Benderovska v AAI Limited t/as GIO

[2025] NSWPICMP 50

DETERMINATION OF REVIEW PANEL

CITATION:

Benderovska v AAI Limited t/as GIO [2025] NSWPICMP 50

CLAIMANT:

Emilija Benderovska

INSURER:

GIO

REVIEW PANEL

MEMBER:

Jeremy Lum

MEDICAL ASSESSOR:

Christopher Canaris

MEDICAL ASSESSOR:

Matthew Jones

DATE OF DECISION:

28 January 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; psychiatric injury; claimant hit by forklift while at work causing adjustment disorder of 4%; subsequent incident at work causing persistent depressive disorder with additional impairment or aggravated motor accident related impairment resulting in total impairment of 22%; whether subsequent impairment causally related to motor accident; State Government Insurance Commission v Oakley principles applied; Held – all impairment causally related to motor accident; Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

Review Panel assessment of the degree of permanent impairment

Certificate issued under s63(4) of the Motor Accidents Compensation Act 1999

1.     The Review Panel revokes the certificate of Medical Assessor Shen dated 24 August 2023 and issues a new certificate as follows:

(a)    the Review Panel certifies the following injuries were caused by the motor accident:

·         adjustment disorder with mixed anxiety and depressed mood;

·         somatic symptom disorder, and

·         persistent depressive disorder.

2.     The Review Panel finds that the above injuries result in a whole person impairment of 22% which is greater than 10%.

STATEMENT OF REASONS

BACKGROUND

1. Emilija Benderovska (the claimant) was involved in a motor accident on 29 November 2017. She was employed as a warehouse worker at a transport company where she had worked for a number of years. She was at work on the day of the accident, outside the roller-doors of the warehouse checking paperwork for deliveries. As she was walking back into the warehouse, along a yellow pedestrian walkway, she was hit by a forklift.

2. As a result of the motor accident, the claimant says she sustained physical injuries to her head (including brain injury), cervical spine, lumbar spine, right shoulder, right hip, right knee, right foot, right ankle and psychiatric injuries.

3. The claimant returned to work two to three weeks later and was placed on suitable work duties.

4. In August 2018, the claimant was asked by a staff member from her workplace to view a training video which included CCTV footage of her motor accident and titled “Dumb Way to Die”. She stated that she did not view the video and left the workplace on the same day and never returned. She alleges that her psychiatric injuries deteriorated as a result of this event.

5. She made a claim for personal injury benefits with GIO, the third-party insurer of the vehicle that she says caused the accident.

6. A medical dispute arose about whether the degree of the claimant’s whole person impairment (WPI) is greater than 10% WPI. Where there is a dispute about the degree of a claimant’s WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor/s for determination. 

   [1] Section 131 of the Motor Accidents Compensation Act 1999.

7. Accordingly, the medical dispute was referred to the Personal Injury Commission (the Commission) for medical assessment. Due to the nature of the medical dispute involving both physical and psychiatric injuries, the claimant was referred to Medical Assessor Ian Cameron to assess her physical injuries and Medical Assessor Yu Tang Shen for her psychiatric injuries.

8. On 22 April 2023, Medical Assessor Ian Cameron found the claimant sustained physical injuries as a result of the motor accident and assessed her WPI at 0%.

9. On 24 August 2023, Medical Assessor Yu Tang Shen found the claimant sustained psychiatric injuries as a result of the motor accident and assessed her WPI at 7%.

10. The claimant lodged an application with the Commission seeking review of the medical assessment of Assessor Shen. This was allowed by the President’s Delegate and this Review Panel (Panel) was convened to conduct the review.

MEDICAL ASSESSMENT UNDER REVIEW

1. Medical Assessor Shen stated that after the motor accident, the claimant took three weeks off work but returned to work because she was afraid of being fired and she had bills to pay. In August 2018, she was asked by an office clerk whether they could use footage of the accident in an Occupational Health and Safety (OH & S) video and name it “Dumb ways to die”. This worsened the claimant’s psychiatric symptoms and she subsequently left work.

2. The Medical Assessor noted the various opinions on the claimant’s psychiatric diagnoses such as malingering, somatic symptoms disorder, adjustment disorder, post-traumatic stress disorder, social phobia, depression and mild traumatic brain injury. There was some disagreement with the veracity of these diagnoses between the doctors, as well as issues with the claimant’s effort and engagement in various assessments.

3. While acknowledging that the circumstances of the accident, namely being knocked over by a forklift, has been quite traumatic to the claimant, the Medical Assessor did not think the accident met the threshold of Criterion A for a diagnosis of post-traumatic stress disorder. The Medical Assessor concluded that the claimant had significant depressive symptoms that have persisted for over two years and diagnosed Persistent Depressive Disorder. There was also an alternate diagnosis of Other Specified Trauma and Stressor related Disorder made by Dr Boon which the Medical Assessor concurred with.

4. In terms of causation, the Medical Assessor felt there were several causative factors, including the motor accident. There was the accident itself but also resultant changes in the workplace, both in the claimant’s duties, and her perception of mistreatment and lack of support and care from her employer and colleagues at the time of the accident and on her return to work. This culminated to the incident of being informed of a video footage circulating of the accident, which precipitated a deterioration in her mental state, which has been perpetuated by being kept in a state of suspension while undergoing repeated rounds of medical assessments as part of the compensation process.

5. The Medical Assessor found that if not for the subject accident, this cascade of subsequent incidents would not have happened to initiate/aggravate her psychiatric injuries, however there was “a component of aggravation of her accident-related injuries that is attributable to her workplace rather than the accident itself”.

6. In the assessment of the degree of WPI, the Medical Assessor provided two assessments made under the Psychiatric Impairment Rating Scale (PIRS). 

7. The first assessment concerned the claimant’s “level of functioning prior to leaving work, just prior to being informed of the video circulated at work” and this was assessed as 7% WPI.

8. The second assessment concerned the claimant’s “current state now, which is a combination of accident-related injury aggravated by the work-related incidents” and this was assessed as 19%.

9. The Medical Assessor apportioned the impairment with the subject accident resulting in an impairment of 7% and the aggravation as a result of the work-related incidents resulting in an incremental worsening by 12%, with a final WPI of 19%. The Medical Assessor concluded that the degree of WPI caused by the motor accident was 7%.

ISSUES FOR DETERMINATION

1. There are lengthy submissions lodged by both parties in the original application documents and on review. These are summarised below.

Claimant’s original application submissions dated 4 July 2022

1. The claimant states that the physical and psychological injuries sustained as a result of the motor accident both exceed the 10% WPI threshold. The claimant’s submissions largely rely on the medical evidence lodged with the application.

2. On the day of the accident, on 29 November 2017, the claimant presented to Dr Lieng’s rooms complaining of headaches, dizziness and nausea.

3. In or about 8 August 2018, the claimant was informed by a lady from the Human Resources department of her work company that the CCTV security camera captured the subject accident. The lady escorted the claimant to her supervisor’s desk and intended to show the claimant the CCTV footage of the subject accident. This was intended to be circulated amongst staff as a training video and it would be titled “Dumb Way to Die”. As the lady was opening the file of the CCTV footage, the claimant became highly distressed and left the premises.

4. Following the video footage incident (Training Video Incident), the claimant’s psychiatric condition rapidly deteriorated.

5. The claimant was seen by treating psychiatrist Dr Teoh and Dr Klug for a medico-legal assessment where she was diagnosed with post-traumatic stress disorder and Major Depressive Disorder with her WPI assessed at 54%. She was also seen by pain management physician and psychiatrist Dr Kym Boon who found a causal link between the subject accident and the Training Video Incident and diagnosed the claimant with chronic pain and various psychiatric disorders, including complex post-traumatic stress disorder with dissociative features. It is submitted that Dr Teoh, Dr Klug and Dr Boon all found the claimant to be consistent in her presentation.

6. Dr Vickery, in contrast, diagnosed the claimant with Somatic Symptom Disorder unrelated to the motor accident or that she was malingering and assessed WPI at 0%.

Insurer’s original reply submissions dated 12 August 2022[2]

[2] These submissions are relied upon in the insurer’s further submissions dated 27 September 2024.

1. The insurer submits that up until the Training Video Incident, the attendances at general practitioner (GP) practices confirm a clear improvement of the claimant’s symptoms. On the day of the Training Video Incident, the claimant attended Pitt Street Medical Centre where she was diagnosed with post-traumatic stress disorder.

2. The insurer submits that the claimant’s presentation at medico-legal assessments conducted in 2020 and 2021 are entirely inconsistent with the natural history of physical or psychiatric injuries which may have been caused by the subject accident. Furthermore, and consistent with authorities (see below), the claimant’s injuries and disabilities allegedly triggered by the Training Video Incident more than nine months after the motor accident cannot be caused by the motor accident.

3. The insurer refers the causation provisions contained in clauses 6.6 and 6.7 of the Motor Accident Guidelines (the Guidelines).[3] The insurer says there are multiple causes for the claimant’s current presentation and relies on the following caselaw:

   ·        Allianz Australia Insurance Ltd v Gonzalez (Gonzales),[4] and

   ·        Pham v NRMA Insurance Limited (Pham).[5]

   [3] The applicable clauses are 1.6 and 1.7 as the Motor Accident Permanent Impairment Guidelines apply to motor accidents that occurred between 5 October 1999 and 30 November 2017.

   [4] [2013] NSWSC 362.

   [5] [2015] NSWSC 1205.

4. The insurer’s position is summarised in the following submission:

   “The [claimant’s] clear symptomatic deterioration after the alleged video training incident (if it be accepted as genuine) plainly did not arise as a result of the use or operation of a motor vehicle on 29 November 2017. A separate and distinct event, far removed from the use or operation of the motor vehicle on 29 November 2017, was the trigger for the [claimant’s] presentational trajectory on and after 8 August 2018.”

5. Accordingly, the insurer refers to clause 6.34[6] of the Guidelines which says any associated impairment from the unrelated injury or condition should be calculated.

   [6] The applicable clause is 1.34 as the Motor Accident Permanent Impairment Guidelines apply to motor accidents that occurred between 5 October 1999 and 30 November 2017.

6. The insurer also questions the consistency of the claimant’s presentation. The insurer states that while the claimant (and her mother) have consistently denied any pre-accident history of mental health issues, the treating records indicate otherwise. The insurer notes workplace bullying and childhood depression in the Southlands Medical Clinical notes (entries dated 23 December 2017, 4 January 2018 and 15 January 2018).

Claimant’s further submissions dated 29 August 2022

1. The claimant responded to the insurer’s reply submissions with further submissions.

2. The claimant refers to GP clinical note entries in December 2017 which refer to poor concentration, fatigue, headaches, dizziness, and nausea which the claimant says are signs of the onset of her psychiatric injuries caused by the motor accident. 

3. The claimant states that the direct cause of the psychiatric injuries in Gonzales and Pham resulting from a separate act following the accident which were two easily severable events that broke the chain of causation. In addition, neither the claimants in Gonzales nor Pham were involved in a circumstance of a possible re-exposure to their subject accident. They also involved a minor collision between two vehicles while the claimant was impacted as a pedestrian by a forklift. It is submitted that the scale of the impact between two vehicles and the impact between a vehicle and a person are incomparable. 

4. Turning to the Training Video Incident, the claimant asserts that this cannot be regarded as a separate incident from the subject accident. The claimant was under the risk of being re-exposed to the possibility of reliving the traumatic experience of the subject accident. Hence, this incident is neither materially nor temporally removed from the subject accident.

5. It is submitted that this interpretation is consistent with the expert opinions of Dr Klug and Dr Boon.

6. In relation to the insurer’s view that the Training Video Incident does not fall under the statutory test of a motor accident, the claimant says the determination of the events that would fall under the definition of the use and operation of the vehicle should be decided by the Court and not a medical assessor. 

7. In this regard, the claimant relies on the judgement of the Court of Appeal in AAI Ltd v State Insurance Regulatory Authority of New South Wales.[7]

   [7] [2016] NSWCA 368.

Claimant’s review application submissions dated 22 September 2023

1. The claimant’s submissions to the President’s Delegate essentially challenge Medical Assessor Shen’s determination on causation of injury. First, the Medical Assessor made no reference at all to the definition of causation contained in clauses 1.5 to 1.7 of the Guidelines. It is submitted that had the subject accident not occurred, the claimant would not have been asked to view CCTV footage of her own accident, and she would not have suffered the reaction to that event.

2. The claimant relies on the three guiding categories of causation for consequential injury, as identified by Malcolm CJ in State Government Insurance Commission v Oakley:[8]

   “1.     Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.

   2.     Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection…unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.

   3.     Where…the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damaged sustained…includes no element of aggravation of the earlier injury, there will be no causal connection.”

   [8] (1990) 10 MVR 570.

3. The claimant states that both Dr Klug and Dr Boon correctly applied the definition of causation when they found a causal connection between the subject accident of 29 November 2017 and the subsequent workplace incident of August 2018.

4. The claimant otherwise does not dispute Medical Assessor Shen’s WPI assessment of 19% but says the entirety of the impairment should have been found to be caused or contributed to by the subject accident trauma.

Insurer’s review reply submissions dated 5 October 2023

1. The insurer submits that the assessment of the claimant’s psychiatric injuries must be undertaken having regard to two separate events – the first being the subject motor accident on 29 November 2017 and the second being a workplace incident in August 2018. It is asserted that the workplace incident did not occur due to the use or operation of the vehicle and so must be treated as a separate incident.

2. As such, the insurer says Medical Assessor Shen was correct in determining that WPI (if any) must be attributed separately to each event. The insurer reiterates its original submissions regarding the application of judicial authorities Gonzalez and Pham.

REVIEW OF THE EVIDENCE

1. On 26 August 2024, the Panel issued a direction to the parties requiring indexed and paginated bundles of the information they relied upon. Both parties duly responded with the claimant’s bundle comprising of pages 1-648 and the insurer’s 1-176.

2. The Panel has read the documentation but will only refer to material that is relevant to the matters to be determined with respect to the issues in dispute and the review of Medical Assessor Shen’s assessment of WPI.

3. A summary of the relevant documentation is contained in the Appendix.

PANEL RE-EXAMINATION

1. At the teleconference on 22 October 2024, the Panel determined that a re-examination of the claimant was required. Below is the Panel re-examination report.

   “PANEL RE-EXAMINATION REPORT

   The Panel examination was undertaken by of Dr Christopher Canaris, psychiatrist, and Dr Matthew Jones, psychiatrist. The assessment was undertaken via audio-visual link through the MS Teams platform, organised by PIC. Ms Benderovska was at home and Drs Canaris and Jones were in their respective offices. Ms Benderovska, when asked, assured the Panel that she was alone for the assessment and that it was not being recorded.

   The purpose and nature of the assessment was described to Ms Benderovska, as were the limits of confidentiality including that the assessment was for assessment purposes and that neither Dr Canaris nor Dr Jones could take on any treatment role. Ms Benderovska indicated that she understood the purpose and limitations of the assessment and continued with the assessment voluntarily.

   INTRODUCTION

   The Panel was sensitive to the fact that this may be a challenging assessment, given the nature of some previous assessments and documentation of Ms Benderovska’s desire not to undertake it[9]. She confirmed that she was indeed willing to partake. From the outset Ms Benderovska was emotionally demonstrative and appeared teary soon after the assessment began. The Panel enquired about her emotional distress, and she reported she was anxious because she had had many appointments over the last seven years and that she felt ‘like a criminal not a victim.’

   [9] Message from claimant’s solicitor on the Commission Portal dated 2 December 2024 at 11.43am.

   Ms Benderovska is a thirty-year-old woman living in Sydney, in Ashfield, where she has lived for a few years. She lives with her mother who is well and is currently employed. When the Panel asked Ms Benderovska what type of work her mother performed, she responded that she would rather not say. Ms Benderovska reported she gets along well with her mother.

   Ms Benderovska is not currently working and reported she last attended work in 2018. She said this was after an employee of Mainfreight (her employer) informed her that they were intending to show footage of her work accident to future employees as part of a training video. She reported that this employee came up to her and said that she wanted to let Ms Benderovska know that they were going to use the footage of her accident and were going to entitle the video ‘Dumb Ways to Die.’ Ms Benderovska reported that she did not see the footage at that stage, and never had.

   Ms Benderovska reported she then went home and did not return to work. The Panel enquired how she felt at that stage, and she responded that she felt like she was worthless because everybody at Mainfreight showed her a lack of care and compassion after what had happened to her. She described the situation as ‘negligence.’ She reported that she was in shock and ‘bawling [her] eyes out.’

   The Panel enquired as to how things had been up until that point, and she responded, ‘not good at all.’ She responded that she was ‘barely surviving’ and was not being treated well at work. She said she was very isolated, that her employer was not very caring or compassionate and she was not put on light duties. She responded that her employer ‘wanted to not have anything to do with [her].’

   The Panel enquired as to what she meant by the above statements, and she said that when she went back to the work after the accident, she was placed into a section of work which was high up, right under a plastic roof. She reported she was put in an elevated cage right under the roof where it was forty degrees in summer. She reported that they placed her up there to work by herself. She was not working up there previously as she was working on the warehouse floor. She reported, ‘That’s just how they treated [her].’

   Ms Benderovska reported she had worked at Mainfreight for approximately four years. As there was an implication that Mainfreight perhaps mistreated her, the Panel enquired as to how her employer treated other employees and Ms Benderovska responded that she did not have any idea about others and that she only knew about her own experience. She reported that she ‘wasn’t coping after being hit by a forklift’ and she was put on ‘hardest duties instead of light duties.’ She reported that it was similar work to what she was previously doing, however the conditions were terrible. She reiterated that it was about forty degrees up there and she was sweating. She ended up telling her employer that she was unable to work there anymore. The Panel asked her how long she was working in that part of the warehouse, and she believes she had tried it for up to a week.

   The Panel enquired about previous problems at her workplace, and she said that they were ‘always bullying.’ As examples she described that the managers were not nice, they were very rude and there was ‘an all-round complete lack of care.’ She said this situation ‘carried into being hit by a forklift’ and ‘the treatment afterwards.’ She gave another example of being talked to in a belittling way.

   The Panel enquired more about her workplace and asked how many employees there were in the warehouse, and she responded she did not know. She said the warehouse was ‘absolutely huge’ and that there were ‘probably hundreds of people.’ She said the warehouse contained ‘stock of everything.’ She went on to say that she did not know what the company did. She said she herself worked in a section where they stocked duty-free products for the Sydney Airport, ranging from toiletries to food and alcohol. Her specific role involved loading and unloading boxes and pick-packing.

   HISTORY OF THE SUBJECT ACCIDENT

   Ms Benderovska confirmed the date of accident as 29 November 2017 (seven years prior to the assessment). She reported it was a normal workday. Her working arrangement at the time was she would work full-time, eight hours per day on weekdays, and sometimes work on daytime shifts on weekends for overtime. The shifts would be eight hours in length within 6.00am and 5.00pm.

   With respect to the subject accident, she had some paperwork and had been checking some deliveries that they had received outside of the warehouse and making sure that they had all arrived. She reported she had ticked off the deliveries on her paperwork and was walking back into the warehouse along the pedestrian way, which she described as like a painted footpath, when a forklift hit her from behind.

   The Panel asked what happened then and she said she just remembers falling down and ‘completely blacking out.’ She reported she then got up and went straight to find someone to tell about what had happened. She said there were ‘so many witnesses and nobody helped [her].’ Ms Benderovska told two managers at the time immediately. She reported that she was in a great deal of pain and one of her managers, Kevin, made her sit down and write out an incident report. She said she was in so much pain and ‘he just didn’t care.’ She reported that after that she had a huge lump on her head and again, ‘nobody helped’ her. She reported that Kevin and another manager told her to go and sit in the administrative office, at the front of the office, and she ‘sat at a random desk.’ She remembers there being a lot of people around. She reported that she was ‘in and out of consciousness’ and ‘blacking in and out.’ On a positive note, she reported that a ‘lovely fellow’ tried to come to her aid and ask if she was okay, but others told him to ‘just leave her alone and don’t ask her.’

   Ms Benderovska reported she was in and out of consciousness for a while and then she was ‘picked up and thrown on [her] manager’s shoulders and an admin girl.’ At the time she could barely walk or stand. She was placed in ‘a random car’ and she was driven ‘to a random medical centre.’ She said it was ‘so far way and they left [her] there.’

   The Panel enquired of Ms Benderovska what the doctor’s opinion was, and she said she did not know and does not remember seeing a doctor. She reported that her next memory was that the manager and the ‘admin girl’ told her that they were leaving, and they left her at the medical centre. The admin girl phoned Ms Benderovska’s brother to come and pick her up from the medical centre. They did not give him clear instructions; however, he came to the medical centre. Again, when asked, she did not recall what the doctor told her other than that she should go home, that she was fine, and to take Nurofen. She and her brother went home.

   On the way home, Ms Benderovska’s brother called her manager at work and asked if they had called WorkCover to report the accident. The manager responded that they had not done anything about it yet. Ms Benderovksa reported that her brother ended up calling WorkCover to report it. Ms Benderovska got home and ‘being in shock, tried to rest.’

   HISTORY OF SYMPTOMS AND TREATMENT FOLLOWING THE ACCIDENT

   The Panel enquired about Ms Benderovska’s physical injuries. She reported she had chronic neck pain and had injuries to her spine, her shoulder, her elbow, her foot (which she said was briefly stuck under the forklift), her knee, and her wrist (because she fell hard on the concrete). She also had a pain in her head which she described as migraines or headaches.

   Ms Benderovska reported she never went to the hospital about her injuries. The Panel asked if she saw her regular doctor. She responded that on the day of the accident her regular general practitioner had had a stroke, and she was unable to see them. She did not see another doctor at the time. The Panel asked when she did see a doctor and she oddly responded, ‘They were saying [she] was fine’, however she was still in pain. She did see a female clinician who was some form of physical therapist but only saw her a few times. She saw no one else. She had no operations or injections related to her physical injuries.

   The Panel enquired about any medications prescribed and initially Ms Benderovska said she had no medications. She said however at some time since the accident she had been prescribed antidepressants as well as two different benzodiazepines after her GP, Dr Lachlan returned to work following his stroke. She reiterated that she ‘was in so much pain.’ Ms Benderovska was not able to remember how long after the accident it was.

   The Panel asked about Ms Benderovska’s foot, and she reported that it was still hurting after seven years although it was not fractured. She does not know how long it was stuck under the forklift but believes the tip of her shoe got stuck under the forklift as she went down and came loose as she fell.

   Ms Benderovska reported that she was not currently seeing any psychologists or psychiatrists for treatment. Ms Benderovska reported that since the accident she believes she saw ‘one or two ladies’ including a neuropsychologist, Nicola Gates. She also has seen Dr Teoh, a psychiatrist briefly for treatment.

   The Panel asked Ms Benderovska how her physical injuries had progressed over the seven years since the accident, and she reported they had ‘stayed the same.’ She has chronic pain which is always there and reported that she does not do much and she just stays at home. She said she does not do anything to make her pain worse.

   The Panel asked what limitations her physical injuries placed on her and she said she has trouble turning her head and that raising her arm up is very difficult. She said her back pain is annoying and chronic. She said her neck and shoulder always feel like they are grinding.

   The Panel asked Ms Benderovska if she had any physical limitations with respect to showering, dressing and grooming. Her response was that she ‘will have mum kind of tell [her] to have a shower.’ She said she can physically get in and out. When asked why her mum was telling her to have a shower, she said she just does not feel like it. She said she is ‘so sad all the time.’ She reported when asked, that hot showers did not help her pain.

   With respect to housework, Ms Benderovska’s mother will usually do tasks for her, such as housework, dishes or making snacks. She said she does not do much at all. She will watch television, such as videos on the internet, for a short while and said that she ‘pretty much [does] what everyone else does at home, just relaxing.’

   Ms Benderovska reported she has no friends and is not in a relationship. Her last relationship was ‘some time before the accident.’ She said she does not even know when. She said it was ‘so long ago.’ At this point the Panel crosschecked with Ms Benderovska a note in the GP record around June 2018, at which time Ms Benderovska presented to her GP with her partner and that they were planning to have a child. Ms Benderovska’s response was that she does not ‘even recall [that].’ The Panel asked Ms Benderovska what she thought was wrong with her memory and she said that she does not know.

   Ms Benderovska reported that she is not receiving any other treatment, she is not making any moves towards recovery, her world is stuck, and she is ‘not doing anything.’ She said she never leaves home and has no reason to, nor does she want to.

   The Panel asked Ms Benderovska if there were any mental health or emotional symptoms following her accident with the forklift and she said that she was struggling to read and write and remember things. She said she would get a letter in the mail but was unable to read it properly. She would read a paragraph, and her mother would have to explain it to her. She went on to say, ‘everything was because of the forklift accident.’ She declared that she was a happy person before and then said, ‘the negligence that has come from how Mainfreight has treated [her].’ She reiterated that she was ‘put in this cage.’ The Panel asked about whether she had a medical certificate at the time and whether she was on light duties and she said that she could not remember, but thinks that she would have been on a medical certificate.

   The Panel asked Ms Benderovska if she had any other symptoms of concern, and she responded that she had a high level of pain and that all of her body was in pain and stiff. She also ‘felt like a sense of worthlessness after being hit.’ She also ‘felt so isolated because they just showed such negligence.’ She reported that her employer told her she had never been hit by a forklift and there was no footage of this. She said her employer ‘called [her] a liar for so long.’ She said her employer was the one perpetrating lies, saying for example that the accident did not happen and that they did not have the footage. Eventually they admitted to having some footage. Ms Benderovska assumed ‘everyone must have been too scared to speak up.’ She reiterated the theme that she had been ‘treated like you are the criminal.’

   Ms Benderovska also reported that she had ‘constant flashbacks.’ She said this was ‘of being hit by the forklift.’ She said it still happens to this day. She said all of a sudden, she will have ‘little flashbacks of the incident’ and her employer ‘throwing [her] in a random car.’ She reminded the Panel that her employer did not allow her colleagues to ask if she was okay. She interestingly said she has ‘flashbacks of the absolute negligence.’ The Panel enquired about the nature of her flashbacks, and she responded that they were from her own point of view, for example being on the shoulder of her manager and the admin girl and being put into the car. She added that this was instead of taking care of her or calling an ambulance. She reported she has flashbacks of being on the floor, on the concrete. She said she ‘was in such a vulnerable, scary state and nobody was helping [her].’

   The Panel asked if she experienced any sadness after she was struck by the forklift and she responded she was sad about the treatment she was receiving and the fact that her employer had an unlicenced forklift driver at the time. She also added that her employer fired this forklift driver after the accident.

   The Panel enquired as to whether Ms Benderovska was predominantly angry (as this appeared to be her presentation at assessment) and she said that the whole thing was very upsetting. She reported that she had lost so much of her youth due to this situation and that their ‘negligence is unbelievable.’ Ms Benderovska went to say that with respect to her employer’s negligence, ‘it is absolutely disgusting, especially in this day and age.’ She referred to their behaviour being disgusting on a number of occasions including their covering-up of the situation. She went on to say that being in her position is very scary and again referred to being hit by a forklift.

   The Panel asked Ms Benderovska why she feels she has not moved on in the last seven years and she responded that she had been ‘injured for a very long time.’

   The Panel asked Ms Benderovska what happened after the incident, and she responded that her employer wanted to name a video ‘Dumb Ways to Die.’ She went on to say that she was the victim, that she was severely hurt, and she did know what else to say to us. She said at the age of twenty-three her world was turned upside down and she is now ‘in a massive lawsuit.’

   Ms Benderovska reported that at least she has her family for help, however ‘they were appalled at what happened.’ She said her family are there for her and they comfort her.

   Given the constant theme of injustice and negligence, the Panel asked Ms Benderovska what she believed should have been done differently and she responded that her employer should have called an ambulance, called WorkCover straight away, not put her in a cage at fifty degrees, and not isolated her. She also believed that her employer should not have named a video of her ‘Dumb Ways to Die’, nor should they have been utilising an unlicenced forklift driver. She said she ‘could have been killed.’ She told the Panel that she was walking on the pedestrian markings, she was struck from behind and did not see the forklift coming.

   Ms Benderovska, when asked, reported that she had not looked for any work since the accident and she was not receiving any income, including no Centrelink payments and no insurance payments. The Panel asked if this had been the case for seven years and Ms Benderovska responded that she had received compensation payments however these ceased ‘a long time ago’, over a year ago. We therefore confirmed that she had been receiving WorkCover payments for five or six years, since 2018. She added that her employer was also using up her annual leave from the day after the accident. She said at the time of the accident she had a few weeks off and then returned to full-time hours. She said she tried her best. She reported that later on, she reduced her working days and ‘every month it was even more.’ She said she had migraines and headaches and was unable to maintain a full week of work and  would takes days off because she was tired. She again reported that she ‘in so much pain.’ She said she does not remember if she got paid for those days which she took off. She reiterated that she was in so much pain, had migraines, headaches and was unable to stand-up.

   Ms Benderovska reported that after she came back to work, she was put near the roof space as her first job after the forklift accident. She was then placed where she was originally working on the warehouse floor which was not as hot and much better. She found it much easier to breathe at work, however she was still struggling. She said work involved her being on her feet all day and there was not much time to grab a drink or have a break. She was also struggling with wearing steel capped work boots. She said again said that she was trying her hardest.

   PSYCHIATRIC HISTORY

   The Panel enquired of Ms Benderovska whether she had ever had any history of mental health problems, including anxiety and depression. She responded no. We crosschecked the mention in 2014 in the notes of having been prescribed an antidepressant and she said she had ‘no idea’ about that and ‘did not know where that’s from.’

   The Panel enquired of Ms Benderovska about the experience of a previous motor accident also noted in the documents and she guardedly responded that she ‘would rather not say.’ Ms Benderovska was not open to further enquiry about this matter.

   The Panel also enquired about Ms Benderovska’s workplace prior to having had the incident with the forklift and she said it was ‘not a well organised section.’ She reported that the employees were not treated very well. The Panel enquired about details of the workplace that involved her making recordings and wishing to call the police (as indicated in the notes of a general practitioner which she had attended with her mother). She responded that she could not remember this. She said she cannot explain why she cannot remember these things. The Panel asked whether Ms Benderovska thought that her recollections were accurate when she did have memories and she responded, yes.

   CONSISTENCY

   Often times Ms Benderovska would respond to questions with a response indicating she could not remember the details. This was somewhat frustrating for the Panel as she had clear recollections of other details of her history. At other times, rather than answering the question asked of her, Ms Benderovska would return to themes of injustice, negligence and having been poorly treated by her employer.

   On a specific note, whilst having the CCTV footage available to us, we crosschecked with Ms Benderovska her history of the accident. She reiterated that she was hit from behind and that she was walking along the pedestrian walkway. As we viewed the video which clearly indicated she walked across and perpendicular to the pedestrian safety walkway and in fact walked front on into the forklift as the rear was turning towards her, and described this to Ms Benderovska, she vehemently said that she did not walk into the forklift (in fact she said this three times) and that the forklift hit her from behind. She denied that she walked face first into the forklift, despite us reminding her of what I was looking at on a number of occasions. She was not able to be shifted from her statements that the forklift hit her from behind.

   MENTAL STATE EXAMINATION

   Ms Benderovska was seen via audio-visual link. She had very long, brown hair and appeared to wear no overt make-up. She wore a black long-sleeve t-shirt. She had a Caucasian appearance. Her speech was essentially normal and had an increased rate and volume when she appeared frustrated. She displayed no abnormal movements. She was teary at times and her presentation had a flavour of pathos. She gave vague and variable answers and often responded, ‘I don’t remember’, to simple questions. Her affect was reactive though dominated by her dysphoria and she did not appear to be psychomotor retarded. There were no obvious perceptual abnormalities noted. Her cognition appeared reasonable in the context of the assessment despite her stated lack of memory of a number of events. It was difficult to assess her insight and judgement given the nature of her presentation. Rapport was limited at best, reflecting her perception that she was not believed.

   SUMMARY

   Ms Benderovska appears to have a Somatic Symptom Disorder, persistent, and with predominant pain. It has been seven years since her injuries, and she reported no change in them over time. She is essentially receiving no treatment. She has had very little in the way of mental health treatment since the accident. Her presentation was not consistent with a diagnosis of Post Traumatic Stress Disorder because objective evidence such as CCTV footage demonstrated that the accident did not conform to a Criterion A event as per the DSM-5-TR criteria.

   Ms Benderovska satisfies diagnostic criteria for Somatic Symptom Disorder under DSM-5-TR, as she has:

   One or more somatic symptoms that are distressing or result in significant disruption of daily life (Criterion A).

   Excessive thoughts, feelings, or behaviours related to the somatic symptoms or associated health concerns as manifested by at least one of the following: (Criterion B)

   1.Disproportionate and persistent thoughts about the seriousness of one’s symptoms.

   2.Persistently high level of anxiety about health or symptoms.

   3.Excessive time and energy devoted to these symptoms or health concerns.

   Although any one somatic symptom may not be continuously present, the state of being symptomatic is persistent (typically more than 6 months). (Criterion C)

   Ms Benderovska’s complaints have been predominantly about pain, and have been persistent (DSM Specifiers).

   The Panel considered also that Ms Benderovska developed an Adjustment Disorder following the forklift incident.

   She satisfies DSM 5 diagnostic criteria for Adjustment Disorder following the forklift accident in the following ways:

   She developed emotional and behavioural symptoms in response to an identifiable stressor within three months of that stressor (the accident and subsequent pain from her physical injuries) (Criterion A). These symptoms have caused marked distress that could be considered out of proportion to the severity or the intensity of the stressor and have caused significant impairment in social, occupational and other areas of functioning (Criterion B). Ms Benderovska’s symptoms and mental health problems do not meet the criteria for another mental disorder and do not appear to be an exacerbation of a pre-existing mental disorder. While there was evidence in the documentation that she may have had prior psychological issues, it was not clear that these were active at the time of the accident (Criterion C). Ms Benderovska’s symptoms do not represent normal bereavement (Criterion D). The significant perpetuating stressor, Ms Benderovska’s ongoing pain which limits her functioning in most areas of her dally living activities, persists and as such she has ongoing psychological symptoms (Criterion E). Ms Benderovska’s experience of symptoms would be best described as Mixed Anxiety and Depressed Mood (a DSM specifier).

   Ms Benderovska’s reported narrative and presentation at assessment was consistent with a diagnosis of an ongoing Persistent Depressive Disorder (Dysthymia) with anxious distress.

   She satisfies DSM 5 diagnostic criteria for Persistent Depressive Disorder in the following ways:

   Depressed mood for most of the day, for more days than not, as indicated by subjective account or observation by others, for at least 2 years (Criterion A).

   Presence while depressed, of two or more of the following: (Criterion B)

   ·Poor appetite or overeating

   ·Insomnia or hypersomnia

   ·Low energy or fatigue

   ·Low self-esteem

   ·Poor concentration or difficulty making decisions

   ·Feelings of hopelessness

   During the 2-year period of the disturbance, Ms Benderovska has never been without symptoms from the above two criteria for more than 2 months at a time (Criterion C).

   Ms Benderovska may have had Major Depressive Disorder concurrently (Criterion D).

   There has never been a manic episode, a mixed episode, or a hypomanic episode and the criteria for cyclothymia have never been met (Criterion E).

   The symptoms are not better explained by a psychotic disorder (Criterion F).

   The disturbance is not due to the direct physiological effects of a substance (e.g., a drug of abuse or a medication) or a general medical condition (Criterion G).

   The symptoms cause clinically significant distress or impairment in important areas of functioning (Criterion H).

   With respect to causation, it would appear that the Somatic Symptom Disorder and the Adjustment Disorder were caused by the incident with the forklift. The Somatic Symptom Disorder is ongoing. (Note that Somatic Symptom Disorder is not assessable as a permanent impairment using the PIRS.)

   The Panel’s opinion was that Mr Benderovska’s ongoing Persistent Depressive Disorder developed following the incident where she was informed that a training video utilising the CCTV footage of her accident was to be shown to other employees. Other factors contributing to the emergence of her persistent depressive disorder were her perception of her workplace as uncaring, unsupportive, and unwilling to call an ambulance or to contact WorkCover in relation to her accident.

   WHOLE PERSON IMPAIRMENT

   From the information available to the Panel, we considered that there was no pre-accident psychiatric diagnosis and no pre-accident permanent impairment.

   PERMANENT IMPAIRMENT RELATED TO THE SUBJECT ACCIDENT

   ASSESSMENT OF WHOLE PERSON IMPAIRMENT FOLLOWING THE FORKLIFT ACCIDENT

Psychiatric diagnoses	1. Adjustment Disorder with mixed anxiety and depressed mood.	2.
	3.	4.
Psychiatric treatment description	Nil

Category	Class	Reason for Decision
1.  Self-Care and Personal Hygiene	1	Minor deficit attributable to the normal variation in the general population. The Panel’s understanding was that Ms Benderovska continued to present to work and was able to attend to personal hygiene and dress herself. She reported she was having some days off due to physical symptoms and fatigue, however this was not relevant with respect to assessing self-care and personal hygiene.
2.  Social and Recreational Activities	2	Mild impairment Ms Benderovska reported she felt isolated and felt uncomfortable interacting with some others at her workplace. There were some physical limitations with respect to her social and recreational activities, however these are not considered in this assessment. The Panel is not aware of any evidence indicating she has a higher than class 2 impairment in this category.
3.  Travel	1	Minor deficit attributable to the normal variation in the general population. Ms Benderovksa continued to be able to travel to work and there were no reported issues with respect to her ability to travel independently, therefore this is a class 1 impairment.
4.  Social Functioning	1	Minor deficit attributable to the normal variation in the general population. Ms Benderovska was in a relationship at the time of the accident and for at least the subsequent six months (although she has no recollection of this despite their documented intention to have a child). She has reported consistent close and supportive relationships with her family, consistent with class 1 minor deficit.
5. Concentration, Persistence and Pace	2	Mild impairment There were physical limitations in Ms Benderovska’s ability to continue working full-time (she referred to needing to take days off due to headaches, migraines and fatigue). Despite this, she continued to be able to drive to and from work and perform her work role without any known objective difficulties. Utilising clinical judgement, this is consistent with, at worst, a class 2, mild impairment.
6.  Adaptation	2	Mild impairment Ms Benderovska reported that she was taking some days off to deal with her physical symptoms and fatigue (not considered in this assessment). Notwithstanding this, there was likely some mild degree of impairment based on her symptoms of Adjustment Disorder, which in the Panel’s opinion, utilising clinical judgement, was consistent with a class 2 mild impairment.
List classes in ascending order:   1 1 1 2 2 2
Median Class Value: 2
Aggregate Score: 9
% Whole Person Impairment:  4%

*%WPI ^{= Percentage Whole Person Impairment}

Therefore, whole person impairment for the period following the forklift accident was 4%.

CURRENT WHOLE PERSON IMPAIRMENT

Psychiatric diagnoses	1. Persistent Depressive Disorder with anxious distress.	2.
	3.	4.
Psychiatric treatment description	Nil

Category	Class	Reason for Decision
1.  Self-Care and Personal Hygiene	3	Moderate impairment Based on Ms Benderovska’s report, she is doing little with respect to domestic chores or looking after herself, relying on her family members. She reported low motivation with respect to showering and grooming and reported that her mother will remind her to perform these tasks. This is consistent with a class 3, moderate impairment.
2.  Social and Recreational Activities	3	Moderate impairment Ms Benderovska reported little in the way of social or recreational activities. At home she will watch television. Although Ms Benderovska offered little information with respect to this category, utilising clinical judgement, her current status is most likely consistent with a class 3, moderate impairment.
3.  Travel	3	Moderate impairment From Ms Benderovksa’s reported narrative she reported doing little and leaving the house infrequently. With the limited information available to the Panel, it was most likely she has a class 3, moderate impairment.
4.  Social Functioning	2	Mild impairment Ms Benderovksa reported close and supportive relationships, without strain, with her family members. She reported not being in a relationship, but was not able to remember her last relationship and reported that it had ended well before the forklift accident. Presumably, Ms Benderovska had lost some friendships. Utilising clinical judgement, her impairment was consistent with a class 2, mild impairment.
5. Concentration, Persistence and Pace	2	Mild impairment Ms Benderovska concentrated well for the protracted assessment (of approximately one hundred minutes’ duration). She also reported that she watches television at home. Much of her limitation in this area would be due to perceived pain and ongoing physical limitations, however these are not taken into account in this assessment. Utilising clinical judgement, there is a class 2, mild impairment.
6.  Adaptation	5	Totally impaired Ms Benderovska has not worked for seven years, nor has she looked for any work. Based on her narrative, the Panel considered, on balance, that she has a class 5, total impairment.
List classes in ascending order:   2 2 3 3 3 5
Median Class Value: 3
Aggregate Score: 18
% Whole Person Impairment:  22%

*%WPI ^{= Percentage Whole Person Impairment}

Current whole person impairment is 22%

The Panel determined that the claimant had an overall 22% whole person impairment of which 4% had arisen in the months following the forklift accident with a further 18% impairment arising from the subsequent Training Video Incident. At the time of the Training Video Incident, the Claimant was in a vulnerable condition because of her Somatic Symptom Disorder with Predominant Pain and her Adjustment Disorder. The available evidence indicates considerable aggravation arising from Training Video Incident against the backdrop of a difficult relationship with her employer, whom she perceived to have failed to support her at the time of the original accident and, who subsequently treated her poorly and whom she considers to be ‘negligent’ and ‘disgusting’ in its management of her injury. The Training Video Incident greatly aggravated her perceptions of her employer and the Panel noted her emotionally intense response to being told that footage of the event would figure in a video entitled ‘Dumb Ways to Die’. The Panel considered whether apportionment across the two incidents was warranted but determined that this was not the case because of her heightened vulnerability at the time of the accident and because the Training Video Incident while not in itself connected with the operation of the motor vehicle could not be entirely separated from the forklift accident. The Panel considered that while a number of factors not directly related to the accident contributed to aggravation arising from the Training Video Incident, the accident had made the claimant subsequently more vulnerable because of her Somatic Symptom Disorder combined with her adjustment disorder and thus made a substantial contribution (ie, one which was more than negligible) to her later injury.”

RELEVANT LEGISLATION

Assessment of permanent impairment

1. The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Permanent Impairment Guidelines.[10]

   [10] See section 44 of the Motor Accidents Compensation Act 1999.

2. Motor Accident Permanent Impairment Guidelines (Effective from 1 June 2018) (2018 Guidelines) applies to the Review. Psychiatric Impairment is assessed under the heading “Mental and behavioural disorders” and commence from page 44. These Guidelines apply to motor accidents that occurred between 5 October 1999 and 30 November 2017.

Causation – general provisions

1. Causation is dealt with at clauses 1.5-1.7 of the Guidelines. Those clauses state:

   “1.5   An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 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 the Personal Injury Commission) 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 biological 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 the worsening of the impairment, which is a medical determination.

   2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination

   This, therefore, involves a medical decision and a non-medical informed judgement.”

1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question “Would this injury (or impairment) have occurred if not for the accident?” may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.

1. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D which provides:

   “(1)    A determination that negligence caused particular harm comprises the following elements-

   a.That the negligence was a necessary condition of the occurrence of the harm (factual causation), and

   b.That it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

   (2)    …

   (3)    …

   (4)    For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

Subsequent injuries

1. For subsequent injuries, clause 1.34 of the 2018 Guidelines applies: “when impairment in the same region… has occurred subsequent to the relevant motor accident”. In this situation:

   “(1)    If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, the value of the permanent impairment is to be calculated; and

   (2)    The value of the permanent impairment resulting from the relevant motor accident is also to be calculated.”

FINDINGS

1. The Review is a new assessment of all matters with which the medical assessment is concerned.

2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[11] and Insurance Australia Ltd v Marsh.[12]

   [11] [2021] NSWCA 287.

   [12] [2021] NSWSC 619.

3. The Panel adopts the joint examination report of Medical Assessors Jones and Canaris supplemented by the following further reasons.

Causation – relevant principles

1. The Panel notes that causation of injury was discussed in the Panel re-examination report. However, the Panel considered it necessary to address causation in more detail due the complexities associated with the test to be applied and to address the matters raised in the parties’ submissions. Moreover, causation was considered an important if not critical issue to be determined in the Review.

2. This was a challenging matter for the Panel. The factual matrix was complex, with the subject accident occurring at work and a significant subsequent event, some nine months later, with both occurring during a period early in the claimant’s career within a work environment where she had a perception of being bullied. There were also legal concepts that the Panel needed to be cognisant of – the general provisions referred to above and the common law associated with injury caused by a subsequent incident.

3. The Panel also considered the judicial cases of Gonzales and Pham, both of which involved an attempt to bridge the gap between the driving of the vehicle and a subsequent event so as to ensure the continuity of the motor accident-related chain of causation.

4. The Panel was of the view the facts of Gonzales and Pham differed to those of the present case. There was no dispute that the forklift accident was a motor accident, and the Training Video Incident was a subsequent event that did not involve the use or operation of a motor vehicle. The Panel therefore cannot accept the insurer’s argument that the facts of Gonzales and Pham directly apply to the present case.

5. The Panel did, however, consider Gonzales and Pham stood for examples of how a subsequent unrelated event could cause separate or additional damage to the claimant. Whether the damage is separate or additional is an important distinction and brings the Panel’s attention to the claimant’s submissions.

6. The claimant’s submissions refer to the Oakley case which appears to be the accepted legal authority for the principles to be considered for injuries and impairment that result from a subsequent event. The Panel notes that the insurer does not address the Oakley principles in its submissions.

7. Those principles were set out in the judgement of Malcolm CJ in State Government Insurance Commission v Oakley (1990) 10 MVR 570:[13]

   “(1)    Where the further injury or impairment results from a subsequent incident, which would not have occurred had the claimant not been in the condition caused by the earlier motor accident, the added damage should be treated as caused by the earlier motor accident. In this situation, par 1.34 is not engaged because the ‘injury or condition’ is not ‘unrelated’.

   (2)    Where the further injury or impairment results from a subsequent incident, which would have occurred even if the claimant had not been in the condition caused by the earlier motor accident, but impairment is sustained or is greater because of aggravation of the earlier injury, the additional impairment resulting from the aggravated injury should be treated as caused by the earlier motor accident.

   (3)    Where the further injury or impairment results from a subsequent incident, which would have occurred even if the claimant had not been in the condition caused by the earlier motor accident, but the impairment sustained includes no element of aggravation of the earlier injury, the subsequent incident and further impairment should be regarded as causally independent of the earlier motor accident.”

   [13] (1990) 10 MVR 570 at 67,577.

8. In Slade v Insurance Australia Ltd t/as NRMA,[14] Wright J distinguished the application of the first Oakley category with that of the second and third categories as follows:

   “…The first Oakley category concerns events or accidents that would not have occurred but for a previous relevant event in which the claimant had been injured. Thus, the first category applies to a ‘related’ injury or condition. The second and third Oakley categories, however, concern injuries resulting from a subsequent event that ‘would have occurred had the plaintiff been in normal health’, which is, in other words, an ‘unrelated event’ that leads to ‘subsequent and unrelated injury’ within the meaning of par 1.34. The subsequent event and the associated injury or condition is ‘unrelated’ because that event was not brought about by, or causally related to, the claimant’s condition as a result of the earlier accident.”

What were the injuries following the subject “forklift” accident?

[14] [2020] NSWSC 1031 (7 August 2020) at [90].

1. “Motor accident” is defined in s 3 of the Motor Accidents Compensation Act 1999 Act relevantly as “an incident or accident involving the use or operation of a motor vehicle that causes injury to a person where the injury is a result of and is caused during – (a) The driving of the vehicle.”

2. There is no dispute that the claimant was involved in a “motor accident” when she was hit by a forklift while performing her duties at work. Indeed, it is not considered the role of the Panel to determine whether an incident falls within the statutory definition of a motor accident (AAI Limited v State Insurance Regulatory Authority of New South Wales).[15]

   [15] [2016] NSWCA 368.

3. The Panel acknowledged that the claimant had a less than cordial relationship with her workplace. The claimant had perceived notions of three years of workplace bullying, lack of proper care provided at the time of the forklift accident, her perception of being persecuted because of her workers compensation claim and being put in a situation with intolerable work conditions while she was in “suitable employment”.

4. In plain terms, there was an ongoing dysfunctional relationship between the claimant and her employer such that it made the claimant vulnerable to psychological or psychiatric damage, even though there was no recognised psychiatric diagnosis or impairment before the forklift accident.

5. The forklift accident, while shown on the CCTV footage video to be at low speed causing minor physical injuries, the Panel was not of the view that psychiatric injury could not ensue. The accident occurred while the claimant was a pedestrian, seemingly performing work-related duties when a forklift ran into her, knocking her to the ground. The claimant had physical injuries which she was not coping with and later developed into psychological sequalae.

6. The claimant attended her GP immediately following the forklift accident where it is documented that she sustained physical injuries to her head, neck, back and right foot. In the weeks that followed, her GPs Drs Lieng and Looi recorded symptoms of headaches, tiredness, concentration issues and fatigue.

7. The medical members of the Panel, have detailed the application of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) in the above report and found that the claimant suffered from a Somatic Symptom Disorder and Adjustment Disorder following the forklift accident. These diagnoses were considered causally related to the forklift accident because even though there were factors that increased the claimant’s vulnerability to damage, namely the workplace factors and the claimant’s pre-accident history, the Panel could not discount the forklift accident as being a contributing cause, which was more than negligible (to apply and use the words of clause 1.7 of the Guidelines).

Did the psychiatric injuries/diagnoses from the subject forklift accident resolve or cease before the subsequent Training Video Incident?

1. The subsequent Training Video Incident occurred some nine months after the subject forklift accident.

2. In the months following the forklift accident, the clinical records of Dr Looi noted a significant degree of improvement in the claimant’s psychiatric symptoms. There was an entry on 4 June 2018 of an attendance for a pregnancy planning assessment and a note on 26 June 2018 that her memory was “better”.

3. While the Panel agrees with the insurer’s submission that there is clear improvement in the claimant’s psychiatric symptoms in the few months before the Training Video Incident, the Panel was not of the view the symptoms had completely resolved. The claimant had returned to work only two to three weeks after the subject forklift accident and did not have any meaningful treatment for her psychiatric symptoms. She continued to work in the workplace where the injury occurred and was suffering from psychological symptoms secondary to the pain from her physical injuries and the Somatic Symptom Disorder. The Panel noted in this context the history she provided in relation to her condition following the accident comprising chronic neck pain and injuries to her spine, her shoulder, her elbow, her foot (which she said was briefly stuck under the forklift), her knee, and her wrist (because she fell hard on the concrete) as well as pain in her head which she described as migraines or headaches. It noted that the claimant said that the symptoms had not changed or abated over seven years while also noting references in the clinical documentation such as the notes of Dr Looi to her physical symptoms prior to the Training Video Incident.

1. On the evidence, the Panel was of the view that the Somatic Symptom Disorder was ongoing and the Adjustment Disorder, while significantly improved, was still lingering at the time of the Training Video Incident.

What were the injuries following the subsequent Training Video Incident?

1. At the time of the subsequent Training Video Incident, the Panel’s re-examination report details the findings and reasons behind finding that the claimant suffered from a Persistent Depressive Disorder. This condition is ongoing and was present at the time of the Panel re-examination.

2. The Panel was of the view that the Oakley Principles applied because the Training Video Incident is considered a subsequent event causing injury and impairment.

3. The Panel felt an analysis of the Oakley principles was required because there could be an argument mounted for the applicability of all three Oakley categories based on the facts of the present case and the parties’ submissions.

4. The Panel was of the view Oakley Category 1 applies because if it wasn’t for the subject forklift accident, the surveillance footage would unlikely be used for the purpose of the training video. It would follow that there would not be any Training Video Incident. As detailed in the Panel re-examination report, the subject forklift accident caused damage to the claimant in the form of the development of an Adjustment Disorder and a Somatic Symptom Disorder which was affecting the claimant at the time of the subsequent Training Video Incident. As the Training Video Incident involved subject matter concerning the subject forklift accident, the Panel found there to be a causal relationship between the two incidents. The connection is a material one and notwithstanding the other contributing factors to the claimant’s susceptibility for suffering damage, or her resistance to recovery from the subject forklift accident, namely the underlying workplace factors present throughout the history of the matter.

5. Even if it could be argued that the Training Video Incident was so motivated by factors outside of any connection to the subject forklift accident so as to constitute an “unrelated event” causing damage (Oakley Category 2), the Panel could not overcome the hurdle of the subsequent incident causing an aggravation of the claimant’s injuries. The Panel viewed that the Adjustment Disorder and Somatic Symptom Disorder was capable of predisposing the claimant to the emergence of a Persistent Depressive Disorder. The fact that the claimant continues to suffer the Persistent Depressive Disorder at the time of the Panel re-examination, some 6.5 years after the Training Video Incident, shows that the incident did have a lasting effect on the claimant’s psychiatric functioning. Causation according to Oakley Category 2 would therefore also be satisfied.

6. While the above analysis should explain why Oakley Category 3 cannot apply, for completeness, the Panel will address why it cannot apply. The Panel’s above finding is that the subsequent Training Video Incident caused additional damage to the claimant and only existed because of the subject forklift accident. As such, the Training Video Incident was related to the subject forklift accident and Oakley Category 3 cannot apply.

7. Even if could be argued that the Training Video Incident was an unrelated event, the Panel was of the view that it caused an aggravation of the claimant’s motor accident-related injury. Such an aggravation progressed into a Persistent Depressive Disorder that would not have otherwise occurred had the claimant not been injured in the subject motor accident.

8. The claimant’s impairment should therefore be calculated on how she presented at the time of the Panel re-examination and it is neither appropriate or necessary for any separate calculation to be made under clause 1.34 of the Guidelines.

Pre-existing impairment

1. The Panel noted the entries in Dr Looi’s clinical notes referring to the previous motor accident, workplace bullying, childhood depression and self-harm thoughts. The Panel put these to the claimant however the claimant either responded with she did not know or did not want to talk about it. The Panel was of the view that while there were pre-existing issues, there was insufficient objective information to make a psychiatric diagnosis in order to estimate any pre-existing permanent impairment.

CONCLUSION

1. The claimant’s WPI as a result of the motor accident is 22% and is greater than 10%. The Panel’s impairment value findings were similar to Medical Assessor Shen’s but its findings on causation and subsequent injury/condition were different. The Panel therefore revokes the certificate of Medical Assessor Shen and issues a new certificate in accordance with the Panel’s above findings and reasons for assessment.

APPENDIX

SUMMARY OF REVIEW OF DOCUMENTATION

Certificate of Medical Assessor Cameron

Found soft tissue injuries to multiple body regions including the head, cervical spine, lumbar spine, right shoulder, right hip, right knee, right foot and right ankle. Did not consider the claimant to have suffered a traumatic brain injury. Permanent impairment was assessed at 0% WPI.

Medico-legal reports

Claimant

Dr Nicola Gates, psychologist, report dated 19 December 2019. Interview was difficult as the claimant did not engage. Claimant presented with severe psychiatric symptoms and hopelessness. Felt that the claimant’s sense of hopelessness impacted her engagement and receptiveness to strategies to manage her anxiety symptoms. Responses were “exaggerated” and suggestive of a “cry for help”. Suggested inpatient admission into a youth mental health team to allow for a full psychiatric evaluation.

Dr Peter Klug, psychiatrist, report dated 8 October 2020, 12 April 2021, 6 May 2021, 7 April 2022. Diagnosed “chronic post-traumatic stress disorder with marked dissociative features and a probably comorbid depressive illness”. Dr Klug noted that the claimant was sufficiently functional to return to work within a month of the motor accident and remained there until August 2018 when she was shown the training video. Dr Klug stated that the cause of the PTSD “is the initial injury and then the re-exposure to the CCTV footage of the accident…” Impairment evaluation was 54% WPI.

Dr Kym Boon, Pain Medicine Physician & Psychiatrist report dated 17 March 2022. Diagnosed Adjustment Disorder with mixed anxiety and depression as a result of the forklift accident. Dr Boon stated “In the setting of stressful adverse work conditions such as occurs with persistent bullying and invalidation, and ongoing symptoms of pain, distress, concentration and cognitive issues, Ms Benderovska was primed to suffer adverse effects of shock, distress, humiliation, trauma after the training video incident. This triggered an exacerbation of psychological distress, psychobiological arousal, trauma-spectrum conditions with dissociation and perpetuation of pain.” Dr Boon was of the view that the injuries sustained are causally connected with the subject workplace incident of 29 November 2017 and subsequent workplace incident of August 2018.

Dr David Rosen, Neurologist, report dated 14 August 2020, 19, April 2021.

“She told me that “…they wanted to show people my accident…” She said she told them not to, and “…they wanted to name the video Dumb ways to die… and then I told mum… when I went home …and she was shocked they did that…” “…They wanted to show me the film and I told them not to… I was too scared to watch it…” “…They wanted to show it to me like it was nothing… Like nothing ever happened… Like it was a joke…” (at paragraph 97 of report dated 14 August 2020).

Dr Rosen felt that the claimant sustained a mild traumatic brain injury as a result of the subject motor accident. Following the accident, the claimant had symptom clusters consistent with persisting PCS (predominately headaches with migrainous features and affective / mood dysfunction with some evidence for symptoms and signs of mild cognitive dysfunction). This was ongoing albeit in all likelihood slowly improving until August 2018.  Dr Rosen stated that “the natural history of mild traumatic brain injury in the absence of complicating factors is for gradual recovery without demonstrable sequelae or permanent impairment in the overwhelming majority of patients by two years post injury”. He stated that it is likely that Ms Benderovska would have continued on a similar trajectory for recovery but for the traumatic incident in August 2018.

“In any case according to Ms Benderovska immediately after this incident (which I would classify as a second injury) on becoming aware of the video her post-concussion condition suddenly deteriorated with worsening headaches, neck and shoulder pain and very significant mood dysfunction leading to social withdrawal. She ceased work and she has not worked since. I presume the relapse in Ms Benderovska’s PCS was triggered by this event. Thereafter she attended Dr Laughlin) a third GP she has seen since the injury and the one she continues to consult).” (at paragraph 188 of report dated 14 August 2020).

Dr Rosen concluded as follows:

“…despite continuing to work in her usual role after the index injury, there is good evidence that Ms Benderovska sustained a mild traumatic brain injury in November 2017 in the wake of which she developed a PCS (headaches, symptoms of cognitive and psychological impairment and borderline performance of a screening test for cognitive function), whose symptoms were continuous and possibly improving from the time of the index injury until August 2018, when in my opinion she suffered a psychological trauma that aggravated the initial injury and complicated her recovery.” (at paragraph 190 of report dated 14 August 2020).

“The results of the MoCA and other elements of the neurological examination cannot be interpreted due to the overriding effects of psychological pathology. A follow up neurological examination when her psychological condition improves would be helpful to determine the nature and severity of residual neurological impairment if present from the index injury.” (at paragraph 206 of report dated 14 August 2020).

“She was unwell at the time of her first medical assessment on the day of injury with an early PCS and never fully recovered by the time she experienced a psychological trauma in August 2018 followed by a significant deterioration in the PCS.” (at paragraph 220 of report dated 14 August 2020).

No WPI assessment was provided because the claimant had not reached maximal medical improvement.

Dr Rosen provided a supplementary report dated 19 April 201 where he was requested by the claimant’s solicitor to review and comment on the report of neurologist Dr O’Sullivan dated 20 January 2021 and commissioned by the insurer.

Ms Natala Cogger, Occupational Therapist, dated 14 April 2021. Report noted.

Insurer

Dr Dudley O’Sullivan, Neurologist, reports dated 20 January 2021, 31 March 2021.  Could only perform a limited neurological assessment. Found no traumatic brain injury or neurological abnormality and opined that the claimant’s “entire illness is purely psychiatric”.  Diagnosed abnormal illness behaviour and could not relate the claimant’s behaviour to the motor accident.

Dr Graham Vickery, Psychiatrist, dated 25 January 2021, 24 February 2021. Limited examination (30 minutes). Opined that the claimant was malingering as she was able to questions but presented as not being able to do so. At the telehealth assessment on 24 February 2021, Dr Vickery re-interviewed the claimant and reviewed the documentation before providing a diagnosis of Somatic Symptom Disorder or that the claimant was malingering.  He felt that the claimant satisfied the DSM-5 criteria of Somatic Symptom Disorder because there were prominent somatic symptoms associated with excessive health concerns which gave rise to significant psychopathology and functional impairment. Dr Vickery concluded that the Somatic Symptom Disorder was not due to the motor accident but was an injury involving multiple psychosocial biomedical factors.

Ms Susan Smith, Occupational Therapist, dated 12 March 2021. Report noted.

Treating evidence

WorkCover NSW – Certificate of Capacity dated 29 November 2017 – Head injury. Got knocked by forklift. Panadol, ice pack, rest. Dr Tom Lieng.

Dr Tom Lieng dated 26 June 2018 – neurology referral Dr Samuel Kim.

Dr Samuel Kim, Consultant Neurologist report to GP Dr Looi dated 29 June 2018. Agree with Dr Looi that it is highly unlikely that clamant suffered a significant neurological injury on 29 November 2017.  Neurological symptoms all sound somewhat non-specific but “they do deserve to be further investigated with an MRI brain and EEG”.  Dr Kim proceeded to seek approval from the insurer.

Dr Laughlin referral to Dr Teoh psychiatrist 26 August 2018 – has withdrawn from friends + family and has headaches and has been diagnoses as a PTSD post and closed head injury.

Dr Dowla, Neurologist, report dated 14 September 2018 – Cannot find cause of headache.  Suggest MRI of the brain. MRI brain scan 18 September 2018 reported as normal. Final diagnosis was (i) Depression in August 2018; (ii) Work-related injury, closed head injury in November 2017.

Dr Ben Teoh, Psychiatrist, report dated 18 September 2018. Claimant reported short-term memory impairment and chronic headaches.  She has been feeling depressed and socially isolated.  She has lost her motivation and interest in her usual activities. On antidepressant medication, sleeping tablets and medication for migraines.  Had Brain MRI today. No past history of psychiatric illness.  No history of work injury or compensation claim.  Presentation has features of an Adjustment Disorder with Depressed Mood.

Clinical records

Dr Michael Lool – Southlands Medical Clinic. Pre-accident entries included neck pain / whiplash in 2015 following a minor rear end motor accident. Various entries in December 2017 referring to the physical injuries from the motor accident and complaints of headaches, tiredness, misspelling on the phone. There were also references to feeling persecuted because of her “WorkCover” claim and that workplace bullying had been going on for “three years”. Reported returning to work 2 weeks after the motor accident and being “made to suffer”. Was obliged to work in the hottest part of the warehouse. Noted 3-year history of bullying and claimant had complained to the Branch Manager with recordings of bullying. Was allegedly informed that the Police “…can’t do anything about it – as no directs threats made”. Entries in January 2018 referred to vomiting, migraine, headaches and workplace bullying. The claimant was teary, anxious with a depressed mood. Reference again to workplace bullying but also to childhood depression, an abusive relationship and self-harm thoughts. Some anhedonia. In February and March 2018 complaints of memory loss but memory check was “normal”. Attended a psychologist for CBT. On 4 June 2018 attendance with Dr Cecile Chu for pregnancy planning assessment. On 26 June 2018, noted claimant’s memory was “better”.

Dr Tom Lieng – Lurnea Medical Centre. Presented on the day of the motor accident. Reported being dizzy and nauseated with a small haematoma behind the right ear. Diagnosed post-concussive drowsiness which was a symptom that was considered to last from a day to a week. Returned on 1 December 2017 and reported being in bed for the first 2 days. Lots of headaches initially but feeling better. Couldn’t concentrate and very tired, sleeping a lot. Right sided neck pain with reduced flexion due to pain. On 13 December 2017, spoke to workers compensation case manager because claimant had not returned to work. Dr Lieng felt the claimant should have recovered by this time and further investigation should be considered.

Dr Allan Laughlin – Pitt St Medical Centre. Reference to motor accident and depression and PTSD. Antidepressant and sleep medications noted. Report to Allianz dated 11 December 2018 with diagnosis of PTSD, social phobia and depression.

Dr Dowla – Hereward Specialist Medical Centre. Normal MRI brain scan result dated 18 September 2018. Pain in right shoulder. Suggested continue of Cymbalta (duloxetine) 60mg daily as an antidepressant and have physiotherapy and exercise.

Dr Ben Teoh – report to Dr Laughlin dated 18 September 2018. Noted history of emotional distress triggered after being shown a video of the motor accident in August 2018. Diagnosed Adjustment Disorder with Depressed Mood. Noted no prior history of childhood trauma, substance abuse, work injury or psychiatric illness.

Video of subject accident (CCTV footage) – Viewed (~5 minutes).