranted a diagnosis of alcohol use disorder in partial remission.
He had a time over which he gambled excessively but no longer does so as his wife looks after his finances. He warranted a diagnosis of gambling disorder in remission.
The Panel noted that he had previously been diagnosed with a minor traumatic brain injury. following an assessment one month after his accident as per the report of Dr Miskovic-Wheatley. However, minor traumatic brain injury sometimes referred to as post-concussion syndrome has a generally favourable prognosis with reasonable recovery within 6 to 12 months. Moreover, the Panel noted that while his treating neurologist, Dr Mobbs had suggested the diagnosis based on his cognitive profile shortly after the accident, IME neurologist Dr Mellick considered that there was no evidence of such an injury. Additionally, the Panel noted that Dr Miskovic-Wheatley considered that the claimant’s severe depression and posttraumatic stress disorder considerably amplified its impact. The Panel concluded that the contribution of any minor traumatic brain injury would have long subsided noting the extent to which his presentation was dominated by depressive symptoms.
Causation
The claimant symptoms came on in the immediate aftermath of the subject motor vehicle accident and there was no evidence of any other factors contributing to its emergence.
Permanency of impairment
The claimant was not currently in treatment and had not been so for a significant time. He was thinking of again getting treatment. The Panel noted that 4.5 years had elapsed since the subject motor vehicle accident and that he had not responded well to treatment in the past. The Panel determined that his condition had stabilised in that a substantial change or change greater than 3% in his level of impairment over the next 12 months was unlikely
Whole person impairment
Self-care and personal hygiene
The Panel obtained the following history:
He does not look after himself well saying, “I don’t eat – I don't shower that much” and might shower “on average once every two weeks” when he is “forced to do it” after his wife and his son get on his case. He often skips meals and would “only eat if I’m forced to eat – like I’m home on my own now – I’ll only have a glass of water – that’s it”. He does not cook and has been “banned from the oven from leaving it on” and would “hardly do any housework”. He doubts he would manage living on his own in his current condition and cannot see himself doing any shopping “because I forget what I want to get”.
This is consistent with Class 3 impairment in this category
Social and recreational activities
The Panel obtained the following history:
He said of his extended family saying, “I don't want to see anyone” and he knocks back invitations. He would “hardly go” out socially “because I don't want to see anyone – seeing everyone happy – even to school functions”. In the last three months, he has been out only the once to his mother’s birthday for what was meant to be a six-hour event where he stayed an hour and a half catching an Uber home leaving his family behind. He “just wasn’t motivated to see people” and was “getting very anxious and nervous and abrupt – I didn’t like showing that side of me”. He has not had any holidays or vacations – his wife will go on her own with his son.
This is consistent with Class 3 in this category.
Travel
The Panel obtained the following history:
He gets anxious when he drives saying, “I just get really scared” and of late does only short distances and avoids driving at night because of his anxiety. He would “get very nervous” and would “sometimes be getting flashbacks”. His wife would usually be in the car with him although he can force himself if he has to drive.
This is consistent with Class 2 impairment in this category.
Social functioning
The Panel obtained the following history:
He is “always arguing and fighting with my wife” over “silly things – like she’ll say you need to eat, and I don't want to”. He can be very abrupt with his son. There has been talk of separation. There has been no violence (“Just loud screaming” mainly on his part because he is very irritable).
This is consistent with Class 2 impairment in this category.
Concentration, persistence, and pace
The Panel obtained the following history:
He would typically sit around at home sometimes crying “or I just sit and stare at the sky – I go into the garden, but I have to make sure that I don’t forget the keys – my neighbour has a spare key. He “just can’t get motivated” when people ask him to do things “and if I don’t write it down, I just forget it… that’s in my personal life as well – when I go to collect my son, I forget where to pick him up or what time – or I go to buy some milk, and I end up buying something else – I can’t sit down and read anything for a period of time – I just lose motivation”. He can read “probably no longer than five minutes”. He said, “Even if I try to read to my son, I read only for four or five minutes and I doze off or go into another world”. He would no longer assemble a flatpack – his wife takes on those tasks. His wife looks after the family finances which she has relegated to her over the last couple of years “because I don’t trust myself”. He has tried making lists and keeping notes on his phone “because if I didn’t do that, I completely forget stuff apart from one or two things”.
The Panel noted in this context his performance in response to cognitive test of concentration including his inability to complete the serial sevens test correctly or to recite the months of the year backwards past of June all of which was consistent with Class 3 impairment in this category. The Panel considered that his reported impairment was entirely consistent with his reported workplace functioning including his inability to hold down jobs past the probationary period.
Adaptation
The Panel obtained the following history:
He tried getting back to work and then worked four hours a week five days a week. He was demoted following the accident and had lost jobs. He can interview reasonably for a job application “because I motivate myself to do it” although “it’s hard work for me to do so”. He lost his last job as an HR advisor which was with the Port Authority of NSW about one month to six weeks ago. This was a less senior role with a considerable pay cut. He was told that he “wasn’t concentrating – didn’t have attention to detail – not remembering things – I wasn’t working up to their standard”. He had been with his last employer since October 2024 and did not last out the probationary period. He lasted “only three or four months” in his last three roles and was let go each time. He hopes to find “anything where I don’t have to concentrate so much – I don’t think I’ll be able to get back to the HR space – I’m really lost at the moment”. He has had three significant periods without work and was always let go before his probationary period expired. His longest period at work had been about six months. He said that he had to often ask to ask questions to clarify “and they didn’t like that”. His GP has given him capacity to work full time but to let his employer know about his medical condition which he sees as an obstacle. He hopes to work full time but thinks he would have to do “some simple admin stuff”.
The Panel noted his repeated inability to hold onto employment even less demanding positions because of employer concerns about his forgetfulness, lack of motivation, and lack of attention to detail. After his initial sacking, he has succeeded in getting jobs but did not last out the probationary period. It noted that he had put considerable effort into trying to get back to work and noted his hope to work full-time in a much less skilled position. However, the Panel determined that his hopes on this score were unrealistic and that he was not only unlikely to work full-time but also that he would work less than 20 hours per week. This equated to Class 3 impairment.
His scores on the PIRS in ascending order are 2, 2, 3, 3, 3, and 3 with a median score of 3 and an aggregate score of 16 equating to 17% whole person impairment.
There is no evidence of pre-existing impairment.
The Panel has not made an adjustment for treatment effects.
The Panel noted that his level of impairment was similar to what it would have been had Dr Prior gone on to make a formal assessment of whole person impairment in 2023. It was considerably higher than impairments assessed by Dr Chau and Dr Newlyn in 2021 and 2022 reflecting significance sit deterioration since that time. It was slightly higher than Assessor Nagesh’s rating because the Panel rated him as Class 3 for adaptation because it considered that he would be unlikely to work full-time and more likely than not less than 20 hours per week even in a less demanding position.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[4] The Review Panel adopts the extensive findings and reasons in the joint examination report of the two Medical Assessors.
[4] Section 7.26(6) of the Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[5] The Medical Assessors have explained the basis for their assessments which are different from those provided by other psychiatrists in some respects. The Review Panel made a similar diagnosis to that made by Medical Assessor Nagesh but assigned a higher rating (3) for Adaptation then did Medical Assessor Nagesh (2). The Review Panel otherwise made the same ratings as did Medical Assessor Nagesh on all the other classes of the PIRS.
[5] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Limited v Marsh [2022] NSWCA 31.
The medical assessment of permanent impairment utilising the PIRS is made at the time of the examination. In that respect, the previous assessments are somewhat outdated, and do not reflect current symptomatology.
CONCLUSION
For these reasons, the Review Panel concludes that the certificate issued by Medical Assessor Nagesh on 12 December 2023 should be revoked. The new Certificate appears at the commencement of these reasons.
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