BHT v Cic Allianz Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	BHT v CIC Allianz Insurance Limited [2024] NSWPICMP 604
CLAIMANT:	BHT
INSURER:	CIC Allianz Insurance Limited
REVIEW PANEL
SENIOR MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Melissa Barrett
MEDICAL ASSESSOR:	Samson Roberts
DATE OF DECISION:	27 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; section 63; whether the degree of permanent impairment as a result of psychological injury caused by the accident is greater than 10%; where Medical Assessor found that the claimant did not suffer a psychological injury as a result of accident; Held – the claimant developed somatic symptom disorder in response to symptoms related to accident caused physical injuries; somatic symptom disorder is a somatoform disorder; the psychiatric impairment rating scale (PIRS) must not to be used to measure impairment due to somatoform disorders or pain; as somatic symptom disorder is a somatoform disorder an assessment of whole person impairment not made; the claimant suffered from a panic disorder that was not caused by the accident; Medical Assessment Certificate revoked; permanent impairment not greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Sidorov dated 8 December 2022, and 2. Certifies that the degree of permanent impairment of the claimant as a result of the somatic symptom disorder caused by the motor accident is not greater than 10%.

STATEMENT OF REASONS

BACKGROUND

BHT (claimant) was injured in a motor accident at Liverpool on 14 February 2017 (accident). Following the accident she made a claim for damages under the Motor Accidents Compensation Act 1999 (MAC Act) on CIC Allianz Insurance Limited (insurer), the insurer of the other vehicle involved in the accident.
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 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.
The dispute was assessed by Medical Assessor Sidorov, who gave a certificate and reasons dated 8 December 2022 (Assessment). The Medical Assessor certified that the injuries referred to him for assessment were not caused by the accident. That being the case, an assessment of permanent impairment was not made.
The claimant sought a review of the Assessment in accordance with s 63 of the MAC Act. The President’s Delegate subsequently determined that there was reasonable cause to suspect that the Assessment was incorrect in a material respect. The review application was accepted, and the application referred to this Review Panel (Panel) for review.

THE REVIEW

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 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 Personal Injury Commission Act 2020 (PIC Act). The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128.

DIRECTIONS

The Panel made directions for the provision by the parties of a joint bundle that contained all material relied on by them for the purposes of the Review, and submissions. The Panel was subsequently provided with a joint bundle and written submissions.

STATUTORY FRAMEWORK

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 (Medical assessment).
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”
Version 5 of the Medical Assessment Guidelines (Assessment Guidelines), effective from

12 February 2021, apply to the Review as does version 1 of the Motor Accident Permanent Impairment Guidelines effective from 1 June 2018 (Impairment Guidelines).
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.”
Impairment caused by mental and behavioural disorders is assessed in accordance with cl [1.201] – [1.228] of the Impairment Guidelines: Cl 1.35 of the Impairment Guidelines.

ASSESSMENT UNDER REVIEW

As recorded earlier, Medical Assessor Sidorov gave a certificate and reasons dated

8 December 2022. The reasons record a history that the claimant was born in Bosnia and arrived in Australia with her parents in 1999. She was required to move to Yugoslavia due to the war, and recalled traumatic experiences during this time. After leaving school in year 10, the claimant attended TAFE and commenced work at 16. Since then, she had mostly worked in retail or customer service positions. She last worked in December 2017. The claimant reported that she did not experience mental health problems prior to the accident. Her brother had been diagnosed with schizophrenia.
The Medical Assessor recorded a history of the accident. The claimant reported developing neck and back pain either the same day or the following day. She also experienced significant anxiety associated with shaking and nausea. After the accident she developed fear of driving. She nevertheless started driving her car cautiously. The reasons record that the claimant spoke of stress in relation to undergoing IVF in the context of an earlier miscarriage. She did not have time off after the accident, but stopped work just prior to her first son being born. She described experiencing significant anxiety with associated chest pain and attended the emergency department several times due to “panic attacks”. She has since been prescribed Valdoxan for her anxiety symptoms. She has been referred to see a psychologist and has a first appointment in February 2023.
The claimant reported that her mood was often low, and that she lacked the motivation to do anything. Her sleep is disturbed due to her children waking her up. She also experiences some anxiety including at night when she is going to sleep. She denied any thoughts of self-harm or suicidal ideation. She stated that she feels more relaxed since she has been taking the Valdoxan. There was no evidence of pervasive low mood and no evidence of mania or psychosis.
The claimant stated that she spends her time at home doing housework including cooking, cleaning and taking care of her children. She felt that in recent times she had been somewhat less motivated to do housework. She was less regular with her personal hygiene, showering every second day. She stated that she is scared to drive out of her local area and continues to experience some anxiety associated with driving. She stated that she experiences stress taking care of her children, that she does not receive help from anyone, and that she has no time to socialise with her friends as a result of her parenting and household obligations. She stated that she has not returned to work since December 2017 due to her “physical injuries”.
The Medical Assessor found that there was no evidence of concentration or memory difficulties during the assessment and that there were no inconsistencies in the claimant’s history or presentation.
The Medical Assessor determined that the claimant met the diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood. The diagnosis was based on a history of the claimant developing symptoms of depressed mood and anxiety in the context of multiple stressors including difficulties conceiving and undergoing IVF, the stressors associated with having to raise her children, the ongoing physical pain and other family stressors. The diagnosed condition was not, in the Medical Assessor’s opinion, caused by the accident.

EVIDENCE

The parties have provided a joint agreed bundle of evidence relied on in the Review. In addition to the joint bundle, the Panel has been provided with records from Bathurst St Medical Centre, Dr Kiljic, Green Valley Psychotherapy, Allcare Carnes Hill Medical Centre, and Liverpool Hospital. The Panel has considered all this material.
The claim form dated 22 February 2017 contains a description of the accident, and lists injuries to the right shoulder, lower and mid-back, shock and nausea. It is recorded that the claimant had taken time off work, and had returned to work. The medical certificate of

Dr Tomka dated 23 February 2017 records that the claimant suffered psychological injury as a result of the accident.
Clinical records of Allcare Carnes Hill Medical Centre have been provided and considered. The notes record that they are “[a]s at 27 January 2021”. The first entry in the records relates to an attendance on 6 October 2012. An entry on 26 October 2013 records:
“Anxiety – generalised
Stress re work, “greedy boss”, family, fiancée is injured, not working…”
An entry on 14 May 2015 records that the claimant had been “edgy and anxius [sic]”. On

2 May 2016 the following was recorded:
“…2. going through tough time at work and she decided to resign she feels very stressed and emotional when needs to go work councilled [sic] and support offered
she will put her resignition [sic] through tomorrow nad will see how many weeks noticed she has to give as she is finding it very stressful to stay at work and asking for leave…”
On 17 October 2016 it was recorded that the claimant was “very distressed an emotional”. On 29 November 2016 she called the practice and was “…crying over the phone, under stress, anxious, wake up this morning feeling exusted [sic]…”. She was “very emotional and teary” on 14 December 2016 following an IVF procedure. Her first attendance at the practice after the accident was on 3 April 2017. No reference to a motor accident was recorded at that time, nor on 4 April 2017 and 19 April 2017. The only entry after 19 April 2017 was made on 8 October 2020, and records that “[a]n insurance medical report for this patient was submitted to UHG on 08/10/2020”. The records also contain various test results and referrals.
There are two sets of records from Liverpool Hospital. The material in the bundle comprising seven pages has been considered. That material refers to an attendance at the hospital on 13 September 2022 related to chest pain. The claimant was discharged the following day.
The second set of records from Liverpool Hospital comprises 264 pages. The material records an attendance related to pregnancy on 18 September 2017, with respect to which depression following a previous miscarriage is recorded. Records relating to attendances in 2018 relate to the birth of a child in early 2018 have been noted, as have records relating to attendances in June 2019, December 2019, and January 2020. Records relating to obstetrics and genetics have also been considered. The results of an Edinburgh Depression Scale (Antenatal) have been considered. Some anxiousness was noted in the context of the claimant’s pregnancies.
Records from Green Valley Psychotherapy practice contain a document dated 24 May 2024 authored by Ms Hussain, clinical psychologist, and described as a “Psychotherapy Progress Note”. The document records that the claimant initially presented for “CBT treatment” following elevated symptoms of anxiety and depression. Reference is made to the motor vehicle accident. There is also reference to the claimant reporting a severe panic attack, and a recommendation by her psychiatrist, Dr Kuljic, that she see a psychotherapist. It is recorded that the claimant reported depression and that she was suffering obsessive compulsions including cleaning, straightening and organising things. There had been three face-to-face sessions (7 December 2023, 19 April 2024 and 13 May 2024). The claimant reported some relief from anxiety and mood after each session. Continued CBT treatment was suggested. The report records that at the most recent assessment the claimant had a Beck Anxiety Inventory score of 49, indicating “potentially high levels of Anxiety”, and a DASS score of 86, including a score of 26 for depression (severe), 30 for anxiety (extremely severe) and 30 for stress (severe).
Progress notes from Bathurst Street Medical Practice have been reviewed and considered by the Panel. The first entry in the notes is dated 2 March 2017, a little over two weeks after the accident. That entry makes reference to complaints of neck and back pain after a motor vehicle accident. The notes record that the claimant subsequently attended the practice on 16 March, 3 April, 19 April, 1 May, 11 May, 31 May, 10 August, 12 October, 8 November and 6 December 2017. There is no reference to complaints of a psychological nature in these progress notes.
There is a Patient Health Summary from Carnes Hill Doctors, printed on 25 July 2023. The first entry is dated 11 July 2022. In an entry dated 14 September 2022, Dr Kirkukli recorded as follows:
“was at ED[1] yesterday with chest pain
from Discharge letter nad[2] her history
it looks lie she had pannic [sic] attack
patient known to me for nher [sic] chronic anxiety
and stresses
lots of family issues which reflected on her mental health
was teary scared from what happened to her
had a long discussion
counselling
started on valdoxan…”
[1] “Emergency Department”.
[2] “no abnormalities detected”.
On 20 September 2022, Dr Kirkukli recorded that the claimant was “doing much better”, had started taking Valdoxan, that there was “no side effect”, and that she was “emotionally better”, and “feeling less emotional and coping better with stress”.
On 11 October 2022 the doctor recorded that the claimant was “doing well mentally”, and had improved. The attendance on 24 October 2022 was described as a “mental health consult”. A referral letter to Growth Psychological Consulting was given to the claimant.
On 30 November 2022 the doctor recorded that the claimant “is still not feeling well mentally”, that she was “still depressed”, and had a low mood, poor motivation, and “still has panic attacks when [she] drives”. Valdoxan was stopped and a review undertaken in a week’s time to commence on another anti-depressant.
On 11 January 2023 it was recorded that the claimant had ceased Valdoxan, was to commence on another anti-depressant, and needed to attend for a mental health review. The claimant attended on 16 January 2023 reporting anxiety/depression. She had commenced on Zoloft and attended counselling. On 24 January 2023 it was recorded that the had started Zoloft, there were no side effects, and no change in symptoms. On 15 February 2023

Dr Kirkuki recorded that the claimant was to attend a psychiatrist the following day. On

26 May 2023 the doctor recorded that the claimant “is always very stressed” and anxious.
Dr Rahan, consultant cardiologist, reported to Dr Kirkukli on 4 October 2022. The doctor recorded a history that the claimant reported sudden onset of central chest pain over the previous fortnight. She had recently taken up smoking, reported that she was “quite stressed at home”, and had a “low mood”. In the doctor’s opinion, the claimant’s symptoms are more likely to be suggestive of underlying panic attacks.
Dr Kuljic, consultant psychiatrist, reported to Dr Kirkuki on 17 February 2023. The doctor took a history that the claimant did not report psychiatric issues or treatment before the accident. The accident caused bodily injuries and chronic pain had caused a gradual worsening of her mental condition. Her lifestyle, marriage and social life had been impacted, and she started overeating and smoking. The claimant reported being irritable, moody and sad. Her sleep had been affected, her diet was irregular, and she was always tired. The claimant reported attending an emergency department three or four months prior, and that a panic attack was diagnosed. She continued to experience daily anxiety attacks and had noticed avoidance behaviour related to driving and crowded environments. The claimant denied experiencing war or refugee traumatic experiences or psychological consequences. In the doctor’s opinion, the claimant presented with major depressive disorder and panic disorder as a consequence of significant “body injuries” and chronic pain. The doctor recommended stopping sertraline, and starting fluoxetine.

Dr Canaris, consultant psychiatrist, reported on 15 April 2019[3]. The doctor recorded a history of the accident. The claimant reported being frustrated by her physical limitations associated with her neck and back injuries and chronic pain. She had become socially withdrawn, lacking in motivation and concentration. She experienced insomnia, engaged in comfort eating, and experienced a loss of libido. She reported high levels of anxiety in cars, and was markedly distressed at interview. In the doctor’s opinion the claimant’s presentation was consistent with a diagnosis of an adjustment disorder with mixed depressed mood and anxiety. An alternative diagnosis was major depressive disorder with anxiety features. Her mood disturbance was a direct consequence of the accident. Her depression and anxiety would make it difficult for her to cope with a stressful job in which she had to deal with the public. She had not had any treatment. Referral to a psychologist was warranted. She may also benefit from antidepressants. The claimant’s prognosis depended significantly on her physical outcome and her capacity to accept her pain and physical limitations. She had not attained “maximal medical improvement”.
[3] The index to the joint bundle incorrectly records that the report is dated 14 May 2019.
Dr Canaris reported again on 27 July 2020. Problems relating to the claimant’s brother were recorded. She had found those problems distressing. Ongoing complaints of pain were recorded. The claimant presented with depression and anxiety which she “attributed largely to the experience of looking after her young family while contending with chronic lower back pain”. The back pain had been aggravated by her recent pregnancy. There was evidence of significant impairment in self-care, social and recreational activities, travel, social functioning, concentration, persistence and pace, as well as adaption. There had been limited treatment. Persistent depressive disorder with persisting major depressive episode and anxious distress was diagnosed. These conditions were predominantly attributable to her physical injuries and attendant limitations arising from the accident. Her prognosis largely depended on her physical outcome. The doctor assessed a 15% impairment.
Dr Habib, orthopaedic surgeon, reported on 27 March 2019. The doctor recorded complaints of neck, right shoulder, mid and low back pain, and diagnosed injuries to those regions. The report records that the claimant had become depressed, and should receive psychological counselling. The injuries were the result of the accident. In the doctor’s opinion, the claimant required further treatment, including pain management.
In a supplementary report, Dr Habib assessed impairments of the claimant’s cervical, thoracic and lumbar spine, and her right upper limb. There was a combined 20% whole person impairment.
Dr Habib reported again on 7 July 2020. The claimant reported continuing pain, stiffness, and activity limitations. Her inactivity and lack of exercise had led to a minor deterioration in the mobility of her spine and right shoulder. He diagnosed C5/6 discopathy with referred but non-verifiable radiculopathy, traumatic acromio clavicular joint arthropathy and subacromial impingement, aggravation of changes in the thoracic spine and chronic Musculo ligamentous strain, together with discogenic lumbar spinal pain with referred but non-verifiable radiculopathy. She was considered fit for “very limited hours” of sedentary or semi sedentary work. Each of the injuries gave rise to impairment, with a combined whole person impairment of 20% assessed.
Dr Porteous, occupational physician, reported on 18 March 2019. The doctor took a history that the claimant developed cervical, right thoracic, posterior shoulder and lumbar pain following the accident. She was off work for a few days and returned to work two days a week until December 2017 when she stopped work because she was heavily pregnant. She had not returned to work since the birth of her child. The claimant reported significantly disturbed sleep associated with chronic spinal pain. The report records that the claimant stated “the ongoing pain and restriction is stressful, but she does not think she has got depression or anxiety”. It is stated that at the time of the accident, the claimant had “just been offered a full-time position back in her old role and was due to start in mid-February”. She was unable to do so following the accident. The doctor diagnosed musculoligamentous sprains of her cervical, thoracic and lumbar spine. There was no evidence of a discrete shoulder injury. She has experienced chronic pain since the accident. Her condition had stabilised. An 8% permanent impairment was assessed. There were restrictions as a result of her physical injuries, that would restrict her capacity to work and perform domestic tasks. Among other things, referral to a Pain Specialist was recommended.
Dr Porteous reported again on 29 July 2020. The claimant reported that with ongoing pain and her new baby, her mood had dropped. She reported experiencing ongoing symptoms in her cervical, thoracic and lumbar spine. Her sleep was disturbed, and she experienced ongoing low mood. Physical restrictions were reported. Musculoligamentous sprains of her cervical, thoracic and lumbar spine were again diagnosed. A 5% permanent impairment was assessed. The claimant’s work capacity remained reduced, as did her ability to undertake domestic tasks.
Diane Prattley, occupational therapist, reported on 19 June 2019. The contents of this lengthy report have been considered, including the history, assessment, findings and recommendations. Among other things, the claimant reported that she experienced constant pain, and that the pain is frequently severe, sometimes reaching 8/10. She may benefit from participating in a pain management program. The claimant reported that she had experienced a significant change in her lifestyle following the accident. She felt frustrated, angry and irritable. Her loss of independence and reliance on others for their help upset her. Her relationship with her husband was “very strained at times”, and she had lost her feeling of self-confidence and self-worth, and “lost her identity as a consequence”. She tended to isolate herself, had little motivation, and had become very anxious and hypervigilant, including when in a vehicle.
Dr Tomka reported on 11 August 2020. The report records that the claimant “was always in an excellent general health” until the accident. The claimant presented to the doctor the day after the accident, with symptoms in her cervical, thoracic and lumbar spine, and shoulders. The doctor diagnosed injuries to the claimant’s neck, both shoulders, upper and lower back. Her work aggravated her injuries. The doctor assessed a 14% permanent impairment.
Dr Lim, occupational physician, reported on 13 June 2018. The report records that the claimant reported symptoms in her neck, back and right shoulder. Her mid-back pain became worse during pregnancy. On examination the claimant demonstrated gross behavioural signs. There was no underlying physical pathology responsible for the reported symptoms. The accident was “highly unlikely to have caused any physical injury of significance”. In the doctor’s opinion, the claimant’s ongoing symptoms were “of a psychogenic (functional) chronic pain disorder or fictitious”. The pain “if genuine” was muscular in nature. In the doctor’s opinion the claimant had fully recovered from the effects of the accident.
Dr Home, occupational physician, reported on 16 October 2020. On examination, there were subjective findings of widespread tenderness in the cervical spine and lower lumbar region. There were also subjective findings of restricted spinal mobility “although there is a greater range of lumbar spine mobility with distraction”. There was mild restriction of shoulder elevation. The doctor diagnosed seatbelt trauma to the right shoulder, “probable whiplash-type injury of mild severity” to the cervical spine, musculo-ligamentous injury of the mid-thoracic back, and facet joint dysfunction in the lower lumbar segments. The doctor did not anticipate long-standing disabilities arising from the accident, although intermittent mild symptoms in the neck, right shoulder and back “could occur”. In the doctor’s opinion, there was no medical reason to restrict the claimant from undertaking work as a full-time retail assistant. However, given her subjective complaints of neck and right shoulder pain, it was reasonable that she avoid heavy overhead lifting and manual tasks in excess of 15kg. For that reason, there was a partial incapacity.
In a report dated 12 February 2021, Dr Home expressed the opinion that the claimant will require care and domestic assistance for a period of two years, after which her symptoms would ameliorate sufficiently to eliminate the need for assistance.
Dr Virgona, psychiatrist, reported on 17 November 2020. It is recorded that the claimant reported no history of psychiatric problems. Her brother had schizophrenia, and was in custody, having been violent towards her mother. She reported being “terrified” during the war in Bosnia as a result of an incident recorded in the report. She came to Australia when she was 10. The doctor thought that the claimant had been involved in a “minor” motor vehicle accident. She had experienced a psychological reaction, with resulting anxiety. Her main symptoms were in the “depressive spectrum”. She had become more depressed when she was pregnant with her second son. She had not been prescribed psychotropic medication, and had not had any psychological therapy. There was significant stress associated with her brother, and she had suffered some trauma during the Bulkan war. The claimant described some obsessive-compulsive personality traits. She was suffering chronic pain “which dominates the clinical picture”. In the doctor’s opinion, the claimant described anxiety and depressive spectrum symptoms in reaction to the accident and its reported consequences, consistent with the diagnosis of chronic adjustment disorder.
In Dr Virgona’s opinion, while the claimant has had other post-accident stressors, they were not material to her current presentation. Her prognosis was “fair to good”, as the condition was in the milder spectrum with minor impacts on functioning. She may benefit from psychological therapy, and may require a low dose of antidepressant medication. The doctor assessed a 1% permanent impairment.

SUBMISSIONS

Claimant’s submissions

The application for review includes a submission that Medical Assessor Sidorov failed to apply the correct test of causation when determining that the diagnosed adjustment disorder was not caused by the accident. It is argued that the contribution made to the psychological condition by the accident was more than negligible. In this regard, reference is made to the test of causation in the Guidelines. It is also argued that there was evidence that supported a finding that the claimant had a greater than 10% whole person impairment as a result of a psychological injury.
In submissions dated 13 December 2023, the claimant again argued that Medical Assessor Sidorov failed to apply the correct test of causation when determining that the diagnosed adjustment disorder was not caused by the accident, and repeated the submissions recorded above. The claimant submitted that she should be re-assessed for the purposes of determining her permanent impairment.

Insurer’s submissions

In submissions dated 21 December 2023, the insurer put the issue of causation in issue, and argued that the Panel “must carefully consider causation of psychiatric complaints in light of the claimant’s pre-accident and post-accident history and distinguish between accident-related versus unrelated symptoms and disabilities”. Relevant matters are referred to in the submissions at [9](a)-(d).
The insurer argues that any assessment of permanent impairment must be apportioned to take non-accident related issues into account and that after permanent impairment has been apportioned between accident-related and independent disabilities, the claimant’s degree of permanent impairment will not exceed the s 131 threshold.
The insurer’s submissions dated 30 January 2023 are generally consistent with those of

21 December 2023; it puts causation in issue, refers to non-accident related matters (at [5](a)-(d)), and argues that the s 131 threshold is not met.

RE-EXAMINATION

Who attended the assessment

Medical Assessors Barrett and Roberts assessed the claimant using Microsoft Teams over the course of two interviews on 15 May 2024 and 2 July 2024. The second interview was required because the connection dropped out during the assessment on 15 May 2024. On the first occasion, the claimant participated from home and on the second occasion, she participated from her lawyers’ offices.

Psychosocial history and pre-accident history

The claimant is a 35-year-old woman. She and her husband have been married for nine years and they have been in a relationship for 20 years. They have two sons. The youngest is in day care two days a week. Her husband takes responsibility for caring for him on weekends. Their other son is in school. The claimant last worked in December 2017. Her husband works full time.
The claimant was born in Bosnia. She was seven years of age when the family relocated to Serbia. The war had broken out when she was 4 years old. She attended three or four schools. She lived in Serbia for four years completing Year 4 of primary school before the family relocated to Australia where she commenced Year 5.
The claimant is the elder of two siblings. Her parents’ marriage ended and her mother has since re-partnered. The claimant has remained on good terms with her father. She recalled a “beautiful” and close relationship with her brother in childhood. She maintains a relationship with him, but they are not as close as they were in childhood. He suffers Schizophrenia and is on treatment. He lives in Bosnia. He is unable to work and he is not in a relationship. She stated that he commenced using drugs in the context of his inability to accept their parents’ divorce. She did not report any other family psychiatric history. She has a very close relationship with her mother. Her mother was a university student when her parents married and then she undertook to help her husband in his supermarket and restaurant business.
The claimant recalled that the move to Australia was very exciting. She attended School. She was happy and she made friends. After Year 10, she went on to study Business Administration at TAFE. She undertook a Makeup Diploma. She worked at the Australian Museum and then at Domayne. She worked full time in sales and was second-in-charge. She had time off work before returning in a part-time sales role.
In terms of medical history, the claimant did not recall any significant health conditions in childhood. She was diagnosed with Graves' disease in 2014. She has been off medication for four years. She undergoes monitoring every three months. Three years ago she underwent a laparoscopic cholecystectomy. She has recently been diagnosed with a lesion on her liver. She underwent a panendoscopy. On the day prior to the first interview, she underwent a biopsy of a lump in her left breast.
The claimant underwent IVF to fall pregnant with her first child. She suffered an early miscarriage prior to the pregnancy with her son. Of this she stated that it was “not the end of the world”. She underwent two cycles of IVF. She recalled that she was very bloated in response to the hormone treatment but did not experience any other side effects.
The claimant reported an increase in her cigarette smoking. Over the past one to two years she would smoke a packet of cigarettes daily. She does not drink alcohol but in the past would sometimes have a red wine with a meal, but she now experiences gastrointestinal symptoms when she drinks and therefore avoids alcohol. She has never used illicit drugs.

History of the motor accident

The claimant stated that at the time of the accident she was driving a Nissan Qashqai four-wheel drive. Her sister‑in-law and brother-in-law were in the car. They were stationary at the exit of a car park. A white ute approached fast from their left and sought to turn into the car park from which the claimant was waiting to leave. Namely, the ute turned right seeking to enter the car park. On doing so, the ute scraped the right side of the claimant’s car from the front to the back of the vehicle. The claimant recalled that she was in a state of shock. Her husband, who was on the other side of the road, saw everything. The claimant stated that she was “frozen”. Her husband instructed her to pull over to the side of the road and put on the blinkers. He spoke to the other driver. The claimant recalled that her car was towed and it took over a month before it was repaired. She still owns the car and she continues to drive it, scared to drive any other car.
When asked what happened immediately following the accident, the claimant recalled that the accident occurred in the evening and that she went home. She did not see a doctor until she attended the practice of Dr Kris Tomka the next day. This was the first time she had ever seen this doctor. She walked to his office five minutes from her home. He prescribed medication. She underwent hydrotherapy and physiotherapy but this ceased years ago. She saw a specialist, Dr Giblin but had not seen him for years by the time of the second assessment.

Psychiatric history

The claimant was vague in the manner in which she presented the evolution and course of her psychiatric symptomatology. When asked about the onset and course of her psychiatric condition, the claimant stated that she is “starting to lose (her) memory”. She was asked specifically regarding her childhood, to which she responded that she moved from Bosnia when she was 5 years of age and that she recalls school and certain situations that she experienced as a child including a large circle of friends and family. She was asked about the effects of the relocation from Bosnia to Serbia and she replied that her best memories are from the time that the family moved to Serbia. She stated her recollection of snow and presents that she received at church. She referred to the move to Australia as very exciting. She was 10 years of age, and she was very happy about it. She recalled a positive attitude that her parents adopted and she stated that it was “beautiful” settling in Australia where they already had friends waiting for them. She recalled that she was a very “communicative outgoing and bubbly” child.
The claimant stated that her outgoing bubbly persona persisted into young adulthood, and she felt ready to start work at age 16 years at which time she would travel to the CBD of Sydney. She stated that prior to the motor accident, she would walk to work. After work, she would walk to the gym and then walk home. She would then go out socially afterwards.
The claimant dated the diagnosis of Graves' disease to 2014, prior to her marriage. The condition was diagnosed by her general practitioner. She had been losing weight and it was in this context that she underwent a health assessment. Despite the apparent presence of symptomatic hyperthyroidism as indicated by loss of weight, she recalled that she felt really good although her periods stopped for two months after she was married. She was prescribed medication. She stated that if she had not undergone blood tests, she would not have known that she had hyperthyroidism. She stated that she could not recall any other symptoms, but recalled that she was energetic and active at the time the diagnosis was made.
The claimant stated that she and her husband decided to pursue IVF after two or three years of trying for pregnancy. She acknowledged that it was “frustrating” but she drew on her religious background for support. The IVF took place seven or eight years ago. She recalled that she did extensive research about fertility management but she “didn’t really stress”. She recalled that becoming aware of her husband’s genetic anomaly scared her initially. Despite the complexities of IVF and the potential genetic issue, the claimant stated that the only stressful aspect of the treatment was keeping the IVF secret from her family. She explained that she was self-conscious about the prospect of gossip. She stated that she found it hard being unable to share the experience.

The claimant suffered a miscarriage before her elder son was born. She referred to it as a “missed miscarriage” that occurred at approximately six to nine weeks gestation. When asked what she meant by this, she replied that she underwent an ultrasound. Initially no foetus could be identified. Then the foetus was found although without a heartbeat. She required a dilatation and curettage. She recalled that it was “really sad”. She had been positive about the pregnancy and she felt well supported by her doctor. She stated that it was hard for her because the family did not know how she had conceived. She stated that she regretted having told her family that she was pregnant so early in the course of the pregnancy. She then commented, “I don’t have any memories of that time,” stating that she had only thought about it because she was reminded of it at interview.
When asked about becoming a mother, she replied that it was a “beautiful” experience when her first child was born but things started to change for her. She breastfed her son for 18 months. He would feed every two to three hours during the night. He would not accept bottles. She spoke of physical pain associated with managing the baby and she found it exhausting. She recalled that following the accident, she was very restricted from a physical perspective and compromised in her ability to parent her children. She stated, “A lot was taken away from me.” In the context of her diminished participation in parenting, she experienced guilt and she blamed herself. When explaining her efforts to parent despite her physical limitations, her voice became tremulous. She expressed guilt that she was unable to breastfeed her second child as long as she would have liked. She added that COVID restrictions undermined her ability to spend weekends with family when her second child was born.
The claimant stated that she refused to acknowledge the severity of her emotional state in response to her physical limitations. She spoke of her and her husband moving the family out of their home during COVID because they were living in an apartment. They decided to purchase a block of land in the hope that they would build a house and give their children room to play. Because of COVID, they made the decision to change their plans, ultimately swapping premises with her in-laws. Her husband sold the land that they had purchased. The claimant spoke positively of this outcome.
The claimant was asked specifically about her history of anxiety as referred to in the documents. She responded, “I always feel something bad is going to happen.” She spoke of her fear of further motor vehicle accidents since the subject accident and explained that her oldest son was almost a year old when she first took him in the car. It was drawn to her attention that there is reference to postnatal depression in the documents. She responded that she was never diagnosed with postnatal depression and that she was “very happy and completed” after the birth of her children. She reiterated that the physical pain undermined her functioning and she recounted difficult sleepless nights. She spoke of the support provided by her husband, mother-in-law and mother and stated that her “mental health wasn’t a concern” but her physical pain was the prime concern.
When speaking further of her efforts to parent her children, the claimant recalled that she took her elder son to the movies before he started school. They would occasionally go to Woolworths. She stated that her boys are very active and due to her physical limitations, she cannot keep up. She expressed gratitude that her husband takes them to the park and to soccer. She stated that she misses out. She has not been to their soccer matches. She expressed guilt and shame about this. She does not want to see people and does not want to be around people because, in this context, she becomes “anxious” and “nervous”. By way of example, she stated that during the week prior to the second interview, there was a child’s birthday but she could not attend. At such events, she feels nauseous, her hands shake, and she sweats. When asked why she feels this way, she replied that she has “theories in (her) head”, expressing the belief that she has spent too long living an isolative lifestyle and this has led her to become anxious when she undertakes outings.
The claimant’s attention was drawn to the information in the documents pertaining to an overseas trip in 2019. She replied that she had not been on a trip for four or five years before that and she wanted to see her sick aunt and she wanted her father to see her elder son. She was pregnant at the time. She recalled that she was very anxious and that she had developed a fear of flying, believing that there was a risk of the plane falling. She recalled that she was limited in what she could do overseas and she concluded that the trip was a waste of time and a waste of money. The only positives she achieved was seeing her grandfather and her aunt and the fact that family members got to see her son. She stated that at the time, namely in 2019, she did not accept that she had a mental health problem, especially since her family and her husband do not accept mental health issues.
When asked when it was that she first sought mental health support, the claimant replied that she was told several times during the course of her claim that she needed mental health support. She stated that she had always thought it was her physical condition that was the primary issue. One and a half to two years prior to the assessments, she experienced an episode of severe chest pain and feared that she was suffering a heart attack. She attended Liverpool Hospital. She was shaking and vomiting. She then saw her general practitioner, Dr Salva. She stated that Dr Salva is not the doctor whom she sees in relation to the motor accident claim. She recalled that it was Dr Salva who recommended medication. This was the first time that she was prescribed medication for her mental health, Valdoxan (agomelatine). She stated that she did not initially consider that her mental health was related to the accident.
The claimant recalled that she felt that she had failed and expressed self-consciousness at the prospect of her family finding out that she was on Valdoxan. She developed suicidal thoughts that she attributed to the medication. She took it for eight to ten weeks and stated that she derived no benefit from it. She was then changed to the antidepressant Zoloft (sertraline). She was referred to Dr Kuljic. He recommended that she stop Zoloft and take Prozac (fluoxetine) which she found beneficial. He referred her to a psychotherapist stating that it would be more cost-effective than continuing to see him. She stated that she has seen the psychotherapist on four or five occasions. It would seem that she has engaged in hypnosis. Of the psychotherapist she stated, “He is able to take things off my mind.” She found the sessions beneficial. She leaves feeling better. She stated her intention to continue seeing him, and expressed the hope that it will help her address her “trust issues”.
When asked about her condition at the time of the second interview, the claimant stated that she was “not well”, and referred to struggling over the two to three months leading up to the interview. She stated that she felt ashamed talking about it. She stated that she struggles “to live” and “to get out of bed” such that she thinks of herself as simply surviving. She added, “I can’t breathe.” She explained that she must steel herself to do whatever she is obligated to do. She referred to anxiety when driving the children in the morning. On her return home, she makes coffee, sits down and then cannot get up. She stated that she struggles with motivation.
The claimant stated that she experiences anxiety which is always present. When asked what drives the anxiety, she seemed reticent to respond but then stated that she is scared of sickness and the prospect that she is going to die. She always fears that something bad will happen and, with this in mind, she thinks that every time she kisses her sons it could be the last kiss.
By way of example of her health-related fears, she spoke of her admission to hospital one month prior to the second interview when she underwent a laparoscopy and endoscopy to investigate a lesion on her liver which she attributed to Valdoxan. She spoke of having suffered low blood pressure and severe pain. She stated that her doctor had expressed the possibility that her condition relates to dysfunction of sphincter of Oddi and possibly a stone in the biliary tract.
The claimant went on to explain that she prays daily and puts “essence around the house”. She engages in techniques taught to her by the psychotherapist in the hope that this will pre-empt her tendency to panic. She digressed to state that she has photographs on her phone of herself with her children and she tells her husband to ensure that the photos are all developed so in the event that something were to happen to her, the children would have a photograph of her.
The claimant stated that she is not enjoying life. Her sleep is poor. She wakes at night and tends to ruminate. She referred to flashbacks of the motor accident when she is driving. She reported weird and vivid dreams and then is woken by headaches. She “loses breath” and therefore cannot return to sleep. She eats regularly and has gained weight. She finds food comforting. Sometimes she has no appetite and at other times she overeats. She reported a poor memory and poor concentration and that she writes things down and maintains a calendar. She did not report suicidal thoughts and stated that she fears death.

Current and proposed treatment

The claimant takes Nurofen but no more than four tablets daily. She takes Panadol four to six tablets per day. She uses Mersyndol, Mobic and Panadeine Forte as required. She has been on Prozac (fluoxetine) 20mg for at least a year. She takes bromazepam as required, typically using it once or twice a week.

CLINICAL EXAMINATION

Mental state examination

On both occasions, the interviews were undertaken using audiovisual technology. The connection dropped out during the first interview. The claimant became distressed about this and was effusively apologetic. She responded to reassurance that it was a common occurrence and not something for which she was responsible. During both interviews her affect was restricted. Her account reflected a dysthymic mood. She was overtly anxious, speaking in a self-deprecating manner and apologising, implying that she was compromised in her ability to express herself competently and in relation to her poor memory of matters about which she was asked. She was similarly self-deprecating regarding her role as a homemaker and parent in the context of her physical limitations. She was hesitant when expressing herself and at times became disorganised, in particular when seeking to present her psychiatric history. Efforts to achieve clarification were not consistently successful. Her speech was normal in terms of rate, tone and volume. Her use of language was straightforward. No features of a psychotic nature were apparent. Physical symptoms and associated limitations were a prominent theme at interview, as was the stigma and self-consciousness that she ascribed to several matters including IVF treatment and her mental health.

Current functioning

The claimant has not worked since December 2017. At that time, she was employed as a sales representative for a furniture shop. She had been employed in a full-time capacity as a second-in-charge. In 2016, she had three to four months off work. She stated that she needed “time to herself”. She then returned to a part-time sales representative role with the same employer. She stated that she was to resume the second-in-charge role and resume full-time work, but the motor vehicle accident prevented her from doing so. She returned to light duties after the accident. She stated that she was also pregnant at the time.
With respect to her current circumstances, the claimant is well supported by her husband, mother and in-laws with respect to household tasks. At the time of the initial interview, she stated that her mother was overseas. She travels between Australia and Europe. The claimant explained that she is “very limited”. She needs help at home and appreciates any help that she can get. She is assisted with cooking, cleaning and the drop off and pick up of her children. She attributed her limited capacity to undertake household and parenting duties to both physical and psychological factors. She stated that she will “struggle with normal daily tasks”. She stated that she cannot stand for long. Her feet become numb and she experiences pins and needles. She also lacks motivation and concentration. She attributed her limitations in part to anxiety, frustration, pain and her tendency to lose interest. She reiterated that her family has been very supportive and “they have to be”. Her husband helps a lot with parenting. Notwithstanding the efforts made by family, it is the claimant’s impression is that her husband and her mother-in-law do not understand that nature of her physical pain and her limitations. Her own mother however is more understanding.
The claimant takes her medication consistently and attends appointments reliably. She sees a psychotherapist. She stated that the sessions are beneficial while she is there but her condition then reverts to the same severity that she usually experiences. She reported a variable appetite and does not eat meals with other members of her family. She stated that she had lost 20 kilograms and that her family had expressed concern about this. She stated that she used to wear makeup daily but she is less motivated to do so and she sees no point. She stated that she showers but not every day, attributing this to a lack of energy. She dresses daily.
When asked how she spends her time at home, the claimant stated that she listens to jazz on YouTube. She referred to lighting candles which makes her feel better. She has withdrawn from friendships, and initially stated that she no longer has any friends. She then said that two to three months ago she and her friends were going to catch up but she cancelled. She explained that she is disinterested in engaging with others. She suffers insomnia in anticipation of seeing anyone. She spoke of a decline in her marital relationship and said that her husband has informed her that he is only with her because of the children. They communicate less. She does not go out and he is not understanding. Her restlessness at night wakes him and he must get up at 4:00am for work. He compares her current functioning to the way she was and he compares her to other people. She finds this upsetting. She stated that there is no affection and no intimacy in their relationship and she expressed worry that she has no empathy for him. She spoke positively of her relationship with her children and stated that she seeks to hide her condition from them.
The claimant drives to her psychotherapist, a journey of ten minutes. She recently changed general practitioners and attends a practice in Newtown. She has attended twice by train. On the first occasion, she went in the company of her father and on the second occasions she went alone. She stated that she becomes anxious in public transport and she becomes anxious when she goes shopping. Her son’s school is a five-minute walk from home. The childcare centre is near Liverpool and the claimant drives their younger son there. If she is required to attend appointments further from home, she is driven or she takes the train. She spoke of perpetually thinking something bad will happen when she is travelling. Her former workplace was in Liverpool. She further explained that she was on her red Ps at the time of the motor accident and she stated that she is fearful of doing what is required to get her green Ps. She referred to sweating, a pounding heart, and flashbacks when she drives and stated that she often has to pull over.
When asked about her participation in household tasks, the claimant stated that she does not sleep well at night and is therefore tired and lacking motivation. She may however put on a load of laundry, unpack the dishwasher, tidy the house, pick up toys, make the beds and prepare meals. She goes shopping at Woolworths. She attends to the payment of the daycare fees.
The claimant spoke further of her use of public transport, stating that she has experienced a fear that she could be physically attacked and there was an occasion when she was on a train and she was fearful of derailment because it was shaking.

Discussion

The Medical Assessors noted multiple events of potential psychiatric significance including a diagnosis of Graves' disease characterised by the presence of hyperthyroid symptoms in 2014, IVF treatment from 2016 and a miscarriage in November 2016, necessitating a dilatation and curettage followed by four months off work, and the motor vehicle accident of
14 February 2017. The Medical Assessors identified reference to negative emotional responses to life events, including anxiety and upset, prior to the motor accident, specifically in 2013, 2015 and 2016. Noting the pattern was of intermittent attendances to the GP in the context of stressors, expressing emotional symptoms, but not of severe or sustained symptoms which would be required if there was a pre-existing psychiatric disorder, the Medical Assessors were not satisfied that there was a diagnosable psychiatric condition prior to the accident. In the clinical judgement of the Medical Assessors the pre-accident GP records were reflective of high trait anxiety, a temperamental trait.
The Medical Assessors noted that the motor vehicle accident led to multiple physical symptoms causing significant compromise to the claimant’s ability to function. The Medical Assessors accept that she experiences those physical symptoms. She spoke of her inability to resume work at the same level as she had previously. She described difficulty participating in her role as homemaker and she spoke of the extent to which she has been compromised in her ability to parent due to her physical condition.
Based on the comprehensive information presented by the claimant and the extensive clinical information derived from the documents, the Medical Assessors were satisfied, on balance, that the claimant has suffered a significant psychiatric injury as a result of the motor accident, namely a somatic symptom disorder. This diagnosis was made in accordance with the DSM-5 criteria. She described distressing somatic symptoms causing significant disruption in her daily life. She described the extent to which she finds herself overwhelmed by, and limited in, her activities as a result of these symptoms which have led to a persistently high level of anxiety about her health to such an extent that she fears the prospect that she may die.
Whilst the claimant voiced considerable upset about the nature of her condition, the Medical Assessors were not satisfied that her symptoms met DSM-5 criteria for a depressive condition, as her affective and anxiety symptoms related to her physical state and represent a feature reflective of DSM-5 Criterion B (2) of somatic symptom disorder, where Criterion B for somatic symptom disorder describes excessive thoughts and feelings related to the somatic symptoms and includes disproportionate and persistent thoughts about the seriousness of symptoms and persistently high anxiety about health or symptoms.
The Medical Assessors considered the findings made by other medical practitioners of an adjustment disorder or major depressive disorder as secondary to significant physical symptoms. The Medical Assessors formed the view that the extensive documentation, some of which was not available to other psychiatrists, supports the conclusion that the claimant is disproportionately focused on, preoccupied by, anxious about and distressed by her physical symptoms. The combined presentation of somatic preoccupation and associated emotional symptoms is such that a diagnosis of somatic symptom disorder better accounts for her psychiatric injury than the diagnosis of adjustment disorder or major depressive disorder. The Medical Assessors found that her symptoms were not of a nature and severity that diagnostic criteria for a separate affective diagnosis were met.

The Medical Assessors noted the onset of panic symptoms which led to the claimant’s presentation to the emergency department in September 2022. A clinical entry made by the general practitioner refers to this event and refers to the claimant as a person with “chronic anxiety and stress” albeit in the context of factors unrelated to the motor accident. The Medical Assessors understood this comment to relate to her temperament style, noting the absence of entries to support the presence of chronic psychopathological anxiety and stress.
The claimant’s account at interview of anxiety and panic symptoms from 2022 and an increasingly reclusive lifestyle in the context of panic symptoms reflected the development of symptomatology separate to the effects of the somatic symptom disorder which began in 2017, and therefore warrant a separate diagnoses of panic disorder in accordance with the criteria stipulated in DSM-5. The diagnosis of panic disorder is made on the basis of recurrent unexpected panic attacks associated with physical concomitants and persistent concern about the prospect of such attacks and their consequences.
The Medical Assessors considered the role of the motor vehicle accident in the causation of panic disorder; specifically whether this condition was caused or materially contributed to by the accident. In this context, the Medical Assessors reminded themselves that the accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible. The Medical Assessors considered that it was significant that five years and seven months had elapsed between the motor vehicle accident and the first panic attack in 2022, namely the episode that led to the claimant’s presentation to hospital.
The Medical Assessors determined that it was overwhelmingly an effect of physical symptoms that the claimant was compromised in her ability to function prior to the 2022 episode, and whilst she was anxious and upset about her physical condition, consistent with the features of somatic symptom disorder, the available evidence does not satisfy them that panic disorder was present before 2022.
The Medical Assessors determined, based on their clinical experience and judgement, that the onset of the claimant’s panic disorder is consistent with the usual clinical course in the general population. The Medical Assessors concluded that the motor accident did not cause or materially contribute to the panic disorder as a causal connection between the subject accident and the first panic attack more than 5 years later is not established.

Assessment of whole person impairment

The accident caused a somatic symptom disorder, a condition which continues to manifest prominent symptoms and which continues to affect the claimant on a day-to-day basis. The guidelines do not permit an assessment of somatic symptom disorder using the psychiatric impairment rating scale (PIRS). Therefore, an assessment of whole person impairment is not required.

DETERMINATION

The Panel notes the findings and conclusions of Drs Habib, Porteous, Home and Tomka. The Panel has also considered the report of Dr Lim. The Panel notes that Dr Tomka’s report of 11 August 2020 records that the claimant presented to his surgery the day after the accident and reported neck, shoulder and back symptoms. The Panel accepts that the claimant continues to experience pain, in particular in her neck and back.
The Panel is satisfied, on the balance of probabilities, that as a result of the accident the claimant suffered a somatic symptom disorder. The Panel agrees with and adopts the findings and reasons of the Medical Assessors with respect to the diagnosis of this condition, together with their conclusion that the somatic symptom disorder has developed in response to symptoms the claimant experiences related to her accident caused physical injuries.
The Panel has considered whether the claimant’s psychological symptoms could be explained by another psychological diagnosis, including an adjustment disorder or major depressive disorder, and is satisfied that the diagnostic criteria for another psychological condition are not satisfied. In this regard, and with respect to the diagnosis of a somatic symptom disorder, the Panel is particularly reliant on the clinical experience and judgement of the Medical Assessors who together undertook an assessment of the claimant on two occasions.
Psychiatric impairment is assessed in accordance with ‘mental and behavioural disorders’ within the Guidelines: cl 1.35. The assessment of mental and behavioural disorders must be undertaken in accordance with the PIRS as set out in the Guidelines: cl 1.203. The Guidelines state that the PIRS must not be used to measure impairment due to somatoform disorders or pain: cl 1.215. The diagnosed somatic symptom disorder is a somatoform disorder. Accordingly, an assessment of whole person impairment is not made in relation to the diagnosed somatic symptom disorder.
As to the diagnosis of panic disorder made by the Medical Assessors, and whether that condition was caused by the accident (including by way of a contributing cause that is more than negligible), the Panel agrees with and adopts the reasons of the Medical Assessors that are recorded earlier. The Panel is not satisfied that, on the balance of probabilities, the accident was a necessary condition of the occurrence of that condition.
The Panel has found that the claimant suffers from a somatic symptom disorder as a result of the accident. Medical Assessor Sidorov determined that the adjustment disorder he diagnosed was not caused by the accident. The dispute giving rise to the assessment is whether, for the purposes of s 131 of the MAC Act, the degree of permanent impairment of the claimant as a result of psychological injury caused by the accident is greater than 10%. For the foregoing reasons, the Panel has determined that there is no assessable impairment attributable to a somatic symptom disorder that was caused by the accident. In these circumstances, the Panel has revoked the certificate given by Medical Assessor Sidorov and issued a new certificate certifying that the degree of permanent impairment of the claimant as a result of the somatic symptom disorder caused by the motor accident is not greater than 10%.
Given the sensitive personal matters addressed in these reasons, the Panel directs that the reasons be de-identified.

[2024] NSWPICMP 604

27 August 2024