BBR v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	BBR v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 439
CLAIMANT:	BBR
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW Panel
MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Dr Atsumi Fukui
MEDICAL ASSESSOR:	Dr Thomas Newlyn
DATE OF DECISION:	31 October 2022
CATCHWORDS:	MOTOR ACCIDENTS – Medical Review Panel constituted under section 63 of the Motor Accidents Compensation Act 1999; dispute about whether the degree of permanent impairment of the claimant as a result of psychological injury caused by the accident is greater than 10%; medical assessment under review certified that the exacerbation of pre-existing bipolar affective disorder caused by the accident did not give rise to a permanent impairment greater than 10%; Held – the accident had caused an exacerbation of bipolar II disorder and an aggravation of substance use disorder; to the extent that the claimant’s experience with the property damage insurer (in relation to the repair of his motorcycle as a result of damage it sustained in the accident) contributed to the exacerbation/aggravation of the claimant’s psychiatric conditions, the aggravation and exacerbation were indirect but foreseeable consequences of the accident; the claimant’s accident caused permanent impairment was not greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Replacement Certificate issued under s 63(4) of the Motor Accidents Compensation Act 1999 1. The Review Panel revokes the certificate of Medical Assessor Parmegiani dated 2 June 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a permanent impairment which is not greater than 10%: · exacerbation of bipolar II disorder – in remission, and · aggravation of substance use disorder.

STATEMENT OF REASONS

background

BBR (the claimant) was involved in a motor accident on 17 August 2016. He has made a claim for damages on Insurance Australia Limited t/as NRMA Insurance (the insurer) under the Motor Accidents Compensation Act 1999 (MAC Act).
There is a dispute between the claimant and the insurer as to whether, for the purposes of s 131 of the MAC Act, the degree of permanent impairment of the claimant as a result of a psychological injury caused by the accident is greater than 10% (the dispute). The dispute is a medical assessment matter for the purposes of Part 3.4 of the MAC Act: s 58(1)(d) MAC Act.
Medical Assessor Parmegiani gave a certificate dated 2 June 2021 wherein he certified that the exacerbation of pre-existing bipolar affective disorder caused by the accident did not give rise to a permanent impairment greater than 10%.

This Review Panel (the Panel) has been constituted by the President of the Personal Injury Commission (the Commission) to conduct the Review of Medical Assessor Parmegiani’s assessment dated 2 June 2021 (the Review).

The review

The Commission commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by Schedule 1, cl 3 of the Personal Injury Commission Act 2020 (the PIC Act).
Under Schedule 1, cl 14A(1) of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Schedule 1, cl 14F of the PIC Act provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in Schedule 1, cl 14A(1) of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The Panel is to conduct the review in accordance with s 63 of the MAC Act. Section 63(3) provides that the review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 63(3A) MAC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings: Rule 128.
Version 5 of the Medical Assessment Guidelines (Assessment Guidelines), effective from 12 February 2021, apply to this review as does version 1 of the Motor Accident Permanent Impairment Guidelines effective from 1 June 2018 (Impairment Guidelines).
Causation of injury is to be determined in accordance with cls 1.5 – 1.7 of the Impairment Guidelines.
On 2 May 2022 the Panel made directions for the provision of submissions and bundles containing all documents relied on by the parties in the Review.
On 18 May 2022 the Panel determined that an examination of the claimant was required. The Panel directed the parties to provide records held by Pathways Eurobodalla, Dr David Rivett, Goulburn Mental Health and Bateman’s Bay Community Mental Health Service.
Further directions were made by the Panel on 26 July 2022 in relation to the provision of documents and submissions.
On 20 May 2022 the claimant lodged his bundle of documents relied on in the Review[1]. On 19 July 2022 the claimant lodged a second bundle[2].
[1] AD4.
[2] AD7.
On 14 June 2022 the insurer lodged its bundle of documents relied on in the Review[3]. On 28 July 2022 the insurer lodged a bundle containing the records held by Pathways Eurobodalla, Dr David Rivett, Goulburn Mental Health and Bateman’s Bay Community Mental Health Service[4].
[3] AD6
[4] AD9.
On 5 August 2022 the claimant lodged submissions in accordance with the directions made on 26 July 2022[5]. The insurer lodged submissions and a chronology, both dated
[5] AD11.
9 August 2022, on 12 August 2022.
The Panel has considered the documents and submissions relied on by the parties for the purposes of the Review.

Statutory provisions

No damages may be awarded for non-economic loss 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%: s 131 MAC Act.
Section 132 of the MAC Act deals with the assessment of impairment. If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, the court may not award any such damages unless the degree of permanent impairment has been assessed by a medical assessor under Part 3.4 of the MAC Act.
The method of assessing the degree of impairment is dealt with in s 133, which is in the following terms:
“133   Method of assessing degree of impairment
(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.
(2) The assessment of the degree of permanent impairment is to be made in accordance with—
(a)  Motor Accidents Medical Guidelines issued for that purpose, or
(b)  if there are no such guidelines in force—the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.
(3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
Note—
See Part 3.1 for Motor Accidents Medical Guidelines”
Clause 1.3 of the Impairment Guidelines provide that they apply to the assessment of the degree of permanent impairment that has resulted from an injury between 5 October 1999 and30 November 2017. The Impairment Guidelines state as follows with respect to causation of injury:
“Causation of injury
1.5    An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6 of the Impairment Guidelines states that psychiatric impairment is assessed in accordance with ‘Mental and behavioural disorders’ within the Guidelines.
Impairment caused by a mental and behavioural disorders is assessed in accordance with cls [1.201] – [1.228] of the Impairment Guidelines.

Assesment under review

The assessment under review was made by Medical Assessor Parmegiani (the Medical Assessor), who gave a certificate dated 2 June 2021 wherein he certified that the exacerbation of pre-existing bipolar affective disorder caused by the accident did not give rise to a permanent impairment greater than 10%.
The Medical Assessor’s reasons record that, on examination, the claimant did not report any symptoms consistent with post-traumatic stress disorder. He gave a good account of the accident and of its consequences. In the Medical Assessor’s opinion, the psychiatric symptoms the claimant reported were understandable within the context of his experience, and were not exaggerated or embellished.
The Medical Assessor expressed the opinion that the claimant’s symptoms fulfil the diagnostic criteria for bipolar disorder type II, mixed episode, in partial remission. In his opinion, the claimant’s exposure to the accident and the consequent problems that he experienced were instrumental in causing a recurrence of symptoms of bipolar disorder type II, which in turn became complicated by alcohol use disorder. The Medical Assessor expressed the opinion that the accident constituted a substantial causal factor for the recurrent episode of bipolar disorder type II. The exacerbation of the pre-existing bipolar affective disorder was secondary to the accident, which continued to be an ongoing causal factor. The subsequent problems, including the exacerbation of drinking and legal problems the claimant experienced, were directly related to the ongoing consequences of the accident.
The Medical Assessor made the following assessments under the psychiatric impairment rating scale (PIRS):
(a)    Self Care and Personal Hygiene – class 2;
(b)    Social and Recreational Activities – class 2;
(c)    Travel – class 1;
(d)    Social Functioning – class 3;
(e)    Concentration, Persistence and Pace – class 2, and
(f)    Adaption – class 5.

Pre-existing impairment was assessed under the PIRS as follows:
(a)    Self Care and Personal Hygiene – class 1;
(b)    Social and Recreational Activities – class 1;
(c)    Travel – class 1;
(d)    Social Functioning – class 1;
(e)    Concentration, Persistence and Pace – class 1, and
(f)    Adaption – class 4.
The claimant’s current permanent impairment was assessed at 7%, pre-existing impairment at 1%, adjustment for effects of treatment at 2%, resulting in a permanent impairment of 8%.

claimants statement

The claimant has provided a statement dated 25 July 2019. The statement contains details of his education and work history, his pre-accident health, the accident, his injuries and disabilities, post-accident treatment, and domestic assistance needs.
The statement records that he was diagnosed with bipolar disorder in 2006. He has subsequently received a range of treatments. He has not worked since being diagnosed with bipolar disorder in 2006. The claimant states that his bipolar condition has been “largely out of control” since the accident and had “gone downhill”. He had been increasingly irritable and has experienced “anger management problems”. He states that he was “making really good strides” before the accident, had a mental health plan, prepared by his GP, and was “getting back on track”. He states that his “medication regime finally seemed to stabilise [his] condition and [he] was functioning relatively well before the accident”. The claimant refers to issues he experienced with the property damage insurers with respect to the repair of his motorcycle following the accident. The process made him “very wound up” and “riled up”.
The statement records that “many years ago” the claimant had problems with drugs and alcohol. He states that this had been successfully treated, and was “off and away from all that stuff from about 2005”. Following the accident, he started feeling “down and depressed and out of control”. He states that he started self-medicating with alcohol, and that his drinking started getting out of control. At one stage he was consuming up to two bottles of spirits a day. He states that this was out of character. He states that he became withdrawn. He was arguing with his parents. He had become very anxious on the roads. He is scared that he is going to be involved in another accident, and is very suspicious of all other drivers on the road and is “a terrible passenger” in a motor vehicle. He sought and continued his treatment with his counsellor, Barry Fernanda, and Pathways, a drug and alcohol counselling service. His medication, Seroquel and Cymbalta, had been increased since the accident. The statement also records details of the claimant’s physical injuries, associated pain and restrictions.

other evidence

Review of documentation - Summary of relevant documentation

The documents relied on by the parties comprise of over 2,600 pages, and include the material referred to in the summary that follows.

Claimant’s Bundle – AD4

Personal Injury Claim Form dated 14 February 2017 records that the accident occurred on 17 August 2016 within the AUTO Pro car park located at Russell Street in Batemans Bay. The claimant was reversing into a parking spot when the at fault vehicle, that was travelling on his left, reversed into his path of travel. As a result, the at fault vehicle collided with the rear part of his motorcycle. He later presented to Batemans Bay Hospital and was assessed to be suffering from simple muscular sprain on upper back and left shoulder and was advised to have rest and simple analgesia for one to two days.
Consultant psychologist, Greg Anning, provided a report on 8 February 2018. He opines a diagnosis of bipolar II disorder with a whole person impairment (WPI) of 13%.
Mr Anning provided a report on 9 March 2020 and opined that the claimant has a pre-existing diagnosis of bipolar II disorder that was aggravated by the accident. He assessed a permanent impairment of 13%.
A Job Capacity Assessment Report dated 25 February 2010 contains a recommendation for a disability employment network due to his psychiatric disorder.
A Schedule 1 medical certificate under the Mental Health Act 2007 completed by Rory Ardlie at Batemans Bay Hospital on 11 February 2019 records that the claimant was actively suicidal and had formulated plans.
A Discharge Summary from Batemans Bay District Hospital Emergency Department records that the claimant presented to the Emergency Department on

11 February 2019 following expression of suicidal ideation on a background of a number of psychosocial stressors including a breach of AVO from his parent’s place where he was living. He gave a history of alcohol use as a coping mechanism and had been drinking for five days leading up to his presentation. He was referred for psychiatric assessment.
Dr David Rivett provided a report dated 11 November 2019 in relation to the claimant’s physical injuries. He also notes that the constant pain has impacted on his mental health resulting in secondary depression and increased irritability which has impacted negatively on his family relationships.
Clinical notes of Batemans Bay Medical Centre include an entry on 20 November 2017. Dr Yamin Oo notes that the claimant reported experiencing a manic episode about a month earlier.
In a report dated 23 June 2018, consultant psychiatrist, Dr Padmini Howpage, opined that the claimant’s presentation indicated adjustment issues to environment and that overall, his role functioning is well. She conducted a medication review with reduction of dose of both his anti-depressant and anti-psychotic medication.
The Batemans Bay Medical Centre records include a consultation recorded by

Dr Yamin Oo on 28 June 2018 which states that the claimant presented with facial injuries following an altercation with another individual. He admitted to consuming some alcohol prior to the incident.
There is a referral to Community Mental Health made by Dr Kar at Batemans Bay Medical Centre for management of the claimant’s mental health.
Medical records from Justice Health record that the claimant came under the care of Justice Health and Forensic Mental Health Network on 9 July 2018 for a three-month custodial sentence following an incident involving an altercation with his father and an AVO being taken out against him. He was abusing alcohol at the time.
A discharge summary from Prince of Wales Hospital records that the claimant was admitted from 5 September 2018 to 26 September 2018 for the management of a right foot fracture.
Clinical notes from Batemans Bay Hospital dated 20 April 2018 confirm that the claimant presented following an altercation with his father after he had been consuming alcohol. He was assessed as suffering from “emotional distress”, and it is noted that “he has no mental issues other than gross public drunkenness”. He was discharged to stay with his friends, not his parents.
Clinical notes from Southern NSW Community Mental Health Service confirm that the claimant had been engaged with drug and alcohol services. On mental health assessment on 12 October 2018, it was noted that he was released from prison on

7 October 2018. He was noted to be low in mood but reported that he was having trouble getting to sleep and waking early which is normal for him. At the time he was living with his parents and reported that the relationship is comfortable. He was attempting to work in the garage in a limited capacity. He was concerned about the pending court case. It is noted that the claimant “…lacks insight into his personality issues with poor judgment as he has difficulty in questioning his frustrations and poor anger control”. He was placed on the acute care program with case management. He was noted to be not using any substances due to parole conditions.

Clinical notes of Goulburn Base Hospital Mental Health Unit record that the claimant presented to Goulburn Base Hospital on 7 May 2020 in an incoherent state having used intravenous methamphetamine five days earlier. He presented as unkempt and reported that he was homeless after having broken up with his new partner. He also acknowledged cannabis use. He initially reported auditory hallucinations. He was managed for drug withdrawal and was admitted to the high dependency unit and subsequently moved to the low dependency unit due to an altercation with another patient. He was noted to have Cluster B personality disorder and drug induced psychosis and was discharged on 18 May 2020.
Clinical notes from Goulburn Base Hospital Mental Health Unit in relation to the claimant’s admission on 12 February 2019 record that he presented in the context of an argument with his father prior to admission and blaming alcohol intoxication as a cause and blaming his father for physical aggression. This was the second time an AVO had been breached. He was diagnosed with anti-social personality disorder and alcohol misuse disorder and there was no pervasive mood disorder noted. It is noted that his “mood changes are probably best explained by affective dysregulation/impulsivity related to childhood development”. He had been transferred from Batemans Bay Hospital under schedule as mentally ill for suicidal and homicidal ideation in the context of an altercation with his father while intoxicated. He breached the AVO and had a pending court case on 18 February 2019. He was diagnosed with an adjustment disorder. He was discharged on 27 February 2019. The admission was prolonged due to his homelessness and need for housing. Final diagnosis was adjustment disorder.
Clinical notes from Goulburn Base Hospital confirm that the claimant was admitted from 24 August 2020 to 27 August 2020 after he presented to a police station with paranoid ideation. He admitted using methamphetamine. He was noted to be agitated and reported auditory hallucinations. His presentation was noted to be consistent with a diagnosis of borderline personality disorder complicated by ongoing substance use disorder and drug induced psychosis.

Insurer’s updated documents – AD6

There is a report by Dr Fitzgerald, occupational physician, dated 10 May 2018 wherein the doctor expressed the opinion that the injuries attributable to the accident have fully resolved. The doctor also reported on 11 November 2019. He confirmed his opinions that the injuries attributable to the accident have fully resolved.
Associate Professor Davies, psychiatrist, prepared a report dated 24 January 2020.

The Associate Professor notes that the claimant denied any current illicit drug use (as at 21 January 2020) and was therefore unaware that he was in fact using intravenous methamphetamine at the time. He opines that the claimant suffered from a temporary exacerbation of his underlying bipolar disorder, but the effect of the accident can be considered as being in the past. He refers to the claimant having suffered considerable subsequent traumatic experience however he does not document any specific traumatic experience. He concludes that the temporary exacerbating effects of the accident on the claimant’s psychiatric condition have ceased.
The contents of the Centrelink records have been noted, including reference to a diagnosis of bipolar disorder.
Medical Assessor Synnott issued a certificate and reasons dated 11 January 2019. There is no reference to substance use disorder in the certificate or reasons. The claimant described a number of psychological and behavioural problems he experienced which Assessor Synnott attributed to an exacerbation of bipolar disorder when in fact many of these symptoms were a result of his substance use disorder. It appears Assessor Synnott was not aware of the claimant’s substance use. His pre-accident WPI was found to be 2% and his impairment rating at the time of assessment 7%. With an adjustment for effects of treatment of 1%, a final WPI of 6% was assessed.
Medical Assessor Home issued a certificate and reasons dated 11 January 2019 in relation to the claimant’s physical injuries arising from the accident. Assessor Home diagnosed soft tissue strain injury of the claimant’s cervical spine, right shoulder girdle and upper back, and assessed a WPI of 5%, which related to the cervical spine injury.
The certificate and reasons of Medical Assessor Parmegiani, dated 2 June 2021 are summarised earlier in these reasons. Medical Assessor Parmegiani documents that the claimant had begun to experience symptoms of depression following the accident and started drinking heavily in 2017, which is consistent with the history obtained when he was re-examined for the purposes of this Review. However, the claimant did not disclose his amphetamine and cannabis use nor the reasons for his recurrent admissions to the Mental Health Unit at Goulburn Base Hospital. Medical Assessor Parmegiani notes that whilst he had access to clinical notes from Goulburn Mental Health there was no discharge summary included and it was not possible for him to accurately assess the claimant’s condition during these admissions because of the disordered presentation of the clinical notes. Medical Assessor Parmegiani was unaware of the claimant’s ongoing substance use disorder which had escalated since 2017.
Clinical notes of Prince of Wales Hospital relate to the claimant’s presentation following fracture of his foot whilst in gaol.
Clinical notes of Dr Padmini Howpage include Dr Howpage’s correspondence to the referring doctor, Dr West, which mainly focus on the claimant’s medication regimen, anger management, vocational issues and counselling under the mental health care plan. There is an entry in August 2008 about the claimant’s substance use history and she notes that prior to 2005 he had been abusing amphetamines, cannabis and alcohol. His alcohol consumption was a bottle of spirits two to three times a week. She also refers to him as “not a reliable historian”. While she refers to him having suffered a psychotic episode, there is no reference to a diagnosis of bipolar II disorder.
NSW Police records of the claimant’s criminal history are noted and have been considered.

Claimant’s second bundle - AD7 and insurer’s additional documents - AD9

Clinical notes of Pathways Eurobodalla confirm that the claimant enrolled on

6 July 2018. This was just prior to him attending court and his subsequent incarceration for assault. The clinical notes subsequently cover the period from December 2018 following his release from custody until 23 April 2020, during which time no significant mental health issues were noted other than ongoing issues with substance use and his psychological reactions to ongoing stressors related to family relationships, court case and ongoing compensation in relation to the accident. On 26 February 2021 he asked for counselling as part of a Work and Development Order and was advised to obtain counselling elsewhere.
Clinical notes of Goulburn Mental Health record that the claimant was admitted to Goulburn Base Hospital Mental Health Unit on 24 August 2020. The details of this admission have been previously noted.
A discharge summary from Batemans Bay Hospital dated 11 February 2019 records that the claimant presented with suicidal ideation in the context of recent stressors including forensic issues and alcohol abuse. He was also homeless due to breach of an AVO and unable to return to his home.
A discharge summary from Batemans Bay Hospital dated 20 April 2018 records that the claimant presented with acute alcohol intoxication. He had been fighting with his father and the ambulance brought him to hospital. It notes that he has no mental health issues other than gross public drunkenness.
A discharge summary from Batemans Bay Hospital dated 17 August 2016 records that the claimant presented to the Emergency Department for review following his motor accident. No significant injuries were noted.
A discharge summary from Eurobodalla Mental Health Drug and Alcohol Service relates to the claimant’s admission from 1 to 17 September 2020. He had been discharged from the mental health unit at Goulburn Base Hospital only several days earlier where he presented with paranoia and disturbed behaviour in the context of substance use. He was admitted as mentally disordered. It is noted that he did not engage with Batemans Bay Community Mental Health and refused any referrals to drug and alcohol services.
There is a mental health triage note regarding a phone call from the claimant requesting to link him with the Community Mental Health Team as he was feeling overwhelmed by his psychosocial stressors. The following mental health assessment notes an associated diagnosis of Cluster B personality disorder. The claimant was subsequently admitted from 14 January 2021 to 6 February 2021 for acute stress in relation to his forensic issues and psychosocial stressors. Final diagnosis was Cluster B personality disorder.
Clinical notes of Batemans Bay Medical Centre include an entry by Dr Oo dated

20 November 2017 where the claimant reports the accident and that he had a manic episode about a month ago. However, the description does not necessarily indicate mania and refers to his argument with his family. There is reference to a stable mental state but a recommendation is made for him to see Dr Howpage, psychiatrist, for medication review. There is no reference to any abnormal mental state in the clinical records.

claimants submissions

In support of the application for a review of Medical Assessor Parmegiani’s certificate dated 2 June 2021, the claimant relied on submissions dated 9 July 2021. Those submissions address s 63 of the MAC Act, and are directed to the Proper Officer. The submissions argue that there were material errors in the reasons provided with the certificate. Those errors were said to relate to the PIRS classes that had been assessed, and the failure to review material from Goulburn Mental Health relating to the claimant’s admission to the Psychiatric Unit at Goulburn Hospital in 2020. The submissions refer to a deterioration in the claimant’s condition.
In terms of the PIRS assessment provided by the Medical Assessor, the submissions state that there is ‘no dispute’ in relation to:
(a)    the class 2 finding for Self Care and Personal Hygiene;
(b)    the class 2 finding for Social and Recreational Activities;
(c)    the class 1 finding for Travel;
(d)    the class 3 finding for Social Functioning, and
(e)    the class 5 finding for Adaption/Employability.
The claimant did, however, dispute the Class 2 finding for Concentration, Persistence and Pace. It is submitted that a finding should have been made that the claimant was at least a class 3, and probably a class 4. If this were accepted, it is argued that WPI of 17% would be assessed.
The claimant’s further submissions dated 5 August 2022 are said to be in addition to the 9 July 2021 submissions. The submissions are directed to the PIRS categories, and refer to various documents and entries in the material contained in the bundles lodged by the parties for the purposes of the Review. The Panel has considered the documents and entries referred to in the submissions, in addition to the substance of the submissions.
The Panel has also considered the claimant’s submissions to the Proper Officer in support of an application for further assessment in accordance with s 62 of the MAC Act. The submissions argue that there had been a material deterioration in the claimant’s psychological injury since he was assessed by Medical Assessor Synnott. Reports of Mr Anning are relied on, as is the further treatment received by the claimant.

insurer’s submissions

For the purposes of the Review, the insurer relies on submissions dated

9 August 2022. The Panel has also considered the chronology prepared by the insurer.
The insurer’s submissions record that it considers the degree of impairment, causation, exacerbation, apportionment and ‘subsequent intervening event’ are issues in dispute.
The insurer submits that a causal relationship does not exist between the accident and the claimant’s alleged psychological/psychiatric symptomatology. The insurer points to pre-accident psychiatric complaints, and the pre-accident diagnosis of depression, anxiety, adjustment disorder, schizophrenia and bipolar. The insurer argues that the accident was minor compared to the claimant’s complaints in relation to dealing with the property damage insurer. The insurer also points to the death of the claimant’s dog the day after the accident, together with his subsequent criminal and driving offences and gaol sentence, romantic relationship, and methamphetamine use.
It is submitted that, in the event that the Panel considers the property damage claim caused or contributed to the claimant’s alleged exacerbation of his bipolar affective disorder, the question is whether that is an indirect but foreseeable consequence, sufficient to establish causation: Hunter v Insurance Australia Ltd trading as NRMA Insurance [2021] NSWSC 623.
The insurer argues that, should the Panel consider that the accident was more than negligible in causing or contributing to the claimant’s alleged psychological/psychiatric condition (which is disputed), any temporary exacerbation has ceased. In this regard, the insurer relies on the opinion expressed by Associate Professor Davies.
In terms of the assessment of the claimant’s permanent impairment arising from a psychiatric injury, the insurer relies on the supplementary report of Associate Professor Davies dated 25 September 2021 in support of its submission that there is no ongoing accident-related psychiatric disorder.
In the event that the Panel finds that there is an accident-related psychiatric disorder (which is disputed), the insurer disputes that the claimant overcomes the 10% permanent impairment threshold. The insurer has provided submissions, and referred to evidence, with respect to each PIRS category.
The insurer submits that the PIRS categories should be assessed as follows:
(a)    Self-care and personal hygiene – class 1;
(b)    Social and recreational activities – class 1 (‘at the most’ 2);
(c)    Travel – class 1 (although the insurer disputes that there is a causally related impairment to travel);
(d)    Social functioning – class 1, and
(e)    Concentration, persistence and pace – class 1 (‘at the most’ 2).
In terms of “Adaptation”, the insurer argues that the claimant was wholly incapacitated both prior to and following the accident.
The insurer also submits that pre-existing impairment needs to be assessed.
The chronology relied on by the insurer refers to material in the bundles relating to the claimant’s pre and post-accident history. The post-accident history includes a motor vehicle accident in February 2018 and three month imprisonment.

re-examination

Arrangements were made for Medical Assessors Fukui and Newlyn (the Medical Assessors) to re-examine the claimant by MS teams on 15 August 2022. The re-examination was unable to proceed because the claimant was unable to connect to the MS Teams application.
The re-examination was re-scheduled to 26 September 2022, at which time the claimant was re-examined by Medical Assessor Fukui via MS Teams. At the time of the re-examination, the claimant was present at the offices of his solicitors to ensure that he had appropriate technical support to use the MS Teams application.
The re-examination commenced at 2.15pm and concluded at 4pm. The claimant's father was present throughout the interview as a support person but did not participate other than to comment at the end of the assessment that he thought that the claimant was open and honest in his account.

History

Psychosocial history and pre-accident history

The claimant is a 41 year-old single man who lives with his parents. He has lived with his parents for approximately 10 years. He is currently unemployed. He last worked in 2006 as a motor mechanic after he had been working since commencing his apprenticeship in 1995.
He was born and raised in Sydney. He spent his early years and schooling in the Canterbury area. He has an older sister. He described his childhood as “pretty normal”. Whilst his father was a heavy drinker and was described as an alcoholic, he denied any domestic violence or issues whilst growing up. He denied any significant bullying experience. He completed Year 10 at school and then commenced an apprenticeship as a motor mechanic.
He has maintained a good relationship with his sister. He reported having friendships.
In his medical history he reported suffering from mild asthma in early childhood and continues to use Ventolin and Seretide as needed.
He denied psychiatric history prior to 2006. He stated that he felt “depression and isolation” prior to that but did not talk to anyone about it. He denied deliberate self-harm or suicidal ideation as a teenager.
His substance use history dates back to his teenage years. He started smoking cannabis at age 14 and amphetamines at age 18. He stated that whilst he used substances daily, he was still working full time. His intravenous use of amphetamines started at age 40. He smokes 20 cigarettes daily. He started drinking alcohol in his early teenage years. He stated that prior to the accident he only consumed alcohol socially, drinking six to seven standard drinks on each occasion. His alcohol use escalated following the accident in 2016 and 12 months after the accident he was drinking up to two bottles of spirits daily. He denied abusing prescription medication.
His forensic history included conviction for high range PCA in 2004, traffic offences, negligent driving occasioning grievous bodily harm in 2005 and assault charge in 2009. (There have been further charges after the accident including assault charge and damage to property in 2018 and breach of AVO in 2019 for which he was sentenced to seven months imprisonment and spent three months in gaol followed by parole).
In 2005, the claimant was driving a car which collided with another car. He was driving over the speed limit and was charged with negligent driving and a two-year loss of licence. He did not suffer any injuries. He stated that he suffered “only psychological” effects which took a long time to deal with. He has accepted the consequences. He attended court and lost his licence.
His psychiatric history dates back to the time following the 2005 accident. He was abusing cannabis and amphetamines and working 12 hour shifts. He stated, “I came crashing down in a heap”. He experienced some paranoia but denied perceptual disturbances. He presented to Croydon Health intake team and was admitted to Rozelle Hospital for 28 days with a diagnosis of drug induced psychosis. He was treated on Olanzapine.
He was later prescribed anti-depressant medication, venlafaxine, which led to further improvement in his mental state. He stated that he had two subsequent admissions for medication review and monitoring. These were only three or four-day admissions.
He attended psychiatric follow up with psychiatrist, Dr Howpage, and Dr West, his GP. Dr West switched his anti-depressant medication to Duloxetine and Quetiapine which he found to be a good combination. He stated that he stopped his substance use after the Rozelle Hospital admission.
The claimant stated that he was given a diagnosis of bipolar II disorder by Dr Howpage and also consulted a psychologist called Gabriel. When asked to describe his symptoms he stated that he experienced elevated mood, that he was capable of doing anything. He also experienced depressive episodes. The episodes occurred at variable periods, and he stated that “being medicated takes the edge off”. He stated that he has never ceased his psychotropic medications, but dosage had been reduced over the years as he was progressing. He was placed on the disability support pension around 2009-2010 for his psychiatric condition.

He moved to Batemans Bay with his parents in 2011 and has mostly lived with his parents since that time. He has had a few significant relationships, some lasting up to 3-4 years. He has no children. His last relationship was in 2020 which lasted for one year, but he described the relationship as “quite toxic”. He is currently not in a relationship.
Before the accident the claimant’s main interest was in motorbikes. This has been his passion since childhood. He would regularly go to shop at industrial supplies and worked on his bike. He started riding a motorbike in his early teenage years starting with trail bikes. He obtained his motorbike licence at age 24 and has owned a motorbike since that time. He used to drive a car prior to then. His motorbike was his prized possession.
He has a few friends and spends much of his time at home watching television.
His pre-accident level of functioning was reported as follows: He had no issues with self-care and kept his place tidy and ate regularly. He maintained a good relationship with his family and socialised with friends. He denied any issues with travel and drove his mother to Sydney for appointments. His concentration was improving due to decreased dose of his psychotropic medications because of side effects. He was on the disability support pension but had a desire to get back to work. He was looking into becoming a mental health peer support worker. He was considering doing volunteer work and then progressing onto doing placements where he could be paid through the Community Mental Health Centre.

History of the motor accident

The accident occurred on 17 August 2016, over six years ago. The claimant was riding his motorbike and had entered a car park of an auto parts shop. There was a 45-degree angle parking space, and he was in the process of reverse parking into the spot while sitting on the bike. The car in the next parking spot began to reverse out as the claimant was reversing into his parking spot. The rear of the car hit the rear left side of the claimant’s bike. The claimant attempted to prevent his bike from falling. He was not impacted by the car at all. He did not experience any pain at the time and exchanged details with the other driver.
He stated that he started to experience pain in his neck and shoulder approximately 20 minutes after the accident when the adrenaline rush had dissipated. He started to feel stiff and sore whilst at the police station where he rode to report the accident. He was advised to go to hospital and presented to the Emergency Department at Batemans Bay Hospital.

History of symptoms and treatment following the motor accident

The claimant was recommended to take simple analgesic medications at the hospital. He subsequently attended his GP and was managed on Nurofen, Panadol and Lyrica and physiotherapy exercises. He did not see any specialist. He has not had specific treatment for his neck and shoulder pain and consequently has continued to experience pain.
When asked to discuss the impact the accident may have had on his mental health, he spoke in detail about the difficulty he experienced in having his motorbike repaired. He stated that his motorbike was off the road for three months due to difficulty accessing appropriate services to have it fixed. He stated that he instigated the process for repair which reduced the time by a month before he was able to ride his motorbike again after three months. He stated that it was his only mode of transport, and he was extremely frustrated with having to deal with the insurance company.
When pressed to report any symptoms he may have experienced following the accident he stated that he felt anxious in a car and became easily reactive and agitated. He also became hypervigilant in a car. He stated that he was not actually aware of feeling anxiety, but it emerged in his behaviour while in traffic. He stated that once his motorbike was repaired, he had no issues riding his motorbike. He stated that he was “elevated” after the accident. When asked to clarify he stated that he was feeling tense in dealing with the insurance company and things had to be done “on the go”. He did not describe any other symptoms suggestive of mania or hypomania. He stated that he was functioning day to day with no limitations on his activities of daily living. When asked to clarify when his mental health started to decline, he stated that it was since the accident, but he was unable to elaborate any further.
It appeared from his account that his irritability and agitation was focused on his interaction with the insurance company due to the delay in having his motorbike repaired. The claimant’s father later remarked that his motorbike had been his prized possession which he had built and improved over the years and had attracted a significant monetary value which was subsequently lost following the damage from the accident.
The claimant stated that he was a social drinker prior to the accident, consuming at most 6-7 standard drinks on an occasion. Following the accident his alcohol consumption gradually increased in quantity and frequency to the extent that by late 2017 he was drinking up to two bottles of spirits per day. He stated that he could not explain why his drinking escalated. He stated, “I was using it as an excuse not to do things”. He was still compliant in taking his medications.
In May 2018 he had a psychiatric review with Dr Howpage by Skype. He stated that he did not fully re-engage with ongoing psychiatric treatment. His dose of quetiapine was decreased to 100mg. Dr Howpage recorded in her clinical notes dated 23 May 2018 that the claimant was well and stable and attended for medication review due to side effects.
The claimant was consuming alcohol up to two bottles of spirits per day. He had an altercation with his father which resulted in the police taking out an AVO for him not to drink at home because of a history of violent behaviour while intoxicated with alcohol. Following a breach of the AVO the claimant was sentenced to a three-month period in gaol in addition to four months on parole and was sent to Nowra Correctional Centre. The claimant stated that he continued on his regular medications but denied experiencing depession or any significant change in his mental state. He stated that he underwent detoxication and was “clean” on discharge in October 2018.
There is an entry by Pathways Eurobodalla Drug and Alcohol Services dated
12 October 2018 that the claimant’s post-custody mental state was at baseline.
The claimant stated that he started drinking alcohol again following discharge from prison and was sent to Goulburn Base Hospital Mental Health Facility on a court order. He was admitted in January 2019 for alcohol use disorder and after two weeks started drinking again, having ceased taking Campral. It was during this admission that he was given intravenous methamphetamine by another inpatient and he has continued to use methamphetamine since that time. When asked to explain the circumstances of him being given intravenous methampehtamine he stated, “I asked for it and they were capable of getting it”.
He stated that he felt under pressure while in hospital as he was homeless and could not be discharged due to homelessness. He obtained a youth hostel address and managed to be discharged and had a brief follow up with the Community Mental Health Team. He continued to use intravenous methampehtamine three to four times per fortnight on average. He was living in a weekly rental hotel and was cut off from his parents. He stated that no one was aware of his problem even though he was seeing a drug and alcohol counsellor as he had not disclosed his methampehtamine use. He was subsequently allowed to return to his parental home but continued his methampehtamine use.
During 2020 he was in a relationship with his ex-partner and was travelling between Goulburn and Batemans Bay as he was spending time with his ex partner. He referred to this relationship as a “toxic relationship”. He self referred to Goulburn Base Hospital Mental Health Unit after an argument with his ex-partner. He stated that he was “kicked out of her place” with no money. He denied aggression or psychotic symptoms. He had a voluntary admission for five days and was discharged to his parental home. His discharge medication was Duloxetine 120mg and Olanzapine 10mg.
When asked about what has happened since that last hospital admission he stated, “not a lot”. However, he omitted to mention that he had another admission to the Goulburn Base Hospital Mental Health Unit from 24-27 August 2020 for drug induced psychosis.
Clinical notes from Goulburn Base Hospital indicate that the claimant was brought to hospital by police and ambulance after he went to the police expressing persecutory ideation and was incoherent at times. He had been non-compliant with his medications for the preceding five days. He was noted to have track marks in his cubital fossa from intravenous methampehtamine use. The claimant disclosed to the treating team that he had been using methamephtamine and cannabis. He acknowledged persecutory ideation and auditory hallucinations that led him presenting to the police. The discharge diagnosis was mental and behavioural disturbance secondary to substance use and Cluster B personality.

Details of any relevant injuries or conditions sustained since the motor accident

In February 2018 the claimant had a minor motor vehicle accident. He was driving his mother’s car which had veered off the road because of mechanical problems and collided with an unoccupied parked car. He did not suffer any injuries. However, he stated that “it really affected me” that the car was “part of the family for me”. He had pride in this vehicle as he was financially contributing $50 per week towards the car which was subsequently written off. He denied consuming alcohol at the time.
He suffered a fracture of his right foot while in gaol during 2018 and was treated at Prince of Wales Hospital.

Current symptoms

The claimant complained of persistent neck and shoulder pain.
He reported low mood and feeling unmotivated. He reported “sleeping a lot”. He stated that he is still using methamphetamine and cannabis “as often as possible” and uses both substances approximately four times per fortnight. He rarely consumes alcohol and smokes 20 cigarettes daily. His pattern of methamphetamine and cannabis use was described as “a binge” where he would use four days straight then have a break. He stated that he was not interested in doing anything about ceasing his drug use and stated, “Ice is running the show” and that “rehab is for quitters”. He last used methamphetamine and cannabis 10 days prior to this health assessment.

Current and proposed treatment

The claimant has not engaged in psychiatric follow up or follow up with drug and alcohol services or the community mental health team. He sees his GP, Dr Rivett, in Batemans Bay approximately every six months. He is taking Duloxetine 120mg and Olanzapine 15mg.

Clinical Examination

Mental state examination

The claimant presented as casually dressed and well kempt. His affect was restricted, and he was noted to be frowning. There was no evidence of substance intoxication. He was not pervasively depressed or anxious. He was articulate and gave a clear chronological history and had reasonable recollection of details. There was no evidence of psychotic symptoms such as formal thought disorder, delusions or hallucinations. He frequently referred to “the crash” (meaning the subject motor accident) as a reason for his current life circumstances. His cognition was intact. He was able to recall dates and details of events. There was no evidence of impaired concentration, and he maintained attention and focus on the discussion. He became increasingly irritable towards the end of the assessment and lost his temper and became verbally abusive. He stated, “I’ve had enough”, that he has had enough of counsellors and psychiatrists and once this insurance matter is resolved that he was going to kill himself. However, he did not indicate a current desire to harm himself. His insight and judgement were poor.

Current functioning

The claimant stated that he attends to appropriate self-care by showering and eating regularly. He does minimal housework but can cook and helps to mow the lawns.
He maintains contact with a few friends and there has not been any change in his friendships. He stated that he has a support network, and they support each other. He stated that the relationship has gotten stronger. He stated that he feels positive overall about his relationships.
He denied any issues with travel.
He reported his family as being supportive and continues to live with his parents.
He stated that he is easily distracted when reading but can get back to it. He follows news events online and does online reading. He is able to follow instructions on manuals and follow recipes.
He stated that he has given up on the idea of doing volunteer work because he cannot see himself returning to being the person that he was before the accident. He stated that he cannot help himself. His only interest is riding his motorbike.

Comments on consistency

The claimant provided an internally consistent and chronologically consistent history regarding his psychiatric and substance use disorders. There was an omission of his most recent psychiatric admission in August 2020 for drug induced psychosis. His father, who accompanied the claimant throughout the assessment, commented that the claimant did not lie and that he had been “brutally honest”.

Diagnosis and reasons

The claimant has an extensive substance use history dating back to cannabis use since age 14, amphetamine use since age 18 and significant alcohol use pre-dating the accident, with a drink driving offence. His first psychiatric admission was for drug induced psychosis from cannabis and amphetamine use. Sometime following his psychiatric admission, he attracted a diagnosis of bipolar II disorder, although we did not find any clear documentation of symptomatology supporting this diagnosis. Nevertheless, he has been maintained on an anti-depressant and olanzapine over the years for his bipolar II disorder.
The claimant stated that he ceased his substance use following his first psychiatric admission until he developed significant alcohol use disorder over the 12 months following the motor accident. He was initially consuming at most 6-7 standard drinks on a social occasion. His consumption escalated to two bottles of spirits daily. His alcohol use disorder resulted in aggression and further complications with forensic issues resulting in incarceration. His recurrent alcohol use disorder resulted in psychiatric admissions and further escalation of his substance use disorder to regular use of methamphetamine and cannabis. During his psychiatric admissions for his substance use disorder, his diagnosis was revised to that of Cluster B personality disorder rather than bipolar II disorder given his pre-accident forensic history and behavioural disturbances associated with his substance use.
The claimant presents with a diagnosis of recurrent substance use disorder. He is currently using methamphetamine and cannabis. All of his psychiatric admissions relate to his substance use disorder and the psychosocial impact of this disorder. The details of his admissions to Goulburn Base Hospital Mental Health Unit were not available to Medical Assessor Parmegiani. The claimant did not disclose his methamphetamine and cannabis use to Medical Assessor Parmegiani, nor did he disclose the reasons for his psychiatric admissions.
There has not been clear documentation suggestive of hypomania or manic episodes however the claimant has suffered from low mood over the years and his mood was certainly exacerbated following the motor accident. The claimant did not describe typical symptoms of bipolar disorder when pressed for clarification of his symptoms following the subject motor accident and instead focused on his frustration relating to the delay in having his motorbike repaired. Nevertheless, there is evidence that he experienced a decline in his mental state with depressive symptoms consistent with an exacerbation of his pre-existing bipolar II disorder.
The exacerbation of his bipolar disorder due to the motor accident was temporary. His mental state was noted to be stable by 2018 when he was reviewed by Dr Howpage and has since remained in remission.
His current diagnosis is that of substance use disorder with dependence on methamphetamine and cannabis. Addiction is a recurring disorder. The claimant is suffering from an aggravation of his substance use disorder.

Causation and reasons

The claimant is suffering from significant substance use disorder. Whilst he had a pre-existing history of substance use disorder and drug induced psychosis, there was no indication that he suffered from significant substance use disorder leading up to the accident.
The Medical Assessors evaluated the potential contributing factors, the circumstances of the accident and the pre and post-accident mental health issues. The Medical Assessors concluded that, in their clinical judgement, the accident made a material contribution to the aggravation of the claimant’s substance abuse disorder and exacerbation of his bipolar II disorder.
The Medical Assessors concluded that the substance use disorder was in remission until the accident when he also experienced an exacerbation of his mood disorder. The claimant clearly experienced psychological distress and a decline in his mental state in relation to the problems he experienced following the motor accident.
Based on the chronology of his symptoms, it is the Medical Assessors’ opinion that the accident had a more than negligible impact on the claimant’s mental state and his pre-existing psychiatric conditions. There was an exacerbation of his bipolar II disorder which has remitted. An aggravation of his substance use disorder has gradually escalated resulting in his current impairment.
The Medical Assessors found that the following injuries were caused by the motor accident:
·exacerbation of bipolar II disorder – in remission, and
·aggravation of substance use disorder.
The degree of WPI of the injuries caused by the accident was calculated as follows:
Psychiatric Impairment Rating Scale
Current Impairment

Psychiatric diagnoses	1. Substance use disorder –methamphetamine and cannabis.	2. Historical diagnosis of Bipolar II disorder.
Psychiatric treatment description	Psychiatrist Psychological consultations/CMHT Psychotropic medications Hospital admissions Drug and alcohol services

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	1	The claimant presented as well kempt and clean. He reported showering and eating regularly. Although he attends to minimal housework he can cook and helps to mow the lawns.
2. Social and Recreational Activities	1	He continues to maintain his interest in riding his motor bike. He maintains contact with a few friends and stated that there has not been any change in his relationship with his friends. He is part of a support network for one another which has gotten stronger. He described an episode of helping a friend out.
3. Travel	1	He has no issues with travelling.
4. Social Functioning	3	He reported a good relationship with his parents who are supportive. However, he has had altercations with his father whilst intoxicated, had an AVO taken out and was unable to live at home. He suffered a relationship break up and a period of homelessness.
5. Concentration, Persistence and Pace	2	The claimant stated that he is easily distracted but is able to get back to reading. He does online reading and follows news events. He is able to follow instructions, manuals and recipes.
6. Adaptation	5	The claimant has been on the disability support pension and has not worked in paid employment since 2006. It is not possible for him to return to working as a motor mechanic given his current significant substance use disorder.
List classes in ascending order: 111235
Median Class Value: 3
Aggregate Score: 13
% Whole Person Impairment: 7%

*%WPI ^{= Percentage Whole Person Impairment}
Psychiatric Impairment Rating Scale
Pre-existing impairment
An assessment of pre-existing whole person impairment was conducted because the claimant has a past psychiatric history.

Psychiatric diagnoses	1. Substance use disorder and Drug induced psychosis in remission	2. Bipolar II disorder in remission
Psychiatric treatment description	Psychiatrist Psychologist Antidepressant and antipsychotic medications

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	1	The claimant showered regularly, changed his clothes regularly and attended to his nutrition satisfactorily.
2. Social and Recreational Activities	1	The claimant had a few friends he socialised with. His main inteterst was working on and riding his motorbike.
3. Travel	1	The claimant was able to use all forms of transport without limitation. He regularly drove his mother to appointments.
4. Social Functioning	1	He was living with his parents and maintained a good relationship with his family.
5. Concentration, Persistence and Pace	1	His concentration had been impacted by the psychotropic medications but was improving since the reduction in the dose of his medications. He was able to focus on working on mechanical parts on his motor bike.
6. Adaptation	4	He was on the disability support pension but had a desire to get back to work. He was looking into becoming a mental health peer support worker. He was considering doing volunteer work and then progressing onto doing placements where he could be paid through the Community Mental Health Centre.
List classes in ascending order: 1 1 1 1 1 4
Median Class Value: 1
Aggregate Score: 9
Pre-existing % Whole Person Impairment: 1%

*%WPI

Permanent impairment

Pre-existing impairment

Whole person impairment prior to the motor accident was 1%.

Effects of treatment

His bipolar II disorder has been well-managed with pharmacological treatment.
The episode of drug-induced psychosis has remitted with an increased dose of olanzapine.
He is not engaged in any treatment for his substance use disorder.
Pharmacological treatement has been effective for bipolar II disorder but his functioning has declined due to his substance use disorder. Therefore, the Panel assessed that the treatment effect was 1%WPI,
Final % permanent impairment
A Current % permanent impairment 7%
B Pre-existing % permanent impairment 1 %
C Adjustments % for effects of treatment 1%
A-B+C= 7% WPI

Determination regarding the degree of whole person impairment of the injured person as a result of the injuries caused by the motor accident

The total percentage WPI for assessed injuries caused by the motor accident is 7%. Therefore, the total WPI is NOT greater than 10%.
This determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and the Impairment Assessment Guidelines.
Permanent impairment ratings take symptoms into account; however, the percentage WPI impairment is not a direct measure of disability. A finding of 0% WPI indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides rate the associated impairment at 0% WPI.

findings

The Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[6] and Insurance Australia Ltd v Marsh.[7]
[6] [2021] NSWCA 287 at [40], [41] and [45].
[7] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the precise examination findings of Medical Assessor Fukui and the conclusions of the Medical Assessors based on the examination of the claimant and specific findings pertaining to diagnosis, causation and the assessment of the claimant’s WPI.
The Panel finds that the claimant is suffering from substance use disorder. Whilst he had a pre-existing history of substance use disorder and drug induced psychosis, there was no indication that he suffered from significant substance use disorder leading up to the motor accident. It is the Panel’s opinion that the claimant experienced an aggravation of his substance use disorder which was in remission until the accident when he also experienced an exacerbation of his mood disorder. The claimant clearly experienced psychological distress and a decline in his mental state following the accident.
Based on the chronology of his symptoms, it is the Panel’s opinion that the accident had a more than negligible impact on his mental state and his pre-existing psychiatric conditions. The Panel finds that there was an exacerbation of his bipolar II disorder which has remitted and an aggravation of his substance use disorder that has gradually escalated resulting in his current impairment.
To the extent that the claimant’s experience with the property damage insurer (in relation to the repair of his motorcycle as a result of damage it sustained in the accident) contributed to the exacerbation of the claimant’s bipolar II disorder and/or the aggravation of his substance use disorder, the Panel finds that the aggravation and exacerbation were indirect but foreseeable consequences of the accident. The Panel finds that it was reasonably foreseeable that, as a result of the accident, the claimant would make a claim on a property damage insurer to repair the damage to his motorcycle and that issues may arise in his dealings with the insurer that would lead to a decline in his mental state. In the event that the Panel is wrong in this regard, the Panel is satisfied that the contribution made by the accident to the claimant’s psychiatric conditions is more than negligible and that there is a sufficient link such that causation is established.

conclusion

The Panel finds that the following injuries caused by the motor accident give rise to a permanent impairment which is not greater than 10%
· exacerbation of Bipolar II disorder – in remission, and
· aggravation of substance use disorder.

[2022] NSWPICMP 439

31 October 2022