BKJ v AAI Limited t/as GIO
[2023] NSWPICMP 131
•6 April 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | BKJ v AAI Limited t/as GIO [2023] NSWPICMP 131 |
| CLAIMANT: | BKJ |
INSURER: | AAI Limited t/as GIO |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Paul Friend |
| DATE OF DECISION: | 6 April 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about whole person impairment (WPI) and review of assessment under section 7.26; original assessment by Medical Assessor (MA) Paisley found WPI not greater than 10%; claimant had significant physical injuries in the accident and was assessed by his expert as having a WPI of 17% for his psychological injury; the claimant had pre-accident psychiatric history with suggestion of bi-polar disorder and long-term antidepressant medication; Held – claimant diagnosed with aggravated type II bi-polar disorder and current WPI of 8% and pre-accident WPI of 1%; certificate of MA Paisley confirmed; no issue of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Medical Assessor Paisley dated 18 October 2021. 2. Certifies that the injuries sustained by BKJ result in a whole person impairment that is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
BKJ was involved in a motor accident on 18 January 2018. He was riding his motorbike, stationary at a stop sign when he was rear ended by another motorbike.
BKJ says he sustained a number of physical injuries in the accident including injuries to his spine, pelvis, arms and legs. He says he also sustained a psychological injury.
On or about 1 August 2019 BKJ made a claim for damages against GIO, the third-party insurer of the motorbike that rear-ended him.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and BKJ referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 18 October 2021, Medical Assessor Shannon Paisley determined that BKJ did not have a WPI of greater than 10%. BKJ lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 17 February 2022, a delegate of the President determined there was reasonable cause to suspect a material error and allowed the review and on 26 July 2022, the President convened the Panel to conduct this review.[1]
LEGISLATIVE FRAMEWORK
[1] The proceedings were allocated previously however due to the unavailability of one of the members of the Panel, a fresh Panel was convened.
General background
BKJ’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). The Act provides for claims for statutory benefits (treatment and care as well as weekly loss of earnings payments) and claims for damages. A claim for damages can include certain pecuniary losses as well as non-economic loss.
Damages for non-economic loss are regulated by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[2] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[2] The current maximum as of October 2022 is $605,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[3]
[3] See s 4.12 of the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Paisley’s, further medical assessments, and the review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[5] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[5] Section 7.21 of the MAI Act. The current version of the Guidelines is Version 9.1 which is effective from January 2023.
The Guidelines include a chapter entitled “Mental and behavioural disorders” and require the assessment to be undertaking in accordance with the psychiatric impairment rating scale (PIRS) and that the AMA 4 Guides are to be used as “background or reference only.”[6]
[6] Clause 6.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with whatever the current edition of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD).[7]
[7] Clause 6.213 of the Guidelines.
The PIRS provides[8] for the consideration of any psychiatric condition present before the accident in question:
“In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”
[8] Clause 6.218 of the Guidelines.
The PIRS provides in cl 6.219 for six areas of function:
1.219.1 self-care and personal hygiene;
1.219.2 social and recreational activities;
1.219.3 travel;
1.219.4 social functioning (relationships);
1.219.5 concentration persistence and pace, and
1.219.6 adaptation.
The PIRS then provides at cl 6.220 for five classes of impairment with a descriptor for each which is “illustrative rather than literal” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury.”
The impairment may be adjusted for treatment,[9] that is treatment such as medication prescribed to treat the psychiatric condition.
[9] See cls 6.222 – 6.223 of the Guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage.[10]
[10] See cls 6.225 – 6.228 and table 17 of the Guidelines.
ASSESSMENT UNDER REVIEW
Medical Assessor Paisley assessed the claimant on 10 August 2021 and issued his certificate and reasons on 18 October 2021.
Medical Assessor Paisley was asked to assess “anxiety, persistent depressive disorder, post-traumatic stress disorder [and] insomnia”. The assessment was undertaken by audio-visual means.
BKJ gave the following history:
(a) he is 52, married with three adult children for his first marriage;
(b) he had no previous mental health issues although his general practitioner (GP) had thought he had bipolar disorder, but he was never formally diagnosed;
(c) he was not working at the time of the assessment but, at the time of the accident was working as an officer with the Corrections Department;
(d) BKJ lost consciousness in the accident and was admitted to Wollongong Hospital for two days having sustained eight fractured vertebrae and lacerations on his arms;
(e) he has been in constant pain since the accident;
(f) he returned to work for six months, worked on restricted duties and then was medically retired;
(g) he has insomnia and nightmares and wakes suddenly with overwhelming pain and anxiety;
(h) he is anxious in a car and prefers his wife to drive;
(i) he has lost interest in his motorbike, playing golf and lawn bowls, and
(j) he does not experience flashbacks.
BKJ described his current symptoms which he says have not improved. He is depressed, has insomnia, fatigue, loss of motivation, poor concentration and reduced interest in pleasurable activities, anxiety and suicidal thoughts.
He has been prescribed an antidepressant and sees his GP regularly.
BKJ married his current wife in 2019 after a four-month relationship. She does most of the housework and cooking. She also manages the family finances and mows the lawn.
Medical Assessor Paisley reviewed the medical evidence and diagnosed persistent depressive disorder which he attributes to the accident. He did not consider the claimant had a pre-existing bipolar disorder.
Medical Assessor Paisley’s assessment for the six classes of impairment are contained in the Appendix to these reasons.
He assessed the claimant as having a WPI of 6% which was adjusted upwards by 1% due to the prescription of antidepressants.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant’s submissions in support of the application for review say there were errors in the assessment of four of the PIRS categories.
The self-care and personal hygiene category was assessed by Medical Assessor Paisley as class 1 impairment. The claimant says his wife looks after most of his daily care needs, cooks, mows the lawns, manages the finances and so on. The claimant submits that the Medical Assessor has said he lived independently from the date of the accident but did not take a history of how he did so. The claimant also submits that he is not currently living independently because he is dependent on his wife, and it is his current situation that must be assessed. He says without his wife’s help, he should be assessed as class 3.
The social and recreational activity category was assessed by Medical Assessor Paisley as class 2 impairment because he no longer plays golf or bowls, but that he goes out with his wife and went for a holiday. The claimant accepts that he does these things but says he does them with people and not on his own without a support person and therefore he should be assessed as having a class 3 impairment.
The claimant says that the concentration, persistence and pace category was assessed as a class 2 impairment based on informal observation and not formal assessment. The claimant says he should be assessed as having a class 3 impairment.
The claimant submits that the adaptation category was assessed by Medical Assessor Paisley as a class 3 impairment because the claimant could not work. The claimant says he did not consider the criteria for a class 4 impairment.
The claimant says that if his submissions were accepted and an assessment done on that basis the claimant would have an 18% WPI.
Insurer’s submissions
The insurer says:
(a) self-care and personal hygiene – there is no evidence the claimant could not live independently as he can look after his own personal care;
(b) social and recreational activities – there is no evidence the claimant needs a support person, and it is “only natural” that he go out with his wife to meals and on holidays. The insurer argues the claimant can drive a car and ride his motorbike alone;
(c) concentration, persistence and pace – the evidence and the Medical Assessor’s observation supports the class 2 finding, and
(d) adaptation – the insurer says the claimant was medically retired because there were no suitable duties for him and that the claimant is able to drive his motorbike and car and maintain his bike and that a class 3 impairment was appropriate.
Panel report and directions
The Panel met on 31 January 2023 to discuss the assessment and reported to the parties on 1 February 2023.
The Panel noted:
(a) there was no issue as to causation;
(b) the three psychiatrists who have examined the claimant (including the Medical Assessor) are of the view the claimant’s WPI should be adjusted for the effect of treatment, and
(c) the significant dispute is the appropriate class for four of the six categories of impairment.
The Panel did not request any further documents and advised the parties of the re-examination date.
On 10 March 2023, the insurer lodged an application to admit late documents. The claimant opposed the documents being allowed into evidence. On 13 March 2023 the Panel advised the parties:
“The Panel confirms receipt of the insurer’s application to admit late documents. The Panel notes rule 128 and paragraph 28 of Procedural Direction PIC 3 and that the decision to accept or reject the late documents is a matter for the Panel. The Panel notes the claimant objects to the documents being included on the basis of relevance.
The Panel has read the reports and notes that while they are Vocational Capacity Centre reports the substance of which is usually relevant only to disputes about damages, they do include a history taken from the claimant and therefore could include relevant information that would be of assistance to the Panel. The Panel also notes contained within the first report are the findings of a physical examination by Gillian Stewart physiotherapist which is not greatly relevant to the psychiatric assessment to be undertaken by this Panel but there is evidence in the report of the claimant’s current medications including an anti-depressant.
The Panel proposes to admit these documents into evidence. The Panel requests the claimant’s solicitor provide a copy of the documents to the claimant and ask him to review the history recorded in it and advise the Panel at the re-examination of any errors.”
REVIEW OF THE EVIDENCE
The Panel notes there is no issue about causation of injury in this matter. The real issue in dispute between the parties is the assessment of the classes of impairment for the six areas of function in the PIRS.
Significant documentation addressing the claimant’s physical injuries has been provided which the Panel has noted but does not intend to cover in detail.
Claim form and claim documents
The claimant’s statutory benefits claim is dated 22 February 2018. The claimant describes the accident in that form as follows:
“I was stopped at the T intersection on my motorcycle. Another motorcycle hit me from behind … I went over the back of bike and landed on the road.”
BKJ said he sustained grazes to his left arm and sustained seven breaks to his “back bone”.
BKJ’s application for damages (claim form) is dated 1 August 2019.
Dr Hamut, the claimant’s GP signed the medical certificate on 6 August 2019 noting the lumbar spine transverse process fractures and that the claimant has had analgesia, antidepressant medication, physiotherapy and exercise physiology and review by a rehabilitation specialist.
Treating medical records and reports
The discharge summary from Wollongong hospital confirms the multiple fractures which were treated conservatively and that no spinal cord lesion was seen. The Panel notes the claimant told Medical Assessor Paisley he lost consciousness in the accident however the records from Wollongong Hospital do not support a loss of consciousness.
A report from the claimant’s rehabilitation specialist, Dr Davenport dated 5 March 2019 noted pain in the lumbosacral region and some pain in the thoracic back. Dr Davenport thought the claimant was developing a chronic pain syndrome and he recommended a pain management program. In a letter to Dr Hamut dated 26 November 2019,
Dr Davenport noted the claimant appeared to be “coping better psychologically” due to the pain management program. Dr Davenport’s final letter dated 12 May 2020 noted ongoing problems with sleeping, (deliberate) weight loss and improved diabetes management but he did suggest the chronic pain would be a barrier to employment options.
The pain management psychology closure report dated 26 June 2020 noted continued difficulty with sleeping but improvements in psychological symptoms including being more active, improved anxiety symptoms, self-efficacy and less catastrophising.
There are a number of records and reports from the claimant’s physiotherapists documenting the claimant’s treatment but nothing more recent than mid 2020 following BKJ’s completion of the pain management course.
Medico-legal reports
Dr Oldtree Clark - claimant
Dr Clark saw the claimant and wrote a report dated 14 January 2020 at the request of the claimant’s solicitors. The Panel notes this occurred before the conclusion of the pain management program.
Dr Clark takes a detailed history of the accident, the claimant’s medical and social history and employment history. He noted the claimant had remarried and that his wife is a registered nurse. BKJ’s wife does a lot of the home duties, but he cooks and washes up and he can go shopping with his wife and they both walk the dogs.
He was anxious and fearful when driving and when trucks approach from behind. His wife is supportive, and his relationship is going well. He has trouble sleeping and lacks motivation.
Dr Clark diagnosed a persistent depressive disorder which has been “relatively untreated” with no specialist psychiatric intervention. While there are post-traumatic symptoms these did not fulfil the criteria for a post-traumatic stress disorder.
The Panel notes that Dr Clark provided a WPI assessment of 15% which was adjusted upwards by 1% for the effect of treatment. The Panel notes Dr Clark did not have a history of the claimant’s pre-accident bi-polar disorder. For example, while he noted the mirtazapine use he did not question why that medication had been prescribed.
The Panel noted Dr Clark recorded some impairment in self-care and personal hygiene (the Panel notes on their medical examination there is no longer an impairment and rated this as class 1). The Panel noted Dr Clark's explanation of social and recreational activities and felt that he applied the wrong criteria by assessing a loss of friendship in this category, and the Panel rated this as class 2. The Panel noted Dr Clark rated travel as class 2 but his explanation did not contain evidence of an impairment. The Panel rated social functioning as more impaired than Dr Clark as BKJ has lost friends.
The Panel noted some inaccuracies in Dr Clark’s report for example BKJ was not married at the time of the motor accident. Dr Clark also appears to have assessed employability instead of adaptation.
Dr Michael Prior - insurer
Dr Prior examined the claimant for the insurer on 3 August 2020 which the Panel notes was after the conclusion of the pain management program.
Dr Prior took a consistent history of the accident and the claimant’s social and work history. He noted that the claimant had not been referred to or seen a treating psychiatrist but had seen a psychologist in the course of his pain management program. Dr Prior records that the claimant was not sure what his mirtazapine medication was for.
Dr Prior noted the claimant described symptoms of anxiety and post-traumatic stress.
He considered the documents and the claimant’s treatment including mood issues and mental health plans.
The claimant reported his symptoms worsening over the last four or five months but could not explain why. The claimant said his mood was normal, and he was not depressed but his pain impaired his sleep. He said he worried about finances and normal things. BKJ said the reason he could not work in his old job was his physical injuries and he was trying to get back into the workforce.
Dr Prior diagnosed a chronic adjustment disorder with anxious mood. While there were some post-traumatic symptoms, they did not fulfill the criteria for post-traumatic stress disorder.
Dr Prior assessed the claimant as having a 1% WPI adjusted upwards by 1% on account of the antidepressant.
RE-EXAMINATION FINDINGS
BKJ was re-examined on 20 March 2023 at 3.30pm by Medical Assessors Friend and Hong. The assessment was conducted by MS Teams and there was good connection throughout the assessment.
BKJ was at home and his wife, Sharon who was present during the assessment.
History provided by the claimant
Psychosocial history and pre-accident history
BKJ was born in Australia and grew up with his parents, being the youngest of three siblings. He had a good childhood and there was no developmental trauma identified. He is not aware of a family history of mental illness.
He does not have a forensic history.
Diabetes was diagnosed in 2019 and he manages it well. He says his HbA1c was normal recently. He does not have cardiac or thyroid disease.
He does not have drug or alcohol problems.
Around 2010 to 2012, BKJ consulted his GP, Dr Hamut, who diagnosed bipolar disorder.
BKJ recalled having suffered mood swings but cannot remember when in his life these mood symptoms began. He recalled that he has had recurrent periods of feeling “high”, which can last from a couple of days to a week, wherein he becomes impulsive and does not worry about financial consequences. He has purchased motorcycles and a boat during these periods of elevated mood. The elevated mood is not associated with antidepressant or substance use. He could not recall significant sleep changes and said his sleep has always been a problem. He recalled having excessively increased energy, confidence and motivation. There were no delusions, hallucinations or significant grandiosity.
During depressive episodes, which generally last a few days, he loses confidence, “cannot get energised” to do his work and has no motivation to work, but he still pushes himself to go to work.
He was started on mirtazapine (15 mg) by Dr Hamut, which improved but did not completely ameliorate his mood symptoms. There were still periods of mildly elevated moods and periods of depression, but these were of shorter duration and less severity.
History of the motor accident
On 18 January 2018, BKJ was riding his motorcycle with a group of 13 friends. He was stationary at a stop sign when the motorcycle behind him could not stop and rear-ended him. He did not think that he lost consciousness but could not remember the accident well. He remembers lying on the road. An ambulance came and he was taken to Wollongong Hospital. He was admitted from Thursday to Saturday. He remembered talking to the police at the hospital.
He sustained thoracic and lumbar injuries and was told he broke his spine in eight different places. He has severe back pain. A couple of months ago he started having shooting pain in his left leg. He feels like his knee will collapse, but there is no precipitant identified.
History of symptoms and treatment following the motor accident
He said that after the accident, he initially felt angry and disappointed. He was upset because he had to rely on other people due to his physical injuries. He also said that the motorcyclist who caused the accident was a mate, but this mate would not visit him, and other friends would not see him. He felt alone and therefore disappointed with them. He struggled with everything, for example using the toilet and getting out of bed, because he was in severe pain.
There was no major anxiety or depression immediately, but gradually he started developing depressive symptoms and noted that his long-term antidepressant medication (mirtazapine 15mg) was not working as well as it used to.
His depressive episodes last for a few days, and he described a loss of energy and enjoyment. In the last six months, he has had two or three of these episodes.
After the accident, BKJ did not have further elevated moods and recalled the last episode of elevated mood was probably in 2016 or 2017.
He had anxiety predominantly related to driving and riding his motorcycle and being a passenger. When he stops at a traffic light, he worries he is going to be hit again and if he hears a siren, he experienced anxiety attack-like symptoms and tenses up, and reported his anxiety lasts maybe 30 seconds. He often worries about everyday issues, such as the lack of finances.
BKJ has not had further motor accidents, accidents of any kind or sustained other psychological injuries, or developed new physical conditions, except Diabetes Mellitus.
Current symptoms
He described being forgetful and distracted. He forgets conversations at times.
He has initial insomnia and middle insomnia and described having back pain during the night and worrying thoughts, which interfere with his sleep.
He gained weight and started the Manshake diet. He has lost 6kg in the past three months. He is 100.7kg now. He exercises by walking on his own and walking his dog.
He feels anxious and reported having a low tolerance for frustration and gets “snappy” occasionally but does not have angry outbursts.
BKJ denied having had suicidal ideation or nightmares, or ever having experienced symptoms of psychosis.
BKJ was unable to say when he last had a period elevated mood, but could no recall experiencing elevated mood following the motor accident.
Current and proposed treatment
BKJ is currently taking:
(a) Mirtazapine which has been prescribed since 2010. He was prescribed
15 mg before the accident which was increased after the accident to 45 mg. It has been reduced and he is now taking 30 mg;(b) Jardiamet (for diabetes);
(c) Crestor (for cholesterol);
(d) Amlodipine (for blood pressure), and
(e) Panadol Osteo or Palexia (for pain).
He has not had treatment with a psychiatrist or had a psychiatric admission. He attended a pain management program and had treatment with a psychologist and physiotherapist from the program.
There is no further proposed treatment.
Clinical examination
Mental state examination
BKJ had short greying hair and wore glasses. He was clean-shaven and changed his posture to accommodate his pain. He engaged well with the assessment process. He was mildly restricted in his affect range and reactivity. He smiled and laughed intermittently. He spoke spontaneously.
BKJ provided a clear history. He recalled a reasonable amount of detail. He maintained a normal speed and pace while recounting his history.
Current functioning
BKJ is 54 and living with his wife, who works at a local hospital. They live in Hervey Bay.
In terms of physical restrictions, BKJ reported:
(a) walking for 30 minutes and is limited by back pain. He uses the stairs slowly;
(b) lifting up to 5kg from the floor, and 10kg from the waist height, and
(c) sitting is limited by back pain to 30 minutes;
BKJ described being able to drive on his own for 30 minutes before being limited by back pain. He is anxious when driving, but his anxiety does not prevent him driving.
He rides a motorcycle on his own or with his wife, who has her own motorcycle. He rides a Kawasaki cruiser but after 30 minutes, his back pain increases and he cannot ride further.
He has taken the train to Sydney from Wollongong and stands up when pain increases.
He has flown from Hervey Bay to Wollongong to visit his father. He is anxious about turbulence during the flights.
He cooks maybe two days a week and only buys light grocery items, such as milk, because he needs help with the heavy items. His wife goes with him to do most of the shopping.
BKJ has a raised vegetable patch and likes to maintain his garden. When his wife is not working, they will drive and ride motorcycles, or go shopping together. He does some housework at home, such as vacuuming, but cannot do anything heavy.
He normally likes to play golf but could not swing the club after the accident due to his back injury. He likes lawn bowls and tried to do it once, but after four ends, he had to stop because of back pain.
He has had two driving holidays in the past few years. He has travelled to Tasmania and within Queensland. His wife has done most of the driving on these road trips. His friends are scattered over Australia and there is no one locally. His best friends are three and a half hours and eight hours away. They might see each other every three or four months. He lost friends after the accident. He has a good relationship with his family and likes to visit his father, mother and his brother when he can. They talk regularly. Sometimes, his brother will fly and stay with him for a couple of weeks.
BKJ watches television and does not think his concentration has changed much compared to prior to the subject accident.
He was married for 18 years and separated in 2010. He reported that he had four children, including a stillborn child, and the family lived in Wollongong. He said he does not get to see his adult children much, because after they separated his ex-wife would not let him see the children. Now they are adults, one of them contacts him every six months and the other one every couple of weeks to talk.
He was single when the accident happened. He and his wife, Sharon, originally met in 1990 when they were working in the same hospital. He reconnected with Sharon, and they married in 2019. He reported that they have a very good marriage and they do not argue.
Employment history
BKJ completed Year 12 and later did certificates 3 and 4 in corrective services.
He initially worked in hospitals as a wards person and joined the corrective services in 2000.
He worked full-time and said that a week before the accident, he was promoted to a higher-paid position to oversee the new gaol in the South Coast Correctional Service.
After the accident, he could not work for six months. He returned to work on light duties, doing administration work at the front of the gaol. He eventually upgraded to 23 hours per week. However, his employer medically retired him because he could not perform his pre-injury duties and they would not offer light duties anymore.
We discussed the vocational assessment and he noted that he engaged with IPAR. He applied for numerous jobs but was unsuccessful. At one point he was asked to go to Bega to do truck driving four hours a day, but it was not workable as it takes four hours to travel each way to and from Bega. He stated IPAR applied for jobs without him knowing about it.
BKJ interviewed for a wardsman position at Shellharbour Hospital. He was advised that he had obtained the position. He stated they knew about his back injury and after they did a police check, they then told him they could not offer him the job due to his back injury.
He did volunteer work for a motorcycle dealership, but when they pressured him to increase his hours, he felt stressed and could not continue.
Comments of consistency
There was no inconsistency identified by the examiners.
CONSIDERATION OF THE ISSUES
Diagnosis and reasons
The Panel noted various psychiatric diagnoses in the medico-legal reports. Having considered the information in the GP records, previous assessment reports and history provided by BKJ, including a history of excessively elevated moods with disinhibited behaviour, the medical members of the Panel have concluded that BKJ has experienced longstanding recurrent depressive episodes which were part of a type II Bipolar Disorder.
BKJ has pre-existing type II Bipolar Disorder diagnosed according to DSM-5 criteria (with current periods of elevated and depressed mood), which was overall mild and partially controlled on a low dose of mirtazapine. After the accident, he experienced increased depressive symptoms and his antidepressant was increased and remained at a higher dose than before the accident. He also suffered anxiety on the road, although he no longer has impediment of his ability to travel because of psychiatric symptoms. The medical members of the Panel are of the view that BKJ has suffered an aggravation of the type II bipolar disorder and this aggravation has not ceased.
Medical Assessors Hong and Friend note that Dr Oldtree Clark and Medical Assessor Paisley made a diagnosis of Persistent Depressive Disorder but felt that there was sufficient evidence to make a diagnosis of pre-existing type II Bipolar Disorder which had been exacerbated by the injuries sustained in the motor accident.
The motor accident occurred more than four years ago. BKJ has had some improvement in his psychiatric condition. It is currently no longer improving or deteriorating. There is no new proposed treatment. The condition of exacerbation of pre-existing Type II Bipolar Disorder is stabilised, and unlikely to change by more than 3% in the next year, with or without medical treatment.
Causation and reasons
BKJ has pre-existing symptomatic type II Bipolar Disorder. He sustained an aggravation of this disorder as a result of the subject accident and there was no other contributing factor identified in the relevant timeframe. The aggravation has not ceased, and the subject accident continues to contribute to his current impairment.
In accordance with cl 6.31 of the Guidelines, the claimant's current impairment must be calculated then his previous impairment estimated. The previous impairment is then deducted from the current impairment to produce a WPI figure for the accident-related impairment.
Psychiatric Impairment Rating Scale - current impairment
Category Class Reason for Decision 1. Self Care and Personal Hygiene 1 BKJ successfully lost weight recently. His blood sugar level is good generally and he manages this condition himself. He showers daily and changes to clean clothes he said without prompting. He cooks and shops within his physical capacity.
There is no deficit or minor deficit, attributable to the normal variation in the general population.2. Social and Recreational Activities 2 BKJ attends regular social recreational activities with his family and friends. Overall, he has been attending fewer engagements since his accident, but this is because of his physical injuries and pain levels. He mainly goes out with his wife for social and recreational activities, and when his family visit they would enjoy other activities together.
He does not need a support person to engage in and enjoy these activities.
3. Travel
1 He is anxious and worries about having another accident.
He has no driving impairment or riding impairment from a psychological perspective. His ability to drive or ride beyond 30 minutes is due to his physical injuries.4. Social Functioning
2 BKJ's relationship with his wife is good. They had known each other before the accident but reconnected after the accident and then married.
He has a reasonable relationship with his family and sees them intermittently.
He says he has lost friendships after the subject accident and has fewer friends now.
5. Concentration, Persistence and Pace 3 BKJ reported having reduced concentration after the accident. He can follow TV and does not think this changed before and after the subject accident.
He can maintain his motorcycle without a manual.
He presented as a poor historian on mental state examination.6. Adaptation
3 The claimant has significant physical symptoms impeding his ability to secure work.
From a psychological perspective, he cannot perform full-time work. He could manage lower-stress employment at around 20 hours per week. He is depressed and could not work in his old job both because of his physical restrictions and his ongoing emotional symptoms.List classes in ascending order: 1, 1, 2, 2, 3, 3 Median Class Value: 2 Aggregate Score: 12 WPI: 6 %
BKJ has gained symptomatic relief and moderate improvement with an increased dose of mirtazapine, currently at 30 mg daily.
The medical members of the Panel are of the view that 2% should be added to the WPI pursuant to cl 6.223 of the Guidelines for the effect of treatment. The effect of the claimant's increased mirtazapine dose is moderate. It has not eliminated the condition but, in the clinical judgment of the medical members of the Panel it has lessened the length and duration of the claimant's depressive episodes.
The claimant's current final whole person impairment is therefore 8%.
Psychiatric Impairment Rating Scale - pre-existing impairment
Category Class Reason for Decision 1. Self-care & Personal Hygiene
1 BKJ had no impairment before the subject accident.
He ate and showered regularly and presented well for his work.2. Social & Recreational Activities
1 No impairment before the subject accident.
He had various social and recreational activities with his friends, including riding a motorcycle and sporting activities such as golf.3. Travel 1 No impairment before the subject accident. 4. Social Function
1 No impairment before the subject accident.
He was divorced.5. Concentration, Persistence & Pace 1 No impairment before the subject accident.
6. Adaptation
1 No impairment before the subject accident.
He had obtained a promotion immediately before the subject accident.List classes in ascending order: 1, 1, 1, 1, 1, 1 Median Class Value: 1 Aggregate Score: 6 WPI: 0 %
The medical members of the Panel are of the view that the claimant's pre-accident WPI of 0% should be increased by 1% for the effects of treatment (mirtazapine 15 mg) in accordance with cl 6.223 of the Guidelines. The effect of the treatment has been the long-term maintenance of the claimant’s psychiatric symptoms enabling him to work and perform his activities of daily living before the accident.
BKJ's final WPI estimated at the time of the accident is therefore 1%.
CONCLUSION
The Panel is of the view that the degree of permanent impairment resulting from the psychological or psychiatric injury caused by the motor accident is therefore 7% (current impairment of 8% less the pre-existing impairment of 1%).
The claimant does not have a WPI of greater than 10%. It follows therefore that the certificate of Medical Assessor Paisley must be confirmed.
0
0
0