BJR v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	BJR v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 561
CLAIMANT:	BJR
INSURER:	Insurance Australia Limited trading as NRMA Insurance
REVIEW PANEL
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Michael Li Ying Hong
MEDICAL ASSESSOR:	Matthew Jones
DATE OF DECISION:	8 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical review panel; review of certificate of Medical Assessor (MA) Samuell who certified aggravation of pre-existing persistent depressive disorder and borderline personality disorder had ceased; Held – certificate of MA Samuell revoked; claimant had several pre-existing psychological injuries which were not stable and were being actively treated at the time of the accident; accident significant causal factor in current psychological condition; accident caused aggravation of post-traumatic stress disorder and borderline personality disorder; current whole person impairment (WPI) 7%; pre-existing WPI 5%; adjustment for the effects of treatment 2% WPI; total WPI 4%.
DETERMINATIONS MADE:	Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the Certificate of Medical Assessor Doron Samuell dated 20 September 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment which is not greater than 10% and is 4%: · aggravation of post-traumatic stress disorder and borderline personality disorder.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

On 26 February 2019 BJR (the claimant) was riding her motorbike home from work when the insured vehicle collided with her bike from the right (the accident) causing her to sustain injury.
BJR was 25 years of age at the date of accident and is now 30 years of age.
BJR has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to BJR under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by
BJR as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment in respect of the claimant’s psychological injury was referred to Medical Assessor Doron Samuell. He issued a certificate dated
20 September 2022.

RELEVANT LEGAL AUTHORITY

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
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.”

CERTIFICATE OF MEDICAL ASSESSOR SAMUELL[3]

[3] Claimant’s bundle p 12.

The injury referred to Medical Assessor Samuell for assessment was:
· psychiatric condition – post-traumatic stress disorder and aggravation of major depressive disorder.
The claimant had graduated from university with a degree in business and commerce in 2015 and worked in her family’s business SAP.
Following the accident on 26 February 2019 the claimant was admitted to Royal North Shore Hospital where she stayed for five days. She reported psychological difficulties after discharge.
Medical Assessor Samuell reported the claimant had suffered from depression her whole life and had engaged in self-harming. She had not been treated by a psychiatrist before the accident and had not undergone any mental health admissions. The claimant sought treatment with psychologist Catherine Deans before the accident as she was struggling with body dysmorphia, depression and relationship issues. Medical Assessor Samuell reported BJR continued to see Ms Deans weekly. She was also consulting a psychiatrist
Dr Dinah Bennett who she saw every six weeks. BJR reported many psychiatric admissions, the last being to Gordon Private Hospital for suicidal ideation at the end of 2021. Prior to the accident BJR was taking Cymbalta although there had been a period of medical cessation before the accident. At the time of the examination BJR was taking Dothiepin, 225 mg, Quetiapine, 50 mg and Lorazepam, 1 to 2 mg as required.
Since the accident the claimant stated she had lost interest in her usual activities, she was underperforming at work, was not socialising, and avoided people. She broke up with her boyfriend at the end of 2021 and has difficulty interacting with her parents. She can drive a motorbike although she is anxious when doing so. She had done so twice in 2022. She had given up being active including running, hiking, and bushwalking.
In his certificate dated 20 September 2022 Medical Assessor Samuell accepted the claimant sustained an aggravation of a pre-existing persistent depressive disorder and borderline personality disorder but concluded the aggravations noted by the assessing psychiatrists had ceased.
As the accident-related aggravation had ceased Medical Assessor Samuell found there was no permanent impairment.

REVIEW PROCEDURE

BJR has sought a review of the medical assessment of Medical Assessor Samuell.
The application was lodged on 25 October 2022 within 28 days of the date on which the Certificate of Medical Assessor Samuell was made available to the parties.[4]
[4] Section 7.26(1)(b) of the MAI Act.
On 29 November 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[5]
[5] Section 7.26 of the MAI Act; Claimant’s bundle p 9.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after
1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).[6] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 11 July 2023 the Panel agreed an examination was necessary. All Panel members have had no previous involvement with the claimant or with this matter.

EVIDENCE BEFORE THE REVIEW PANEL

The Panel issued a Direction to the parties on 23 June 2023 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 696. The solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 618.
On 13 July 2023 the Panel issued a Review Panel Report and Directions to the parties. That report detailed the medical examination to be conducted by Medical Assessor Hong on
30 October 2023 and included inter alia the following:
“3.     On or about 3 July 2023 the solicitor for the claimant uploaded a message to the portal stating the claimant had a medico-legal appointment with Dr Chow on 7 September 2023 and asking for the medical assessment to be deferred until after receipt of Dr Chow’s report.
4.     Subject to a determination as to the admissibility of that report the Panel has decided to permit the claimant an opportunity to obtain and upload that report to the portal.
5.     The Panel notes the most recent treating medical records are from 2021. The Panel would like access to more recent treatment records.
DIRECTIONS
6.     On or before 28 September 2023 the claimant is to upload to the portal updated treating records from the claimant’s treatment providers including her general practitioner, psychiatrist and psychologist with those records to be as recent as possible.
7.     On or before 28 September 2023 the claimant is to upload to the portal the report of Dr Chow together with any further submissions addressing:
(i)both the admissibility of the report of Dr Chow and the substantive content of the report; and
(ii)the updated treatment records.
8.     On or before 12 October 2023 the insurer is to upload to the portal any submissions in response addressing:
(i)both the admissibility of the report of Dr Chow and the substantive content of the report; and
(ii)the updated treatment records.
9.     On or before 26 October 2023 the Panel will decide on the admissibility of the report of Dr Chow.”
On 28 September 2023 the claimant uploaded to the portal a report of Dr Frank (Kai Tai) Chow, psychiatrist dated 5 September 2023.
On 28 September 2023 the claimant uploaded the clinical notes of Dr Leung of Myhealth Medical Centre paginated from pages 1 to 196.
On 20 October 2023 the claimant uploaded the following additional documents paginated from pages 1 to 96 and titled claimant’s medical records. The records included reports from Dr Bennett of the Gordon Clinic, discharge summaries from Gordon Private Hospital and a letter from Northern beaches Hospital.
On 26 October 2023 the claimant uploaded a summary of the clinical notes of Catherine Deans paginated from pages 1 to 6.
On 27 October 2023 the insurer advised there was no objection to the admissibility of the additional clinical records and no objection to the report of Dr Chow dated
5 September 2023.

Pre-accident treating medical evidence.
Argyle Street Medical Centre

On 21 January 2014 Dr Ho reported a history of abuse and prescribed Cymbalta for anxiety.[9] BJR consulted Dr Ho again on 8 July 2014, 23 December 2014 and 16 March 2015 when she was prescribed Cymbalta.
[9] Insurer’s bundle p 81.
On 29 December 2015 Dr Mendis reported a history of depression, but on examination she found the claimant’s mental state to be stable. She prescribed Cymbalta.[10]

Myhealth Macquarie Park
[10] Insurer’s bundle p 82.

On 16 October 2017 Dr Vignaendra, general practitioner (GP) reported BJR presented for a routine script for an anti-depressant. It was noted she was no longer seeing a psychiatrist with Headspace Parramatta.[11] On 17 October 2017 Dr Vignaendra provided a diagnosis of depression/anxiety – Duloxetine.
[11] Claimant’s bundle p 116.
On 5 February 2019 Dr Leung GP reported many years of depression, worsening over past six months with stressful work and relationship difficulties. Her partner and family were not supportive of her mental health. She reported suicidal ideation. She was on Pristiq 50 mg, and if misses her tablet feels awful/depressed. She lives with a flatmate. No drug or alcohol problem. The Kessler Psychological Distress Scale (K10) score was noted at 42, mental health care plan given, increase Pristiq to 100 mg, and discussed Lifeline.
The Panel considered the high K10 scores which were indicative of severe anxiety and depressive symptoms. The Panel also noted the claimant’s relationship difficulties.

Post-accident treating medical evidence.

Royal North Shore Hospital clinical notes

BJR was transported by ambulance and admitted to Royal North Shore Hospital on
26 February 2019 until discharge on 1 March 2019. She had sustained bilateral superior public rami fractures. There was no loss of consciousness or head strike. On Pristiq, 100 mg for depression at the time.

Dr Leung, My Health Macquarie Park

The claimant saw Dr Leung on 5 March 2019 when she reported the accident. She noted
BJR was on crutches given the pubic rami fractures. She reported her mood had worsened since the accident but there were no thoughts of self-harm.
On 9 April 2019 Dr Leung reported the claimant was feeling very down with worsening suicidal ideation as she had been stuck at home due to the pelvic fractures. BJR had seen a psychiatrist, Pristiq increased and Lamotrigine added.
On 16 April 2019 Dr Leung reviewed the claimant in relation to her suicidal ideation.[12]
[12] Claimant’s bundle p 123.
On 18 April 2019 BJR was readmitted to Gordon Private Hospital.
On 14 June 2019 Dr Leung reported BJR continued to feel down. She was moving back to Manly and starting a new sales job on Monday 17 June 2019.
On 29 June 2019 she reported she had not been welcomed by colleagues in her new job.
BJR was feeling better and had significantly less suicidal ideation. She had seen a psychologist and psychiatrist and her mood was better on Dothep.
On 17 July 2019 Dr Leung reported BJR was in ICU (intensive care unit) having overdosed following a relationship breakdown. Her sister was supporting her, her father was overseas.
On 2 August 2019 Dr Leung reported the claimant was having multiple panic attacks in hospital. She was also diagnosed with interstitial nephritis resulting in impaired renal function.
The claimant recommenced work in late September 2019. On 3 September 2019 Dr Leung was worried if colleagues asked her anything and noted she was very triggered, sensitive and stressed regarding the insurer. BJR had a business trip to Melbourne with her father which she enjoyed.
On 12 October 2019 it was noted BJR hates her work, her boss passive aggressive. She had a bad day as she dropped her motorbike in the rain.
On 12 November 2019 it was reported BJR was micro-managed at work.
BJR resigned in December 2019. She subsequently commenced work with her parent’s company. On 8 January 2010 it was reported recent trip part business, part holiday. She had received contact by ex-boyfriend but was not keen to see him.
On 19 March 2020 she was taking a break from friends, makes her feel better. Her father anger affects her, denied domestic violence. Returned from Thailand last week.
On 15 July 2020 she had a text from her ex-partner. One year AVO, six years ago but he intermittently contacts her, history of stalking her, more suicidal ideation, irritable.
On 12 August 2020 she reported she contacted police regarding her ex-partner.
On 7 October 2020, it was reported she was happiest she’s been in a while, “using dating app, financial stress”. The Panel notes this improvement was not sustained, as noted in subsequent entries the claimant’s pre-existing psychological instability, her trust issues and body dysmorphia continued to affect her before and after the 2020 accident.
On 3 November 2020 issues with the new relationship related to body dysmorphia were reported.
On 25 November 2020 Dr Leung reported the claimant was involved in a further motor vehicle accident on 22 November 2020 with no loss of consciousness, her helmet hit the ground resulting in pain in the right arm, right shoulder, right knee, and right calf (the 2020 accident).[13] She had bruising to the right leg and right knee and some neck pain. Dr Leung called psychologist Catherine as BJR was distressed.
[13] Claimant’s bundle p 155.
On 11 December 2020 Dr Leung reported the claimant’s neck was a bit stiff but not painful, her chest pain was slowly improving, the arm pain was very mild, the bruises had resolved, and the knee pain was present prior to the 2020 accident. She had no more calf or elbow pain. Dr Leung reported the claimant was feeling more down and had more suicidal ideation.
On 18 December 2020 Dr Dean psychologist contacted Dr Leung and expressed concern about the claimant’s ongoing level of risk.
On 8 January 2021 Dr Leung reported the claimant occasionally had elbow pain after the 2020 accident but the other pains had resolved. Financial stress, low moods, and suicidal ideation. The claimant’s emotions continued to be a “rollercoaster”.[14]
[14] Claimant’s bundle p 159.
On 14 January 2021 Dr Leung recommended an admission to Gordon Private Hospital noting worsening depression and suicidal ideation.[15]
[15] Clinical notes of Dr Leung p 192.
On 19 February 2021 Dr Leung spoke to the claimant after concerns were raised by Dr Dean about the possibility of self-harm and on 24 February 2021 Dr Leung noted a further admission to Gordon Private Hospital had been arranged.[16]
[16] Claimant’s bundle p 162.
On 6 April 2021 Dr Leung noted recent Ryde Hospital admission, Lithium was not therapeutic. Amitriptyline ceased due to tremors. To restart work in two weeks.
On 14 April 2021 Dr Leung reported a “breakdown” on Monday, self-harm with a knife and suicidal ideation.[17] On 29 April 2021 Dr Leung reported the claimant was “very stressed recently” and had been on Bupropion for the last three days.
[17] Claimant’s bundle p 672.
On 21 May 2021 partner in New Zealand so Body Dysmorphic Disorder (BDD) bit worse. Started work this week, went for hike but could not finish due to pelvic pain. On 22 May 2021 a fitness to drive assessment, no drug and alcohol.
On 4 August 2021 during a phone consultation Dr Leung reported BJR was doing a lot of rescue work with animals which she enjoyed, she and her partner were ‘taking a break’ due to her stress. On 18 August 2021 Dr Leung reported low mood, suicidal ideation, not working, no motivation, broke up with her boyfriend and not really have any friends to talk to.[18]
[18] Claimant’s bundle p 679.

On 15 October 2021 Dr Leung reported BJR was feeling suicidal, had self-harmed. She reported Dr Bennett would seek admission to Gordon Private Hospital. On
[19] Claimant’s bundle p 686.
19 October 2021 Dr Leung spoke to BJR who was at Auburn Hospital waiting for review by plastic surgeon. She had been involved in a minor car accident on Saturday (the 2021 accident) but was not physically hurt. Other driver said unpleasant things to her so she self-harmed after that, slitting her wrist deeper than intended. Following surgery BJR was transferred to Westmead Hospital. She felt suicidal and went home. Police took her back to Westmead Hospital. She was subsequently transferred to Gordon Private Hospital.[19]
On 23 December 2021 Dr Leung reported the claimant was overall going okay, working at her dad’s business and going to the gym.[20]
[20] Claimant’s bundle p 690.
On 13 April 2022 she was okay but spoke with ex-partner Gary which brought back memories. She declined cannabis from him. Work was okay, suicidal ideation fluctuated.
Clinical notes of Dr Leung from 6 May 2022 to 5 July 2023 disclose BJR attended
[21] Clinical notes of Dr Leung p 2 to 18.
Dr Leung on average every four weeks when she disclosed varying psychological symptoms including up and down mood, suicidal ideation, anxiety, frustration living with parents, feeling tired and irritable.[21]
On 15 February 2023 Dr Leung reported USA (United States of America) trip, mood okay, missed flight during travel, some suicidal ideation, better now. Frustrated by limited physical capacity.
On 8 June 2023 Dr Leung reported she was a bit irritable.
On 5 July 2023 reported no appetite, anger, frustrated, no interest in conversation, started gambling dogs, 4-5 months to make money, declined gambling counselling, thoughts of harming others no plan, urge to self-harm.

Dr Fenella Killeen, psychiatrist

In a report dated 1 April 2019 Dr Fenella Killen[22] stated:
“Lee presented with features of depression on a background of borderline personality disorder. She also struggles with chronic anxiety and may have features of PTSD related to an abusive relationship, and also her father’s labile mood.
She reports that she lives in Manly and was beginning to improve with routine but was involved in an MVA which has impacted severely on her life as she has a fractured pelvis and is as yet unable to live independently again. … live temporarily with her parents which she finds extremely stressful.”
[22] Claimant’s bundle p 85.
Dr Killeen reported the claimant’s father was critical and volatile and it was stressful living with her father again. She reported a history of depression and self-harm ideation from the age of seven and wanted to stab self with knife at seven. At 16 she sought help from Headspace, took Fluoxetine and now Desvenlafaxine. She reported BJR had “chronic suicidal ideation and self-harms by cutting or hitting her head; this has been less recently, but she wants to start again”. Physical and emotional abuse from family, molested by other children at seven, sexual assault by abusive boyfriend in later years and AVO against him. Low self-esteem and feels unlovable, body issue and denied eating disorder. Bullying and exclusion by other girls at school. Sister and grandmother have depression, her family lost face because of her father. No alcohol abuse. BJR used cocaine and MDMA, previous cannabis and not since last year. Dr Killeen reported BJR achieved well at ‘uni’ and was working in sales for a software company. She reported BJR presented with restricted affect and her symptoms of depression were hypersomnia, depressed mood, anhedonia, poor motivation, loss of interest and hopelessness.
The Panel confirms BJR had pre-existing post-traumatic stress disorder, borderline personality disorder and body dysmorphia.

Catherine Deans, psychologist

Pre-accident treatment

Ms Deans saw BJR for an initial assessment on 12 February 2019 when she reported with low mood, flat affect, chronic passive suicidal ideation, low self-worth and a history of trauma.[23] Ms Deans reported:
“She described a high-pressure career that she found both rewarding and challenging, and a life living in Manly near the beach which she had worked hard to cultivate.”
[23] Catherine Deans clinical notes p 1.
Ms Deans saw BJR for the second therapy session on 19 February 2019. She reported BJR described an improvement in mood and feeling hopeful about the future. She further stated:
“She reported that she made some significant life changes between sessions, including ending the relationship with her boyfriend … She engaged well with the CBT treatment for her low mood, and her suicidal ideation had not changed in intensity or frequency.”
The third therapy session occurred on 26 February 2019 but clearly prior to the accident.
[24] Catherine Dean clinical notes p 1.
Ms Deans reported BJR had sought out and engaged with resources from the Black Dog Institute.[24] She reported BJR was responding well to treatment, including cognitive restructuring and behavioural activation strategies and her mood continued to improve.

Post-accident treatment

BJR participated with a therapy session by phone on 5 March 2019. Ms Deans stated BJR was frustrated about the impact of the accident on her progress, and concerns about the impact on her work.[25] She noted BJR reported increased intensity and frequency of suicidal ideation, and feelings of dysregulated anger.
[25] Catherine Dean clinical notes p 1.
Ms Deans also reported between the fourth and fifth sessions BJR reached out to let her know she was experiencing increased suicidal ideation and hopelessness.
Ms Deans reported weekly sessions between March 2019 and June 2019. On
15 March 2019 Ms Deans noted the accident.
In a report dated 1 April 2019 Ms Deans reported BJR was self-critical, she had a significant trauma history, suicidal ideation from age 7. Treatment included CBT (cognitive behavioural therapy), interpersonal therapy and dialectical behavioural therapy for emotional regulation. She stated:
“She had been experiencing consistent improvement in her mental health prior to the accident, and this has been a major setback with regards to triggering hopelessness, exacerbated suicidal ideation and low mood.”
On 16 April 2019 Ms Dean wrote to Dr Leong reproducing her email communications with
[26] Claimant’s bundle p 91.
Dr Killeen of 15 April 2019 expressing concern about the claimant’s increased suicidal risk. She noted being home was emotionally difficult for her. [26]
In an undated report Dr Catherine Deans, psychologist referred BJR for re-admission to stabilise BJR noting her recent admission to Gordon Private Hospital for seven days.[27] She reported:
“Lily has not regained full functioning since the MVA in February of 2019, after which she experienced a severe downtown in her mental and physical and well-being. She continues to suffer from the sequalae of events following with MVA, including no longer being able to live independently of her parents, decreased income and work capacity, decreased engagement in leisure and social activities, decreased ability to engage in exercise, and increased low mood, self-harm and suicidal ideation along with pelvic and knee pain, and further deterioration of her already poor body image.”
[27] Claimant’s bundle p 87.
Ms Deans continued to treat BJR between July and October 2019, noting she had been admitted to hospital following an overdose of sedatives on 14 July 2019. She reported some progress in reaching out to others when experiencing distress but reported in
October 2019 her mental health deteriorated, and her safety was again at risk.
Between November 2019 and February 2020 Ms Deans reported BJR’s mood was labile, she suffered from anxiety and her suicide risk levels fluctuated.[28] She reported
[28] Clinical notes of Catherine Deans p 2.
BJR resigned from her job in December and moved out of the Manly flat because she could no longer afford the rent. Ms Deans reported BJR also discussed BDD. She reported rumination and worries about the future, fluctuations in mood, and the need for engagement to counter isolation and loneliness.
Ms Deans continued to treat BJR weekly between March and October 2020. She continued to describe stress regarding finances and her career, physical pain, feelings of hopelessness, low mood and irritability, low motivation, grief and loss. She noted BJR stated to assist animals by volunteering with WIRES.
Ms Deans noted BJR was admitted to Gordon Private Hospital in January 2021 due to a deterioration in her mental health and increased suicide risk. She referred to a further admission in March 2021. She reported increased suicidal ideation in May and very low mood, disruptions to sleep, labile affect, irritability and sadness.[29]
[29] Clinical notes of Catherine Deans p 4.
Ms Deans referred to further hospitalisations the period July 2021 to October 2021 including after severe self-harm requiring surgery in October. Treatment continued between November 2021 and February 2022 including being readmitted to hospital following a deterioration in her mental health.
Between March 2022 and June 2023 Ms Deans continued to treat BJR in weekly sessions including CBT (cognitive behavioural therapy). Between July 2023 and
[30] Clinical notes of Catherine Deans p 6.
October 2023 Ms Deans reported BJR demonstrated increased maturity and resilience in her interpersonal communications. She self-initiated more self-care, creative pursuits, social support seeking. She reported themes discussed included the stress of the insurance claim and upcoming assessments, hopelessness about her future, particularly her career and financial future, interpersonal stressors, physical pain and frustration re the impact of the accident, anxiety re riding motorcycle, disruptions to sleep, lack of independence and ongoing suicidal thoughts and low self-worth.[30]

Dr Dinah Bennett, psychiatrist

On 13 June 2019 Dr Bennett reported she reviewed the claimant at the Gordon Clinic.[31] She reported low moods and suicidal ideation and reported BJR struggled with the end of her relationship.
[31] Claimant’s bundle p 97.
On 15 August 2019 following her discharge from the Northern Beaches Hospital Dr Bennett noted panic attacks and reported:
“Although the trigger was the ending of her relationship, in my view, the overdose is part of the severe major depressive disorder she has developed after the original accident.”[32]
[32] Claimant’s bundle p 101.
On 4 September 2019, 22 October 2019 and 19 November 2019 Dr Bennett reported
BJR was struggling at work, the lift was not working, she was struggling to manage the stairs, she felt she was being micromanaged and was not given an opportunity to develop her skills. She also reported anxious worries, decreased motivation and suicidal thoughts.
On 17 December 2019 Dr Bennett reported she had decided to resign from her job as the difficult situation there continued to trigger her suicidal ideation and contributed to an exacerbation of her depression. She intended to work in her parent’s business.[33]
[33] Claimant’s bundle p 107.
On 13 August 2020 Dr Bennett reported some gradual improvement with ups and downs noting BJR was engaged in psychological therapy.[34]
[34] Claimant’s bundle p 108.
On 13 April 2021 Dr Bennett reported low mood and ongoing pain which disrupted her sleep. She suggested trialling Bupropion and noted she continued on Lithium.
On 1 August 2021 Dr Bennett reported low moods were exacerbated by her circumstances, work was affected by the COVID-19 lockdown. Pain and underlying BDD issue. On examination the Panel confirmed with BJR the work stress she experienced in that employment.
On 19 September 2021 Dr Bennett reported the claimant was struggling with lockdown and the settlement process. She was irritable and withdrawn, had broken up with her partner and was not communicating with her family.[35]
[35] Claimant’s bundle p 113.
On 2 November 2021 Dr Bennett reported BJR was struggling since discharge, with periods of emotional distress with self-harm thoughts. She was not well enough to return to work.[36]
[36] Claimant’s bundle p 115.
On 1 December 2022 Dr Bennett reported BJR was feeling tired and burnt out. On
[37] Claimant’s medical records p 6.
31 January 2023 Dr Bennett reported BJR was experiencing low mood, low energy, low motivation and issues with pain.[37]
On 26 April 2023 Dr Bennett reported BJR had had a rough week, with a few days feeling low and tearful with decreased motivation. On 8 June 2023 Dr Bennett reported
BJR was more irritable and frustrated and on 29 July 2923 Dr Bennett reported she was worried about the upcoming insurance assessments. She was not sleeping and was having disturbed dreams. On 1 September 2023 Dr Bennett reported BJR was experiencing increased levels of distress and self-harmed (superficially) a few weeks earlier. She was not suicidal but was very stressed.

Gordon Private Hospital

BJR was admitted to Gordon Private Hospital from 25 January 2021 until
[38] Claimant’s bundle p 43 and Claimant’s medical records p 83.
15 February 2021 for relapse of depressive symptoms with suicidal ideation, and increased stress. The accident was noted, ongoing chronic pain symptoms, legal process, new relationship from October 2020, low self-esteem affected relationship, trust, chronic pelvic pain affected relationship. Amitriptyline 200 mg and Quetiapine 100 mg/24 hours.[38]
It was noted before the accident she had a successful career in sales but since the accident had experienced chronic pain. It was also noted she was involved in a further motor bike accident in November 2020 although she felt the injuries were resolving. Symptoms included low mood, irritability, difficulty sleeping, suicidal thoughts and self-harm.
BJR was re-admitted from 26 February 2021 to 12 March 2021 for low mood and suicidal thoughts.[39] Major depressive disorder, borderline personality disorder, body dysmorphia. Discharged on Lithium, Melatonin and Quetiapine, ceased due to Amitriptyline.
[39] Claimant’s bundle p 45 and Claimant’s medical records p 85.
BJR was admitted to Gordon Private Hospital between 18 April 2019 and
[40] Claimant’s bundle p 54 and Claimant medical records p 81.
30 May 2019.[40] Diagnosis of post-traumatic stress disorder and borderline personality disorder, traumatic experiences in the past noted. It was reported she developed an episode of severe depression after the accident where she experienced a fractured pelvis and knee injuries. She reported she was increasingly tired and irritable with anhedonia and sleep disturbance, impaired appetite and impaired concentration. She had strong suicidal thoughts which triggered the admission.
BJR was admitted to Gordon Private Hospital between 19 October 2021 and
[41] Claimant’s bundle p 37 and claimant’s medical records p 87.
26 October 2021.[41] In the days prior to admission the claimant had self-harmed by cutting herself on the left forearm, requiring surgery to repair nerve damage. It was reported the claimant had complex mental health issues with major depressive disorder which developed after the accident. She was also noted to have features of body dysmorphia and borderline personality disorder. She reported chronic pain in her pelvis and knees which contributed to her depressive symptoms. She had difficulty with concentration and attention and had been less motivated at work. She could no longer afford to live independently of her parents. Lithium was ceased due to limited efficacy. Her mood was stabilised.
BJR was admitted to Gordon Private Hospital between 11 November 2021 and
[42] Claimant’s medical records p 89.
26 November 2021.[42] Within a few days of her earlier discharge BJR felt agitated and distressed with increased self-harm thoughts and felt unsafe at home. She reported she continued to be distressed by chronic pain. She reported difficulty with concentration and attention and was less motivated at work.

Ryde Hospital

BJR presented with tremors, considered to be an adverse reaction to Lithium use.[43] She was admitted from 26 March 2021 to 30 March 2021.
[43] Claimant’s bundle p 47.

Northern Beaches Hospital

BJR was admitted between 15 July 2019 and 2 August 2019 after taking a paracetamol overdose precipitated by recent break up with partner.[44] Quetiapine restarted. She subsequently developed interstitial nephritis thought to be related to a combination of non-steroidals and Tazocin.[45]

Medico-legal evidence

[44] Claimant’s bundle p 56.

[45] Insurer’s bundle p 122.

Dr Uthum K Dias, occupational physician

Dr Dias assessed the claimant on 23 April 2021.[46] He reported since the accident the claimant had continued to suffer from symptoms of bilateral pelvic pain, lower back pain, and bilateral knee pain.
[46] Claimant’s bundle p 409.
He also reported a significant aggravation of the claimant’s pre-existing mental health conditions, noting she had suffered with depression since childhood but as a result of the accident had suffered with severe depression resulting in multiple hospital admissions.

Dr Ray Wallace, orthopaedic surgeon

Dr Wallace provided a report dated 23 July 2021.[47] Dr Wallace reported the claimant sustained the following injuries:
·        musculoligamentous strain lumbar spine;
·        fractures bilateral superior pubic rami pelvis;
·        lateral collateral ligament strain left knee - now resolved, and
·        soft tissue injury right knee - now resolved.
[47] Insurer’s bundle p 24.
Dr Wallace assessed a 5% whole person impairment (WPI) for the pelvic injury.

Dr Ash Takyar, psychiatrist

Dr Takyar assessed the claimant and provided a report dated 29 May 2021.[48] He stated:
“BJR is a 27-year-old female with a pre-existing history of moderate depression and mild anxiety. I understand that she was diagnosed with a borderline personality disorder after the accident (there were may have been subtler features pre-accident as this is a mental disorder …). BJR appeared to be otherwise highly functioning before the accident and able to cope with stressors reasonably and had been reasonably resilient despite earlier life trauma and significant bullying at school.
She gave a history of deterioration in her mental state and pre-existing depression and anxiety as a result of the 2019 motor accident. The history I obtained indicated that there is no ongoing, significant effect from the second motor vehicle accident of November 2020 –described mild stress for a period of time which resolved with no ongoing psychological impact. The initial motor vehicle accident has led to a deterioration in her anxiety and depression, and she presents with an aggravation of a DSM-5 major depressive disorder and her pre-existing generalised anxiety disorder has been subsumed into a new diagnosis of post-traumatic stress disorder, given she experiences flashbacks, nightmares, hyperarousal symptoms and avoidance phenomena.”
[48] Claimant’s bundle p 428.
Dr Taykar reported a reduced capacity for employment, and noted BJR could ride a motorcycle 20 minutes before significant pain. She was independent in household chores, could drive an hour, generally did not see friends these days, two year relationship ended after the accident, due to strain after first admission and she felt her partner did not understand her. Now in a new relationship of seven months. Dr Taykar declined to assess WPI on the basis her condition had not stabilised given a recent change in treatment.

Dr Graham Vickery, psychiatrist

Dr Vickery assessed the claimant and provided a report dated 9 September 2021.[49]
Dr Vickery reported:
“BJR reported there were prior symptoms of pre-existing anxiety, low mood, insomnia, Post-Traumatic Stress Disorder and depression however that the motor vehicle accident on 26 February 2019 and the subsequent stress of the claim and a relationship breakup and family related tensions had exacerbated these symptoms.”
[49] Insurer’s bundle p 33.

Dr Vickery diagnosed a pre-existing major depressive disorder recurrent, post-traumatic stress disorder and borderline personality disorder. Dr Vickery considered treatment had been appropriate for an exacerbation of the pre-existing conditions due to the accident and the subsequent stress of the claim and a relationship breakup and family related tensions. Whilst he considered BJR continued to require psychiatric and psychological treatment in the future, he considered it was no longer for the injuries sustained in the accident. He concluded the stress of the accident had resolved.
Dr Vickery assessed a 4% WPI but due to the pre-existing condition. He found the WPI due to the accident was 0%.

Dr Frank (Kai Tai) Chow, psychiatrist

Dr Chow assessed the claimant by telehealth on 3 August 2023. He reported BJR’s physical condition had plateaued. She reported ongoing lower back pain, pubic bone pain and bilateral knee pain. He reported she is independent in self-care, but she struggles. She does not shower often during winter, she engages in limited house chores and cannot sit, walk stand or drive for too long.
Dr Chow reported BJR moved back home to live with her parents, having lived with a housemate prior to the accident.
Before the accident she worked with a HR company although after returning to work in
June 2019 she only lasted a month before an attempted overdose. She returned later and worked for a few months before resigning. She now works in her family’s business which she described as a flexible and accommodating arrangement. Dr Chow reported BJR does not engage in hobbies although before the accident she was independent, engaged in running, bushwalking, hiking and had a good social life. She now avoids riding her motorbike.
Dr Chow reported BJR separated from her partner of three years a few months after the accident and was in another brief relationship two years ago. She suggested both relationships ended due to her psychological difficulties.
In relation to her past history Dr Chow reported BJR was diagnosed with depression in her late teens and had been on antidepressants since. She had also attended Headspace. He noted self-harm in early 20’s, took Pristiq and Cymbalta, bullying at school, and strict parents, recurrent sexual abuse when young. From her late teens to early 20’s she engaged in superficial cuts.
He reported although she had occasional psychological symptoms, she was stable and happy prior to the accident. He noted she was working full time, driving and engaging in hobbies.
Dr Chow diagnosed post-traumatic stress disorder and major depressive disorder due to the accident. The Panel notes Dr Chow does not seem to be aware of the 2020 accident.
Dr Chow assessed a current WPI of 20% but deducted 1% for the pre-existing impairment arriving at a current WPI of 19%. In relation to the pre-existing PIRS Dr Chow allocated 1 to most categories on the basis BJR had “limited impairment” and was “able to work full time”. He rated 2 in pre-accident social functioning, and concentration, persistence and pace but did not explain how he came to that rating or why she had mild impairment.
The Panel notes Dr Chow likely did not have access to treating records as he does not seem to be aware of various self-initiated recreational activities since the accident.
In terms of self-care and personal hygiene, BJR was independent in her self-care and personal hygiene, therefore a class 3 rating cannot be supported.
In terms of social functioning, Dr Chow was not aware her relationship at the time of the accident was problematic, she had already considered ending that relationship and she had formed a further relationship; therefore a class 3 rating cannot be supported.
In terms of concentration, persistence and pace, Dr Chow did not take a history of her capacity to engage in intellectually demanding tasks, and the Panel found her less impaired as she is able to engage in intellectually demanding tasks for 30 minutes and more.

Medical Assessment Certificates

Medical Assessor Woo, 8 June 2022

Medical Assessor Woo issued a certificate dated 8 June 2022 in which he certified the claimant had sustained a 9% WPI as a result of the following injuries caused by the accident:
·        bilateral pubic rami fractures;
·        lumbar spine soft tissue injury, and
·        both knees soft tissue injuries.[50]

SUBMISSIONS
Claimant’s submissions
[50] Insurer’s bundle p 46.

The claimant provided submissions dated 25 October 2022 addressing the certificate of Medical Assessor Samuell.[51] The claimant submits indicia of an ongoing aggravation include:
·        her report that she was not treated by a psychiatrist before the accident, but had consulted with a psychiatrist (Dr Bennett) since the accident and continues to see that psychiatrist every six weeks;
·        no mental health admissions prior the accident, but many admissions since the accident, including an admission to Gordon Private Hospital for suicidal ideation at the end of 2021;
·        her report of no mental difficulties before the accident, but ongoing difficulties with concentration following the accident;
·        her report that she was last suicidal in March 2022;
·        that she was able to complete university studies before the accident, and work in a sales role with yearly promotions;
·        the change in her medication regime – prior to the accident, the claimant was taking Cymbalta with a period of medical cessation before the accident. Conversely, at the time of assessment the claimant was taking Dothiepin 225 milligrams, Quetiapine 50 milligrams and Lorazepam (1 – 2 milligrams as required), and
·        her reported loss of interest in pre-accident activities such as hiking and swimming and her reported social anxiety difficulties post-accident.
[51] Claimant’s bundle p 1.
The claimant noted both Dr Takyar and Dr Vickery accepted an aggravation to a pre-existing major depression and the development of a post-traumatic stress disorder. The claimant also notes a diagnosis of post-traumatic stress disorder appears in the Gordon Hospital discharge summary dated 30 May 2019.

Insurer’s submissions

The insurer provided submissions dated 14 November 2022 addressing whether the medical assessment of Medical Assessor Samuell was incorrect in a material respect.
The insurer provided undated submissions in support of the claim.[52] The insurer notes the claimant had a significant pre-existing psychiatric condition.
[52] Insurer’s bundle p 10.
The insurer refers to the report of Ms Deans where she reported the following history after undergoing an initial assessment on 12 February 2019:
“With low mood and a history of depression. She experiences constant self-criticism and high unrelenting standards. She also has a significant trauma history and has experienced suicidal ideation since age 7. BJR has engaged well in therapy and shows both insight and reflective capability.”
The insurer relies upon the report of 1 April 2019 where Dr Killeen stated the claimant had reported depression and suicidal ideation since the age of 7. She reported the claimant:
"sat on the kitchen counter at that age intending to stab herself with a knife. It was not until she was 16 that she sought assistance and has been treated through Headspace and her GP with Fluoxetine, Duloxetine and Desvenlafaxine 100mg.”
The insurer noted, inter alia, that Dr Killeen reported she had chronic suicidal ideation and self-harms by cutting or hitting her head and although this had occurred less, more recently, she wanted to start again.
The insurer submits the claimant’s psychological injuries do not exceed the 10% WPI threshold for the following reasons:
·        on 9 September 2021, Dr Vickery diagnosed pre-existing major depressive disorder - recurrent, post- traumatic stress disorder and borderline personality disorder;
·        Dr Vickery reported that the claimant's aggravation had resolved, and any ongoing symptoms are now related to pre-existing conditions and stressors unrelated to the accident;
·        Dr Vickery reported that the claimant continues to require psychiatric and psychological treatment in the future, however, this is no longer for the injuries sustained by her in the accident;
·        Dr Vickery reported that there is no longer any requirement for any ongoing care and/or domestic assistance because of any psychiatric injuries sustained by her in the accident;
·        Dr Vickery reported that psychopathology was pre-existing and exacerbated by personal stressors with 100% deduction for the assessment of WPI, and
·        Dr Vickery assessed 0% WPI related to the subject accident.

MEDICAL EXAMINATION

BJR attended Medical Assessor Hong's office for the assessment and Medical Assessor Matthew Jones joined via video. The claimant’s sister BPP accompanied her to Medical Assessor Hong's clinic; however, she was assessed on her own.

History

Psychosocial history and pre-accident history

In terms of general medical history, BJR does not have cardiac, thyroid or liver disease.
She had tried recreational drugs and but had not used them since 2020.
In terms of family history, BJR’s sister has depression and her grandmother developed depression after she was placed in a nursing home.
BJR noted that her memory of the events over her life has been poor due to multiple traumas she has experienced.
BJR grew up in Australia, her parents having come from Vietnam as boat refugees. She was the middle of three siblings.
She reported being molested at school and by an extended family member who assaulted her when she was in Grade 3. When she was 16, she was physically and sexually assaulted by someone she thought she could trust. The Panel noted some of the reports characterised that person as being a partner, but she said they were not really partners. That person recorded the assault on her and then tried to blackmail her with it and made negative comments about her body. She reported contact with him lasted maybe two or three years and mostly stopped after she applied for an Apprehended Violence Order. He continued to try to contact her and she said he seemed to be obsessed with her. The last time he tried to contact her was in late 2022. She stated the police could not do anything. Aside from this, she has no other forensic history.
BJR confirmed that her father was critical and volatile at times as she grew up, and even now he can still be a bit volatile, but he is getting better over time. He seems to have developed a better understanding of mental health, particularly since his mother went to a nursing home and developed depression. BJR stated her relationship with her father is better now.
BJR first sought psychological help at age 18 after an assault, when she attended Headspace in Parramatta. She did not continue counselling for long and was not sure whether she used up the offered 10 sessions. She said she did not get proper therapy or learn how to deal with her emotions at that time.
BJR recalled she took an antidepressant (her file indicated fluoxetine), but only briefly.
There was an earlier car accident maybe two or three years before the accident which happened in Pennant Hills. She was driving and her sister was a passenger. She had taken a lot of Lorazepam at the time - she stated more than she should have, to manage her depression and anxiety. After the accident, she self-harmed and attended Auburn Hospital where she had stitches. She said it was only a superficial cut and she had never had a psychiatric admission before the accident.
In the six months before the accident, BJR said she had a good job doing sales work and felt that her life was in a good place. The company sold finance automation software. She felt independent and was making an effort to be friends with her co-workers and to attend work functions. She lived with a flatmate.
On further enquiry and discussion of her treating medical records, BJR confirmed she still felt up and down in her moods, with anxiety and depressive symptoms, which was why she sought a psychologist not long before the accident. She said she suffered body dysmorphia which first developed after the assault where she was recorded. She looked for a therapist specialising in body dysmorphia and found Ms Catherine Deans.
BJR confirmed she has a body image problem, about her entire body and specific parts of her body (for example, her hair) and concerns about body symmetry (for example she feels like her eyelids are uneven). However, she had only completed three sessions with
Ms Deans when the accident occurred, so they did not have time to properly address her body dysmorphia. She was in a relationship with a partner of maybe two or three years, but her body dysmorphia and trust issues affected that relationship.
She also confirmed that when working in sales there was stress relating to meeting targets.

History of the accident

On 26 February 2019, BJR remembered she attended her psychologist and then went to the beach to swim, before travelling along Pittwater Road on her motorcycle to go home. It was a bright and warm day, and she was living in Manly at the time. She had a green light and took the left lane and buffered to the left to avoid being in other vehicles' blind spots. She entered an intersection and out of the corner of her eye, she saw a car turning right. She braked hard but could not avoid the collision.
BJR became very emotional as she discussed the accident during the assessment. She said she could remember the impact, going over the bonnet and hitting the ground, landing on her right arm. She recalled rolling onto her back and that she was wearing a backpack. Somebody ran towards her with a first-aid kit and told her to not move. She remembered lying down with her legs curled up and she could not uncurl her legs. She was experiencing a lot of pelvic pain. She kept thinking “am I going to be paralysed”.
BJR was taken to the Royal North Shore Hospital where she stayed for five days undergoing conservative treatment. She reported having sustained bilateral pelvic bone fractures and was in bed for nine weeks. She also suffered low back pain and pain in both knees - she has been told this was oedema and overcompensation, but it has not resolved. She said she finds it hard to bend down for too long and to sleep, due to pain. She avoids running and when she jogs at exercise physiology, she can jog for less than five minutes.

History of symptoms and treatment following the accident

As a result of the accident, BJR suffered increased depression, anxiety and mood swings.
She was exposed to a life-threatening situation, she reported increased re-experiencing of symptoms related to her previous trauma, and also developed new trauma symptoms related to the accident. BJR confirmed she suffered pre-existing post-traumatic stress disorder which arose from her early life trauma. She described fear-avoidance, and engaged in protective behaviour against the man who recorded her. She said she avoided being home alone and worried that that man would break in and hurt her. This was always in the back of her mind. She had nightmares about it and intrusive thoughts. After the accident, her post-traumatic stress disorder symptoms were aggravated. She also developed post-traumatic stress disorder in relation to the accident and said that her dreams are now about two different types of traumas. She has also developed anxiety riding her motorcycle.
BJR confirmed symptoms before the accident consistent with borderline personality disorder with anxiety and depressive symptoms, which was aggravated by the accident. She described a longstanding pattern of unstable moods affecting relationships, trust issues, issues related to her sense of identity and self-image, recurrent suicidal ideation and self-harm behaviour, and some impulsive behaviour.

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

Before the accident, BJR liked swimming, hiking, running, and going to the beach. She was in a relationship, with a partner. She said she rode her motorcycle almost every weekend and some of her friends rode as well. She had a Honda CBR 500R road bike which was written off in the accident.
The Panel informed BJR that immediately before the 2020 accident in October 2020, treating medical records described her as happy and reported she was using a dating app. She confirmed she was better and said she met her second partner, through the app.
BJR avoided riding after the accident although by late 2019, she had purchased a new motorcycle, a Yamaha Road bike, and whilst she had started riding again, she was not a confident rider.
On 22 November 2020, she had the 2020 accident.
At this stage, BJR was in a relationship with her second partner and she and her partner were both riding their bikes. She stated he was trying to help her build her riding confidence, and she thought it was safer to ride as a pair. They were in Burwood when she slowed down due to a red light ahead. However, the car next to her suddenly changed lanes and drove into her causing BJR to come off her bike. She said it was a low-speed accident and she did not think she went to hospital. She had bruising to one of her legs and could not even remember which leg it was.
For a while, BJR experienced increased psychological instability, and subsequently she said that the effects from this accident had dissipated, and she does not think about it anymore. There are no ongoing physical problems arising from that accident. BJR still has the same bike, the Yamaha, but reported she developed increased anxiety riding after the 2020 accident, and she generally avoids riding now. In the last six months, she has only ridden it once to go to the mechanic to get a pink slip to have the bike registration renewed. She said she has not sold the bike because a motorcycle is the last thing she has from before the accident, before “everything was taken away from” her, such as her career.

Current symptoms

BJR described having chronically dysregulated emotions with elements of anxiety, depression and anger.
She has reduced enjoyment and motivation but continues to enjoy some activities.
BJR described having reduced concentration and memory overall. She stated when in an assessment, she has structure and can focus well, but at home, she often loses track of the conversation.
BJR was 47kg before the accident, and now she fluctuates between 45 and 49 kg and continues to have body dysmorphia and body image problems.
She reported having chronic sleep difficulties, due to back and knee pain, and nightmares.
She feels anxious and worries about her finances and future career.
She still over-reacts to some situations.
Before the accident, BJR had suicidal thoughts and she would self-harm a few times a year. After the accident, self-harm became more regular, and she has self-harmed several times in the last six months. She has ongoing suicidal thoughts.

Current and proposed treatment

BJR is currently taking:
·        Dothep, 75 mg tablet, three tablets daily;
·        Lorazepam as needed for anxiety, one to two times per week;
·        Quilonum SR 50 mg, and
·        Quetiapine XR 50 mg.
She is not taking analgesic medications now, and reported they were ineffective.
BJR was on Pristiq at the time of the accident and took several psychotropic medications after the accident.
BJR continued treatment with Catherine Deans after the accident and has recently been having weekly sessions. She started treatment with Dr Dinah Bennett, psychiatrist a few months after the accident, more recently attending every six weeks.
Since the accident, BJR estimated she has had between five and 10 psychiatric admissions, the longest being six weeks. The last admission was in late 2022 and she said she has had trouble getting approval.

Clinical Examination

Mental State examination

BJR was well-groomed and had sliver colour tips in her hair. She had thick eyelashes and appeared tanned. She had tattoos on her arm and wore a nose ring. Scars were visible in both arms, from self-harm. She engaged well during the 90 minute assessment.

There was no psychomotor slowing or abnormal movements. BJR was distressed when discussing her earlier life trauma and the accident. She was not restricted in her affect range and reactivity. She spoke spontaneously and readily. She was not thought disordered.
BJR gave a clear history and provided clarification. She was consistently focused throughout the assessment. She maintained a steady pace. There was no overt cognitive impairment.

Current functioning

BJR is 36 and living with her parents and her brother. She has no dependents. When the accident happened, she was living with a flatmate, and she has since moved back home.
She reported she does not go swimming anymore. Normally she would go to the beach and read and enjoy being in the sun and on the sand, but now because she lives in Merrylands it is too far to go to the beach.
She normally liked to read books, in particular, crime fiction. She said over time she has become less interested and cannot focus as well when reading, and now she prefers to listen to audiobooks about crime fiction and generally listens for one hour a day, but she often has to replay the audio.
BJR said she has taken several trips, including in 2021 or 2022, to Thailand for her work (her file indicated a trip in 2020, for work and for holiday). She recalled she went to New Zealand with her second partner a few years ago. In early 2023, she went to the United States of America on her own to visit a friend. She went to Washington and Virginia, but said it was a very long flight and she suffered severe pain and became sick, so she did not do too much while she was there.
She infrequently gambles on an app on dogs and horses but does not go to the race courses in person.
BJR volunteers at Wires, in wildlife rescue. The last time was four months ago. She said that she can go whenever she wants to and she is involved in transporting injured wildlife, but she does not care for the wildlife herself.
BJR reported she spends a lot of time at home with her dog, watching movies and Netflix. She still argues with her parents sometimes and says because they live together and work together, there is always some friction. Her father is "a bit volatile" but is more understanding now, so they do not have major arguments.
She does not have many friends left and said that she has contact with maybe three or four people. Sometimes they might have contact every two weeks and sometimes only every couple of months. They do not go out to activities but spend time at home watching Netflix and catching up. She stated she is not interested in meeting new people anymore.
BJR's mother does most of the household chores. She used to help a bit but finds it hard to do now. She said she likes cooking but cannot stand up for long because of increased pain so she gets irritated. She still does some cooking and shopping but cannot do anything heavy. She also stated she does not like to go to crowded shops.
In winter, BJR reported she has more pain and tends to avoid having a shower. In summer, she still does not shower every day, generally only three times a week. Sometimes her mother prompts her to shower. Her sister cuts and dyes her hair so she does not have to go to a professional salon.
She said she eats better when her mother is around, but if her mother is not present, she might only have two meals a day.

Relationship history

In terms of relationship history, she reported that after the relationship with the person who recorded her, she had a partner (described as the first partner) when the accident happened, but she also stated this was "a bit of a grey area" and they were never an official couple. She had trust issues, which she stated affected the relationship. He is very sociable. A couple of months after the accident, when he could not understand why her mental health had become so poor and why she self-harmed so much, he could not support her and he left her. This triggered her to have a hospital admission.
BJR was in a relationship with the second partner for a year, although they did not live together. She said she could not handle the stress of being in a partnership because of her insecurity and trust issues, and she also experienced stress with the compensation claim. Since then, she has not had another partner.

Employment history

In terms of education, BJR finished Year 12 and did a business commerce degree, which she finished in 2015 or 2016. She then worked for a software company on a full-time basis doing sales work at the time of the accident. She started in a call centre and then later became a salesperson. She resigned after the accident. She undertook sales work in another company in June 2019, but she stated that did not work out. The Panel noted there was some problem with a colleague at that workplace.
In 2020, she started working in her father's business which specialises in wholesale leather shoes. She said she and her parents are the only people working in the business. She attends to the business’ marketing and occasionally she sees the stockist. Generally, she works online. She said she tries to build up the online business and works between 10 a.m. to 3 or 4 p.m. five days a week. She manages the website and tries to improve the site and manages the orders online and the expenses.

Consistency of presentation

There was no inconsistency identified. The Panel noted BJR's complicated history and her memory difficulties which affected her recall.

DETERMINATIONS

Diagnosis

BJR has a complicated psychiatric history with multiple traumas early in her life and described symptoms consistent with body dysmorphia, borderline personality disorder and post-traumatic stress disorder. She also had anxiety and depressive symptoms. Her mental health was not particularly stable in the months before the accident noting her antidepressant medication was doubled around three weeks before the accident, and she had three sessions with her new psychologist. The Panel considered her anxiety and depressive symptoms were subsumed as part of her post-traumatic stress disorder, rather than diagnosing a separate persistent depressive disorder or major depressive disorder.
After the accident, BJR developed an aggravation of her pre-existing injuries and also new post-traumatic stress disorder symptoms related to the accident. She had several psychiatric admissions and her symptoms fluctuated, including a period when she briefly enjoyed good psychological health and started dating.
The 2020 accident caused an exacerbation of her psychological injury. After that accident, she had further treatment, and engaged in Cognitive behavioural therapy and Dialectical behavioural therapy and had multiple psychiatric admissions. Overall, there has been a degree of improvement.
BJR's impairment is permanent and entrenched, and unlikely to change substantially. The Panel is satisfied maximum medical improvement has been reached.

Causation

BJR had several pre-existing psychological injuries, which were not stable and were being actively treated at the time of the accident. She developed an aggravation of these psychological injuries, and also developed a new post-traumatic stress disorder symptoms related to the accident.
She had a subsequent 2020 accident, but this was overall a minor accident and has not severed the chain of causation. The Panel is satisfied the accident remains a significant causal factor in her current psychological injury, and this causation is more than a negligible contribution.

PERMANENT IMPAIRMENT

Psychiatric Impairment Rating Scale (PIRS)

Current PIRS:

Category	Class
1. Self-care and Personal Hygiene	2	BJR showers three times per week without prompting and has reduced motivation to attend to her self-care and personal hygiene. She eats two meals a day without prompting. She cooks but cannot stand up for long. She buys the groceries sometimes. She is independent in her self-care and personal hygiene. She still engages in self-harm behaviour. She has body dysmorphia which affects her self-care too.
2. Social and recreational activities	2	She enjoys occasional social and recreational activities, including a trip to visit a friend in the USA in early 2023, and intermittent catchups with her friends. She has given up some of her usual social and recreational activities, such as riding a motorcycle with her friends. She could not continue hiking due to her physical injuries and pain, which is not assessable under the PIRS.
3. Travel	2	BJR is anxious and avoids riding her motorcycle. She only rode her motorcycle near her home once in the past six months. She can travel overseas on her own.
4. Social functioning	2	BJR's relationship with her partner ended after the accident although there were pre-existing problems in that relationship. She dated and had another partner, and that relationship ended too, as she has longstanding trust issues. She lost friendships since the accident. She has maintained a few long-term friendships. The relationship with her family has improved over time, however, her interpersonal sensitivity is still a significant factor affecting her relationships.
5. Concentration, persistence and pace	2	BJR reported having reduced concentration. She enjoyed reading books and now she prefers to listen to audiobooks, usually one hour a day as it requires less focus. She can focus on website maintenance and related tasks, for more than 30 minutes at a time, which are intellectually demanding tasks.
6. Adaptation	3	BJR volunteers at times and works more than 20 hours per week in the family business but needs more flexibility than a typical employee. She does some sales work but cannot perform at the same level as before the subject accident. This is closer to 3 than 2.
List classes in ascending order: 222223
Median Class Value: 2
Aggregate Score: 13
% Whole Person Impairment: 7 %

*%WPI ^{= Percentage Whole Person Impairment}

Pre-existing WPI

Category	Class	Reason for Decision
Self-care & Personal Hygiene	2	BJR engaged in self-harm behaviour and needed hospital treatment and was not admitted. She has pre-existing body dysmorphia which affected her self-care.
Social & Recreational Activities	1	She has anxiety and depressive symptoms, and she did not report any impairment in recreation.
Travel	1	No impairment before the subject accident. She drove and rode everywhere.
Social Function	2	She has longstanding trust issues due to previous trauma, which affected her relationship with her family and peers, and her partnership.
Concentration, Persistence & Pace	1	No impairment before the subject accident.
Adaptation	2	She struggled with her sense of identity and her psychological instability affected her life adaptation and ability to relate to people at work and pursue a career in sales.

List classes in ascending order:

Median Class Value: Aggregate Score:

Whole Person Impairment:

Medication adjustment

Treatment including antidepressant helped, but not as much as her current treatment.

WPI before the accident = 5%

Apportionment

Pre-existing impairment = 5%.
Turning to the impairment arising from the subsequent accident. As the second accident has produced an aggravation of the psychiatric impairment from the first accident, it is not necessary to determine whether a similar impairment would have arisen in an otherwise healthy person, had the first accident not occurred.

Effects of treatment

BJR has gained symptomatic relief and moderate functional improvement, from Cognitive behavioural therapy and Dialectical behavioural therapy. The Panel considers an appropriate adjustment for the effects of treatment to be 2%.

Final WPI

The current impairment is calculated by deducting the pre-existing impairment from the current impairment and adding the adjustment for the effects of treatment.
Accordingly, the final assessment is 7-5+2 = 4% WPI.

CONCLUSION

The Review Panel revokes the Certificate of Medical Assessor Doron Samuell dated
20 September 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI which is not greater than 10% and is 4%:
·aggravation of post-traumatic stress disorder and borderline personality disorder.

[2023] NSWPICMP 561

8 November 2023