BHW v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	BHW v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 533
CLAIMANT:	BHW
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
SENIOR MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Glen Smith
DATE OF DECISION:	23 October 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review under section 7.26; psychological injury; whether claimant’s permanent impairment that resulted from post-traumatic stress disorder (PTSD) caused by the accident is greater than 10%; where Medical Assessor found that permanent impairment as a result of PTSD was not greater than 10%; Held – PTSD caused by the accident gave rise to a 7% permanent impairment; the claimant’s permanent impairment that resulted from her PTSD caused by the accident is not greater than 10%; the certificate under review confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certificate of Medical Assessor Parmegiani dated 29 June 2022.

STATEMENT OF REASONS

BACKGROUND

BHW (claimant) was injured in a motor vehicle accident at Raby on 13 May 2019 (accident). The claimant subsequently made claims for both statutory benefits and damages under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer).
There is a dispute between the claimant and the insurer as to whether the claimant’s permanent impairment that resulted from psychological injury caused by the accident is greater than 10%. The dispute is about a medical assessment matter,[1] and is a medical dispute as defined in s 7.17 of the MAI Act. The medical dispute was referred to the Personal Injury Commission (Commission) for assessment under Division 7.5 of the MAI Act.
[1] Sch 2 cl 2(a) MAI Act.
Medical Assessor Parmegiani assessed the medical dispute and gave a certificate on 29 June 2022. The Medical Assessor certified that chronic post-traumatic stress disorder had been caused by the accident and gave rise to a permanent impairment that was not greater than 10% (Assessment). The claimant sought a review of the Assessment in accordance with s 7.26 of the MAI Act (Review).
The President’s delegate determined that there was reasonable cause to suspect that the Assessment was incorrect in a material respect. The review panel (Panel) was thereafter constituted by the President of the Commission to conduct the Review.

THE REVIEW

The Review of the Assessment by the Panel 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 Assessment is concerned: s 7.26(6).
The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the Personal Injury Commission Rules (Rules).
On 19 May 2023 and 30 June 2023, the Panel issued directions to the parties. The Panel was ultimately provided with a final joint agreed bundle of documents relied on by the parties for the purposes of the Review. The Panel has also been provided with the claimant’s written submissions dated 20 July 2023 and the insurer’s written submissions dated 26 July 2023.
On 25 July 2023 the Panel informed the parties that it considered a re-examination of the claimant was required. Arrangements were made for the claimant to be re-examined by Medical Assessors Hong and Smith on 1 September 2023. The re-examination was subsequently re-scheduled to, and took place on, 11 September 2023.

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 4.11 of the MAI Act. Section 4.12 of the MAI 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, damages may not be awarded unless the degree of permanent impairment has been assessed by a medical assessor under Division 7.5: s 4.12 of the MAI Act. The method of assessing the degree of impairment is dealt with in s 7.21 of the MAI Act. The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Guidelines (Guidelines).
Version 9.1 of the Guidelines applies to the Review. Part 6 of the Guidelines deals with the assessment of the degree of permanent impairment that has resulted from an injury caused by a motor accident on or after 1 December 2017. Psychiatric impairment is assessed as set out under the heading 'Mental and behavioural disorders' within Part 6.
Causation is dealt with at [6.5]-[6.7] of the Guidelines. Those clauses state:
“Causation of injury
6.5    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.
6.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
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.
6.7    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.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, s 5D and s 5E of the Civil Liability Act 2002 apply.

ASSESSMENT UNDER REVIEW

Medical Assessor Parmegiani gave a certificate dated 29 June 2023 in which he certified that “Chronic Post-traumatic Stress Disorder” was caused by the accident and gave rise to a permanent impairment that is not greater than 10%.
The Medical Assessor recorded that the claimant had no personal or family history of psychiatric illness preceding the accident. She had not resorted to psychotropic medication since the accident. She reported that she had seen a psychologist in Camden at ‘About Therapy’, over four sessions in 2020, when she had experienced a distinct deterioration in her mood. She was not consulting with a psychologist or psychiatrist at the time of the assessment.
The claimant reported that in March 2020 she became extremely anxious and did not leave her house for three weeks, which she consequently took off work. She managed to resume her work duties but stopped working again in August 2021 with symptoms of increasing emotional distress.
When asked about the psychological consequences of the accident the claimant commented that the initial shock had never gone away. She felt that she was no longer the same person because she was no longer able to do the things that she wanted to do. When asked specifically, the claimant agreed that immediately after the accident she had experienced several symptoms consistent with an acute stress reaction, including recurrent and intrusive memories, flashbacks, and nightmares. She avoided driving for three weeks and continued to avoid the same road. She became a restless sleeper, was persistently tense and easily startled. She was irritable and in fear of becoming involved in other accidents. Symptoms had persisted over time and remained present, though less frequent.
The Medical Assessor recorded that the claimant reported persistent symptoms of post-traumatic stress disorder, consisting of recurrent and intrusive memories of the accident, flashbacks, hyperarousal, irritability, increased startle response, as well as some avoidance. She presented as a fair and reliable historian, who gave a good account of the accident and its consequences. From a psychiatric perspective she reported symptoms that were understandable within the context of her experience, and which did not appear to be exaggerated or embellished.
There were no other detected stressors that might account for her psychiatric condition. Accordingly, it was the Medical Assessor’s opinion that the accident could be regarded as the most evident causal factor for her psychiatric condition.
The Medical Assessor determined that the claimant’s permanent impairment as a result of the diagnosed psychiatric injury was 7%. This included 2% to account for the effects of treatment. Self-Care and Personal Hygiene was class 1. Social and Recreational Activities were class 3. Travel was class 2. Social Functioning was class 1. Concentration, Persistence and Pace were class 2, as was Adaption. “[T]wo extra points” were given for treatment effect.

EVIDENCE

As recorded earlier, the evidence relied on by the parties is contained in a joint bundle. Included in the bundle is the Application for Personal Injury Benefits (claim form) dated 26 May 2019, which contains the following description of the accident:
“At approximately 4.10pm on 13/5/[1]9 I was driving south along Raby Road, I was on the outside lane. As I approach[ed] Mustang Rd on the left and there was another car on the left lane was slightly in front on [sic] me. The car from Mustang Rd came and run into left side off [sic] my car which T Boned me and I ended on the other side of the road.”

Medico-legal reports

Dr Rastogi, psychiatrist, reported to the claimant’s solicitors on 13 January 2021. The doctor recorded a history of the accident and the claimant’s post-accident psychological symptoms. The report records that the claimant is scared of driving, drives minimally, and if needed. She avoids driving through the accident site and takes another route. Her confidence with driving has decreased. She hates being a passenger, and is aroused and anxious when a passenger, and very vigilant. Her sleep is poor and her motivation is limited. She has lost her patience and is very nervous. She has second thoughts and has poor decision-making capacity. Her anxiety manifests with catastrophic thoughts, excessive fears and cognitive pressures and she feels a failure. She has poor frustration tolerance, her relationships are strained and she is very interpersonally sensitive. She struggles with planning, organizing things and making decisions. Socially she is more inert and homebound and does not enjoy going out and interacting with people. She has stopped entertaining and is a motivated to do social things. She has lost a few friends over time, and has seen a psychologist.
The doctor recorded that the claimant was working in pre-injury duties but needed reassurance, support and validation, and her work is very supportive. She was planning to step down to four days a week soon due to anxiety, loss of confidence, and was working minimal hours, four days a week.
There was no history of pre-accident psychological symptoms. Symptoms developed after the accident. The chronic pain and functional limitations arising from accident caused physical injuries are impacting her mood and her affect. The doctor diagnosed mild major depressive disorder with anxiety with depressive cognitions, poor emotional regulation, themes of hopelessness, helplessness and resentment.
In the doctor’s opinion, the claimant required psychological counselling therapy with her psychologist working with CBT, trauma and exposure therapy for avoidance and adaptation challenges and to decrease the risk of relapses in the future. She has limited coping tools and has ongoing emotional distress. She would require fortnightly to monthly sessions for six months. With ongoing recommended psychological counselling and physical treatment, the claimant has a reasonable prognosis. In the doctor’s opinion, if the claimant’s pain is addressed, and her physical functioning improves, it will alleviate her anxiety and depression and build confidence.
In a supplementary report of the same date the doctor stated that the claimant had not reached maximum medical improvement and needed to be assessed in six months following the recommended treatment.
Dr Rastogi reported again on 17 September 2021. She confirmed that the claimant had been re-examined that day by way of a “telehealth session”. The claimant reported that the accident had depleted her emotional reserves and that she had hit rock bottom. She had lost her confidence and her motivation was poor. She described irritability, feeling miserable, distressed, and very frustrated. Her sleep was poor and she woke frequently.
The claimant described nervousness of being hit. She drove minimally, and if needed, to work and the shopping centre, and avoided driving through the accident site, and took another route. Her confidence with driving had decreased. Details of symptomatology and functioning are recorded. The claimant described her mood as being depressed and anxious. Her affect was restricted and irritable. She described feeling frustrated, angry, and distraught by pain and losses she had to incur. She felt worthless, helpless, and hopeless. She experienced anxiety and remained on edge with driving. She was frustrated and lacked adaptation, struggling with ongoing pain. She reported no suicidal ideation and denied psychotic symptoms. Her insight and judgment were intact.
In the doctor’s opinion the claimant’s condition had worsened, with further deconditioning and poor tolerance to pain. She had resigned from her job due to working memory deficits and pain causing impingement in her functioning. This has exacerbated her depression, with feelings of hopelessness, worthlessness and disappointment about her condition and future. The doctor diagnosed major depressive disorder with anxiety with depressive cognitions, themes of hopelessness, helplessness, and resentment.
The claimant was considered to be unfit to work and was vocationally compromised, with early retirement, given her reserves had exhausted and she had poor coping. She had a poor vocational prognosis and remained unfit to work in her area of expertise. The claimant needed psychological counselling therapy with her psychologist working with CBT, trauma and exposure therapy for avoidance and adaptation challenges and to decrease the risk of relapses. She had limited coping tools and ongoing emotional distress. She would require fortnightly to monthly sessions for six months.
In Dr Rastogi’s opinion, the claimant had “a limited prognosis” given deconditioning and deterioration, inability to maintain her employment and progressive chronic depressive disorder, impeding on her functioning posing a poor functional and vocational prognosis. She displayed anxiety and fear-based responses and lost her confidence. She had poor stress coping and poor adaptability, and this had compromised her functioning socially and vocationally.
In a supplementary report, the doctor assessed a 17% permanent impairment as a result of the claimant’s psychiatric injury. Self-care and Personal Hygiene were rated class 1. Social and Recreational Activities class 3. Travel was class 2. Social Functioning and Relationships were class 2. Concentration, Persistence and Pace were class 3. Adaption was class 5.
Dr Prior, consultant psychiatrist, reported to the insurer’s solicitor on 13 May 2022, after examining the claimant by video assessment that day. The claimant denied pre-existing significant psychiatric symptomatology, psychiatric diagnosis or psychiatric, psychological or psychopharmacological therapy. She had not previously been involved in significant motor vehicle accidents resulting in psychiatric or physical sequelae.
A history of the accident was recorded. The claimant reported thinking she was going to die; that she “was gone”. The claimant described affective symptoms, anxiety symptoms, and post-trauma symptomatology. The onset of her index symptomatology was approximately three weeks after the accident when she returned to work. Since onset, the claimant reported that her symptoms had been ongoing without periods of remission. She reported an exacerbation about 12 months prior to the examination, due to her pain and increased stress at the time. She attributed this to her continued need to climb four flights of stairs to get to her workplace, which impacted on her knee pain. She reported that her symptoms had been at their current and recent level of severity, essentially unchanged, since August 2021, approximately nine months prior to the assessment. The claimant described long term pre-existing trait anxiety, and a number of obsessive/perfectionistic personality traits.
In the doctor’s opinion, the history elicited was internally consistent and was consistent with the mental status examination. Dr Prior diagnosed chronic post-traumatic stress disorder and co-morbid persistent depressive disorder. These conditions were caused by the accident. The persistent depressive disorder is a common complicating and co-morbid condition associated with post-traumatic stress disorder.
In a report dated 21 June 2022, Dr Prior assessed a 4% permanent impairment as a result of the diagnosed psychiatric injuries. Self-care and Personal Hygiene, Social and Recreational Activities, and Social Functioning, were each assessed as class 1. Travel, Concentration, Persistence and Pace, and Adaption were each assessed as class 2.

Clinical records and material from treatment providers

There is a referral from Dr Urlam to About Therapy dated 23 November 2021. The referral records that the claimant experienced symptoms of anxiety and low mood since the accident. It is recorded that, since the accident, she had lost confidence to drive and became anxious. There had been a referral the year before and the claimant had been seen for initial assessment. It is stated that she would benefit from CBT/psychological therapy/post trauma therapy.

Notes from About Therapy

A report to Dr Urlam dated 13 March 2022 records that cognitive behavioural therapy had been commenced, along with Interpersonal Psychotherapy and Acceptance and Commitment Therapy.
The treatment notes include an account of the accident, the claimant’s post-accident treatment, and her symptoms. The notes record that there were sessions on 4 December 2020 and 14 March 2022.
An Allied Health Recovery Request dated 7 December 2023 was completed by Ms Novella-McMahon, psychologist. The request refers to anxiety, stress and loss of confidence. Signs and symptoms are recorded, and include insomnia, stress, anxiety, depression, lack of concentration. The recovery plan included counselling sessions to treat the psychological symptoms.

Clinical records from Camden Healthcare Centre

The first attendance recorded in the notes was on 14 May 2017, and the last attendance recorded on 11 March 2020. The clinical notes record that the claimant attended the practice on 14 May 2019, the day after the accident. A description of the accident was recorded by Dr Urlam. There was no head injury, loss of consciousness or vomiting. The notes record that the claimant “feels achy all over generally”. Bruising over the seatbelt region was recorded, as was a flare up of left knee pain. On 26 May 2019 it was recorded that the claimant had returned to work but was struggling with knee pain. The pain was getting worse “to the point she is in tears”. Subsequent attendances include reference to knee symptoms and treatment.
The records include medical certificates and certificates of capacity, together with referrals, various test results and radiological reports. There are also specialist reports that relate to physical complaints, including reports from Dr Nabavi, orthopaedic surgeon, and Associate Professor Ireland.

Notes from Camden Central Family Practice

The first entry in the “Complete Record” from the practice is dated 18 April 1995, and the last entry was made on 6 September 2021.
On 4 February 2006 Dr Mackay recorded “Stress re aging parents,??mum has dementia, stress at work, etc Counselled…”. On 7 March 2006 the doctor recorded “Stress re parents remains…”.
On 11 September 2009, Dr Mackay recorded that the claimant was “stressed tearful++, mum has dementia++ now in CNH…Tearful, poor concentration, etc. Counselled at length Not sleeping Plan short temr [sic] use temazepam…”.
These records also include pathology and other test results.

SUBMISSIONS
Claimant’s submissions

The claimant relies on written submissions dated 20 July 2023. She argues that the following categories of the Psychiatric Impairment Rating Scale should be re-considered:
(a)   Self-care and Personal Hygiene
(b)   Social Functioning
(c)   Adaptation
She submits that Self-care and Personal Hygiene should be assessed as class 2 or 3 on the basis that she cannot live independently without regular support, and does not prepare her own meals.
The claimant argues that Social Functioning should be assessed at class 2, because Medical Assessor Parmegiani found that she did not go out to socialise so much, her libido had dropped considerably since the accident, and consequently intimacy with her husband had diminished. She had also become a restless sleeper and had to move out of the matrimonial bed. The claimant submits that these matters confirm that her relationships have been strained.
It is argued that Adaption should be found to be class 4 or 5. In this regard, the submissions point to the history that the claimant managed to resume her work duties but stopped working again in August 2021, with symptoms of increasing emotional distress, and has not returned to work.

Insurer’s submissions

In its written submissions dated 26 July 2023, the insurer argues that Medical Assessor Parmegiani’s assessment is not incorrect in a material respect, and that the claimant’s permanent impairment arising from her psychiatric injuries caused by the accident is not greater than 10%. The insurer points to evidence that it contends supports the Medical Assessor’s findings with respect to the classes assigned for Self-care, Social Functioning, and Adaption.

RE-EXAMINATION AND FINDINGS OF MEDICAL ASSESSORS

The claimant attended the assessment via MS Teams alone from her home. Her husband was in another room of the house. The assessment was conducted by Medical Assessors Hong and Smith (Medical Assessors).

Psychosocial history and pre-accident history
Identifying details

The claimant is a 68-year-old woman, living with her husband in a rented four-bedroom house on a normal sized block. She said that she and her husband are currently in the process of building a house. She has a daughter and grandchildren. She ceased work in August 2020 in accounts payable for a private company. Her husband had retired.

Personal history

The claimant reported that she was born in Lismore and there were no perinatal complications. She grew up in Sydney. She has an older brother and they are close. Her mother passed away at age 86. Her father passed away at age 92. The claimant attended primary school and high school up to fourth form. She completed a hairdressing apprenticeship in Sydney over four years. She then worked in an office and she worked in the city for many years. She said that she was married in her mid-twenties. She returned to work full-time when her daughter was aged around five years. She had worked for the company for 19 years before retiring in around August 2020.

Previous psychiatric history

The claimant denied a history of significant anxiety or depressive symptoms prior to the motor accident in May 2019. She specifically denied a history of previous panic attacks, obsessions and postnatal depressive symptoms.

Drug and alcohol history

The claimant reported that she consumes a couple of glasses of wine on weekends and there was no reported history of problematic alcohol consumption. She denied a history of illicit substance use. She ceased smoking cigarettes around 30 years ago. She denied excessive caffeine consumption and problematic gambling.

Family history

The claimant denied a known family history of mood, anxiety, addictive or psychotic disorders.

Medical history

The claimant reported a previous history of diabetes mellitus and a history of “a mini-stroke” many years ago with no ongoing sequelae.

Pre-accident functioning

The claimant said that prior to the motor accident she was enjoying her work in accounts payable and there were no issues related to psychological symptoms.

History of the motor accident

The claimant reported that on 13 May 2019, she was driving home alone from work at around 4.40pm in her own Toyota Corolla on a fine day, along a four-lane road in the centre lane. She said that “a car came out” and hit her on the side and pushed her over towards a bus coming from the opposite direction, “I thought it was all over red rover”. She said that fortunately the bus stopped. She said that in the impact, her legs hit the dashboard and then she could not move her legs. An ambulance was called and it arrived after around 20 minutes. She felt anxious with tightness in her chest. She said that after around 45 minutes, she was able to walk to the ambulance and her blood sugar levels were checked. The claimant said that the paramedics wanted to take her to hospital but she did not want to go to hospital. Her daughter arrived at the scene and took her home and the next day she saw her general practitioner (GP).

History of symptoms and treatment following the motor accident

The claimant reported that, from a physical perspective, she experienced bilateral knee pain and chest pain after the accident and she took analgesic medications. She attended a physiotherapist and that assisted but subsequently she “learnt to deal with it the best [she] could”. She saw a specialist regarding treatment of her knee injury and the doctor said that she had arthritis and she received Platelet-Rich Plasma (PRP) injections on four occasions in late 2019. She most recently received treatment for her physical injuries in around 2021.
From a psychological perspective, the claimant reported that after the accident, she felt “nervy, about driving, I’m getting better, I was very depressed”. She said that she did not drive at all for around two weeks after the accident and then she received a loan car. She said that despite her anxiety, “I had to drive”. She had three weeks off work and then returned to work in her role in accounts payable. She returned to work for a couple of weeks and then had a further two weeks off work due to her physical and psychological difficulties. The claimant said that when she returned to driving she felt anxious and hypervigilant, “I had a dry mouth” but “gradually I got better”. She said that she has avoided travelling on busier roads (“expressways”) due to anxiety about being involved in another accident. She said that she has not been able to drive at night. She said that after the accident, she frequently woke up during the night, “pain is one of the main things, thinking about things”. She said that she experienced a few nightmares in the early stages after the accident, “a bus coming towards me” and she now sleeps on her own because of her disturbed sleep.
The claimant reported that she saw a psychologist from around December 2019, on four or five occasions. She spoke with her GP, “I more or less felt I had to deal with it myself”. She said that “the pain has been the main source of my problems”. She saw Professor Ireland and he said she would need both knees replaced but this has not yet occurred.
The claimant said that at work she found it difficult sitting due to the knee pain and she found it hard to concentrate. She reduced her work initially to four days per week, “I had to release some work to my colleagues, I had been there 19 years”. She decided to retire in August 2020 (“I was due to retire but I loved my job and I could have worked until now”).

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

The claimant denied any other accidents or injuries since the motor accident in May 2019.

Current symptoms

The claimant reported that she feels “nervous and aggravated, I don’t have that calmness”. She continues to experience pain in her knees. She feels sad, at times, but sometimes she also enjoys some activities and she denied pervasively depressed mood. She enjoys seeing her grandchildren but she feels frustrated because she cannot play with her grandchildren as she previously would have and she feels that she cannot travel. She sleeps from 10.30pm and she wakes at 2.00am with pain and then she finds it difficult to return to sleep but she sleeps from 4.00am to 6.00am. She denied nightmares. Her appetite is reasonable. She reported that losing weight had improved her knee condition. She described difficulties with thinking and concentrating. She felt anxious when driving. She avoids driving on “expressways” and at night.

Current and proposed treatment

The claimant said that she does not believe that she needs further psychological therapy.

Current medications

Metformin (diabetes mellitus).
Panadol Osteo four to six tablets daily (simple analgesic medication).
Celebrex 200mg one daily (anti-inflammatory medication).
Crestor 20mg daily (hypercholesterolaemia).

Mental state examination

The claimant was punctual and attended the assessment via video conference. She was cooperative and polite. There was no agitation. She reported feeling frustrated with the pain but her affect was appropriately reactive. There were no pervasive reported feelings of worthlessness or hopelessness and she denied suicidal ideation.

Current functioning

Self-Care and Personal Hygiene

The claimant said that she showers every day, with handles installed due to the difficulties with her knees. She said that she orders ‘Lite n’ Easy’ meals, primarily to lose weight. She shares domestic duties with her husband (for example, she washes the clothes and he hangs them out). Her difficulties with functioning relate predominantly to her physical injuries and persistent pain.

Social and Recreational Activities

The claimant reported that she occasionally goes out with her husband to her daughter’s house. She said that she enjoys going walking, swimming at the pool twice per week and to the beach. She said that she previously was more socially active. A friend visits from Bathurst every couple of months. She previously enjoyed going out for dinner. She said that she cannot stand or sit for too long. She said that she would rather be at home. She said that she performs “a bit of sewing” and she reads “soapy novels”. She said that she watches a lot of movies on Netflix. She sees her grandchildren every couple of days and noted that they drop in after school. She has not been involved in any organisations, clubs or voluntary work. She has been involved in planning the building of her new home.

Travel

The claimant said that she drives alone but only in the local area. She said that she travelled to the Central Coast to see friends after Christmas 2022 and they stayed there for two days. She said that she had planned to go to England but she has avoided this travel because she would not be able to sit for the extended duration due to her knee pain.

Social Functioning

The claimant reported some strain in the relationship with her husband due to her anxiety and mood symptoms.

Concentration, Persistence and Pace

The claimant said that she can watch about half of a movie but then gets up briefly to walk around.

Adaptation

The claimant retired from her work role in 2020, predominantly due to the impact of pain and difficulties with concentration.

Comments of consistency

While Medical Assessor Parmegiani documented that she retired in August 2021, the claimant repeatedly said that she retired in August 2020. This is not of significance in the current psychiatric assessment.

Diagnosis and reasons

The claimant was involved in a motor accident on 13 May 2019, in which she thought she was about to be killed by a collision with a bus, and after the accident she could not feel her legs. This accident fulfills criterion A for the diagnosis of post-traumatic stress disorder. After the accident, she felt anxious about driving and she avoided driving due to anxiety about being involved in another accident. She experienced intrusive memories of the accident and was hypervigilant when driving. The Medical Assessors are in agreement with Medical Assessor Parmegiani and Dr Prior, who both diagnosed post-traumatic stress disorder in relation to the motor accident.
Dr Rastogi diagnosed major depressive disorder, with anxious distress, but, as noted by Medical Assessor Parmegiani in 2022, there has been an improvement in depressive symptoms to the extent that the claimant no longer fulfills criteria for the diagnosis of major depressive disorder. Dr Prior also noted an improvement in depressive symptoms and diagnosed persistent depressive disorder, without current symptoms consistent with a major depressive episode. At the present assessment, there were not significant ongoing depressive features and therefore, the additional diagnosis of persistent depressive disorder was not made.

Causation and reasons

The claimant was involved in a motor accident on 13 May 2019 that caused her post- traumatic stress disorder symptoms. There were also depressive symptoms comorbid with the post-traumatic stress disorder symptoms and contributed to by the persistent pain in relation to the knee injury but these mood symptoms have diminished over time.

Degree of permanent impairment Psychiatric Impairment Rating Scale

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	1	The claimant said that she showers every day, with handles installed due to the difficulties with her knees. She said that she orders ‘Lite n’ Easy’ meals, primarily to lose weight. She shares domestic duties with her husband (for example, she washes the clothes and he hangs them out). She presented with no significant ongoing impairment in self-care due to her psychiatric symptoms.
2. Social and Recreational Activities	2	The claimant reported that she occasionally goes out with her husband to her daughter’s house. She said that she enjoys going walking, swimming at the pool twice per week and to the beach, sometimes with her family. She said that she previously was more socially active. A friend visits from Bathurst every couple of months. She enjoys spending time with her grandchildren every couple of days and she noted that they drop in after school. She has not been involved in any organisations, clubs or voluntary work.
3. Travel	2	The claimant said that she drives alone but only in the local area. She said that she travelled to the Central Coast to see friends after Christmas 2022 and they stayed there for two days.
4. Social Functioning	2	The claimant reported some strain in the relationship with her husband due to her anxiety but there have been no episodes of violence or separation.
5. Concentration, Persistence and Pace	2	The claimant said that she can watch about half of a movie, and then gets up briefly to walk around. She is able to focus on intellectually demanding tasks for up to 30 minutes.
6. Adaptation	3	The claimant retired from her work role in 2020, predominantly due to the impact of pain and difficulties with concentration. Based on her current psychological presentation, she would be fit for part-time vocational activities.
List classes in ascending order: 1, 2, 2, 2, 2, 3
Median Class Value: 2
Aggregate Score: 12
% Whole Person Impairment: 6%

*%WPI ^{= Percentage Whole Person Impairment}

Psychiatric Impairment Rating Scale – pre-existing/subsequent impairment

There was no significant history of pre-existing psychiatric symptoms.

Apportionment

Nil.

Effects of treatment

The claimant received around five sessions of psychological therapy from late 2019. This minimal treatment provided some benefit and a 1% adjustment for the effects of treatment has been applied, for a final PIRS of 7% (6% + 1% treatment effect). This results in a permanent impairment of 7%.

Explaining the different PIRS findings

Regarding the differences between this assessment and the permanent impairment ratings of other psychiatrists, the Medical Assessors noted that over one year had passed between the assessments of Dr Prior and Medical Assessor Parmegiani and over two years since the assessment of Dr Rastogi. This likely accounted for some of the differences in ratings.
Medical Assessor Parmegiani’s ratings on the PIRS were the same as the Medical Assessors’ ratings for Self-Care and Personal Hygiene, Travel and Concentration, Persistence and Pace. Medical Assessor Parmegiani rated the claimant as class 3 for Social and Recreational Activities but the Medical Assessors rated class 2 because the claimant occasionally goes out to social and recreational activities and does not need a support person. Medical Assessor Parmegiani rated the claimant as class 1 for Social Functioning but the Medical Assessors rated class 2 because the claimant described strain in the relationship with her husband. He rated the claimant as class 2 for Adaptation, while the Medical Assessors rated class 3 because the claimant presented as fit for part-time vocational activities only at the time of the re-examination. Medical Assessor Parmegiani allocated a 2% treatment effect but the Medical Assessors applied only a 1% effect because there had been only five sessions of psychological therapy with a minor impact on the claimant’s condition.
Dr Prior’s ratings on the PIRS were the same as the Medical Assessors’ ratings for Self-Care and Personal Hygiene, Travel and Concentration, Persistence and Pace. Dr Prior rated the claimant as class 1 for Social and Recreational Activities and Social Functioning, whereas the Medical Assessors rated class 2 for both of these categories for the reasons given earlier. Dr Prior rated the claimant as class 2 for Adaptation. The Medical Assessors rated class 3 because the claimant presented as fit for part-time vocational activities only.
The Medical Assessors noted the claimant’s submissions regarding the ratings for Self-care and Personal Hygiene but considered that, based on her presentation on assessment, she would be able to care for herself independently and that any residual deficits related to her psychiatric condition are minor, justifying the rating of class 1. The Medical Assessors also noted the claimant’s submissions regarding Adaptation, but considered that, based on her presentation on assessment and exercising their professional judgment, the claimant would be able to engage in vocational activities on a part-time basis.

DETERMINATION

The Panel adopts the precise examination findings and conclusions of the Medical Assessors based on their examination of the claimant, and the specific findings pertaining to diagnosis, causation and permanent impairment.
The Panel finds that the claimant was involved in a motor accident on 13 May 2019 in which she thought she was about to be killed. The Panel finds that the accident fulfills criterion A for the diagnosis of post-traumatic stress disorder. The Panel finds that after the accident the claimant felt anxious about driving and avoided driving due to anxiety about being involved in another accident. The Panel also finds that the claimant experienced intrusive memories of the accident and was hypervigilant when driving. The Panel finds that the diagnostic criteria for post-traumatic stress disorder have been met, and that the evidence supports a diagnosis of post-traumatic stress disorder.
The Panel finds that the diagnosed post-traumatic stress disorder was caused by the accident. The Panel is satisfied, on the balance of probabilities, that the motor accident was capable of causing post-traumatic stress disorder and did cause that condition. The Panel is satisfied that the accident was a necessary condition of the occurrence of this injury. But for the accident the claimant would not have developed post-traumatic stress disorder.
The Panel finds that the post-traumatic stress disorder gives rise to a 7% permanent impairment. The Panel therefore finds that the claimant’s permanent impairment that resulted from her post-traumatic stress disorder that was caused by the accident is not greater than 10%. That being the case, the Panel confirms the certificate of Medical Assessor Parmegiani dated 29 June 2022.

[2023] NSWPICMP 533

23 October 2023