Barsi v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 70
•7 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Barsi v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 70 |
CLAIMANT: | Nicoleta Barsi |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Terence Stern |
MEDICAL ASSESSOR: | Michael Hong |
MEDICAL ASSESSOR: | Christopher Canaris |
DATE OF DECISION: | 7 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA); claimant suffered psychological/psychiatric injury when she was informed that her son had been killed in a motor vehicle accident on 8 August 2022; claimant suffers from prolonged grief disorder; on 19 December 2023 MA Fukui determined WPI of 8%; review of medical assessment; Held – Panel revoked certificate of MA; substituted determination of 13% WPI. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Atsumi Fukui, dated |
STATEMENT OF REASONS
INTRODUCTION
Nicoleta Barsi (Ms Barsi), the claimant, was born in 1964.
On 8 August 2020, Ms Barsi suffered psychological injuries when she was informed that her son was killed in a motor vehicle accident (the accident).
Ms Barsi has brought a claim for common law damages for the psychological injuries she sustained under the Motor Accident Injuries Act 2017 (the MAI Act).
Insurance Australia Limited, ABN 11 000 016 722, trading as NRMA Insurance (NRMA) is the relevant insurer.
A medical dispute about the degree of Ms Barsi’s whole person impairment (WPI) has arisen. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Personal Injury Commission (Commission) and assigned to Medical Assessor Atsumi Fukui for assessment.
On 19 December 2023, Medical Assessor Fukui issued a certificate under s 7.23(1) of the MAI Act.
REVIEW PROCEDURE
Ms Barsi sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).
A delegate of the President of the Commission determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the matter to the Review Panel (the Panel).
The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. The President’s delegate has convened this Panel to conduct the review of the medical assessment.
The Review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. Section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
LEGISLATIVE FRAMEWORK
General provisions
14.Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Ms Barsi’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
Permanent impairment assessment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
(a)The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b)The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.
ASSESSMENT UNDER REVIEW
Medical Assessor Atsumi Fukui examined Ms Barsi on 15 November 2023 and issued a certificate under s 7.23 of the MAI Act.
The following injuries were referred by the Commission for assessment:
(a) major depressive disorder, and
(b) post-traumatic stress disorder.
Medical Assessor Fukui took a detailed psychosocial history and pre-accident history at [8].
She took a history of the accident at [9]:
“Ms Barsi’s son Michael was killed in a motor vehicle accident on 8 August 2020. Ms Barsi recalled that she answered the doorbell to the police who came to talk about Michael and told her that he was deceased. She had just returned from a 3-day work conference in Griffith. She thought that Michael was home in his bedroom in the granny flat where he lived. She ran to the granny flat, and he wasn’t there. She then proceeded to the scene of the accident, and she could see him from the distance. She then saw him in the morgue 2 days later.”
Medical Assessor Fukui completed a mental state examination, the findings being set out at [14] in her Certificate.
At ‘Diagnosis and reasons’, Medical Assessor Fukui opined:
“Ms Barsi did not have a prior formal psychiatric diagnosis. She acknowledged experiencing anxiety symptoms related to day-to-day stressors and family issues during 2018 and was commenced on an anti-depressant Pristiq. She has not taken Pristiq consistently and reported taking it approximately 3 times per week. She stated that at the time of the subject motor accident she was not suffering from any psychological symptoms and was well. There was no impairment in her functioning, and she was working full-time and managing her home and caring for her children.
Following the subject motor accident, she developed significant psychological symptoms characteristic of Major Depressive Disorder. She reported constant depressed mood and feeling flat, amotivation, anhedonia with impaired functioning in her self-care and psychosocial and occupational functioning. She does not suffer from Posttraumatic Stress Disorder. She did not describe presence of intrusion symptoms (criterion B) or avoidance behaviour (criterion C). She has features of a complicated grief reaction.”
She continued at ‘Causation and reasons’:
“Ms Barsi did not have a pre-existing Major Depressive Disorder and was not impaired at the time of the subject motor accident. She developed significant psychological symptoms following death of her son from subject motor accident. The timing, nature, development and severity of her symptoms lead me to the conclusion that the subject accident was the cause of Ms Barsi’s psychological injury.”
Medical Assessor Fukui concluded that a major depressive disorder was caused by the accident, and that post-traumatic stress disorder was not caused by the accident.
She concluded that the injuries referred caused by the accident, gave rise to a WPI of 8%.
SUBMISSIONS
Claimant’s submissions, dated 22 January 2024
The claimant submits that the Medical Assessor relied on the documents provided to her but in particular the assessment of Dr Ben Teoh dated 23 December 2021, and the report of Dr Anand dated 25 October 2022.
Ms Barsi notes that at the time of her assessment by Dr Anand, she was still with her husband but at the time of assessment by Medical Assessor Fukui, Ms Barsi had left her husband.
Ms Barsi submits that given that she had now left her husband and given the history she gave to the Medical Assessor, it was appropriate that Medical Assessor Fukui classify
Ms Barsi as class 3 (instead of class 2) in relation to social functioning.
Ms Barsi alleges that Medical Assessor Fukui erred in the classification of concentration, persistence and pace, taking into account the history taken by Medical Assessor Fukui on pages 5 and 6 of her Certificate.
Ms Barsi submits that the correct classification under the concentration, persistence and pace category should be 3 and not 2.
NRMA’s submissions, dated 12 February 2024
Part A: Social and recreational activities
Medical Assessor Fukui assessed Ms Barsi as meeting Class 3 on the basis Ms Barsi has avoided social events, lost friends, did not pick up the telephone and when she did attend a friend’s birthday, she hyperventilated and panicked. Despite this, Medical Assessor Fukui also reported Ms Barsi attended functions but with her immediate family and had resumed going to church.
NRMA submits Ms Barsi more appropriately meets Class 2, given that she can attend social events with her family and has resumed attending church.
Part B: Travel
Medical Assessor Fukui assessed Ms Barsi as meeting Class 2 on the basis that Ms Barsi could drive and travel alone but would avoid public transport and had mild anxiety. Both
Dr Anand and Dr Teoh also assessed Ms Barsi as meeting Class 2.
While Medical Assessor Fukui, Dr Anand and Dr Teoh reported Ms Barsi had some apprehension and/or anxiety to driving, there is no evidence to suggest Ms Barsi can only travel to familiar areas as required by Class 2.
NRMA submits Ms Barsi more appropriately fits into Class 1.
Part C: Adaptation
NRMA disagrees with Medical Assessor Fukui’s assessment, as Class 3 requires Ms Barsi to be unable to work in her same position as before the accident but have an ability to perform 20 hours or less in a different position.
According to Dr Anand’s report dated 25 October 2022, Ms Barsi commenced working as a stock taker in July 2020, which was prior to the subject accident. Medical Assessor Fukui reported Ms Barsi’s business was affected by COVID-19, where she lost 90% of her business and put her business on hold.
Subsequently, Ms Barsi took up a casual stock taker role at Woolworths.
Medical Assessor Fukui reported Ms Barsi re-opened her business post-accident in November 2020 and by April 2021, she simultaneously ran her business whilst working as a stock taker. Medical Assessor Fukui reported Ms Barsi closed her business in 2022 but did not specify why she closed it.
Dr Anand reported that although Ms Barsi continued her business one year after the accident, when Ms Barsi had a mini stroke, she gave up her business.
The Campsie Medical & Dental Centre records revealed Ms Barsi presented to St George Hospital with sudden onset vertigo/dizziness and episodic diplopia and was diagnosed with ‘likely TIA secondary to significant calcification of posterior circulation’ on 18 May 2021.
While Ms Barsi may have put her business on hold, re-opened it and then subsequently closed it down, it would appear this was due to circumstances unrelated to the subject accident, namely COVID-19 and a suspected transient ischaemic attack.
NRMA submits Ms Barsi’s post-accident work history and reasons for change in employability more appropriately fit into Class 2.
OTHER RELEVANT MATERIAL
The Application for personal injury benefits, dated 2 November 2020
The Application for personal injury benefits, states that as a result of the subject motor vehicle accident on the 8 August 2020 Ms Barsi sustained “mental health due to loss of son”.
The Certificate of Capacity / Certificate of Fitness (COF) from Dr Rao dated
20 October 2020 lists the diagnosis as Grief.
General practitioner’s notes, Dr Rekha Rao
On 8 December 2022, Dr Rao reported:
“History: Psych: Depressed mood. Low self-esteem. Irrational fear. Poor sleep. Panic attacks. No delusions. No hallucinations. No suicidal thoughts. No substance abuse. can’t sleep, tearful can’t do it any more working hrs reduced accepted sons death but now not coping thought she was strong but not strong nothing happened up/down husband with her poor relationship not working on disability.”
Report of Dr Ben Hooi-Beng Teoh, dated 23 December 2021
Dr Teoh completed a mental state examination:
“Ms Barsi was reactive during the interview. Her speech was coherent, she was not thought disordered. She was spontaneous and cooperative. She reported significant depressive symptoms. She has been preoccupied with negative thoughts and lacking motivation. She has been socially isolated. She has required prompting from her family to look after herself. She reported acute anxiety attacks and intrusive memories of the death of her son. She has been worrying about her family’s safety. There was no evidence of psychotic symptoms or suicidal ideation. Her cognitive functions were intact; there was no evidence of short or long term memory impairment.”
He diagnosed Ms Barsi with major depressive disorder (DSM 5 Diagnostic Criteria).
He opined that the condition is caused by the death of her son in the motor vehicle accident.
Dr Teoh completed the psychiatric impairment rating scale (PIRS) Table as follows:
| Category | Class | Reason for Decision |
| Self-Care and Personal Hygiene | 2 | She has been lacking motivation to care for herself. She has found it an effort to do things. |
| Social and Recreational Activities | 3 | She reported significant loss of interest in her usual activities and social isolation. She has been lacking motivation and interest in her usual activities. She has been withdrawn and lacking motivation. She reported insomnia and nightmares, waking up at night about the same time as the death of her son. |
| Travel | 2 | She has been able to travel on her own with some apprehension. |
| Social Functioning | 3 | She has a strained relationship due to irritability and lacking communication. |
| Concentration Persistence and Pace | 3 | She has poor concentration and persistent preoccupation with negative thoughts. She has been worrying about her future and her physical condition. She reported acute anxiety attacks and intrusive memories of the death of her son. She has been worrying about her family’s safety. |
| Employability | 3 | She is fit for suitable duties. She has been working as a casual stock taker, 15-20 hours per week. She cannot work full-time. |
He concluded that Ms Barsi’s final WPI was 17%.
Report of Dr Ashwinder Anand, psychiatrist, dated 5 September 2022
Dr Anand examined Ms Barsi on 26 August 2022.
At ‘Symptom review’, he stated:
“She described her mood as being calm. She stated that she has stopped communicating with people. She cannot do small talk. She puts on a façade. She tends to internalise her emotions so that she can maintain a relatively normal household. Her sleep remains poor.”
She stated: “I try to wear myself out, but I still toss and turn.” She continues to relive the scenario on and on.”
He diagnosed Ms Barsi with a major depressive disorder with prominent anxiety.
Dr Anand concluded that the final WPI was 15%, with no deduction for pre-existing condition.
Amended report of Dr Ashwinder Anand, psychiatrist, dated 25 October 2022
Dr Anand provided the following PIRS table in his report of 25 October 2022:
| Category | Class | Reason for Decision |
| Self-Care and Personal Hygiene | 2 | She continues to dwell on negative cognitions. She stated that at times, she finds it very difficult to even drag herself from the couch. In a typical week, on Monday, Tuesday, and Wednesday, she gets up around 3:30am, and then around 4:30am, she leaves for work and finishes work by 1:00pm and returns home. She does the chores around the house including washing, cleaning, cooking, and then organises dinner and then watches a bit of TV and goes to bed. |
| Social and Recreational Activities | 3 | She stated that she does not socialise anymore. She has cut herself off from her friends and family. She stated: “I don’t want them to pity me, and I don’t want them to see my hatred.” She denied attending any social events or going on any holidays. She does not play or watch any sports. From a pre-morbid perspective, she stated that she was a social individual who was very helpful, and she loved to dance. She also was doing a TAFE course in commercial cookery. She stated that she was highly capable and would be able to multitask and also handle 300 subcontractors working in their warehouse. She now spends her time covering on the phone. She stated that previously, they would go to the club a lot. I believe this meets Class 3, moderate impairment. |
| Travel | 2 | In my opinion, this meets Class 2. She is able to drive independently but struggles and needs breaks. |
| Social Functioning | 2 | Her relationship with her husband is quite strained, and there is lack of intimacy. He stated that he remained supportive. It appears this meets Class 2. |
| Concentration Persistence and Pace | 3 | She described her concentration as being quite poor. She has short-term memory issues, her retention is poor, and she is quite careless. |
| Employability | 2 | In my opinion, Ms Barsi meets Class 2. Ms Barsi is currently working as a casual stock taker, working anywhere between 15–25 hours per week. When I explored if she is able to go back to working full-time, she said that she did try it but found it too much. She just could not handle the pace. |
THE PANEL’S EXAMINATION
At the first Panel meeting on 3 September 2024, it was agreed that a re-examination would be necessary.
Background
Ms Barsi is seeking a review of the certificate of determination of Medical Assessor Atsumi Fukui dated 19 December 2023 asserting that she had erred in her determination of WPI.
Documentation
The Panel noted Ms Barsi’s submissions and NRMA’s submissions in response. Ms Barsi noted the contrasting assessment of WPI of Dr Teoh and Dr Anand who allocated 17% and 7% respectively. It noted Ms Barsi’s application for personal injury benefits and NRMA’s internal review decision.
The Panel noted the NSW Police Report, Police Brief of Evidence, and Statement of Agreed Facts in Regina v KOCISKI as well as the Victim Impact Statement of Ms Barsi.
The Panel noted the certificate of Medical Assessor Fukui who diagnosed major depressive disorder and a complicated grief reaction. Medical Assessor Fukui rated her as Class 2 for self-care and personal hygiene, travel, social functioning, and concentration, persistence, and pace and as Class 3 for social and recreational activities and adaptation. She made no deduction for pre-existing or subsequent impairment but made a 1% adjustment for a mild treatment effect related to antidepressant medication.
The panel noted the clinical notes of Southside Health & Well Being. An Allied Health recovery request notes of her general practitioner (GP) had diagnosed a bereavement disorder and panic disorder and that while she did have symptoms related to bereavement and anxiety, her presentation was more consistent with a diagnosis of posttraumatic stress disorder and major depression. She was noted to have low mood, to be angry, irritable, anhedonic, avoidant, and hyperarousal with feelings of hopelessness and helplessness while presenting with scores in the extremely severe range for depression, moderate range for anxiety, and severe range for stress on the DASS whilst scoring 65 on the Impact of Events Scale (Revised) with a clinical cut-off of 37. There were also many handwritten clinical notes.
The Panel noted the clinical notes of Campsie Medical & Dental Centre.
The Panel reviewed the subpoenaed records of Woolworths. It particularly took note of the recorded hours of work beginning with the pay period ending 7 January 2024 up until
8 September 2024. Over this time, she appeared to work between 20 to 30 and sometimes just over 30 hours per week except on five occasions when she worked a little less than 20 hours. It also noted a warning letter dated 14 August 2024 directing her as follows:
(a) ensure that conversations with colleagues are at all times professional and do not preclude you from completing the work you are employed to do;
(b) ensure that you are contributing and productively making use of Company time at all times during your rostered shift;
(c) follow all reasonable directions and instructions given to you by the management team;
(d) ensure that your behaviour towards customers and colleagues is at all times respectful and professional, regardless of your personal feelings;
(e) consider how everything you say and do might impact others;
(f) contribute to an environment where everyone is treated with dignity, courtesy and respect;
(g) raise any concerns you have, in a professional manner, with a member of the leadership team, and
(h) behave in a manner which is consistent with the Woolworths Values.
It noted accompanying typed notes which appeared to relate to complaints about Ms Barsi who had behaved abusively towards other workers.
The Panel noted the report of Dr Ben Teoh, IME psychiatrist, dated 23 December 2021.
Dr Teoh diagnosed major depressive disorder and noted that Ms Barsi had been seeing a psychologist and that she had been on Pristiq (desvenlafaxine – an antidepressant). He rated Ms Barsi at 17% WPI with no deduction for pre-existing impairment or adjustment for treatment effects. He rated her as Class 2 for self-care and personal hygiene and Class 2 for travel and Class 3 for social and recreational activities, social functioning, concentration, persistence, and pace, and employability (adaptation).
The Panel noted the reports of Dr Ashwinder Anand, IME psychiatrist, dated
5 September 2022, 25 October 2022 (including amended report), and 17 February 2023.
Dr Anand diagnosed major depressive disorder with prominent anxiety and initially assessed her at 15% WPI with no deduction for pre-existing impairment or adjustment for treatment effects. He assessed her at Class 2 for self-care and personal hygiene, travel, and social functioning and Class 3 for social and recreational activities, social functioning, concentration, persistence, and pace and employability (adaptation). In his report of
25 October 2022, he amended his assessment of WPI to Class 2 noting that she had returned to her part-time work as a stock-take in a pre-accident role. He provided an amended report on this basis yielding a WPI of 7%. There is a further report in response to a complaint by Ms Barsi to SIRA relating to the amendment of his report.
History before the accident
Ms Barsi is a 59-year-old separated stock taker for Woolworths who “prior to that had my own business” running a warehouse. After her son’s death, she closed the business – she was already working part time for Woolworths.
Her son was 19 years old. She had a good relationship with him describing him as “my perfect child” and “a nerd”. He had dyslexia but was cautious in outlook. He “would get somewhere in life – he was an apprentice [in formwork carpentry]”.
She had started on Pristiq two years before the accident. She was “an up and goer” running a business distributing catalogues. Michael played a significant role in managing the warehouse. She had been in that role for 20 years – she found it stressful towards the end what with the business, door knocking, and managing her family. Her GP had “put me on the lower dose to calm me down” and she was taking it every second day. She felt she had no issues with concentration, self-care, social and recreational activities (mother’s groups – friends – we used to go out Fridays and Saturdays as a family – now we don’t even sit down as a family”. She cared for her appearance, hygiene “and make up and everything”.
She does not drink alcohol. She had been a social smoker but now smokes about 10 to 15 cigarettes a day. She does not use any drugs. She does not gamble.
She denied any problems with the law. She denied any prior claims apart from a fall in 2022 at work arising from a dizzy spell. She was briefly in hospital “but they presumed I had a mild stroke – they put me on blood thinner – I kept on having these dizzy spells – I went back to the hospital, and they diagnosed me with vertigo”. She denied that she had gone on workers compensation but believes it was triggered on the night of the accident after she had hit her head falling to the floor.
She knew of no family history of psychiatric illness.
Her mother died at the age of 65 years from bone cancer. Her parents were both from the island of Zakynthos in Greece. Her mother was a seamstress while her father was a gyprocker.
She has a younger brother and a younger sister. She described a happy childhood with a lot of close-knit extended family. She completed year 10. She subsequently did a secretarial course and worked for the Family Planning association doing admin. She also worked in emergency services as well as packing in supermarkets at night “and always had two jobs”.
She married in 1999. She had three children – Michael was the middle child. All the kids went to Catholic schools. Her husband was Hungarian and had his own form working business but effectively gave up working after the accident. He had also had a heart attack a couple of weeks before his son’s death.
History of the accident
On the day in question, her son who had sold his car and had bought a ute, and went out with friends “and the police came knocking on my door – they told me that he’d had a fatal accident, and he’d deceased”.
She was “stunned… my other two children were crying… we drove to the accident scene… they stopped us going there… it was a waiting game until the morgue rang us and said we could see his body…”
It seems the car in which he was travelling “lost control and smashed into the side he was on… they opened him up, but they couldn’t revive him…”.
She had “mixed emptions – I couldn’t believe it… I went into see him – he was wrapped – he had a blanket up to his neck and he looked fine… I pulled the blanket from his body that he was wrapped in… I put my hand where his legs were, and they weren’t there – he was pretty damaged…”.
She spent about half an hour at the scene.
Over the next few days, there was a lot of family around. She could not believe it as if “he’s gone away on holidays… he’ll come back… when I found which car he was in, I was angry because I told him never to get into that car – I think it was the anger that got me through the funeral” which was on the 19th of August.
History of symptoms and treatment
Since then, she said, “You just don’t want to get out of bed – you feel like you’ve failed your child – I always looked out for my children… I don’t understand how this happened… I took it out on God…”.
Her mood has been “not the best – I’ve been given a warning at work because of my anger – my concentration – I had to move out – I couldn’t be around on Friday nights…”. She continued, “A lot of the time, I used to wake up automatically about the time the police came…”.
She said her son was the perfect child. She said the driver has a history of traffic offences and a prior accident, and she told her son never to get in the car with him. Her son did not listen to her and perished in the fatal accident. She has come to an acceptance of his death saying that she realises that had he survived he would be a vegetable. She remains very angry saying, “The other one’s walking free – there’s no justice… he just got a good behaviour bond…”.
She saw a counsellor for the first six months after the accident “but I don’t believe in counsellors”.
She is on Pristiq 50 mg which she had been on prior to the accident “for anxiety to do with my work because my job was very demanding – I was on it afterwards – I was upped to 100 mg [for a time], and I take sleeping tablets from time to time” using an herbal preparation.
She has returned to her faith and gets help from Father Stavros from her church – she is Greek Orthodox.
Subsequent injury
Nil identified.
Current treatment
Pristiq 50 mg.
Current symptoms
She described anxiety and depressive symptoms, and intermittent sleep problems. She reported her weight fluctuated and having lost 22kg altogether since the accident, and her weight is now stabilized at 76kg for a couple of months now. She described being irritable and having concentration and memory problems, which affected her employment.
Mental state examination
Ms Barsi was interviewed on Microsoft Teams. She was at her home. Medical Assessors Canaris and Hong were in their respective offices. A good audiovisual connection was established. The Panel saw her head and shoulders. She presented as an olive-complexioned woman whose hair was quite dishevelled. She imparted the history documented above. Her narrative was coherent and consistent. She spoke of her guilt that she had not stopped her son from going in the car of the at fault driver while presenting a somewhat idealised account of her son whom she portrayed as “the perfect child”. Her demeanour was stoical with a palpable undertone of anger over the death of her son and towards the at fault driver. Overall, her affect was restricted. There was no evidence of psychosis or cognitive impairment.
Comments on consistency
There was no evidence of any inconsistency.
Current functioning
She would now “take each day as it comes – I have to work – I have to pay rent – I take my tablets, and I go to work”. She works “sometimes 20 – sometimes 25 – sometimes 15” hours per week and has “done with Fridays – mentally I can’t do it”. She has had two warnings at work “one for an outburst” and “one for concentration” and “sometimes I just wander off” losing track of what she is doing.
Her concentration “used to be good – very good”. She struggles with motivation and answering phone calls and email. At the time of the accident, she was attending a TAFE course in commercial cookery and as a pâtissier. She had to stop because of the COVID-19 lockdown. She went back at the start of this year hoping at least to finish her course “but I failed my first two exams… it was one day a week…”. Her energy levels vary – she has times when she can go for weeks not feeling as though she wants to anything and times she feels as though she could “do a 101 things”. Her sleep is fragmented – sometimes she has dreams. She recalled, “Sometimes I’d have like these flashbacks when reality is hitting me – he’s really gone – he’s not on vacation – I’d get this hot feeling going through me – this fear…”.
She now lives separately from her husband moving out to be with her father and sister. Her relationship with her children was not good. She felt they just could not understand her. Moreover, her younger son “couldn’t handle the nagging – that you can’t go in cars… we used to constantly argue – then they’d come home, and I’d still be in my pyjamas…”. The relationship with her husband was poor in that “there was a lot of blaming… he didn’t go to work… he was a lot worse than me…”. She was very irritable at home. She comes home to her husband and children, about twice a week to look after the house.
She stated she had “just lost my licence” for three months after she had been speeding and had run out of points. She reported inattentiveness on the road and has not had previous loss of driver’s licence, before the subject accident. She has to get a lift to work from her son or her daughter or from a friend. She saw herself as “a good driver”. She denied any anxiety driving or any limits on how far she could travel on her own. She denied any difficulties as a passenger.
She does not go out socially “unless I have to” but has started to do Christmas now “and Easter because I got my religion back”. She does not attend the liturgy – she just talks with Father Stavros. In the last three months, she has been out twice – once to a kitchen tea “which I had to go” and “to a 50th – but it was at a restaurant – it wasn’t like a party”.
She said in relation to self-care, “I’ve been a little bit better – I’ve got two other kids – I have to be strong for them – my husband is a mess… I stay home where I can’t hurt anyone… my family – my sister – looks after me – she kind of pushes me to have a shower… or she’s come over and get me out of bed and get me dressed”. She is getting herself “back to the routine of showering and taking care of myself” and deals with household chores essentially because she has to. Her appetite is “on and off” and she has lost 22 kg of weight. She now weighs 76 kg.
Diagnosis
Ms Barsi’s presentation is consistent with a diagnosis of Prolonged Grief Disorder. In terms of DSM-5-TR criteria, the Panel noted the death of her son over four years ago (Criterion A) with evidence of a persisting grief response characterised by intense longing for her son and preoccupation with thoughts and memories of him (Criterion B). There was evidence of marked disbelief over his death, intense emotional pain including anger and bitterness, and difficulty reintegrating into her relationships and activities as manifested in social withdrawal and difficulties with her work (Criterion C). There was evidence of clinically significant distress and psychosocial impairment (Criterion D), and the duration and severity of her bereavement reaction was well in excess of social, cultural, and religious norms (Criterion E). Finally, her symptoms were not better explained by another mental disorder or by the physiological effects of a substance (Criterion F).
In relation to Criterion F, the Panel considered a diagnosis of post-traumatic stress disorder but noted that intrusion symptoms were predominantly focused around her loss without evidence of avoidance behaviours or hyperarousal. It also considered a diagnosis of major depressive disorder but noted that Ms Barsi’s sadness was organised around her enduring sense of loss.
Causation
While Ms Barsi had had some anxiety symptoms in the two years prior to the accident, the history she provided suggested that these had responded well to an antidepressant. Moreover, her present raft of symptoms was highly specific to the accident indicating that it was very much the predominant cause of her presentation.
Permanency of impairment
Her symptoms have been present in excess of four years. Over this time, she has been on an antidepressant and while she has declined to continue seeing a psychologist, has support from the parish priest. Her level of impairment is unlikely to change substantially or by more than 3% over the next year.
Whole person impairment – psychiatric impairment rating scale
In relation to self-care and personal hygiene, the Panel noted the following history:
She said in relation to self-care, “I’ve been a little bit better – I’ve got two other kids – I have to be strong for them – my husband is a mess… I stay home where I can’t hurt anyone… my family – my sister – looks after me – she kind of pushes me to have a shower… or she’s come over and get me out of bed and get me dressed”. She is getting herself “back to the routine of showering and taking care of myself” and deals with household chores essentially because she has to. Her appetite is “on and off” and she has lost 22 kg of weight. She now weighs 76 kg.
While the Panel noted her dishevelled appearance and her weight loss, the history on offer and her overall presentation equated to Class 2 impairment.
In relation to social and recreational activities, the Panel noted the following history:
She does not go out socially “unless I have to” but has started to do Christmas now “and Easter because I got my religion back”. She does not attend the liturgy – she just talks with Father Stavros. In the last three months, she has been out twice – once to a kitchen tea “which I had to go” and “to a 50th – but it was at a restaurant – it wasn’t like a party”.
The history on offer was consistent with Class 3 impairment.
In relation to travel, the Panel noted the following history:
She has “just lost my licence” for three months after she had been speeding and had run out of points. She has to get a lift to work from her son or her daughter or from a friend. She saw herself as “a good driver”. She denied any anxiety driving or any limits on how far she could travel on her own. She denied any difficulties as a passenger.
The history on offer was consistent with Class 1 impairment.
In relation to social functioning, the Panel noted the following history:
She now lives separately from her husband moving out to be with her father and sister. Her relationship with her children was not good. She felt they just could not understand her. Moreover, her younger son “couldn’t handle the nagging – that you can’t go in cars… we used to constantly argue – then they’d come home, and I’d still be in my pyjamas…”. The relationship with her husband was poor in that “there was a lot of blaming… he didn’t go to work… he was a lot worse than me…”. She was very irritable at home. She comes home about twice a week to look after the house.
The history on offer was consistent with Class 3 impairment.
In relation to concentration, persistence, and pace, the Panel noted the following history:
Her concentration “used to be good – very good”. At the time of the accident, she was attending a TAFE course in commercial cookery and as a pâtissier. She had to stop because of Covid lockdown. She went back at the start of this year hoping at least to finish her course “but I failed my first two exams… it was one day a week…”. Her energy levels vary – she has times when she can go for weeks not feeling as though she wants to anything and times she feels as though she could “do a 101 things”. Her sleep is fragmented – sometimes she has dreams. She recalled, “Sometimes I’d have like these flashbacks when reality is hitting me – he’s really gone – he’s not on vacation – I’d get this hot feeling going through me – this fear…”.
The history on offer was consistent with Class 3 impairment.
In relation to adaptation, the panel noted the following history:
She would now “take each day as it comes – I have to work – I have to pay rent – I take my tablets, and I go to work”. She works “sometimes 20 – sometimes 25 – sometimes 15” hours per week and has “done with Fridays – mentally I can’t do it”. She has had two warnings at work “one for an outburst” and “one for concentration” and “sometimes I just wander off” losing track of what she is doing.
The Panel also noted the subpoenaed records from Woolworths which indicated that she typically worked a little more than 20 hours though very occasionally 30 hours per week and sometimes less than 20. The capacity to work 20 hours a week is considered consistent with a Class 2 rating. However, the Panel formed the view that her functioning was otherwise considerably below other descriptors of Class 2 functioning. It noted that apart from being unable to perform full time work, her present work is significantly less demanding and requires comparably fewer skills. Moreover, she had lost her business and could not restart it as a result of her anxiety and depressive symptoms. It noted that she had been given warnings at her current work whereas she had performed well at that job before the subject accident while running her business at the same time. The Panel finally noted that the descriptors for each category of impairment were not criteria but merely examples. Consequently, exercising clinical judgment, the Panel rated her as Class 3.
Her scores in ascending order were 1, 2, 2, 3, 3, and 3, median 3 with an aggregate score of 14 which equates to 13% WPI.
The Panel added treatment uplift of 0% as her current antidepressant is at the same dose as before the subject accident, but not effective.
Pre-accident PIRS was 0% as she described no impairment in her general functioning, with treatment uplift 2% as her antidepressant provided moderate benefits.
The final WPI was13%.
Determination
The Panel revokes the certificate of Medical Assessor Atsumi Fukui, dated
19 December 2023, and substitutes the determination to certify that the injuries referred to the Panel and caused by the accident, gave rise to a WPI of 13%.
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