BHY v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	BHY v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 622
CLAIMANT:	BHY
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
SENIOR MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Christopher Rikard-Bell
MEDICAL ASSESSOR:	Doron Samuell
DATE OF DECISION:	3 September 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; psychiatric injury; “threshold injury” and permanent impairment disputes; where Medical Assessor found diagnosed psychiatric conditions not caused by the accident; Held (by majority) – pre-existing post-traumatic stress disorder was aggravated by the accident; aggravation of post-traumatic stress disorder not a threshold injury; 1% permanent impairment attributable to accident after deduction for pre-existing impairment; separate reasons provided by third member of Medical Review Panel (Panel); determination of the majority is taken to be the determination of the Panel; Medical Assessment Certificate (MAC) revoked; new certificates issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificates of Medical Assessor Barrett dated 6 December 2022 and certifies that: (a) The aggravation of pre-existing post-traumatic stress disorder was caused by the motor accident on 19 September 2019 and is not a threshold injury. (b) The degree of permanent impairment of the claimant that has resulted from the aggravation of post-traumatic stress disorder caused by the motor accident on 19 September 2019 is 1%, and (c) The degree of permanent impairment of the claimant that has resulted from the aggravation of post-traumatic stress disorder caused by the motor accident on 19 September 2019 is not greater than 10%.

MAJORITY STATEMENT OF REASONS

The reasons that follow are those of Medical Assessor Rikard-Bell and Senior Member Williams (majority). Medical Assessor Samuell does not agree with the determination of the majority and has provided separate reasons. The determination of the majority is taken to be the determination of the Review Panel: r 128(6) Personal Injury Commission Rules 2021 (Rules).
Medical Assessors Rikard-Bell and Samuell re-examined BHY (claimant) together. The re-examination findings recorded in the reasons of the majority with respect to diagnosis, causation, the Psychiatric Impairment Rating Scale (PIRS), and impairment are those of Medical Assessor Rikard-Bell.

BACKGROUND

The claimant was involved in a motor accident at Merrylands on 19 September 2019 (accident). She has made a claim for both statutory benefits and damages under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer).
Disputes arose between the claimant and the insurer as to whether for the purposes of the MAI Act a psychological injury caused by the accident was a minor injury, and the degree of permanent impairment that has resulted from a psychological injury caused by the accident. These disputes are both medical assessment matters and medical disputes: s 7.17 and Sch 2 cl 2(a) & (e) of the MAI Act.
The Motor Accident Injuries Amendment Act 2022 amended the MAI Act to omit the term “minor injury” and replace it with the term “threshold injury” from 1 April 2023. References in these reasons to “minor injury” are references taken from documents created prior to the amendment.
The medical disputes were referred to Medical Assessor Barrett for assessment. The Medical Assessor gave a certificate dated 28 November 2022 in which she certified that post-traumatic stress disorder complicated by major depressive disorder was not caused by the accident. That being the case, the Medical Assessor certified that a decision as to whether these conditions were minor injuries was not required. Likewise, the Medical Assessor determined that an assessment of the degree of permanent impairment that resulted from these injuries was not required (Assessment).
The claimant sought a review of the Assessment under s 7.26 of the MAI Act. The President’s Delegate determined that there was reasonable cause to suspect that the Assessment was incorrect in a material respect. The review application was accepted and referred to this Review Panel (Panel). The Panel has been constituted by the President of the Commission to conduct the review of the Assessment.

THE REVIEW

The Panel is to conduct the review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the Panel is to be constituted by 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 7.26(6) MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings: Rule 128.
Version 9.2 of the Motor Accident Guidelines (Guidelines), effective from 10 November 2023, apply to the Review.

DIRECTIONS

The Panel made directions for provision by the parties of a joint agreed indexed and paginated bundle that contained all material relied on for the purposes of the review, together with submissions for the purposes of the review.
An amended joint bundle (joint bundle) was lodged on 19 March 2024. In its submissions dated 5 April 2024, the insurer noted that some of the evidence that was before Medical Assessor Barrett had not been included in the revised joint bundle and submitted that if required, the Panel should refer to the original evidence that was before the Medical Assessor.
In a message to the parties on 11 April 2024 the Panel noted that it directed that a joint bundle that contained all material relied on by the parties for the purposes of the review be lodged and that a joint bundle, comprising 473 pages, had subsequently been lodged on or about 19 March 2024. If the insurer considered that there were documents not contained in the joint bundle that were relevant to the review, and upon which it sought to rely, the insurer was directed to lodge those documents, together with submissions that clearly identified the reliance it placed on each and every document lodged. No further material was lodged by the insurer in response to this direction.
The Panel identified that reports of Dr Kumagaya, referred to in the insurer’s submissions at [6.9]-[6.13], were not included in the bundle and notified the parties accordingly. The insurer subsequently sought leave to rely on reports from Dr Kumagaya dated 22 July 2020, 24 August 2020, 28 September 2020, 28 October 2020, and 7 December 2020.
On 7 August 2024 the claimant’s solicitors confirmed that there was no objection to the insurer relying on Dr Kumagaya’s reports. Further, while given the opportunity to make submissions addressing the reports, the claimant elected not to do so.
The Panel considers that the reports of Dr Kumagaya are relevant to the matters in dispute; they were referred to in the insurer’s submissions, and were prepared by a doctor who provided treatment to the claimant after the accident. For these reasons, leave is given to the insurer to rely on the reports.

STATUTORY PROVISIONS

Threshold injury

The term “threshold injury” is defined in s 1.6 of the MAI Act and includes threshold psychological or psychiatric injury. A threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(a).
Section 1.6 provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (Regulations) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. For the purposes of cl 4. “acute stress disorder” and “adjustment disorder” have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl4(3) of the Regulations.
Part 5 of the Guidelines contains the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 10 November 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3    The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    …
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”

Permanent impairment

No damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%: s 4.11 MAI Act.
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(1) MAI Act.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1)     The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2)     Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3)     In assessing the degree of permanent impairment, 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.
(4)     A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with “Mental and behavioural disorders”, found in clauses [6.201]-[6.228] of the Guidelines.

Causation

The Guidelines state as follows with respect to causation of injury:
“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.”
In Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 (Briggs), Wright J held at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs at [75]. Further, s 5D and s 5E of the Civil Liability Act 2002 apply to the MAI Act.[1]
[1] See s 3B(2) of the Civil Liability Act, 2002.

ASSESSMENT UNDER REVIEW

Medical Assessor Barrett gave certificates and provided reasons dated 6 December 2022. The Medical Assessor certified that post-traumatic stress disorder complicated by major depressive disorder were not caused by the accident. That being the case, the Medical Assessor certified that a decision as to whether these injuries are a minor injuries was not required for the purposes of the MAI Act.
In a separate certificate, the Medical Assessor certified that post-traumatic stress disorder complicated by major depressive disorder were not caused by the accident, and that an assessment of degree of permanent impairment of these injuries was not required.
In her reasons, the Medical Assessor recorded that the claimant denied any pre-accident psychiatric history, and denied any psychiatric consequences of a miscarriage. She also recorded that there was “no CTP claim, as she decided not to pursue it” following a 2017 accident.
The Medical Assessor recorded a history that the claimant was born in Iran, moved to Thailand with her husband, travelled to Indonesia and from there came to Australia by boat. She was held, with her husband, in detention at Christmas Island for approximately a month, and was then relocated to Sydney, where they settled.
The claimant reported pain in her right shoulder into her right arm following the accident, that she was unable to lift her third child, and that she could not breastfeed the baby. She was unable to vacuum. The claimant reported trying to work and not being able to continue due to pain.
The claimant reported experiencing nightmares following the accident, that she had reduced sleep, reduced patience and energy, that she was scared to open the door, is fearful of having another accident, and has avoided driving. The claimant had ceased taking antidepressant medication six months prior to the assessment.
The reasons include details of the claimant’s functioning. The Medical Assessor recorded that the claimant “appeared to provide vague responses to questions at times, frequently responding, ‘I don’t know’… [s]he minimised the impact of the 2016[2] accident, denying any past psychiatric history which is inconsistent with the documentation.”
[2] The Medical Assessor’s reasons refer to an accident in 2016. The Panel has proceeded on the basis that this is typographical error, and that the Medical Assessor is referring to the 2017 accident.
In the Medical Assessor’s opinion, the claimant fulfils the criteria for post-traumatic stress disorder. Symptoms of negative affect, negative cognition and mood, including persistent negative beliefs, persistent negative emotional state, diminished interest, feelings of detachment and loss of experience of positive emotions, fulfil the core clinical symptom criteria for the diagnosis of post-traumatic stress disorder. Likewise, her sleep disturbance and concentration problems are explainable by post-traumatic stress disorder. She reported stable appetite, only reduced as a side effect of taking antidepressants, denied anhedonia, has bonded with her children and denied suicidal ideation. For these reasons, the Medical Assessor did not consider that the claimant fulfils the criteria for a separate diagnosis of major depressive disorder; her depressive symptoms forming a part of the symptom cluster of post-traumatic stress disorder.
In Medical Assessor Barrett’s opinion, the claimant had an increased risk of post-traumatic stress disorder because of her exposure to war in Iran, migration stress (having travelled to Australia by boat from Indonesia and spending a period of time in immigration detention), and isolation in Australia. The 2017 accident and subsequent miscarriage fulfilled criteria A for post-traumatic stress disorder. She thought it unlikely that the condition would have resolved prior to the accident.
The reasons record that the Medical Assessor “accept[ed] that the subject accident would have been one which would have been frightening, and caused an exacerbation of PTSD, especially in a person with a pre-existing history.” She went on to state:
“However, noting that no one in the car was taken to hospital by ambulance, that [the claimant] apparently proceeded to take her daughter to childcare as planned and to go to work as planned before she experienced pain and returned home, the subject accident is not consistent with an accident which would fulfil criteria A for PTSD as there is no evidence [the claimant] feared herself or others were seriously injured. In fact, the first attendance at a GP practice after the subject accident was a number of months after the subject accident.”

In her opinion, “[i]t is expected that PTSD may be exacerbated by conditioned stimuli, such as the subject accident, but usually these exacerbations settle back into baseline chronic state.”
Further, it appeared to the Medical Assessor that there had been further exacerbations since the accident, such as during the claimant’s fourth pregnancy. In the Medical Assessor’s opinion:
“… in regard to her current symptoms of PTSD, I consider this was caused by the 2017 accident, in a woman with some pre-existing vulnerabilities. I expect that the 2019 accident would have caused a period of exacerbation of symptoms of chronic PTSD, but that the usual clinical course is of settling of the exacerbation over a few months. Later exacerbations such as in 2021 were unlikely to be related to the 2019 accident and more likely to reflect the effect of cessation of an antidepressant and the effects of pregnancy on mood and anxiety disorders. Therefore, I consider the subject accident is of less than negligible causation. Rather the cause of her PTSD is the 2017 car accident.”

EVIDENCE

In accordance with directions made by the Panel the parties lodged a revised joint agreed bundle of documents relied on in relation to the Reivew. All the material in the bundle, together with the reports of Dr Kumagaya, has been considered.

QBE documents – motor accident on 23 August 2017

The joint bundle contains records from QBE Insurance (Australia) Ltd (QBE) that relate to a claim for damages made by the claimant with respect to an accident that occurred on 23 August 2017 (2017 accident).
An accident notification form dated 11 September 2017 records that the 2017 accident occurred at West Ryde. The claimant was a passenger in a vehicle driven by her husband. The vehicle in which they were travelling was rear-ended and pushed into the vehicle in front.
A claim form dated 13 February 2018 records that the claimant suffered injuries to her back (lumbar and thoracic), shock, a miscarriage, and abdominal pain as a result of the accident. The claim form records that she was employed full time at “Skin Laser Clinics”, working
20-25 hours a week.
Included with the claim form is a certificate completed by Dr Reid on 12 September 2017. The certificate records that the claimant suffered a miscarriage (at 11 weeks) following the accident. It is also recorded that the claimant had experienced low back pain and had been “stressed” since the accident. She was referred to a physiotherapist and psychologist.
There is a NSW police report dated 16 October 2017. The report records that police did not attend the accident scene, and includes a narrative of the accident circumstances. The narrative is generally consistent with the version of the accident contained in the accident notification form.
A GP Management Plan completed by Dr Reid dated 15 November 2017 refers to the claimant suffering “acute stress disorder” and low back pain as a result of the accident. She had also suffered a miscarriage, and was referred to a psychologist. The document records:
“Little know about the patient apart from attending on Aug 24 for antenatal tests. Has not consistently seen one doctor. I have no insight into her psychological strengths or weaknesses.”
An “Initial Session Psychologist Report” dated 18 December 2017 authored by Maria Hamidi records that the claimant disclosed symptoms of anxiety and depression that started after a miscarriage following the 2017 accident. A questionnaire completed by the claimant yielded a rating of “severe” for depression, “extremely severe” for anxiety and “moderate” for stress. Counselling sessions were recommended.
The QBE material includes a range of radiological and ultrasound reports that have been considered.
Clinical notes from the Merrylands Family Practice, printed on 7 August 2018, have been considered. A referral dated 12 September 2017 records that the claimant experienced low back pain “across iliac crests both sided” since the 2017 accident.
There is a referral to Ms Ashiq for psychological treatment dated 6 November 2017. The referral states “[c]rying after losing baby, not talking to husband”. There is a referral in similar terms addressed to Somayeh Mahintorabi dated 15 November 2017.
The QBE records include a number of rehabilitation reports, the contents of which have been considered. A rehabilitation “closure report” from Ms Owen, dated 25 June 2018, records that while the claimant had returned to work three days a week in November 2017, she was not working full hours. The report records:
“Dr Reid was hopeful that [the claimant] would respond to counselling, but advised that she might need to consult with a Psychiatrist in the future for medical intervention if her psychological symptoms persisted. Dr Reid advised that [the claimant’s] physical injury (back pain) sustained in the accident was a minor problem in comparison to her psychological symptoms, but that her pain in the lumbar spine might be amplified as a result of her current psychological distress.”
The report also records that the claimant “experienced a huge health scare towards the end of 2017”. However, biopsy results indicated a benign tumour.
In a medico-legal report dated 18 June 2018 Dr Panjratan, orthopaedic surgeon, diagnosed musculoskeletal lumbar pain as a result of the 2017 accident. The back pain was “variable”. The claimant reported difficulty walking every morning because of her back pain. The report records that “[s]he went back to work about 45 days ago but was not coping and worked for a few days only”. When she does the vacuuming “it is very painful”. Her prognosis was guarded because the problem has persisted. In the doctor’s opinion, because of restrictions relating to bending, twisting and lifting, there will be a restriction in earning capacity in the future. There was a 5% whole person impairment (DRE lumbar category II).
Dr Machart, orthopaedic surgeon, provided a medico-legal report dated 17 July 2018. The report records that the doctor examined the claimant on 11 July 2018. The doctor took a history that the claimant “suffered from depression”. She was not working. Work was difficult because of back pain. She was limited in the amount of house work she could perform. The lower back pain was “usually evident when sitting or when doing anything physical”. She was not able to drive her car. A CT scan “demonstrated disc damage”. There was evidence of S1 radiculopathy based on clinical assessment. The claimant had suffered injury “to a disc in the spine”. There were features of discogenic pain and sciatica. The claimant was not fit to move heavy equipment or lift anything. The doctor found that the claimant’s back injury fell within DRE III and assessed a 10% permanent impairment.

Claim forms and related documents

An Application for personal injury benefits dated 6 December 2019 records that the claimant suffered neck pain as a result of the accident. Reference is made to a prior CTP claim related to an injury on 5 August 2016. The application records that the claimant was working part-time when the accident occurred.
The application for common law damages dated 28 May 2021 has been considered, as has a NSW police report dated 5 March 2020. The report records the location of the accident, together with details of the drivers and the vehicles involved.

Medical Assessment Certificates and medico-legal reports

Medical Assessor Menogue gave a certificate and reasons dated 4 August 2022. The Medical Assessor certified that soft tissue injury to the claimant’s cervical spine and lumbar spine caused by the accident were minor injuries for the purposes of the MAI Act. He also certified that those injuries gave rise to a permanent impairment that was not greater than 10%.
In his reasons, the Medical Assessor recorded that the claimant continued to experience mechanical neck pain since the accident, and that there was contemporaneous evidence of ongoing cervical spine symptoms since the accident. He found that the claimant suffered soft tissue injury to her cervical spine and lumbar spine as a result of the accident. He was not, however, satisfied that the claimant suffered injury to either shoulder as a result of the accident. There was, in his opinion, no evidence of a primary or isolated injury to her thoracic spine or either leg. The lumbar spine injury attracted a 5% whole person impairment. There was no impairment arising from the cervical spine injury.
Dr Bodel, orthopaedic surgeon, reported on 4 December 2020. The doctor recorded that at the time of the accident the claimant was not employed “outside the house”. He took a history that the claimant experienced neck, right shoulder and arm pain, interscapular pain and low back pain immediately following the accident. She reported not being able to drive a car because of ongoing physical and psychological disturbances. There was a history of “some lower back pain in 2016 or 2017 complicated by a miscarriage” that took “about” six months to settle, and that the claimant “was pain free in the back area for at least 6 months and probably 12 months prior to the accident”.
The doctor diagnosed soft tissue musculoligamentous injury to the cervical spine and probable rotator cuff pathology in the right shoulder that were caused by the accident. The claimant’s prognosis was guarded; she had made minimal, if any, progress since the accident. The doctor assessed an 8% impairment of the right upper extremity, a 5% impairment of the cervicothoracic spine, and a 2% left upper extremity impairment, resulting in a 15% whole person impairment.
Dr Rastogi, psychiatrist, reported on 15 January 2021. The doctor recorded that “[t]here is no known previous history of depression or anxiety prior to 2019”, and that there “were no pre-existing psychological vulnerabilities”. The doctor also recorded that “[p]remorbid she was very active doing home duties and caring for children”. Following the accident the claimant experienced pain with significant limited movement and functional restrictions associated with “cervical disc and lumbar pathology with chronic pain and lack of adaption.”
In Dr Rastogi’s opinion, the claimant has developed symptoms of depression in the context of poor adaption and limited functioning. She reported anxiety causing her to be aroused in the car. She was vigilant, avoided driving, experienced occasional nightmares, and has “instilled feelings of hopelessness, worthlessness, anhedonia…”. She was forgetful, had developed a loss of confidence, had poor tolerance and poor frustration tolerance, and had become socially avoidant. The depression had persisted for more than six months and has caused limitations in her functioning, with avoidance behaviours and negative cognitions. The claimant required psychological counselling, pain management strategies, and functional assessment.
Dr Rastogi thought that the claimant’s psychological prognosis was dependent on her pain and functional improvement. She continued to display anxiety with poor stress coping and disappointment with mild negative thoughts, was deconditioned by pain, and displayed avoidant behaviours especially with driving. The claimant had not resumed her premorbid work and required rehabilitation to assess suitable functioning. The doctor assessed an 11% permanent impairment as a result of the diagnosed psychological injury.
Dr Keller, occupational physician, reported on 26 February 2021. The doctor recorded that the claimant was diagnosed with depression for the first time in 2019 after the motor accident. The claimant reported intermittent right arm and neck pain. The doctor thought it likely that the claimant suffered bruising to her chest and soft tissue strain to her right arm as a result of the accident. In his opinion, the claimant’s complaints were attributable to the accident. It was, in his opinion, “not clear why her symptoms have not resolved in more than 1.5 years.” There were no objective signs of persisting musculoskeletal complaints that can be attributed to the accident. She did not require passive physical treatment, and there were no indications for any injections or surgery. There was no assessable impairment.
Dr Shatwell, orthopaedic surgeon, reported on 1 February 2022. The report records that the claimant reported pain and altered sensation intermittently in the whole of her right arm. She also experienced residual low back pain. A history of low back pain following the 2017 accident was reported. The claimant reported that she drives, but only locally, for about 10 minutes. She takes Mirtazapine in a daily dosage as an antidepressant.
The doctor opined that the claimant suffered a musculoligamentous strain of her neck and shoulders as a result of the accident, and that these injuries would have settled within a few weeks of the accident and “by 3 months at the very most.” The claimant’s physical symptoms were not explainable on an organic basis. The distribution of tingling, numbness, burning and coldness in the right upper limb did not fit in with any known neurological condition. In Dr Shatwell’s opinion, full neurological survey with conduction studies should be initiated in order to exclude the possibility of some occult pathology unrelated to the accident causing her problems.
Dr Vickery, psychiatrist, reported on 17 February 2022. The claimant reported anxiety being in the car since the accident. She did not like going past the accident scene. She experienced nightmares. The claimant reported continuing pain in her neck and in her right shoulder and various symptoms in her right arm, hand, and fingers.
In Dr Vickery’s opinion, the accident did not satisfy the criteria for post-traumatic stress disorder. The doctor diagnosed somatic symptom disorder with predominant persistent pain. There were, in his opinion, no psychological injuries directly due to the accident, and no whole person impairment.

Records from treatment providers

The joint bundle contains allied health recovery requests (AHR), certificates of capacity, and recovery plans. This material, together with the cervical spine MRI report dated 10 March 2020, has been considered.
The AHR from Workers Doctors dated 3 April 2020 relates to a referral to a psychologist, and records a diagnosis of post-traumatic stress disorder. Signs and symptoms are recorded as including “low mood, irritability, nightmares, avoidance, impaired memory and concentration, anxious and depressive cognitions, anergia, anhedonia”. The referral states that “[p]atient sustained post traumatic stress disorder post workplace injury…”. Other AHR’s relate to referral to a physiotherapist.
In addition to physical injuries, a certificate of capacity dated 17 December 2019 includes a diagnosis of adjustment disorder. A certificate dated 28 October 2020 refers to “PTSD”, as do subsequent certificates.
The “Initial Assessment” prepared by Dr Calvache-Rubio dated 6 December 2019 includes reference to “[f]ear when inside the car, hypervigilant, flashbacks, nightmares”, records a diagnosis of adjustment disorder, and that there had been a referral to a psychologist.
The “Injury Questionnaire” dated 6 December 2019 records (among other things) that the claimant had experienced trouble sleeping and flashbacks, was anxious to drive and “overly cautious” while driving.

Merrylands Family Practice records

There are a number of versions of the records from this practice, all of which have been considered.
The first consultation in the patient health summary was on 20 May 2016. An entry dated 29 August 2017 records that the reason for visit was “[p]regnancy [c]heck up after Accident last week.”
An entry dated 12 September 2017 records “[b]ack pain low lumbar across iliac crests both sided since MVA stressed since miscarriage after MVA, crying at home”.
An entry on 6 November 2017 records:
“Wants to see psychologist because of effects on MVA Aug 23
Crying after losing baby, not talking to husband.
He says, she sometimes ignores him and at times even her daughter”
On 23 November 2017 a note records “[c]urrent issue at 3/12 post MVA is ASD is becoming PTSD”. On 4 January 2018 there is reference to “[a]nxiety”. A note on 16 January 2018 records:
“…low mood
…wants antidepressants...”
On 29 January 2018 the following is recorded:
“husband attends on wife’s behalf
wants to discuss her depression
he feels she is not taking her antidepressants
currently she is overseas and calls him and talk about low mood…
…advised to ask her to see a local doctor in the country she is visiting at the moment asap…”
On 13 March 2018 the notes record that the claimant’s “depression is under control” and that she was “feeling much better, cheerful”.
On 26 June 2018 the notes record (among other things):
“low back pain, depression following miscarriage all from RTA on 23/8/17
on antidepressants
has seen counsellor…
long chat on management of depression and back pain…”
On 30 November 2020 Dr Karhani recorded:
“…was also in car accident
car flipped over
few scrapes and things on body
no serious injury…”
On 6 May 2021 Dr Beckworth recorded that the reason for the claimant’s visit was “[r]ash” and that:
“…She has stress. She lost a baby due to a mva in 2019 when she was 16 weeks pregnant- PTSD symptoms…”
The doctor referred the claimant to a psychologist.
A Centrelink certificate completed by Dr Ahmed on 26 June 2018 refers to “depression” with a date of onset of 23 August 2017. The certificate records the following symptoms:
“…low mood, poor sleep, lack of motivation, unable to cope, tearful, had road traffic accident causing miscarriage”
The certificate also records as follows:
“…miscarriage caused by road traffic accident has significantly affected psychological health and ability to work”
The claimant was certified unfit for work from 1 April 2018 to 31 August 2018. It is recorded that antidepressants had been prescribed. The certificate records an estimate that the symptoms would affect the claimant’s capacity for work for 3-12 months. Reference is also made in the certificate to back pain.
A GP mental health care plan dated 6 May 2021 refers to “[p]ost traumatic symptoms due to her current pregnancy which has triggered issues from past mva and loss of 16 week pregnancy”. Anxiety and depression was diagnosed.

Workers doctors records

The records from Workers Doctors have been considered. The first entry in the progress notes is dated 21 November 2019. An entry in the progress notes on 6 December 2019 includes the following history:
“…initially presented for consultation on Thursday, 21 November 2019 for their injury. On Thursday, 19 September 2019 [the claimant] was a [p]assenger involved MVA. Their car was hit on the passenger’s side by another vehicle…at an intersection.”
Under the heading “Past Medical History” it is stated “Previously well”. Under the heading "Pre-existing Injuries” the note states “Nil reported”. The following symptomatology was recorded:
“Neck pain, stiffness, referred to both traps and shoulders, clicking, [b]ack pain and stiffness, no pins and needles. Fear when inside the car, hypervigilant, flashbacks, nightmares”.
On 21 January 2020, Mr McDonald, psychologist, recorded a range of symptoms, including: recurring memories, nightmares, sleeping difficulties, irritability, lack of concentration, becoming easily startled and constantly on the lookout for signs of danger, avoidance of activities, loss of interest in day-to-day activities. The records include notes made by Mr McDonald at subsequent counselling sessions in February, March, April, May and June 2020.
An entry on 21 January 2020 makes reference to adjustment disorder, a diagnosis referred to in subsequent entries. There is reference to “PTSD symptoms” on 22 July 2020 by Dr Kumagaya, following referral to a psychiatrist in July 2020 to “clarify diagnosis”.
There are a series of reports from Dr Kumagaya, psychiatrist. On 22 July 2020 the doctor reported to Dr Calvache-Rubio. He confirmed that the claimant had been referred for psychiatric assessment following a motor vehicle accident on 19 September 2019. The assessment took place via telehealth with the aid of a Farsi interpreter. The report records that:
“[The claimant] denied any psychiatric background prior to her motor vehicle accident. She denied any prior engagements with mental health services, psychiatric admissions, nor any prior use of psychotropic medications…”

The claimant “did not report any significant pre-accident medical or surgical background”. The doctor recorded that the claimant “vividly remembered feeling intensely fearful that she would die or that she would sustain serious physical injury at the time of the accident”.
The claimant reported the onset of “posttraumatic stress disorder symptoms”, including intrusion symptoms, avoidance symptoms, negative alterations in cognitions and mood, and hyperarousal symptoms. The doctor diagnosed post-traumatic stress disorder, and made recommendations with respect to treatment.
Dr Kumagaya reported again on 24 August 2020. The claimant again reported “enduring posttraumatic stress disorder”. The report records that:
“…of particular concern were ongoing intrusion, avoidance, depressive, and arousal symptoms. [The claimant] was particularly distressed by her ongoing flashbacks, inability to drive, (owing to heightened distress and anxiety), and low mood…”
Fluoxetine was prescribed, and ongoing treatment recommended.
On 28 September 2020 Dr Kumagaya reported that the claimant continued to experience post-traumatic stress disorder symptomatology. Of particular concern to her was ongoing avoidance of driving, hypervigilance, and exaggerated startle response.
Dr Kumagaya reported on 28 October 2020. The claimant was reviewed with the aid of a Farsi interpreter. The report records that:
“She reported a mild improvement in her mental state, especially in the domain of her intrusion and arousal symptoms. [The claimant] reported a reduction in the frequency of her nightmares to 2-3 times / week, and noted an attenuation of her hypervigilance and exaggerated startle response…”
The report goes on to record that the claimant’s mood “was described in improved terms”.
In a report dated 7 December 2020, Dr Kumagaya recorded:
“She reported mental state stability with respect to her posttraumatic stress disorder symptoms, such that she continued to experience intrusion, avoidance, depressive, and arousal symptoms, although their severity was mildly attenuated compared to our previous review”.
The claimant had ceased Fluoxitine on advice from her general practitioner “in light of recent news regarding her pregnancy”. The report records that the claimant’s mood was “described in mildly improved terms”.

Dr Khong’s records

The records of Dr Khong, neurosurgeon have been considered. In a report dated 29 May 2020, the doctor recorded complaints of left sided neck pain, right sided chest and ribcage pain, and low back pain since the accident. Neck pain and right arm symptoms had improved. An MRI scan did not demonstrate significant degenerative pathology. Non-operative management was recommended. No arrangements had been made to see the claimant again. The findings recorded in the MRI cervical spine report dated 10 March 2020 have been considered by the Panel.

Hornsby Ku-ring-gai Hospital records

The documents from Hornsby Ku-ring-gai Hospital include records relating to psychological treatment provided to the claimant. An email dated 15 April 2021 records:
“I just wanted to bring to your attention… a lady who is currently 29+2 pregnant with her 3rd baby. She was seen today in the doctors clinic and was referred to me as the doctor was quite concerned about her situation. As she predominantly speaks Persian, her husband was present to discuss - he is also very involved in her wellbeing.
Following her two births, she had a miscarriage in 2018 due to a car accident. She then experienced a period of depression which at the time she saw a counsellor for. She has since had another car accident and is quite overwhelmed by this. All her family are in Iran which wasn't an issue in her first two pregnancies. But since her second pregnancy she is desperate for extra support and is wondering what we can do to help her mother come from Iran to Australia… Her husband states that she sleeps all of the time, doesn't like to leave the house and barely answers phone calls even from him. Her EDS today was 10, she answered 0 to Q10. I've recommended that he take her to the GP for a MHCP and to see a counsellor. He is unsure if he can convince her to leave the house for that visit. I strongly recommended if she could attend that one appt and then potentially arrange telehealth appts with the psychologist…”

On 6 May 2021 it was recorded that the claimant’s depression “has become worse in the last 8-10 weeks”. The following history was recorded:
“No previous MH intervention prior to 2019 when involved in car accident
Has been experiencing night mares and will not drive a car, is reluctant to sit in passenger seat in car.
Was commenced on Zactin (Fluoxetine) 20mg ceased it 6 months age when became pregnant ?told by GP to cease…”
There is reference in the notes to “right neck problems ? pain (post car accident)”.
A progress note created by Dr Jacob on 6 May 2021 records that the claimant had a history “suggesting severe depression-likely chronic”.
An entry on 16 May 2021 records a history taken from the claimant’s husband that she had lost a baby when she was “pregnant and involved in an MVA”. It is stated that “[p]ost MVA had psychological symptoms ? Depression”. At a home visit the claimant reported “low mood and anxiety relating to driving in a car post MVA a few years ago”. She was taking Lovan “post MVA in 2019)”. She was 34 weeks pregnant. The notes record “[s]ince car accident feels emotions are exacerbated”.
A progress note on 21 May 2021 records:
“Had MVA 2019, while pregnant, lost her child
Diagnosed with depression.”
On 21 July 2021 the following history was recorded:
“Depression for past 2 years following a car accident when pregnant and lost the baby
Under PIMS care and saw a psychologist privately prior to pregnancy - on medication
Agraphobia, scared of going out in a car”
On 10 September 2021 the progress notes record:
“anxiety is an issue - unable to start driving, fear of being 'frozen' when driving.
feels the anxiety has remained unchanged since last review
feels she has nightmares which are causing the anxiety - nightmares traumatic-origin. nightmares occuring [sic] almost every night.
flashbacks when in the car.
depressive symptoms - quality of sleep has improved; doing more household chores. not as tearful. nightmares and flashbacks now the main problem.
some anxiety even when not in a car.”
The notes record that the depression was improving and that “PTSD remains an issue”.

SUBMISSIONS

Claimant’s submissions

The claimant relies on written submissions dated 21 December 2022. The claimant argues that Medical Assessor Barrett erred in her approach to assessing a minor injury, and as a result failed to conduct a permanent impairment assessment.
The claimant submits that Medical Assessor Barrett erred in finding that her post-traumatic stress disorder was not caused by the accident, and that the Medical Assessor should have found that pre-existing post-traumatic stress disorder had been aggravated by the accident, and was a non-minor injury.
It is also argued that the Medical Assessor provided insufficient reasons to support her conclusion that an aggravation of her post-traumatic stress disorder would settle back to pre-2019 accident levels.

Insurer’s submissions

The insurer relies on written submissions dated 5 April 2024. The submissions refer to the claimant’s pre-accident psychiatric history disclosed in the clinical records. There is also reference to two previous motor accidents: one on 5 August 2016 and the second on 23 August 2017.
At [5] the insurer provides a summary of the procedural history relating to medical disputes. At [6] the insurer refers to treating medical evidence, including various entries in the Merrylands Family Practice clinical notes.
The insurer argues at [6.4] that the claimant has not provided an accurate and correct history to “the doctors”, including with respect to what is said to be a “significant pre-accident psychological history”, and the 2017 accident. In this context, reference is made to the reports of Dr Kumagaya that record the claimant denied “prior” psychiatric issues.
The insurer refers to the records from Hornsby Ku-ring-gai Hospital that relate to the claimant’s attendances on the Mental Health Department of the Hospital.
The insurer agrees with Medical Assessor Barrett’s opinion that neither the records of the general practitioners at Workers Doctors, the psychiatrist at Workers Doctors, Dr Kumagaya nor the report of Dr Rastogi can be relied on as these practitioners where “clearly unaware of the significant pre-existing history of PTSD.”
The insurer submits that the Medical Assessor was correct in her determination “on causation”, and that post-traumatic stress disorder and major depressive disorder were not caused by the accident.
The insurer submits Dr Rastogi’s assessment of PIRS is based on somatoform disorders and pain, which is not permissible pursuant to Clause 6.215 of the Guidelines, and that the report of Dr Rastogi cannot be relied upon.
The insurer expressly relies on Dr Vickery’s opinion. In short, the doctor considered that as there were no psychological injuries directly due to the accident, there is no whole person impairment due to the accident. The insurer argues that Dr Vickery provided a more comprehensive and thorough analysis of the claimant’s entire medical history, including pre-existing psychological conditions and previous accidents, and submits that that claimant has not suffered from a psychological condition as a result of the accident.
The insurer submits that Medical Assessor Barrett was correct in finding that the claimant’s post-traumatic stress disorder complicated by major depressive disorder was not caused by the accident and, given that finding, a decision as to whether these injuries are threshold injuries was not required for the purposes of the MAI Act. In the insurer’s submission, the Medical Assessor’s certificate should be confirmed by the Panel.

RE-EXAMINATION

Re-examination of the claimant was initially to occur on 29 April 2024. At the request of the claimant’s solicitors, the re-examination was re-scheduled, and took place on 5 July 2024.

Who attended the assessment

The claimant attended the assessment via MS Teams from her home, and was interviewed in the presence of a Farsi interpreter. The interview was conducted by Medical Assessors Samuell and Rikard-Bell.
The reasons that follow below with respect to diagnosis, causation, and assessment of permanent impairment undertaken in accordance with the PIRS are those of Medical Assessor Rikard-Bell.

History

The claimant was born in Tehran and grew up there. She said that life growing up was good. Her father was a legal advisor and her mother engaged in domestic duties. She denied any adverse early life events or difficulties.
She said that she had two brothers and two sisters and she is a twin. She is the youngest.
She said that she was schooled through to a bachelor’s degree in body building, with an emphasis on nursing. She said that in Iran she worked in a gym helping individuals who were injured.
She left Iran in 2011 as a refugee. She said that her husband “had problems”. She said that she and her husband went to Thailand where they sought refugee status. She said that she and her husband then went to Malaysia where they caught a boat from Malaysia to Australia. They spent 35 days in immigration detention.
The Medical Assessors asked the claimant about any mental health difficulties that she may have experienced in the course of her journey to Australia. She responded that, at the time, she was “very young”. She said that she had been lied to. She said that immigration detention “wasn’t that hard as the officers were very kind”.
The claimant said that she relies on the father of her children for income. She last worked in 2019, for someone else, at a laser clinic. She said that she worked between 10.00 am and 5.00 or 6.00pm for five days per week. She said that she was working at the time of the accident, having commenced that role in 2016. She said that she continued to work for around six months following the accident and acknowledged that she was driving every day. She stated, “[i]f I wanted to drive every day, I did so.”
The claimant stated that she was unable to continue to work due to problems with her shoulders and neck. She also advised that she was unable to drive as she felt anxious.
At the time of the assessment she said that she continued to be unable to drive. When asked why she was unable to drive, she responded, “[f]or two years I wasn’t able to get the birth certificate of my child and their Medicare card, I was sick, they didn’t give me medications anymore. Where should I go or what should I do? I wasn’t able to do it online and I wasn’t able to do it in person.” The claimant said that she has not driven at all since the accident. She advised that she was scared of driving as she gets “flashbacks all the time” and she worries that there will be another accident. She said that she remembers the accident and “everything that happened”. She said that, even when she is a passenger in a vehicle, she feels tremulous and experiences a sensation in her heart and chest “as if someone has taken my heart away from [her]”.
The claimant reported that she “hasn’t been able to get any help”. When asked why that was the case, she was observed to become animated and repeatedly stated that “[n]obody helped me, no one gave me any answer, maybe because my English is not good. I didn’t go much to the GP.” She was observed to be tearful. She advised that she had no difficulty driving before the accident.
At the time of the assessment, she was taking no prescribed medication and was not under the care of a psychiatrist, psychologist or counsellor.
The claimant was asked about any psychological treatment that she may have had arising from the accident and she advised us that she saw “a man”, whose name she could not recall, on four occasions. She said that she last saw this person at the commencement of the pandemic. She subsequently advised that she consulted with him on eight occasions.
The claimant denied that she had been involved in a motor vehicle accident in 2016.

Psychosocial history and pre-accident history

When asked about psychological difficulties pre-dating the accident, the claimant was explicit in denying pre-existing psychological difficulty. She explicitly denied having ever been prescribed medication for her mood or having been referred to a psychologist.
Evidence in the records that referred to psychological problems arising from a motor vehicle accident in 2017 were raised with the claimant. She responded that she was five weeks pregnant at the time, lost her baby and was “under a lot of stress and was given medication”. She explicitly denied having been depressed and advised that she was able to return to work, drive and conceive again.
When asked about any other psychological difficulty, she responded that she “doesn’t know if other things affected [her]”. She again asked why no one has helped her and repeated that phrase. She then stated, again, that she thought it was because her English was “not good”.
She denied any family psychiatric history.

Medical history

She said that she had a breast lumpectomy in 2018. She denied any other medical history of relevance. There is a family history of heart disease.

Toxicology

She does not drink alcohol. She takes no illicit substances.

Forensic history

There are no past problems with the law. The claimant said that in 2017 she was not working “for a period of time”, that she later specified to be around a year. She said that she received compensation in 2020. She explicitly denied any psychological injury arising from that motor vehicle accident, and stated, “I wasn’t able to get what was my right.”

Social history

The claimant lives with her three children, the youngest having been born after the subject accident. She said that the conception of the youngest was “accidental”. She said the pregnancy proceeded normally, with the delivery via caesarean section. She said of the delivery that she had “lots of problems” and that she was “shaking all the time”. She said that she had 12 doctors, was under a lot of stress and shaking, was “crying a lot during the pregnancy”, and continued to do so.
She said that her children “are good” and, when asked about her relationship with the children, she responded, “I am a kind mother.” When clarification was sought about her relationship with the children, she responded “I do not want to answer the questions anymore, you are creating problems for me. You are belittling me. Just get me help.”
At this stage of the assessment the Medical Assessors elected to have a brief recess to discuss the claimant’s comment and make a determination as to whether it was appropriate to proceed with the assessment. The Medical Assessors were in agreement that the claimant had been assessed in an appropriate fashion. Following the recess the claimant was given the opportunity to discontinue with the assessment, however, she elected to continue.
The claimant was asked when she was last in a relationship. She responded by stating, “I don’t want to answer.” She was asked what happened with her relationship with the father of her children and she declined to answer. She said that she and the father of her children separated around a year after the birth of her last child.
She said that she relies on public transport. She cannot go shopping unless she is accompanied by the father of her children on weekends. Her eldest child goes to school by bus and she pushes the little one in a pram. She does her own cooking and cleaning “sometimes”. She said that her estranged husband cooks for her three to four times per week. The claimant was asked about her self-care, in particular the frequency of her showering, and she declined to answer.

History of the motor accident

The claimant said that she was at a crossroad, seated in the front passenger seat, with the father of her children driving the car. She said that the vehicle was stationary waiting for the light to turn green. She said that a car from their left hit their vehicle on the driver’s side.
The claimant said that she was restrained at the time of impact. She recalled having problems with her shoulder and chest. She said that she attempted to give assistance to the other driver.
She reported that paramedics were in attendance. She said that she was worried for her children’s welfare. She said that her baby was checked and she was advised that the baby was fine. She said that her husband organised another car and they went home. She added, “everything was a shock.”
The claimant was asked when she first sought psychological assistance, and replied, “I don’t know.” She was asked about the onset of mental health difficulties, and responded “I cannot sleep well, I have lots of nightmares, I’m anxious, my bones have pain.” She said that she began to have psychological difficulties “when I came to drive and wasn’t able to”. When asked about physical therapies, she said that her arm had problems and she “had some therapy”.

History of symptoms and treatment following the motor accident

The claimant stated that she had flashbacks while driving and felt stressed and anxious when cars were coming towards her. She said that she had troubling nightmares in 2019 and that they were “very bad for three years”. She said that she was “scared while sleeping and believed that someone was shaking [her] bed”.
The claimant was asked to elaborate about the content of her nightmares, and she replied “[i]t was about the accident and the children, it was funny, maybe about monsters.” At the time of the assessment, she said that she had nightmares two to four times per week. She was asked about any other sleep difficulties and she stated that her right eye was flickering, she sleeps lightly and wakes frequently. She said that she wakes at around 7.00am. She reported that she can dream about her son having an accident.

She said that her appetite fluctuates, that she had lost 10 kilograms during pregnancy, had regained some weight, and her weight is now “fine”.
When asked about her mood most of the time, she said that she “likes to cry all the time”. She said that, during her pregnancy, her mood was “very bad”.
When asked about any diurnal pattern to her mood, she replied, “I like it when it is rainy or sunny in the morning.”
When asked about her self-perception of concentration the claimant reported that she can be forgetful. She was asked to give examples of forgetfulness, and she said “If I want to do something I can forget.” She said that she may have to write down a shopping list.
The claimant was asked about her social functioning. She said that she does not have friends and does not want to have any. She added that she was “happier like that”. She said that she would like to go to the gym again, however, her body aches and she does not have the energy. She described no other hobbies or interests.

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

There were no additional conditions or injuries reported since the accident.

Current symptoms

The claimant said that she had flashbacks while driving and felt stressed and anxious when cars were coming towards her. At the time of the assessment, she said that she had nightmares two to four times per week. She said that her appetite fluctuates. When asked about her mood most of the time, she said that she is sad. Her self-esteem is low. She advised that she was not suicidal. She also said that she was unable to drive as she felt anxious.

Current and proposed treatment

The claimant reported that she was taking no prescribed medication and was not under the care of a psychiatrist, psychologist or counsellor.

CLINICAL EXAMINATION

Mental state examination

The claimant presented as a woman of stated years who was casually attired and had light coloured hair. Her level of self-care and grooming was appropriate. She appeared to have some comprehension of English.
The claimant was on occasion unresponsive when asked relevant questions, provided tangential answers and a confusing narrative. At times she was observed to be tearful and at other times she was not observed to be distressed.
Her form of speech was difficult to determine through an interpreter. The claimant repeatedly reported anxiety and avoidance with respect to driving.
Her affect was intense, reactive and labile. The claimant’s cognitive functioning was considered to be normal at a clinical level. There was no evidence of psychosis.

Current functioning

Self-care and personal hygiene

She maintains some personal grooming but reports reduced motivation for self-care and hygiene activities. She does her own cooking and cleaning “sometimes”. Her husband did some cooking. She manages some household tasks with assistance. The claimant appeared neatly attired and her self- care seemed appropriate for the interview. Exercising professional judgement, it was determined that there was a mild impairment, class 2.

Social and recreational activities

The claimant has experienced isolation, with limited engagement in social and recreational activities. She has sporadic social interactions. She would occasionally go to the shops with family. She described having no energy or interest in going out with friends. There were no hobbies and she didn’t go to the gym anymore. It was determined that social and recreational impairment were moderate, class 3.

Travel

The claimant reported ongoing issues with driving due to anxiety and vigilance. While she occasionally drives short distances, she has expressed a preference not to drive. She reported using public transport. There was a mild impairment of travel, class 2.

Social functioning

With regard to social functioning, she maintained a good relationship with her children. She reported that while there was a separation from her husband, he continued to assist her with cooking and shopping. She was not prepared to discuss further details when asked. Exercising professional judgement, it was concluded that there was a mild impairment, class 2.

Concentration, persistence and pace

With regard to concentration she reported memory difficulties and forgetfulness. She writes lists to remember. At the assessment she was able to concentrate for well over an hour. Exercising clinical judgement, it was determined that there was a mild impairment, class 2.

Adaptation

With regard to adaptation the claimant has not attempted to return to work since ceasing approximately six months after the accident. She said that she was unable to continue working due to problems with her shoulders and neck, and was unable to drive because she felt anxious. She is able to care for her children as she had a nanny for assistance. It is considered that she would be able to work in a reduced capacity. Exercising clinical judgement, the impairment was assessed as moderate, class 3.

Comments on consistency

The claimant denied psychological difficulty pre-dating the accident. She also denied having ever been prescribed medication for her mood or referred to a psychologist. This is not consistent with the records from treatment providers. The records are preferred and given weight in preference to the claimant’s reporting in terms of her pre-accident psychological history.
Further, the claimant declined to provide specific information relevant to the assessment; she declined to discuss her relationship with her husband or provide information about her self-care. When clarification was sought about her relationship with her children, she responded, “I do not want to answer the questions anymore, you are creating problems for me.” She denied that there was any significant distress or problem following the previous accident despite the fact she needed treatment and there was a miscarriage. When the inconsistencies were raised with her, the claimant maintained the answers that she provided.

Diagnosis and reasons

Making a diagnosis in this case was complicated by the claimant’s failure to provide an accurate history of her pre-accident psychological symptoms and treatment. Further, she declined to answer some of the questions asked about her post-accident functioning.
In arriving at a diagnosis, clinical experience and judgment was applied, and the totality of the evidence considered. Whilst the claimant failed to provide an accurate pre-accident psychological history, her reported symptoms were considered to be reliable as she was consistent with her account of her traumatic symptoms to practitioners who interviewed her. The areas of inconsistency were in relation to the omission of important events such as her failure to mention the previous motor vehicle accident to Dr Kumagaya. The issue was not the reliability of reported symptoms but the claimant’s reports regarding the timing of her symptoms.
It is also noted that while Medical Assessor Barrett did not accept that the claimant’s denial of a pre-accident psychological history was reliable, she none the less accepted the claimant’s reported symptoms to the extent that she was satisfied the claimant suffered from post-traumatic stress disorder.
A state of satisfaction was reached that the claimant’s symptoms following the 2017 accident were consistent with a diagnosis of post-traumatic stress disorder, and that her current symptoms are also consistent with that diagnosis. The DSM-5 criteria for post-traumatic stress disorder are satisfied as follows:
A.      A traumatic event - (the motor accident in 2017 resulting in the loss of the pregnancy and an exacerbation by the subject accident, each of which are considered to satisfy this criteria)
B.    Re-experiencing phenomena - (there were reported nightmares, flashbacks and intrusive recollections in relation to motor vehicle accidents and fear)
C.    Avoidance behaviour – (there were behaviours leading to avoiding socialising and interacting with others and driving.)
D.    Negative cognitions – (the claimant viewed herself with low confidence levels and a negative view regarding safety.)
E.    Marked alterations in arousal – (there was hypervigilance, constant anxiety.)
F.    Duration of more than one month
G.    Significant impairment of functioning
H.    Not due to substance use or other medical condition.

Causation and reasons

The claimant was questioned about any traumatic experiences in Iran and as a refugee. She clarified that the travel to Australia was a positive experience and there were no migration-related stresses despite her journey by boat from Indonesia. She reported no additional personal traumatic experiences in Iran or Australia.
The accident on 23 August 2017, and subsequent miscarriage, were significant traumatic events. These events satisfied Criterion A for post-traumatic stress disorder, as they involved a serious accident resulting in a miscarriage.
The Merrylands Family Practice records from September 2017 refer to psychological symptoms, the prescription of antidepressants, and record that the claimant wanted to see a psychologist because of the effects of that accident[3]. In a certificate dated 12 September 2017 Dr Reid referred to the claimant being “stressed”. A GP Management Plan prepared by Dr Reid on 15 November 2017 records that the claimant was suffering “acute stress disorder”. On 23 November 2017 Dr Reid recorded that “ASD is becoming PTSD”. The claimant was referred for counselling.
[3] Entries in the Merrylands Family Practice patient health summary on 12 September 2017 and 6 November 2017.
In an Initial Session Psychologist’s Report dated 18 December 2017, Maria Hamid recorded that the claimant disclosed symptoms of anxiety and depression “that started after her miscarriage following a motor accident in August 2017”. Depression, Anxiety and Stress Scale (DASS-21) results were recorded as being “severe” for depression, “extremely severe” for anxiety and “moderate” for stress.
In a Centrelink certificate completed by Dr Ahmed on 26 June 2018, there is reference to the claimant experiencing the following symptoms: “low mood, poor sleep, lack of motivation, unable to cope, tearful”. The certificate records that “miscarriage caused by road traffic accident has significantly affected psychological health and ability to work”. The certificate also states that the claimant was unfit for work from 1 April 2018 to 31 August 2018.
On 26 June 2019 Dr Ahmed” recorded in the progress notes that he had a “long chat on management of depression (and back pain). This supports a finding that the claimant’s psychological symptoms were still under active management at the time, and that the condition was chronic.
According to the Merrylands Family Practice progress notes, the claimant attended on 14 October 2018, 29 January 2019, 5 April 2019 (for immunisation), and 5 June 2019. There is no reference to psychological symptoms in the entries in the progress notes on each of these occasions. The next attendance at the practice was on 28 June 2020, after the accident. These records have been taken into consideration. Although the claimant did not mention psychological symptoms in these consultations there was no indication that the consultations were for psychological reasons nor were there reports to suggest psychological symptoms had improved.
Despite the claimant’s report that she was psychologically well before the accident, it is considered more likely than not that she continued to suffer from symptoms related to post-traumatic stress disorder in the period leading up to, and immediately before, the accident. Post-traumatic stress disorder is a chronic condition. It was considered clinically unlikely that the post-traumatic stress disorder resolved spontaneously between June 2018 and the accident, a conclusion also reached by Medical Assessor Barrett.
While the claimant did not require immediate treatment or hospitalisation following the subject accident, and was able to continue to work and take her child to school, the point at which the other vehicle impacted the vehicle in which she was a passenger was close to where she was sitting. Further, her daughter was in the back seat and the claimant was concerned about her safety. This is significant because she lost a pregnancy following the 2017 accident which would have increased susceptibility and vigilance to further loss of a child.
Following the accident the claimant reported that she experienced flashbacks while driving and felt stressed and anxious when cars were coming towards her. At the time of the assessment, she said that she had nightmares two to four times per week. She said that her appetite fluctuates and her mood is low.
The claimant had a pre-existing post-traumatic stress disorder following the 2017 accident and subsequent miscarriage. The loss of a pregnancy in the previous accident increased her susceptibility and vigilance to further loss of a child. On this background, the accident could have caused an aggravation of the pre-existing post-traumatic stress disorder.
When re-examined by the Medical Assessors she told them that the subject accident caused anxiety as when the paramedics were in attendance, she was worried for her children’s welfare and she added, “Everything was a shock.” She said that she began to have psychological difficulties “when I came to drive and wasn’t able to”.
A state of satisfaction was reached that the accident did contribute to the aggravation of the pre-existing post-traumatic stress disorder because the claimant exhibits traumatic symptoms as outlined above. She continues to experience flashbacks while driving and felt stressed and anxious when cars were coming towards her. At the time of the assessment, she said that she had nightmares two to four times per week. The accident caused an aggravation of pre-existing post-traumatic stress disorder that was more than negligible.

Conclusion

The claimant’s symptoms are consistent with post-traumatic stress disorder, primarily resulting from the 2017 accident and aggravated to an extent that was more than negligible by the 2019 accident. Her ongoing symptoms and psychological distress support a conclusion that the post-traumatic stress disorder remains chronic. The aggravation caused by the accident persists and gives rise to a permanent impairment.

WHOLE PERSON IMPAIRMENT

In assessing the various PIRS categories, consideration has been given to the documentary evidence and the information provided by the claimant at the re-examination. As recorded earlier, the claimant declined to provide answers to some questions she was asked at the re-examination, and that are relevant to the assessment of permanent impairment.
The assessment reflects the impairment as it was at the time of the assessment. The classes assessed for each category in the PIRS reflect the application of clinical judgement.

Psychiatric Impairment Rating Scale

Psychiatric diagnoses

Post-traumatic Stress Disorder

Psychiatric treatment description

Counselling and medication

Category

Class

Reason for Decision

1. Self-Care and Personal Hygiene

2

The claimant appeared neatly attired and her self-care seemed appropriate for the re-examination.

She maintains personal grooming but reports reduced motivation for self-care and hygiene activities. She does her own cooking and cleaning “sometimes”. Her husband did some cooking. She manages some household tasks with assistance. Exercising professional judgement it was determined that there was mild impairment.

2. Social and Recreational Activities

3

The claimant has experienced isolation, with limited engagement in social and recreational activities. She has sporadic social interactions. She would occasionally go to the shops with family. She described having no energy or interest in going out with friends. There were no hobbies and she didn’t go to the gym anymore. It was determined that there was a moderate impairment, class 3.

3. Travel

2

The claimant reported ongoing issues with driving due to anxiety and vigilance. While she occasionally drives short distances, she has expressed a preference not to drive. She reported using public transport. There was mild impairment of travel, class 2.

4. Social Functioning

2

The claimant maintained a good relationship with her children. She reported that while there was a separation from her husband, he continued to assist her with cooking and shopping. She was not prepared to discuss further details when asked. Exercising professional judgement, it was concluded that there was a mild impairment, class 2.

5. Concentration, Persistence and Pace

2

She reported memory difficulties and forgetfulness. She writes lists to remember. At the assessment she was able to concentrate for well over an hour. Exercising clinical judgement, it was determined that there was a mild impairment, class 2.

6. Adaptation

3

The claimant has not attempted to return to work since ceasing approximately six months after the accident. She said that she was unable to continue working due to problems with her shoulders and neck, and was unable to drive because she felt anxious. She is able to care for her children as she had a nanny for assistance. She would be able to work in a reduced capacity as she did following the first motor vehicle accident due to psychological factors. There is a moderate impairment, class 3.

List classes in ascending order: 2,2,2,2,3,3,

Median Class Value: 2

Aggregate Score: 14

% Whole Person Impairment: 7%

*%WPI ^{= Percentage Whole Person Impairment}
Pre-existing impairment

The claimant’s denial of any pre-existing psychiatric injury or history is not consistent with what is disclosed in the records provided to the Panel by the parties. For the reasons given earlier, the claimant was found to have a pre-existing post-traumatic stress disorder.
There is objective evidence that supports a finding that there was a pre-existing symptomatic permanent impairment due to the pre-existing post-traumatic stress disorder at the time of the accident. That evidence includes the psychological symptoms recorded by treatment providers in the patient health care summary, certificates, and reports, together with the history and complaints recorded by medico-legal specialists who have assessed the claimant.
A Centrelink certificate dated 26 June 2018 recorded that the claimant had a “low mood, poor sleep, lack of motivation, [was] unable to cope, tearful.” The certificate also records that:
“…miscarriage caused by road traffic accident has significantly affected psychological health and ability to work.”
The claimant was certified unfit for work from 1 April 2018 to 31 August 2018.
In his report dated 18 June 2018, Dr Panjratan recorded that: “[s]he went back to work 45 days ago but was not coping and worked a few days only…”. In his report dated 11 July 2018 Dr Machart recorded that the claimant “suffered from depression” and “is currently not working”.
In a rehabilitation “closure report” dated 25 June 2018, Ms Owen recorded as follows:
“Dr Reid was hopeful that [the claimant] would respond to counselling, but advised that she might need to consult with a Psychiatrist in the future for medical intervention if her psychological symptoms persisted. Dr Reid advised that [the claimant’s] physical injury (back pain) sustained in the accident was a minor problem in comparison to her psychological symptoms, but that her pain in the lumbar spine might be amplified as a result of her current psychological distress.”
On 26 June 2019 Dr Ahmed recorded in the progress notes that he had a “long chat on management of depression (and back pain)”.
When considered in totality, these records support a finding that the claimant’s psychological symptoms were still under active management at the time, that the condition was chronic, and that it is more likely than not that there was, at the time of the accident, a pre-existing symptomatic permanent impairment due to the pre-existing post-traumatic stress disorder.

The clinical records provide reliable evidence that the claimant experienced psychological symptoms after the 2017 accident, that she suffered a diagnosable psychological injury as a result of that accident, and was treated with counselling and anti-depressant medication. There was clear evidence of impairment as she attempted to return to work but was unable to reach her previous level of adaptation.
The method set out in the Guidelines for “Mental and behavioural disorders” in cls 6.201–6.228 has been used to estimate the overall pre-existing impairment, as required by cl 6.218. The overall pre-existing impairment is estimated to be 6%, as recorded in the table below. In arriving at this estimate, clinical judgement and experience has been applied, and consideration given to the totality of the evidence provided by the parties, and the information provided by the claimant when she was re-examined.

Pre-existing Psychiatric Impairment Rating Scale

Psychiatric diagnoses

Post-traumatic Stress Disorder

Psychiatric treatment description

Counselling and anti-depressant medication

Category

Class

Reason for Decision

1. Self Care and Personal Hygiene

2

Occasionally lacked motivation for personal care. A mild impairment is estimated.

2. Social and Recreational Activities

2

Claimant advised that she lacked motivation to engage in recreational/social activities. Mild impairment.

3. Travel

1

Pre-accident (2017 accident) she had a driver’s license but drove rarely. Her husband would drive them to work and on other family trips, fetch daughter from school, go to the shops. Same arrangement post 2017 accident.

4. Social Functioning

2

There were mild issues reported. Not talking to husband on occasion. Husband reported that she sometimes ignores him and at times her daughter. Mild impairment.

5. Concentration, Persistence and Pace

2

Low mood, poor sleep, lack of motivation and “unable to cope” was recorded in a Centrelink Medical Certificate completed by Dr Ahmed on 26 June 2018.

A mild impairment was estimated.

6. Adaptation

3

On 18 June 2018 Dr Panjratan reported that the claimant had returned to work “45 days ago” but was not coping and worked a few days only. In July 2018 Dr Machart reported that the claimant was not working.

On 26 June 2018 Dr Ahmed certified her unfit for work from 1 April 2018 to 31 August 2018.

Exercising clinical judgement there was a moderate impairment as a result of her psychological symptoms.

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

Effects of Treatment

There is no adjustment for treatment as psychological intervention was not helpful and symptoms worsened.
The claimant’s permanent impairment is therefore 1% (7% – 6% = 1%).

DETERMINATION

When re-examined by the Medical Assessors, the claimant denied experiencing any pre-existing psychological difficulties. She also denied having ever been prescribed medication for her mood, or having been referred to a psychologist. Medical Assessor Barrett’s reasons record that the claimant denied any pre-accident psychiatric history. Dr Rastogi recorded that “[t]here is no known previous history of depression or anxiety prior to 2019”. Dr Vickery’s report records that the claimant told him she “didn’t have any problems after the [2016[4]] accident”. In his report dated 22 July 2020, Dr Kumagaya recorded that the claimant:
“…denied any psychiatric background prior to her motor vehicle accident. She denied any prior engagements with mental health services, psychiatric admissions, nor any prior use of psychotropic medications.”
[4] The Majority considers that reference to a 2016 accident in the report is a reference to the August 2017 accident.
The Panel is entitled to consider and give weight to contemporaneous records: Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548 at [40]. It is a matter for the Panel to decide, as a question of fact, whether it accepts the claimant’s account in preference to contemporaneous records: Raina V CIC Allianz Insurance Limited [2021] NSWSC 13 at [79].
We are satisfied that the clinical records provide reliable evidence that the claimant experienced psychological symptoms after the 2017 accident, that she suffered a diagnosable psychological injury as a result of that accident, and was treated with counselling and anti-depressant medication.
We are satisfied that the various psychological symptoms recorded by the claimant’s treating medical practitioners reflect what she told them. We are also satisfied that the claimant experienced the symptoms that she reported to those medical practitioners; they are contemporaneous complaints, reported to and recorded by treatment providers for the purposes of the claimant receiving treatment. We infer that the claimant’s treatment providers would not have prescribed anti-depressant medication unless they were satisfied the medication was appropriate treatment for the complaints made.
Further, and relevant to the state of satisfaction we have jointly reached, we accept and place reliance on Medical Assessor Rikard-Bell’s opinion that, having re-examined the claimant, her reported symptoms were genuine and should be accepted for the purposes of making diagnostic findings.
Finally, we have taken into consideration that while Medical Assessor Barrett did not accept the claimant’s denial of a pre-accident psychological history was reliable, she accepted her reported symptoms, and was satisfied that the claimant suffered from post-traumatic stress disorder.

Was there a pre-existing psychological condition ?

We are satisfied, on the balance of probabilities, that the claimant suffered from a pre-existing post-traumatic stress disorder that was caused by the 2017 accident and subsequent miscarriage. The accident on 23 August 2017 and subsequent miscarriage were significant traumatic events that satisfied Criterion A for post-traumatic stress disorder.
We are satisfied, for the reasons earlier provided by Medical Assessor Rikard-Bell, that the other criteria for diagnosing post-traumatic stress disorder are met. We rely on Medical Assessor Rikard-Bell’s clinical experience and judgement in reaching this state of satisfaction.
Further, this finding is consistent with Medical Assessor Barrett’s opinion that the claimant had a pre-existing post-traumatic stress disorder. Like us, Medical Assessor Barrett considered the records that disclosed a pre-accident psychological history, despite the claimant having denied any such history. She was, accordingly, aware that the claimant was not a reliable historian. Medical Assessor Barrett also recorded in her reasons that the claimant “appeared to provide vague responses to questions at times, frequently responding, ‘I don’t know’”. She also recorded that “[s]he minimised the impact of the 2016 accident, denying any past psychiatric history which is inconsistent with the documentation.” None the less, the Medical Assessor was satisfied that the claimant fulfills the criteria for post-traumatic stress disorder

Was the claimant suffering from a psychological condition when the accident occurred?

Despite the claimant’s report that she was psychologically well before the accident, we are satisfied that she continued to suffer from symptoms related to post-traumatic stress disorder in the period leading up to, and immediately before, the accident. We agree with and adopt the reasons given by Medical Assessor Rikard-Bell in support of his opinion in this regard.
The clinical records provide reliable evidence that the claimant experienced psychological symptoms after the 2017 accident, that she suffered a diagnosable psychological injury as a result of that accident, and was treated with counselling and anti-depressant medication.
Post-traumatic stress disorder is a chronic condition. We find that it was clinically unlikely that the post-traumatic stress disorder resolved spontaneously between June 2018 and the accident, a conclusion also reached by Medical Assessor Barrett.
When considered in totality, the records support a conclusion that the post-traumatic stress disorder was chronic, and that it is more likely than not that there was, at the time of the accident, a pre-existing symptomatic permanent impairment due to the pre-existing post-traumatic stress disorder

Did the accident cause or contribute to a psychological condition that was more than negligible?

We are satisfied, on the balance of probabilities, that as a result of the accident the claimant aggravated the pre-existing post-traumatic stress disorder. We agree with and adopt the reasons given by Medical Assessor Rikard-Bell for his conclusion that the accident could have caused, and did cause, an aggravation of the pre-existing post-traumatic stress disorder.
The claimant had a pre-existing post-traumatic stress disorder following the 2017 accident and subsequent miscarriage. It is likely that the loss of a pregnancy following that accident increased her susceptibility and vigilance to further loss of a child. On this background, the accident could have caused an aggravation of the pre-existing post-traumatic stress disorder
The point at which the other vehicle impacted the vehicle in which the claimant was a passenger was close to where she was sitting. Further, the claimant was concerned about the safety of her daughter, who was in the back seat. This is significant in the context of the claimant having lost a pregnancy following the 2017 accident, which increased her susceptibility and vigilance with respect to her daughter.
We are satisfied that the accident did contribute to the aggravation of the pre-existing post-traumatic stress disorder because the claimant exhibits traumatic symptoms, including flashbacks while driving, and feeling stressed and anxious when cars were coming towards her. She has nightmares two to four times per week, and her mood is low. We accept as accurate and reliable the claimant’s reporting of these symptoms.
We find that the accident caused an aggravation of pre-existing post-traumatic stress disorder that was more than negligible, and that the aggravation persists. The onset of further psychological symptoms commenced shortly after the accident. The progress notes from Dr Lim’s practice record that at a consultation on 6 December 2019 the claimant reported symptoms that included “fear when inside the car, hypervigilant, flashbacks, nightmares”. She was referred to psychologists[5] and a psychiatrist[6] for treatment. Anti-depressant medication was prescribed[7].
[5] Neil McDonald and Carl Nielsen.
[6] Dr Kumagaya.
[7] Fluoxetine 20mg.
There is a temporal relationship between the exacerbation of the psychological symptoms and the accident. The conclusion that the accident caused an exacerbation of a pre-existing psychological condition is consistent with the contemporaneous records.
Medical Assessor Barrett “expected that the 2019 accident would have caused a period of exacerbation of symptoms of chronic PTSD”. However, in her opinion the usual clinical course is of settling of the exacerbation over a few months. On that basis, she determined that the accident “is of less than negligible causation”.
Where we differ from Medical Assessor Barrett is that we are satisfied that there was an aggravation of pre-existing post-traumatic stress disorder that persists and gives rise to a permanent impairment.
Dr Vickery considered that the accident was largely causing physical symptoms as the claimant denied psychological symptoms from the previous accident. He concluded that there was a somatoform disorder and that the accident did not warrant a diagnosis of post-traumatic stress disorder. We do not agree with Dr Vickery; we are satisfied for the reasons already provided that the claimant does suffer from post-traumatic stress disorder that has been aggravated by the accident.

Threshold injury

A diagnosis for the purpose of a threshold injury must be based on a clinical assessment by a medical practitioner or other suitably qualified person: cl 5.5 of the Guidelines. We agree with and adopt Medical Assessor Rikard-Bell’s diagnosis of post-traumatic stress disorder, and find that the claimant suffers from that condition. We are satisfied, on the balance of probabilities, that the accident caused an aggravation of that condition that was more than negligible.
The claimant did not provide an accurate pre-accident history as it related to her pre-existing psychological symptoms and treatment. We have, however, considered the relevant records available. A description of the claimant’s current symptoms was provided by her when she was re-examined by the Medical Assessors, and a careful and thorough psychological examination was conducted at that time.
Neither post-traumatic stress disorder nor the aggravation of that condition are threshold injuries. That being the case, we find that the aggravation of post-traumatic stress disorder caused by the accident is not a threshold injury for the purposes of the MAI Act.
The determination of the majority is taken to be the determination of the Panel. Accordingly, the Panel revokes the certificate of Medical Assessor Barrett dated 6 December 2022 and issues a new certificate certifying that the aggravation of post-traumatic stress disorder was caused by the accident and is not a threshold injury.

Permanent impairment

The clinical judgement of Medical Assessors is the most important tool in the application of the PIRS: cl 6.217 Guidelines. The evaluation of impairment should only consider the impairment as it is at the time of the assessment: cl 6.21 Guidelines. We adopt the precise examination findings and conclusions of Medical Assessor Rikard-Bell based on his examination of the claimant, and his specific findings as to PIRS ratings, and permanent impairment, including pre-existing impairment.
We are satisfied that the accident could have caused or contributed to worsening of the impairment arising from the pre-existing post-traumatic stress disorder. In this regard we agree with the reasons given by Medical Assessor Rikard-Bell in his re-examination findings. We find that the accident alleged did contribute to worsening of the impairment.
We are satisfied that there is objective evidence of pre-existing impairment within the meaning of cl 6.31 of the Guidelines. That being the case, the pre-existing impairment has been deducted from the current impairment as required by cl 6.218 of the Guidelines.
We are not satisfied that there was subsequent impairment within the meaning of cl 6.34 of the Guidelines. In this context, the Hornsby Hospital records (relating to attendances in 2021) were considered. We are not satisfied that the history, symptoms, or treatment reported support a finding that there was a permanent impairment attributable to events that occurred post-accident.
Because Medical Assessor Barrett did not assess any permanent impairment as a result of injury caused by the accident (having found that there was no such injury), and the majority has found that there is a permanent impairment as a result of an aggravation to a pre-existing post-traumatic stress disorder as a result of the accident, the Panel revokes the certificate of Medical Assessor Barrett dated 6 December 2022 and issues a new certificate certifying that the aggravation of post-traumatic stress disorder caused by the motor accident gives rise to a 1% permanent impairment and that the impairment is not greater than 10%.
Given the sensitive personal information that is contained in these reasons, the Panel directs that the decision be de-identified prior to publication.

REASONS OF MEDICAL ASSESSOR SAMUELL

The psychiatric evaluation of an individual is dependent on both the quality and the quantity of the available evidence. In this instance, there were two principal sources of evidence, the claimant herself and the contemporaneous records. There was little in the way of factual evidence that could speak to either the diagnostic or disability issues.
As stated in the majority opinion, the claimant was unable to answer questions of an autobiographical nature about matters of relevance to this claim. There was no obvious medical explanation for her inability to provide the relevant answers. In addition, her answers were frequently inconsistent with the contemporaneous records. When attempts were made to further specify her symptoms, she became angry and accusatory. Both Medical Assessors agreed that her accusations were without merit.
The contemporaneous records that support her claim in this matter were principally sourced from the Workers Doctors practice. At no stage was there a comprehensive history taken at that practice. The records in that practice are inconsistent with the known facts concerning the claimant’s history of psychological difficulty. While it is accepted that in the Workers Doctors practice the claimant was consistent in her reporting of symptoms, she was also consistent with her inconsistencies and erroneous history.
There is a sizeable historical gap in the clinical record prior to the current accident. In order to make a reliable deduction of pre-existing psychological difficulties, the Medical Assessors would be required to make assumptions based on the balance of probabilities. The claimant at interview was adamant that her level of functioning and symptoms before the subject accident was not consistent with a mental health condition.
Furthermore, when the Medical Assessors sought to better understand the impact of contemporaneous stressors or difficulties that may be dependent of the subject accident, the claimant declined to cooperate. In particular, it was noted that the claimant’s marriage had broken down, a factor that could have been caused by a mental health condition or could have caused a mental health condition.
The majority decision determined that a pre-existing decision was aggravated, resulting in a non-threshold injury. The majority decision determined that the claimant had a pre-existing condition for which a whole person impairment may be calculable.
A challenged faced by the Medical Assessors is that there is no reliable methodology to accommodate the inconsistencies and redactions, particularly in the absence of factual information. In my view, the majority decision is at the level of conjecture and could not have reached a finding on the balance of probabilities.
Medical Assessor Barrett took the view that the current accident did not fulfil the stressor criterion for a post-traumatic stress disorder, however, did consider, as the majority did in this case, that the current accident exacerbated a pre-existing post-traumatic stress disorder. She noted, too, that there were other potential causes of exacerbation.
For the Panel to accept the evidence of Dr Rastogi, who supported the claimant’s claim, requires a selective determination that the claimant’s history was only reliable where it supports her claim and unreliable where it did not. The same criticism can be made of Dr Kumagaya and all practitioners at the Workers Doctors practice. Furthermore, the quality of evidence at the Workers Doctors practice was uniformly poor. The symptoms that were documented were typically unspecified and lacked detail. There was evidence of discontinuity of care at that practice. No practitioner at the Workers Doctors practice appeared to have had access to other medical sources of information to reconcile the inconsistencies.
The Panel ought to have given further weight to the evidentiary issues that made it unreliable to make a probabilistic determination of her mental health at the time of the subject accident. Evaluation of her symptoms following the subject accident cannot be reliably made due to the claimant’s redactions, inconsistencies and lack of cooperation with the Panel. The records from the Workers Doctors practice and Dr Rastogi contained a consistently incorrect history and it would be unreasonable for the Panel to selectively accept her narrative where it only supported her claim. The more appropriate outcome ought to be an inability to make a diagnosis, based on the evidentiary issues.

The evidentiary issues also undermined the Panel’s ability to reliably calculate a whole person impairment. The calculation of pre-existing impairment, in my opinion, was cruelled by the lack of factual evidence and the evidentiary challenges. There was no reliable way to make a determination of disability before the subject accident, for example, about pre-existing self-care and personal hygiene. The certificate relied on by the majority to make a pre-existing finding on concentration, persistence and pace was made a considerable period before the subject accident, as was the evidence relied on to make a determination of her adaptation.
For the current whole person impairment calculation, the Panel relied on the claimant’s self-report for the determination of self-care and personal hygiene, which I consider to be unreliable, given the evidentiary issues noted above. There were no factual matters that could speak to the claimant’s social and recreational activities. It was noted that the claimant has three young children that may have impacted her capacity and had a relationship breakdown, factors that are arguably independent of the subject accident, and ought to have been given weighting, with no reliable way to do so. The claimant’s refusal to disclose details concerning her relationship with her children and husband meant that the Panel could not reliably determine her social functioning. A determination of adaptation was also unreliable, particularly given that she had a child following the subject accident and has had a large change to her social circumstances that may have influenced her preferences concerning work.

Psychiatric diagnoses	Post-traumatic Stress Disorder
Psychiatric treatment description	Counselling and medication

Category	Class	Reason for Decision
1. Self-Care and Personal Hygiene	2	The claimant appeared neatly attired and her self-care seemed appropriate for the re-examination. She maintains personal grooming but reports reduced motivation for self-care and hygiene activities. She does her own cooking and cleaning “sometimes”. Her husband did some cooking. She manages some household tasks with assistance. Exercising professional judgement it was determined that there was mild impairment.
2. Social and Recreational Activities	3	The claimant has experienced isolation, with limited engagement in social and recreational activities. She has sporadic social interactions. She would occasionally go to the shops with family. She described having no energy or interest in going out with friends. There were no hobbies and she didn’t go to the gym anymore. It was determined that there was a moderate impairment, class 3.
3. Travel	2	The claimant reported ongoing issues with driving due to anxiety and vigilance. While she occasionally drives short distances, she has expressed a preference not to drive. She reported using public transport. There was mild impairment of travel, class 2.
4. Social Functioning	2	The claimant maintained a good relationship with her children. She reported that while there was a separation from her husband, he continued to assist her with cooking and shopping. She was not prepared to discuss further details when asked. Exercising professional judgement, it was concluded that there was a mild impairment, class 2.
5. Concentration, Persistence and Pace	2	She reported memory difficulties and forgetfulness. She writes lists to remember. At the assessment she was able to concentrate for well over an hour. Exercising clinical judgement, it was determined that there was a mild impairment, class 2.
6. Adaptation	3	The claimant has not attempted to return to work since ceasing approximately six months after the accident. She said that she was unable to continue working due to problems with her shoulders and neck, and was unable to drive because she felt anxious. She is able to care for her children as she had a nanny for assistance. She would be able to work in a reduced capacity as she did following the first motor vehicle accident due to psychological factors. There is a moderate impairment, class 3.
List classes in ascending order: 2,2,2,2,3,3,
Median Class Value: 2
Aggregate Score: 14
% Whole Person Impairment: 7%

[2024] NSWPICMP 622

3 September 2024