BMF v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	BMF v Allianz Australia Insurance Limited [2023] NSWPICMP 266
CLAIMANT:	BMF
INSURER:	Allianz Insurance Australia Limited
REVIEW Panel
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Matthew Jones
MEDICAL ASSESSOR:	Gerald Chew
DATE OF DECISION:	15 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Hong dated 25 August 2021; claimant injured in motor vehicle accident on 27 April 2015 when 12 years old; claimant suffered psychiatric disabilities; MA assessed 7% whole person impairment (WPI) for an adjustment disorder with depressed mood and anorexia nervosa; claimant challenged the classes of assessment adopted by MA; claimant had pre-existing eating disorder but submitted that the accident gave rise to this disorder; Panel not satisfied that the accident caused more than an aggravation of the eating disorder and that the claimant’s eating disorder was were caused or contributed to by the accident; Held – that the claimant had a 9% WPI with a diagnosis of chronic adjustment disorder and mixed anxiety but that the claimant’s eating disorder was not caused by the accident.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the certificate of Medical Assessor Hong dated 25 August 2021. 2. The Panel finds that the following injuries caused by the motor accident give rise to a permanent impairment of 9%; (a) psychiatric condition – chronic adjustment disorder with mixed and depressed mood and mixed anxiety

STATEMENT OF REASONS

BACKGROUND

This is a review of a medical certificate of Medical Assessor Hong (the Medical Assessor) dated 25 August 2021.
A MAS4PI Application was made on 30 October 2020 This was based on further medical reports and clinicals notes that were obtained after the claimant’s initial permanent impairment assessment with Medical Assessor Shaw, and her certificate dated 18 October 2016. Medical Assessor Shaw found a 6% whole person impairment.
The claimant saw Medical Assessor Michael Hong (the Medical Assessor) on 24 August 2021. He concluded that the claimant had an adjustment disorder with depressed mood and anorexia nervosa. He also concluded that these injuries caused by the motor accident gave rise to a permanent impairment.
The Medical Assessor found that the following injuries caused by the motor accident gave rise to a permanent impairment of 7%;
a) psychiatric condition - adjustment disorder with depressed mood, and
b) anorexia nervosa (see explanation below).
The claimant has made an application for review of the assessment of the Medical Assessor.
The following injuries were referred by PIC for re-assessment.
a) Psychiatric condition - adjustment disorder with depressed mood
b) By way of explanation, the Medical Assessor noted that Medical Assessor Shaw’s DRS certificate diagnosed anorexia nervosa as a result of the subject accident. She did not though, diagnose an adjustment disorder. The Medical Assessor said that he raised this issue with Personal Injury Commission and the advice he received, was that he could redefine the referred injury/diagnosis with explanation. The Medical Assessor assessed BMF’s psychological symptoms as described in Medical Assessor Shaw’s certificate, and as her psychological symptoms and associated behaviour have not changed since that assessment, he diagnosed an adjustment disorder and anorexia nervosa, both caused by the subject accident, and said that they were not new diagnoses.

The accident

The accident occurred on 27 April 2015. The claimant was 12 years old and her mother was driving. They were the two of occupants in the car. The vehicle was T-boned from the left side and the claimant was taken to Windsor Hospital. She reported to the Medical Assessor during his examination that she recalled the incident vividly.

Claimant’s submissions

The claimant submits that there is a denial of procedural fairness. The claimant says there are failures to consider material circumstances and adequately apply the psychiatric impairment rating scale (PIRS) in the Medical Assessment of the Medical Assessor which amounts to a material error.
The claimant says that the Medical Assessor failed to adequately apply PIRS in accordance with claimant’s symptoms and history provided with regard to;
(a)self-care and personal hygiene
The claimant submits that the Medical Assessor’s path of reasoning to conclude that the claimant has a class 2 rating in this category is unclear and unable to be followed logically.
The claimant says that in the PIRS table under this category, Medical Assessor Hong states “BMF does not always adhere to her diet plan and her weight fluctuated over time. Most of the time she does follow the plan and eats 3 meals, but at times she would not…” The Medical Assessor then says “She does not shower or eat regularly…”.
The clamant says that under a Class 2 impairment, a person must be able to live independently which is not the case for the claimant. The claimant submits that she requires support at all times and cannot live independently. She requires regular prompting by her mother to shower and eat and is reported to have said “She feels like a burden and that she depends on her family” in the certificate of the Medical Assessor at page 4.
The claimant says that the Medical Assessor also states that the claimant “can maintain a lower level of self-care without prompting…”. The claimant says that it is unclear how the Medical Assessor arrives at this conclusion or what a lower level of self-care is. Given the above comments regarding the claimant’s self care, the claimant says that the assessment is contradictory on its face. A lower level of self care is evidence of self-neglect and an inability to live independently or look after herself adequately, contrary to the assessment of Class 2 of the Medical Assessor. Further, the Medical Assessor diagnoses the claimant with anorexia nervosa, which the claimant submits in itself indicates that she cannot maintain her self-care or a proper diet. The claimant says that it is unclear how a diagnosis of anorexia nervosa could result in the Medical Assessor’s determination that the claimant only has a mild impairment in self care, despite it being a severe eating disorder for which the claimant requires treatment, intervention from a dietician and psychologist in order to better manage, but despite this she continues to suffer from the disorder.
The claimant submits that as a result of her inability to live independently, shower or eat without prompting, her tendency is to skip meals and not adhere to her diet plan, and regular engagement in self-harming behaviours, the claimant says that the Medical Assessor should have assessed the claimant with a Class 3 impairment at the very least. ‘Lower level of self care’ is not defined nor is it referred to as a category in Table 6.11 PIRS scale of the Permanent Impairment Guidelines (the Guidelines).
Regarding travel, the claimant submits that the Medical Assessor’s reasoning to lead to a class 2 impairment is convoluted and contradictory.
With respect to travel ,the claimant says that throughout the assessment, the Medical Assessor makes the following remarks:
a) “BMF is never out on her own and this has not changed over time – this was a pattern before the accident because she was only 12 and could not leave home without adult supervision…”
b) “BMF says that she could go on a school bus excursions during 2020 without her mother, but she needs a support person on the bus as she does not trust anyone apart from her family driving. She attended the carnival in 2020 but felt sick riding on the bus…”
The claimant notes that the Medical Assessor does however state that the claimant needs a support person on the bus to get there which the claimant says indicates difficulty with travel. The claimant submits that travelling to a carnival and being at the carnival are separate matters.
The claimant submits that it would appear the Medical Assessor made the same error as occurred in Ballas v Department of Education (State of NSW) [2020] NSWCA 86. The claimant says that the Medical Assessor has taken into account irrelevant considerations and failed to take int account the relevant consideration namely that the claimant cannot travel alone and requires support. Attending a school carnival is a ‘once a year’ event and not regular and does not involve regular travel.
In her submissions, the claimant refers to paragraphs 81, 82, 84, 93 and 94 of Ballas’ case. In particular, paragraph 94 of the decision which states “Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the whole person impairment (WPI) assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to “self care and personal hygiene”, “social and recreational activities”, “travel”, “social functioning (relationships)”, “concentration, persistence and pace” or “employability”. This does not involve an exercise of discretion. The claimant says that if conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the Medical Assessor taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales.
The claimant submits that the fact that the claimant can attend a school mandated carnival, does not and should not be the overriding consideration to determine her ability to function independently from her family or travel without supervision. The claimant submits that she cannot function independently from her family. The claimant cannot and does not travel to shops, restaurants and recreational places on her own as she cannot function independently from her family.
Further, the Medical Assessor states “She does not go out of home without a support person, both before the subject accident and after the subject accident, and this is not necessarily a psychiatric impairment…”. The claimant submits that before the accident she was only 12 years old and therefore did not go out of home without a support person as she was a young adolescent. Now, being 18 years old, the claimant submits that she should be able to go out of home without a support person, however her anxiety and distrust of transport and being on her own makes her unable to do so.
The claimant submits that she also made clear to the Medical Assessor that she cannot travel in a car without her family driving, as she distrusts all other people. However, the claimants says that the Medical Assessor failed to mention this in the PIRS assessment notwithstanding he has made the remarks and findings in his report. The claimant says that it would seem that the Medical Assessor has expressed a view unsupported by his own findings or examination. On its face, the claimant submits that it is contradictory.
The claimant says that if the Medical Assessor assessed the claimant with Class 2 impairment, for the category of travel. The claimant submits though that she does not fit in this category as she does not leave home without a support person at any time. She is unable to go to the local shops on her own because of her heightened anxiety. The claimants submits that a Class 3 impairment in travel reads “Moderate impairment: Cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.” Based on the assessment, and the history obtained by the Medical Assessor, the claimant submits that it would seem that a Class 3 impairment would be more appropriate given that the claimant confirmed that she cannot travel out of home without a support person and she does not attend any place on her own, despite being a young adult.
The claimant submits that whilst she sees her broader family regularly, she has no friendships with people outside of her family. Her anxiety hinders her from making and maintaining friendships with anyone outside her family. The claimant submits that this is indicative of a higher psychiatric impairment given that she is only 18 years old and will have trouble with this aspect of social functioning for the rest of her life. The claimant says that it would seem that the claimant’s inability to maintain any relationship apart from her family will disadvantage her greatly as she becomes older as she cannot function normally in society.
Further, the claimant reported to the Medical Assessor that “she feels like a burden and that she depends on her family and she is always angry and she dissociates…” The claimant submits that this suggests that even though she is able to see family members, these relationships are strained. The claimant submits that it is unclear why the Medical Assessor does not take the above into consideration when assessing the claimant’s impairment in social functioning, especially considering her extremely young age and effect this has on her life and the significance of good social functioning in a person’s life.
The claimant submits that the Medical Assessor erred in his Class 2 rating of the claimant in social functioning. The claimant says that a Class 4 rating would be more suitable.

psychiatric history prior to accident

Prior to the accident, the claimant was involved in family law proceedings with her biological father where domestic violence was involved. She had seen a psychologist appointed by the Family Court. She suffered from mild anxiety symptoms and anorexia but recovered and was in remission at the time of the accident.
However, the symptoms of anorexia and anxiety returned following the accident and the claimant’s condition deteriorated as more time passed since the accident. The claimant’s symptoms were reported to Dr Teoh when the claimant was assessed by him for WPI in November 2015 [A1].

Psychiatric condition after accident

Dr Teoh, in his report of 25 November 2015 [A1], diagnosed the claimant with adjustment disorder with depressed mood.
Pursuant to the Diagnostic and Statistical Manual of Mental Disorders 5 ("DSM-5), an adjustment disorder is defined as the "presence of emotional or behavioural symptoms in response to an identifiable stressor/s, which occurred within three months of the beginning of the stressor/s."
Dr Teoh [A1] notes 'following the accident, Aaliyah has been experiencing insomnia. She has been anxious in a car. She has avoided going out. She constantly talks about a fear of having an accident again. She becomes anxious when she gets near the spot where the accident had occurred ... she has an eating disorder since the accident. She has become anorexic and has lost weight in the last six months.' These symptoms are consistent with the definition of adjustment disorder.
In his report of 5 July 2019 [A3], Dr Teoh states "she subsequently reported insomnia and anxiety symptoms. She avoided going out and became fearful of further accidents ... she became socially withdrawn and did not participate in school activities. She developed an eating disorder ... she has been feeling anxious, particularly when her friends started talking about the accident. She reported that her anorexia problems have been under control, and she has been having therapy ... she has been apprehensive whilst in a car... she said that she had "control issues" after the accident and she developed anorexia. Dr Teoh also reported that the claimant gave up sports, stopped dancing and had problems with attendance at school since the accident.
Dr Teoh [A3], indicated that the claimant’s condition worsened from his initial assessment in November 2015, and she was diagnosed with chronic adjustment disorder with mixed depressed and anxious mood. Dr Teoh assessed the claimant as having 15% WPI. The claimant submits that such diagnosis is significant as it had been 4 years since the accident and the claimant was still suffering from significant symptoms. Dr Teoh's assessment was also conducted two years after Medical Assessor Shaw's [A2] assessment, which the claimant submits indicates a deterioration in the claimant’s condition.
Dr Teoh provided a supplementary report on 4 November 2019 [A4]. Prior to his assessment, Dr Teoh had been provided with a range of clinical notes and affidavit material pertaining to the claimant’s parent's family law proceedings. After reviewing all material, Dr Teoh concluded "the material and documents you have provided have not caused me to change my opinion expressed in my reports dated 25 November 2015 and 5 July 2019 ... It is my opinion that the motor vehicle accident on 27 April 2015, is the predominant cause of her anxiety symptoms in the background of family issues and eating disorder."
Dr Teoh had the benefit of being able to review the Medical Assessors certificate and Medical Assessor Shaw's findings when preparing his reports of 5 July 2019 [A3] and 4 November 2019 [A4]. He also had the benefit of reviewing clinical notes which were not available to him prior to his assessment of the claimant in November 2015, which the claimant submits allowed Dr Teoh to gain a better understanding of her psychological condition before and after the accident.
The claimant’s regular clinical psychologist, Yvonne Wilkinson, diagnosed the claimant with post-traumatic stress disorder (PTSD) and was of the view that "BMF's PTSD was directly attributable to her involvement in the April 2015 motor vehicle accident and was not pre-existing prior to this event nor is her PTSD due to experiencing a traumatic event after the 2015 car accident. BMF has been engaging in in regular trauma-focused cognitive behaviour therapy and exposure therapy for the treatment and management of high levels of PTSD anxiety symptoms ... [A7]". The clinical notes relating to the claimant’s treatment were not available at the time of Medical Assessor Shaw's assessment.
The claimant submits that her anxiety symptoms outlined above from the further reports of Dr Teoh are in accordance with a DSM-5 Criteria diagnosis of adjustment disorder. The claimant submits that her continued diagnosis by Dr Teoh evidenced by her significant persistent symptoms is capable of having a "material effect" and provides "additional relevant information" regarding the claimant’s condition that was not previously available to Medical Assessor Shaw.
The claimant submits that additional relevant information such as the further reports of Dr Teoh and the various clinical notes provide further insight into the claimant’s injury and his continued assessment of the claimant’s WPI as 15% substantially alters the outcome of the dispute since the Medical Assessors certificate was issued.

Insurers submissions

The insurer notes that the claimant alleges that the Medical Assessor failed to adequately apply the PIRS in accordance with the claimant’s reported symptoms and history in the areas of self- care and personal hygiene, travel and social functioning.
The insurer submits that when the Medical Assessor’s certificate is read in its entirety (as opposed to selected portions of comments made by the Medical Assessor as set out in the claimant’s submissions),there is no reasonable cause to suspect any error in the Medical Assessor’s PIRS assessment.
Theinsurer noted that the Medical Assessor assessed a class 2 impairment and provided the following reasoning:
BMF does not always adhere to her diet plan and her weight fluctuated over time. Most of the time she does follow the plan and eats 3 meals, but at times She does not shower or eat regularly and can maintain a lower level of self-care without prompting.
The insurer submits that the history taken by the Medical Assessor, with respect to the claimant’s current symptoms and functioning, and his reasons for assessing a class 2 mild impairment are logical and consistent with one another.

The insurer submits that the claimant’s current symptoms best fit a class 2 rating.
The insurer notes however that although the severity of the claimant’s eating disorder has fluctuated over time, it is clear that most recently, the claimant is able to eat regularly most of the time without any prompting and currently has a healthy BMI.
The insurer observes that some of the claimant’s allegations are not supported by the history or material provided to the Medical Assessor.
For instance, the insurer says that the claimant submits that ‘she requires support at all times’ and ‘requires regular prompting by her mother to shower and eat.’ The insurer notes however that this proposition is a new allegation which was not reported by the claimant to the Medical Assessor.
The new and unfounded allegation that the claimant requires support at all times and regular prompting with her self-care and personal hygiene is also inconsistent with the history taken by the Medical Assessor of the claimant assisting her mother with different chores, such as cooking the meals, washing dishes, doing vacuuming and folding the clothes.
The insurer further notes that the claimant’s own expert, Dr Teoh, assessed the claimant with a class 1 impairment in this category in his most recent report on the basis that the claimant ‘has been lacking motivation to care for herself’. The insurer says that Dr Teoh specifically concedes that the claimant does not require any assistance with self-care from a psychiatric perspective.
With respect to travel, the insurer submits that it is evident from the history provided by the claimant that her anxiety with respect to the area of travel is limited to being a passenger in a vehicle.
The insurer submits that the claimant’s submissions, however, attempt to present the claimant as being unable to leave her home due to anxiety related to being on her own. Again, the insurer says that this proposition is not supported by the information considered by the Medical Assessor. The insurer says that the claimant’s submissions fail to acknowledge that the Medical Assessor had considered the possibility that the claimant required a support person when out however the claimant did not confirm this hypothesis.
The claimant’s submissions also fail to acknowledge that the likely reason that the claimant does not go out on her own is because she is not allowed to do so or because it is not necessary for her to do so. The insurer says that the proposition that the claimant is unable to go out on her own due to anxiety and ‘cannot function independently from her family’ is also inconsistent with the claimant continuing to attend school following the accident and completing her HSC in 2020.
The insurer submits that the Medical Assessor’s reasoning is clear and he appropriately categorised the claimant’s travel impairment as a class 2 impairment.
As to social functioning, the insurer notes the consistency between the history obtained by the Medical Assessor and the Medical Assessor’s reasoning for assessing a class 2 impairment.
The insurer also refers to the PIRS class descriptors and submits that the Medical Assessor appropriately assessed a class 2 impairment. The insurer notes there is no evidence of any previously established relationships being severely strained or ending to warrant a class 3 or class 4 rating.
The insurer refers to the claimant’s assertion of a denial of procedural fairness on the basis that the Medical Assessor called for certain reports of Dr Newlyn, and submissions on Dr Newlyn’s reports, and that this request was not communicated to the claimant.
The insurer notes that the Medical Assessor requested Dr Newlyn’s reports because ‘Dr Teoh relied on these to make a one-tenth deduction in his WPI assessment’.
Given that the Medical Assessor made no apportionment findings, the insurer cannot see how the claimant was prejudiced by any loss of opportunity to make further submissions and how any denial of such an opportunity would amount to a material error pursuant to section 63 of the Motor Accidents Compensation Act (the Act).

medical evidence

Dr Newlyn, in his report of 28 October 2019 said “ the documents describe an eating disorder (Anorexia Nervosa) predating the April 2015 accident with symptoms present before November 2013. Treatment provided by Ms Shehzi Yusaf was focused on the effects of family dysfunction and the motor accident was not a treatment focus.

The2019 assessments of Dr Teoh and myself found that Anorexia Nervosa was in remission. Ms Wilkinson writes that BMF is eating in a healthy way.”

Dr Newlyn said that in his opinion based on the combination of history, background material provided and the claimant’s psychiatric mental status examination, she met DSM-5 diagnostic criteria for the principal diagnosis of specific phobia for car travel with anorexia nervosa in remission. He said that the specific phobia had become more apparent over time. She did not meet DSM 5 criteria for the diagnosis of Posttraumatic stress disorder.
The documents from Wellbe Psychology consist of handwritten file notes for consultations dated 4 April 2019, 10 May 2019, 20 June 2019 and 1 August 2019. In the session dated 4 April 2019 the car accident of 2015 is reported to have caused PTSD with an eating disorder beginning in 2015. She was recorded then as eating in a healthy way. Anxiety symptoms related to vehicles are described. On 20 June 2019 increased PTSD symptoms noted after she had witnessed a car accident when she was a passenger and her mother was driving. On 1 August 2019 PTSD symptoms were less and BMF was managing her anxiety effectively.
On 29 April 2015 a CT scan was performed on the plaintiff’s facial bones, no bony abnormality was seen however the plaintiff had a deviated septum. Medical Assessor Fearnside opined that this was not traumatic in origin.
Following the accident the claimant attended her general practitioner (GP at Primary Rouse Hill. Within the clinical notes there are general notations of mental health issues but it is not clear whether they relate to the accident or the family court proceedings between the claimants mother and father which were occurring at a similar time.
On 23 November 2015 it was recorded that the claimant’ general practitioner had spoken to her psychologist. There was a concern that she had a BMI of 15 and an eating disorder on background of difficult family dynamics. The claimant attended on two further occasions for mental health review. The presenting issues appeared to be the plaintiff’s history of PTSD and anorexia.
The claimant has obtained a report of Dr Habib orthopaedic surgeon dated 19 February 2016. Dr Habib noted that the plaintiff had returned to school but was no longer involved in her pre-accident hobbies including dancing. Dr Habib diagnosed chronic musculoligamentous strains to the neck and back. Dr Habib diagnosed musculoligamentous strain of the neck and back and noted the management had been concentrated on psychological trauma from the 2015 motor accident. He assessed a 5% whole person impairment
Report of Dr Ben Teoh, consultant psychiatrist dated 25 November 2015 diagnosed an adjustment disorder with anxious mood caused by the motor accident. Dr Teoh stated BMF developed an eating disorder after the motor accident. He assessed a 17% whole person impairment.
Report of Medical Assessor Tara Shaw dated 18 October 2016 found the motor accident of 27 April 2015 resulted in a permanent impairment for specific phobia (travel) and comorbid anorexia nervosa with a 6% whole person impairment. Medical Assessor Shaw found the accident caused both disorders.
Report of Dr. Neyamul Bashir, GP dated 31 July 2018 stated that the claimant developed insomnia, eating disorder, anxiety and occasional panic attacks from the April 2015 motor accident. She lost confidence in life, driving, self-motivation and became depressed.
Clinical records for PHC Rouse Hill begin on 5 November 2009 with the last clinical contact on 30 October 2018.
On 12 November 2013 , problems were noted with domestic violence resulting in the claimant being scared anxious and worried about any noise. She had nightmares. A GP Mental Health Plan was written with a plan for counselling.
On 18 February 2014 it was reported that her father was now out of gaol but BMF worried her father would come to the school and take her. She remained anxious. Counselling was advised. In February 2015 a history of anxiety following parental separation was recorded. With a divorce court date looming, anxiety levels were reported as high. A GP Mental Health Plan and referral created.
On 29 April 2015 the accident of 27 April 2015 was recorded. It was noted that the claimant’s mother was worried about her tender neck.
On 29 May 2015 the claimant’s mother requested referral for help with anxiety and low mood.
On 23 November 2015 the claimant’s psychologist was concerned of a possible eating disorder on a background of family difficulties.
On 10 August 2016 a GP Mental Health Plan was written with a diagnosis of PTSD, eating disorder and anxiety.
On 17 April 2017 a GP Mental Health Plan diagnosed post traumatic stress disorder.
On 23 May 2017 the claimant’s mother requested dietitian review because of a history of PTSD and anorexia. She was reported to be excessively conscious about her weight and psychological counselling was not helping.
Report of Dr Ben Teoh dated 5 July 2019 diagnosed an adjustment disorder with anxious mood caused by the motor accident. BMF’s eating disorder was in remission. He assessed a 15% whole person impairment with moderate impairment in social and recreational activities, concentration, persistence and pace and adaptation

Medical examination

The claimant was examined by Medical Assessor Chew and Medical Assessor Jones. Their report follows.
The assessment was conducted via audio-visual link organised through PIC.
Present were: BMF (with her mother in the background) and Dr’s Chew and Jones.
CONSENT AND CONFIDENTIALITY
We explained to BMF the purpose and nature of the psychiatric assessment and the fact that we would be preparing a report that would likely be read by others. We told her that we were not there in a treatment capacity and that our role was defined by impartiality. She indicated that she understood the limits of confidentiality and agreed to continue with the assessment voluntarily.
INTRODUCTION
BMF is a nineteen-year-old woman living in Riverstone, New South Wales, where she has lived for over ten years. She has lived with her mother and her brother, aged seventeen who is going to school, and occasionally an older niece. She is not currently working and offered that she has no motivation to work with other people. When asked why this was the case she said that her ‘anxiety, depression and PTSD hold [her] back from coping.’
BMF is not currently in a relationship.
BMF has attained her Higher School Certificate and graduated in 2020. Her ATAR she reported was 46.20. She said she had struggled a lot and when asked why she said it was her ‘PTSD and depression and anxiety holding [her] back.’
BMF said she had fear when driving a vehicle, she was unable to focus and she took advantage of special provisions for her Higher School Certificate. She had helpers assist her in writing out exams.
The Panel asked BMF what she had been doing since graduating, approximately two years, and she reported she had “just been at home.” She reported she was focusing on her health and wellbeing, both mentally and physically. She said she had support from her dietician who helps with her diet, nutrients, anaemia, her iron deficiency and increasing her fibre.
BMF also reported she is seeing a psychologist, Yvonne, who is assisting her with Cognitive Behaviour Therapy. BMF said this is to change her frame of mind, so intrusive thoughts do not overcloud her.
BMF also sees a female psychiatrist whose name starts with A and she has prescribed medications. BMF reported these medications help her throughout the day to “be more alert and go to sleep easily.” She has problems with insomnia. BMF reported her antidepressant is fluoxetine, of which she takes one tablet per day. She reported this is for her energy, concentration, depression, eating disorder and her suicidal and intrusive thoughts. She also takes Clonidine 100mcg nightly which reportedly helps her with sleeping and other psychological symptoms. She also takes quetiapine 25mg daily ‘to assist with [her] mood disorders.’
BMF reported she has been on these medications since 2020, prescribed by Dr A and she had trialled other medications previously. She was initially on fluoxetine and early on she was put on quetiapine.
BMF reported she sees Yvonne two times a month and has done since 2019. She did see a psychologist in early 2016 after the accident, however this psychologist was not assisting her and she stopped seeing her.
HISTORY OF THE MOTOR VEHICLE ACCIDENT
The date of accident was 27 April 2015, when BMF was approximately twelve years old. She said it was ‘very vivid’ and it was “on [her] mind every day and night.” She reported struggling with memories and having nightmares and flashbacks and it ‘consumes [her] mind.” She said she wakes up afraid and wakes up screaming with nightmares.
The Panel asked her to describe the flashbacks and she said they end with her mother and her dying. She said when the woman crashed into her it hit the side of her vehicle and the flashback ‘ends with that.’ When asked to describe further her flashbacks, she said she had “the same feeling of being afraid and scared and distraught.” She feels the impact of the smashing into them and “then nothing.” She said the flashback can happen any time and ‘when anxiety is really high, trauma consumes [her] mind.’ She finds it hard to escape the memory. She asks herself why it would happen and why someone would do that.
The Panel enquired as to any physical injuries and she reported she had a mild back ‘tear’ and a neck fracture. She had an MRI done a few years ago and her physiotherapy treatment lasted about three years. She said it was helping with stretches and strengthening.
We enquired about current treatment and she said she still does physiotherapy and she now has problems and she finds it is not as productive doing her physiotherapy stretches. She said she should be moving around more and walking is painful after a while. She reported that her spine was crooked. There is no other treatment expected for her physical injuries.
PRE-ACCIDENT FUNCTIONING
BMF reported she had no mental health problems and had not seen a psychologist prior to the motor vehicle accident. She said she had no recollection of any problems suggestive of an eating disorder. The Panel enquired as to the court case referred to in the documentation and she reported that she was not seeing her father, he was essentially a stranger, and he would only see the family “every blue moon.” She had no recollection of any actual court involvement.
The Panel enquired as to the presence of any eating problems prior to the accident and BMF directly responded that her “eating disorder stemmed from the car accident.” She spontaneously added that at one stage she “didn’t want to live.” She was very clear on attempts to re-clarify whether she had any eating related disorder behaviours or problems prior to the motor vehicle accident and she concluded with the statement that there was “no evidence of it.”
The Panel asked BMF about the development and course of her eating disorder and she reported that following the motor vehicle accident she developed an eating disorder called anorexia. She still has trouble with that and she still has blood in her stools and she is also worried about her health. She is fatigued and has a lack of iron, she is anaemic, gets more constipation and said on most days she does not want to live. She said her eating disorder has affected her bowel motions and she is booked in for a gastroscopy and colonoscopy. She said however she told her mother to cancel the appointment because she was not ready to undergo the procedures due to her mental health. She said with respect to her eating problems it “comes down to [her] diet.” She said Fiona, her dietician, she sees two times a month. Currently this is over Zoom as Fiona has moved to Tasmania and was previously at Bella Vista. BMF reported she is currently 53kg and that her eating disorder was very bad in 2015/2016 when she got down to 36kg. She is 168cm tall. Her highest weight has been 60kg, which she said was “a bit healthier” and this was last year.
We enquired further as to the progress of her eating problems and she said they were “improving a lot.” She said she sees a lot of changes and her diet is better. She spontaneously said that after the accident she did not eat ‘at all.’
The Panel enquired as to if there were any other mental health symptoms or experiences following the motor vehicle accident and BMF declared “I have PTSD.” She then continued and said her pain can be unbearable mentally and she takes it out on herself physically and pulls her hair out and her nails. She said this is lieu of cutting her wrist. She said she has had a lot of suicidal thoughts but does not want to inflict that on her family.
BMF added that her anxiety makes it difficult for her to keep calm and her heart rate increases, for example when she is in a vehicle or crossing the street. She wants to hold her mother’s hand in the circumstance of the latter. She reported that she has vomited a few times in a vehicle and she takes a bucket in the car because she finds it hard to breathe when she hyperventilates. She also said that her anxiety disorder causes her to worry and her depression causes her to have ‘lots of symptoms.’ BMF spontaneously added that if not for the accident she would be ‘living a happy and successful life.’ She went on to say the accident had an emotional toll and when asked why it was such an impact she said it was an accident where she almost died and she had ‘bad thoughts in the car.’
BMF said after the accident she went to hospital, taken by her family members, and that no police or ambulance attended the scene. The accident occurred at Oakville, near Windsor, and there was no one around.
CURRENT FUNCTIONING
BMF reported she has no driver’s licence and has no need to drive. She said she does not even see herself driving.
The Panel enquired as to any future work or study and BMF said she did not know. She was hoping to get a higher ATAR mark and study a bachelor of music production at university or go to TAFE. She said however she is currently trying to focus on her health and “get through it daily.” She has no motivation to study at the moment and feels there is “no point.”
BMF reported she requires no assistance with self-care and personal hygiene such as showering, dressing and grooming but added that she only showers once a week and does not care about her hygiene. She has no motivation to care and said she is not going anywhere ,anyway.
With respect to cooking, BMF is trying to assist her mother who has had some injuries in 2002 such as fractured ribs. BMF reported she is doing some meals and finds this enjoyable. BMF does not do any of the other domestic duties. She said her grandparents come over five or six times a week and her psychologist is encouraging her to do some washing and dishes.
BMF reported her mother cannot drive and her grandparents take BMF places by car. She said her mother’s health has deteriorated. Her grandparents take her brother to school and also do the grocery shopping. BMF related that she relies on her grandparents a lot. BMF is not currently receiving any income.
With respect to family members, BMF lives with her mother and has a relationship with her brother although it was not clear if he was actually living with her currently and her grandparents live one minute away. She has an aunt, who has two sons who live with her, grandparents and an older niece who stays occasionally. She has uncles in the Newcastle area and another aunty in Penrith. BMF spontaneously offered that she would “rather stay at home.”
BMF reported she does not have any friends from school and recalls that she did have a few when she was at school but things changed and they were in different groups. She said she isolated herself from everyone. She found it difficult to talk to people and open up and she distanced herself from friends since she left school.
The Panel asked BMF how she passes time after she gets out of bed and she reported she has breakfast with her family and does the Smiley Mind App exercises which she reported had been effective in making her more compassionate. She tries to do a few stretches which she said helps her bowel movements. She is trying to be more physically active. She will talk to her mother or her brother, if he is not at school, but stays in her room most of the time doing mind exercises. She reported that she struggles with reading, both concentrating and understanding. She will watch a few movies with her family. BMF eats morning tea, lunch, afternoon tea and dinner and she is aiming for five meals per day to help her with nutrients.
MENTAL STATE EXAMINATION
BMF was a young female with no overt make-up and no signs of neglect. She had long, dark, wavy hair which was out. She wore a jewellery cross and a black, long-sleeve top. She was polite, cooperative and attentive and displayed no abnormal movements. Her speech was normal, there was no evidence of formal thought disorder and there were no delusional thought processes. She did say she has some intrusive thoughts about harming herself but no active thoughts of self-harm or thoughts of harm to others. When describing her mood, she said she felt “really bad at [her]self”, she doubts herself, she feels guilty about her health conditions and how they have impacted on her family. Her affect was essentially reactive, congruent and appropriate, but somewhat restricted. She tended to overstate the negative aspects of her existence and tended to answer questions about experience and symptoms with answers related to diagnosis and impairment. There was no evidence of perceptual abnormalities. Her cognition, insight and judgment appeared grossly intact in the context of the interview. Rapport was only superficial but facilitated the assessment.
CONSISTENCY
BMF was somewhat vague in some of her answers and seemed to focus significantly on her diagnoses and the impairments in her functioning. There was an impression of overstating of symptoms, for example continued nightly nightmares of terrifying degree after eight years and considerable treatment. It was hard to explore BMF’s previous mental health experience, for example discussing the origins of her eating disorder. She reported that there was “no evidence of it.” When asked about the problematic Family Court matters referred to by others, BMF reported that she was not home when there was a home invasion, that her mother does not talk about it, her father never lived with them and had only had sporadic contact and she has no knowledge of his whereabouts.
SUMMARY
BMF, based mainly on her self-report of symptoms, reported an ongoing existence of significant apparent psychiatric dysfunction that could, with a best fit approach, be considered as a Chronic Adjustment Disorder with mixed depressed mood and mixed anxiety. She would also be considered as having some form of eating disorder (not otherwise specified, within DSM5 nomenclature), and is reporting excessive post-traumatic symptoms, however would not strictly fit the criteria of a Post Traumatic Stress Disorder. Of significance is the likely development of abnormal illness behaviour over time, the adoption of the sick role and other motivational and dynamic issues.
With respect to the issue of the presence of an eating disorder (anorexia nervosa has been mentioned), the Panel accepted that indeed there was evidence of long-term disturbance of eating behaviours, which diagnostically would be anorexia nervosa or a non-specified eating disorder. BMF was not particularly expansive or forthcoming when the Panel attempted to explore the preceding history and development of eating problems, normally invariably present in such cases. Rather, BMF bluntly and somewhat obtusely told the Panel that “there was no evidence of it” when asked if she had any difficulties with eating prior to the accident.
The natural history of eating disorders is complicated and multifactorial, and, in the Panel’s opinion, highly unlikely to have a motor vehicle accident as a predominant cause. It is plausible that a motor vehicle accident may be an exacerbating factor in the progression of an eating disorder, however; (1), BMF clearly denied the presence of any pre-existing eating problems, and (2) the Panel’s assessment took into account functioning, irrespective of diagnosis, utilising the PIRs. The Panel’s determination was that the eating disorder was not caused by the motor accident.
BMF reported she is still undergoing psychological and psychiatric treatment, on a regular basis, which she finds beneficial and helpful.
PERMANENT IMPAIRMENT
Given the information available to us and no objective information to contradict BMF’s self-report, and given the passage of considerable time, BMF’s injuries would be considered to have stabilised.
ASSESSMENT OF WHOLE PERSON IMPAIRMENT

Psychiatric diagnoses	1. Chronic Adjustment Disorder	2.
Psychiatric diagnoses	3.	4.
Psychiatric treatment description	Regular psychological and psychiatric treatment reported.

Category	Class	Reason for Decision
1. Self-Care and Personal Hygiene	2	Mild impairment BMF likely has the ability to live independently from a psychiatric perspective. She has started cooking more, which she enjoys, and she is not partaking of any household chores. She reported showering only once a week, however is capable of doing that independently. BMF pointed out on a number of occasions that she is focusing on her health and wellbeing. Utilising clinical judgment, there is a class 2 mild impairment.
2. Social and Recreational Activities	3	Moderate impairment Although the Panel has no information to verify BMF’s reported level of activity, she has reduced her social activity and recreational activity such that she rarely leaves the house. She reported losing touch with friends and said she has no motivation for any interests at home.
3. Travel	2	Mild impairment BMF reported she has no driver’s licence and has no need to have one. She is able to travel to unfamiliar places with others driving. Utilising clinical judgment, there is a class 2 mild impairment here.
4. Social Functioning	2	Mild impairment BMF reported that she is getting on with her close family members and has some contact with her more extended family members. She otherwise reported she has withdrawn from her social friendships since leaving school. Utilising clinical judgment, there is a class 2 mild impairment.
5. Concentration, Persistence and Pace	2	Mild impairment Although the Panel considered that BMF had reasonable cognitive function and concentration throughout the assessment, on global analysis of her reported functioning, she is not reporting much in the way of persistence and pace with respect to completing, or even attempting, activities. The Panel suspects BMF’s capacity in this area is greater than reported, however has no evidence to confirm this. Given the accident occurred at such a young age and BMF was able to continue and complete her Higher School Certificate with an ATAR of around 46, and there have been no subsequent events of significance and BMF has continued to reportedly benefit from treatment, the Panel considers that her current cognition and general persistence and pace was likely similar to that when she finished high school. The Panel considered this was equivalent to a class 2 mild impairment, at least greater than capacity of attempting a TAFE course at a slower pace.
6. Adaptation	4	Severe impairment The Panel was limited with respect to comparing BMF’s report of inactivity to any objective evidence of capacity and on clinical grounds considered that there would be some capacity for employment in this category, on the balance of probabilities, the most appropriate score for this category is class 4, severe impairment.
List classes in ascending order: 2 2 2 2 3 4
Median Class Value: 2
Aggregate Score: 15
Pre-existing % Nil Whole Person Impairment: 8%

*%WPI ^{= Percentage Whole Person Impairment}
Apportionment: Although the Panel suspects there were pre-existing mental health problems, there is insufficient evidence to attribute any adjustment for pre-existing psychiatric impairment.
With respect to treatment effect, BMF on the one hand reported that her treatment had been beneficial and on the other hand reported significant ongoing limitations in functioning and acute symptoms. The Panel considered there was likely some treatment effect but given the aforementioned, this is likely to be consistent with a mild treatment effect, with a 1% adjustment.
Therefore, final whole person impairment is 9%.

The Panel adopts the examination findings of Medical Assessor Chew and Medical Assessor Jones.

Causation

In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[1] Justice Walton set aside the decision of a Medical Review Panel. The discussion in Kinchela concerning the correct principles to apply relating to causation are set out below:
"[38] The second defendant's task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW (2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 ("Bugat"); AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 ("McGiffen"). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation.
[1] [2021] NSWSC 804, Kinchela.
In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
“[31] One of the pivotal questions for the Panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff's claim form made but 15 days later, the remarks of Dr Ho in his report of 13 July 2011, and the plaintiff's statements which the certificate discloses were made to the Panel to the effect that at the time of the accident she suffered 'pain in her neck going out to both shoulders.
[32] While I accept that, as an administrative decision-maker, the Panel's reasons should not be subjected to 'minute and detailed textual criticism in the hope of finding something on which to base an argument' [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW)(2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the Panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.”
In McGiffen, the Court of Appeal held at [64] – [65]:
“[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen's lumbar thoracic spinal injury was causally related to the 'gait derangement', itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason, the decision recorded in the Panel's Certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the Panel liable to the relief granted by the primary judge for jurisdictional error.”
It was held that the second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (the CLA) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.
As Justice Walton observed in Kinchela the CLA is relevant. In s 3B various liability is excluded from the Act; however, sub-section (2) provides that "Divisions 1-4 and 8 of Part 1A (Negligence)" apply to motor accidents. Sections 5D and 5E relating to causation are in Division 3 of the CLA. Therefore, they apply to the Motor Accident Injuries Act 2017. The common law principles, as discussed in the above authorities, apply.

The Motor Accident Guidelines (the Guidelines)

The Guidelines identify the test for causation in cls 6.6 and 6.7.[2]
[2] Causation is defined in the Glossary at page 316 of the AMA 4 Guides.
In Ackling v QBE Insurance (Aust) Ltd,[3] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[4]
[3] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[4] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5 - 6.7 of the Motor Accident Guidelines, being clauses 1.7 – 1.9 of the Permanent Impairment Guidelines.
In Owen v Motor Accidents Authority (NSW),[5] Campbell J adopted Justice Johnson's approach with a caveat touching upon the CLA:
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2))."[6]
[5] [2012] 61 MVR 245; [2012] NSWSC 650.
[6] At [27].

The Civil Liability Act 2002

Justice Campbell in Owen, said s 5D of the CLA needs also to be considered when assessing causation.

89.Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation'), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."

There are two elements to address when assessing causation under s 5D(1):
"factual causation";[7] and
[7] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[8] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
"scope of liability".[8]
The Panel must consider whether the accident caused or contributed to the occurrence or worsening of the claimant’s medical condition. The accident does not have to be the sole cause.

Did the injury to the claimant's psychiatric symptoms and disability arise from the accident?

Assessing "factual causation" and "scope of liability" involves making value judgments.[9]
[9] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”^{^[9]}
The insurer has made no submissions going to causation and has only addressed its submissions on the method of the PIRS assessment of the Medical Assessor.
While there were events of a concerning domestic nature in the claimant’s family life before the accident, there was no evidence before the Panel for it to be able to attribute any pre-existing disorder. The Panel has had to rely on the claimant’s statements of events.
The Panel accepts that there was a history of long term disturbance of eating disorders. The claimant did not assist the Panel when attempting to explore her preceding history and the development of eating problems. It is not the opinion of the Panel that the motor vehicle accident was the predominant cause of any eating disorder.
Taking the claimant’s version of events into account, and applying its clinical assessment, the Panel accepts that the diagnosis of chronic adjustment disorder with mixed depressed mood and mixed anxiety is as a result of having been caused or contributed to by the accident.

Determination

The Panel revokes the certificate of Medical Assessor Hong dated 25 August 2021.
The Panel finds that the following injuries caused by the motor accident give rise to a permanent impairment of 9%.
(a) psychiatric condition – chronic adjustment disorder with mixed and depressed mood and mixed anxiety

Clause 6.6 provides:
“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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“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.”

[2023] NSWPICMP 266

15 June 2023