BNF v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	BNF v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 829
CLAIMANT:	BNF
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Cassidy
MEDICAL ASSESSOR:	Mason
MEDICAL ASSESSOR:	Chew
DATE OF DECISION:	5 December 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant’s application for medical assessment and claimant’s application for review under section 63; claimant involved in motor accident in 2017 while still at school; claimant assessed as having whole person impairment (WPI) of 1% by Medical Assessor (MA) Newlyn. MA had assessed claimant as having post-traumatic stress disorder and somatic symptom disorder as well as post-natal depression and adjusted the WPI on account of that unrelated condition; MAs re-examined claimant and diagnosed post-traumatic stress disorder and somatic symptom disorder but found no evidence of depression; WPI assessed at 7%; Held – Certificate revoked (while outcome the same MA Newlyn had included his assessment of 1% on the certificate); no issue of principle.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Newlyn dated 7 June 2023. 2. Certifies that the degree of the claimant’s permanent impairment resulting from the injuries caused by the motor accident on 29 March 2017 is 7% which is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

[BNF] was involved in a motor accident on 29 March 2017. She was a passenger in a school bus involved in an intersection collision in Londonderry. The claimant was seated but thrown to the floor. The driver of the car died in the collision.
[BNF] says she injured her eye, left side, legs and knees in the accident and developed anxiety as a result of the accident. She made a claim for damages against NRMA, the third-party insurer of the vehicle the driver of which she says caused her accident[1].
[1] The claim form is found at page 32 of the insurer’s bundle.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and [BNF] referred that dispute to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor Newlyn determined on 7 June 2023 that [BNF] did not have a WPI of greater than 10%. As she does not agree with that result, the claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 17 August 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 7 May 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.

LEGISLATIVE FRAMEWORK

General

[BNF]’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Compensatory damages under the MAC Act are awarded for economic as well as non-economic losses resulting from the injuries, disabilities and impairments caused by the motor accident.
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act with some limitations and restrictions. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[2] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
[2] The current maximum as of October 2024 is $654,000.

Permanent impairment assessment

Permanent impairment is assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[3] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[3] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
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 AMA4 Guides are to be used as “background or reference only”[4].
[4] Clause 1.203 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)[5].
[5] Clause 1.213 of the Guidelines.

Dispute Resolution

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[6].
[6] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Assessor Newlyn, further medical assessments and the review of medical assessments by this Panel[7].
[7] Sections 61, 62 and 63 of the MAC Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Newlyn examined the claimant on 8 May 2023 by MS Teams and issued his certificate on 7 June 2023.
The claimant was 16 at the time of the accident and was, at the time of the assessment approaching her twenty-fourth birthday.
[BNF] said she hated school before the accident and went to TAFE, obtaining a Certificate II and III in hospitality. She said school was worse after the accident and she skipped a lot because she was in pain. While she worked for a fast-food chain for some time she had not worked since she found out she was pregnant. She has helped out an aunt who is a caterer and has her responsible service of alcohol certificate.
She has two children.
The claimant gave a comprehensive history of the accident and her physical injuries and treatment. She said she was prescribed Endep after the accident and has had several other scripts since then and has stopped them when she has been pregnant.
[BNF] said she had counselling after the accident from mid-2018 to the start of 2020 without any apparent benefit.
The claimant described her fear of being in another accident and talked of depression and anxiety.
Medical Assessor Newlyn considered the claimant was consistent.
After considering the documentation and other reports he diagnosed post-traumatic stress disorder in partial remission, somatic symptom disorder which results in impaired physical ability both of which were caused by the accident but not a persistent depressive disorder which he found only occurred after the birth of her two children.
He found a 7% impairment based on:
(a)    Self-care and hygiene  class 2
(b)    Social and recreational activities               class 3
(c)    Travel  class 2
(d)    Social Functioning  class 2
(e)    Concentration persistence and pace        class 2
(f)    Adaptation  class 3
He then found a 6% impairment attributed to the subsequent development of the depressive condition.
After deducting the subsequent impairment from the current impairment, he found the total WPI was 1%.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant takes issue with the Medical Assessor’s assessment of causation and says:
(a)    the Medical Assessor made findings “substantially inconsistent” with the medical evidence of both the claimant’s expert and the insurer’s expert;
(b)    the Medical Assessor made a “fatal error” of not identifying and quantifying the evidence of the alleged post-accident symptomatic permanent impairment and applied “an unjustified 6%” WPI reduction;
(c)    the Medical Assessor did not apply cls 1.31 to 1.34 of the Guidelines, and
(d)    the Medical Assessor failed to expose his path of reasoning and has engaged in speculation and hypothesising concerning the claimant’s post-natal depression.

Insurer’s submissions

The insurer says the Medical Assessor has explained his reasoning under the heading “causation and reasons.”
The insurer notes the claimant has referenced the incorrect clauses of the Guidelines and that cls 1.31 -1.34 relate to physical impairments whereas clauses 1.213 – 1.228 are specifically used with Mental and Behavioural Disorders.
The insurer notes the Medical Assessor has referred to the medico-legal evidence within the decision and has explained each of the six criteria for impairment.

Procedural matters

On 22 May 2024 the Panel issued directions to the parties seeking bundles of the documents they relied on in the assessment. The claimant’s documents were due on 7 June 2024 and the insurer’s was due on 21 June 2024. Bundles were provided
On 1 August 2024 the Panel met and noted the issue of causation raised by the parties in the context of pre-accident and subsequent conditions. The Panel advised the parties that it would accept into evidence the additional material relied on by the claimant.
The Panel requested GP notes for the last 10 years, hospital records in relation to and after the births of her two children and her school records for her high school years.
The Panel advised the parties of the medical re-examination date and that the Panel would be meeting on 20 September 2024 to ensure the requested documents had been produced and the matter could proceed. The re-examination date was vacated and a further appointment arranged as documents had not yet been obtained by the parties.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The claimant form was completed by the claimant’s mother (due to the claimant’s age) on

16 August 2017. Apart from her physical injuries, the claimant lists “anxiety” as an injury.
The police report suggests the accident occurred when a vehicle being followed by police failed to give way at the intersection colliding with a bus occupied by 10 students. The driver of the at fault vehicle was killed in the accident.
An ambulance report confirms the claimant was one of two persons taken to Hawksbury District Hospital. The records from the hospital note the claimant was said to have glass smashed and multiple small lacerations to her face and legs with a painful hip.
The claimant has provided a copy of her higher school certificate and her certificate III in makeup. She has also provided her resume which notes that she has had work experience “preparing and serving meals to patients in June 2017, preparing and serving morning tea and lunch for functions and rotary dinners at Richmond High School in 2017 – 2018.

Treating medical records and reports

Heritage Medical Practice

The records from the Heritage Medical Practice (HMP) where Dr Pham practiced commence in May 2006 at which stage the claimant was six years of age. There are no entries of relevant until 13 March 2017 following the bus accident.
There are several attendances in May and June and on 26 July 2017 the claimant weighed 107 kgs (when last weighed before then, in May 2015 [BNF] was 90kgs) and was slowly improving from her physical injuries but had sore left and right hips, left and right knees. The claimant was referred to Mr Jekki, physiotherapist, on 3 May 2017 for treatment to the left and right knee.
On 14 March 2018 the claimant was noted to be driving herself to and from school. The claimant was advised to see a school counsellor for low mood and anxiety about using a bus. On 12 September 2018 the claimant next attended with a weight of 107 kgs. She was driving to and from school and to and from TAFE and had her own car. She was tearful when talking about her pain. A letter to Ms Keegan was provided requesting her assistance with the claimant’s adjustment disorder.
The claimant next returned on 22 September 2021 when [BNF] was 14 weeks pregnant and then on 21 July 2022 when she had rolled her ankle walking up a hill.

Windsor Family Medical Practice

The claimant first attended Dr Wang of the Windsor Family Medical Practice (WFM) on

28 February 2019[8]. The claimant consulted her for physical injuries, knee and hip pain. She was noted as obese and her previous records were requested. There is no mention of psychological issues at this first consultation.
[8] Page 79 of the insurer’s bundle.
The claimant was seen again on 7 March 2019 with her previous imaging and was referred to Dr Johnson, rheumatologist, for review. The referral notes a “history of almost daily joint pain” which started two years ago after the bus accident but that the claimant “can’t pinpoint a clear precipitant for her pain nowadays.”
Dr Johnson provided a report to Dr Wang dated 15 April 2019[9]. He considers the accident had a “great deal to play in her current symptoms.” He noted the claimant had hip pain and knee pain and became sedentary as walking is painful and that her pain is “fleeting moving from place to place unpredictably.” According to Dr Johnson before the accident the claimant played basketball regularly and was 10 kgs lighter than she is now.
[9] Page 84 of the insurer’s bundle.
Dr Johnsons noted there was “nothing specific to see” on examination and she had good spinal range of motion with no neurological signs. He has a history of her being seen by a psychologist but that she and her mother thought the psychologist was “quite dismissive of her musculoskeletal symptoms.” He considered she had “non-articular rheumatism akin to fibromyalgia.” He gave advice as to medication and exercise.
On 28 May 2019, Dr Johnson saw the claimant again. She was feeling better on Endep, and doing more exercise and had “tried for a couple of jobs”. She reported feeling “substantially better.” He encouraged her to continue her exercise.
The claimant attended Dr Wang (WFM) on 22 August 2019 for non-accident related symptoms and then on 15 December 2019 for a pregnancy test. On 19 December 2019 Dr Wang records while the pregnancy was not planned the claimant was stable with a partner. On 10 August 2020 the claimant was noted as having pre-eclampsia and was commenced on medication. The claimant was reviewed four weeks after the baby was born by telehealth on 28 August 2020.
On 9 February 2021 there is a note that the claimant was reviewed by Dr Bandgar and scored 23 on a post-natal depression assessment check. Dr Bandgar records the claimant has a “long term history of anxiety and depression” while she was coping well with her child there were said to be “other things going on with life.” Her parents had asked her to leave their house and she is living with her partner’s parents with who she said she had a good relationship. She reported her mood was low, she lacked motivation and gets anxious. She was recommended to start on Serta an antidepressant and a referral was given to Dr Lutchman psychologist. The Panel notes there is no mention in this note of the motor accident.
The referral to Dr Lutchman[10] refers to a long-term history of anxiety and depression with counselling in the past and says that her symptoms were worsening.
[10] Page 150 of the bundle.
On 2 March 2021 the claimant returned to see Dr Bandgar. Sertraline had caused headache, and she was started on Duloxetine. Her mood was reported as slightly improved, and she was to see an psychologist on 9 March 2021. She was advised to start walking and exercise.
On 1 April 2021 the claimant saw Dr Sadashivappa at WFM for depression/anxiety and she was said to be doing well and her mood was good, her sleep was good and there were no other concerns or red flags. The claimant returned on 7 April 2021, her mood and sleep were good, she wanted a repeat script for Cymbalta.
The claimant saw Dr Bandgar again on 11 May 2021 for a review of depression and there was a mild improvement with the Duloxetine but there were some symptoms of low mood, but she felt safe at home and had good support from her partner.
The claimant attended upon Dr Siddiqui by telehealth on 19 July 2021 concerned she may be pregnant. While the pregnancy was unplanned, she was happy to carry on. She was advised to change from Cymbalta to Zoloft and she was identified as a high-risk pregnancy due to her past history of pre-eclampsia, depression / anxiety and morbid obesity. On

16 August 2021 she attended complaining of bad morning sickness with nausea and vomiting. She was admitted to hospital in early September 2021 as a result of this.
The claimant was started on prophylaxis for deep vein thrombosis at 22 weeks (Clexane).
On 13 July 2022 the claimant was reviewed four months after the birth of her second child. She expressed a wish to commence on antidepressants. Her husband was working as a truck driver, on night shift and has depression. She scored 24 on the Post-Natal Depression assessment suggesting that depression was present.
The claimant was reviewed by Dr Sadashivappa on 10 October 2022 and the claimant wanted to see a dietician and exercise physiologist and lose weight. Her mood was said to be good while on escitalopram and was keen to continue. She asked about Ozempic.
On 24 October 2022 [BNF] was unable to get Ozempic and requested Duromine. Her mood was said to be good, and her sleep was good.
The claimant attended again on 7 June 2023 for a vision problem and while she was followed up four times, she did not return again until 15 April 2024 for review. The Doctor at WFM records[11]:
“Not seeing doctors regular. Struggling with her mental health. Back in with her previous partner again. Started working from yesterday- casual. Tried marijuana - in the past - helped with her mood a lot. Wanted to try again. Called and had telehealth with doctors - canabis clinic - advised to see GP get approval for canabis. Long standing mental health issues with poor compliance with follow ups and medications. Not asking [for] any medications now. Said they [had] not helped her in the past, not seeing psychologist, psychaitrist for a long while now. They not helped her but was horrible in the past.
Nil risk now - to herself / others. Discussed in detail abouit regular review. Need for psychologist, psychiatrsit review and trial of medications if indicated. Advised to see psychologist, psychiatrsit for assessment for ? medical marijuana indication. Agreed to follow up in regards to it."
[11] Spelling has been corrected and punctuation added.
There is no mention of the car accident after mid-2019.
Handwritten notes from Bernadette Keegan and Associates have been provided. They are out of order and not easy to read.
On 17 August 2018 Ms Keegan records the claimant’s solicitor asked her to see a therapist in terms of compensation. She takes a history of the accident and injuries. She had only been on a bus twice since the accident. She was thinking about the accident all the time and her mother was driving her the long way to school until one day her dad went through (the old way) and she feels relief and now goes without issues. [BNF] was not exercising because of her knees.
On 19 September 2018 [BNF] reported a panic attack at home while having dinner. She was in pain and remembering the accident and forgetting thing and experiencing headaches. She said she was in shock for a whole week. She found going out with friends and ringing her friends were distracting. Her family was getting annoyed with her pain complaints.
On 26 April 2019. There is a reference to triggers for anxiety and “history of depression, not current” with family issues.
On 29 April 2019 Ms Keegan notes the claimant had seen a pain specialist two weeks earlier and her aches and pains had improved. She was drawing and silk screening and talking to friends although this was noted to have reduced since school ended. She appears to have a history from the claimant that people including her brother and other students thought she was faking it.
On 8 July 2019 the claimant reported “snarky comments” from her family, being shut off from them. She refers to “periods of depression” which started from the accident and has flashbacks and panic attacked. She took her first bus ride recently.

A “PTSD checklist’ was completed on 26 July 2019 with the claimant scoring 52 out of 80.
Notes from Nepean Hospital have been provided which include admissions relevant to the claimant’s first pregnancy and the birth of her first child on 3 August 2020.
A copy of the antenatal assessment check dated 23 July 2020 revealed a score of 10 out of 30. She disclosed to the hospital that she had seen a psychologist and was highly sensitive to pain since she was involved in a bus accident. She referred to seeing a psychologist for posttraumatic stress disorder. She declined further support.
Notes from Blacktown Hospital have been produced and include details of the claimant’s second pregnancy and birth of her second child on 10 March 2022. There is no mention of her accident mut brief mention of pre-existing mental health issues.
Records from the claimant’s school have been produced showing her absences from school as follows:
(a)    2015 – 33 whole days of leave
(b)    2016 - 25 whole days of leave
(c)    2017 – 33 whole days of leave (50 in total of which 17 were absences due to exams and work experience)
(d)    2018 – 25 whole days of leave (48 in total of which 23 were absences due to trial and HSC exams).
There were absences after the accident due to pain in the claimant’s knees and hips.

Medico-legal reports

Dr Keller, occupational physician provided a report for the insurer on 28 August 2020. He has a consistent history of the accident (although makes an error in the date) and the claimant’s treatment. She obtained work at Red Rooster in July 2019 and worked for six months at which stage she went on maternity leave and gave birth to a healthy baby on 3 August 2020. The pregnancy was complicated by pre-eclampsia.
The claimant complained to Dr Keller of constant low back pain, constant pain in the left and right hips and sensitive knees.
Dr Keller thought she was unfit and overweight, but she had a normal range of motion in her back and both hips. He was not asked to assess WPI.
Ms Glancey, psychologist, provided a report to the claimant’s solicitors dated 31 May 2021. She has a consistent history of the accident, and the claimant said she had a sense of shock after the accident and was concerned for her brother’s welfare (as he was also on the bus). The claimant reported seeing her usual GP then changing GPs and being referred to a pain specialist and said she had been diagnosed with a neurological disorder.
The claimant reported ceasing her chores due to pain and stopped playing basketball due to being unable to run. She reported sleep disturbance and a low flat mood. She “barely did anything.” She noted the offending driver died and his dismembered body was “scattered across the road”. She reported intrusive memories and flashbacks, anxiety when in a bus and in a car. “She reported to have always suffered generalised anxiety however anxiety worsened after the accident.”
The claimant reported her pregnancy saying int was difficult in the context of pain and she had to cease her sleeping medication. She reported “an unremarkable pregnancy other than morning sickness.” The claimant said she stopped work because of nausea. Her baby was demanding with colic. She had some difficulties caring for her and had stress in the relationship with her partner after the accident and he moved out of her home as a result.
She said she started psychological treatment in 2018 and ceased treatment in mid 2020 due to frustration with different psychologists. She was prescribed anti-depressants and in February 2021 she had alternative medication which improved her state.
Ms Glancey diagnosed a Major Depressive Disorder and symptoms of post-traumatic stress disorder.
She diagnosed the claimant’s WPI at 15% and allowed an additional 1% for the effect of treatment.
Dr Vickery, psychiatrist, provided a report dated 21 June 2021. The claimant reported various aches and pains and said she received support from her partner, his parents and her parents. She was feeling happier and more motivated since starting the antidepressant medication (Duloxetine).
Dr Vickery formed the view the claimant had no diagnosable psychological injury recognised in the DSM versions 4 or 5.

RE-EXAMINATION FINDINGS

Brief Personal Details

[BNF] is a 24-year-old woman who lives with her partner [BNK} in rented accommodation in Western Sydney. They have a four-year-old daughter [BNL] who attends daycare twice a week and a two-year-old son [BNM] who attends daycare one day a week. Her partner works as a casual merchandiser doing 25 hours/week and [BNF] is in receipt of family tax benefits A & B. She has been unsuccessfully applying for work that is consistent with her duties as a mother and her ongoing physical conditions.
The re-examination occurred by MS Teams at 9.00am on 18 November 2024.

Personal History

[BNF] was born in Windsor Hospital and described a normal birth. Nocturnal urinary continence was not achieved until age 13 but other developmental milestones were not delayed. She is the second of four children with an older brother, a younger brother and a younger sister. Her 49-year-old father is employed as a greens keeper and her 47-year-old mother works as a bartender. She described a good childhood in which they got to do a lot of things, but she said it was emotionally not the best because of a lack of empathy within the family. When asked if she suffered any form of abuse, she said she was physically punished. She also said an uncle ripped the door off her bedroom because she was a naughty 10-year-old kid and the door was replaced with a curtain. Later in the interview she described being constantly angry at home but more even tempered when at school or with friends. She denied any sexual abuse throughout childhood.
[BNF] attended Bligh Park primary school and Richmond high school where she completed year 12 in 2018. She said she did not like school when she was younger and often did not want to go. She said she was picked on and bullied during the junior years of high school because of her weight and early sexual development. She described this as horrible and acknowledged a certain amount of school refusal but said it improved as she got older, and it was not so bad in senior college. She said she made friends in high school but did struggle with some depression and anxiety. She said she was angry and had been anxious and depressed before the motor accident because she did not get along with family. She said she was never allowed to express her feelings and never felt comfortable in herself. She said she often misbehaved, and her mother wrote letters to the teacher who would put her on a behavioural program in which she was awarded stars for good behaviour. She said this made her behave better at school but she did not like it.
[BNF] completed year 12 in 2018 and had completed two years of a Certificate III course in beauty at TAFE. She had also completed a Certificate II course in hospitality and has a responsible service of alcohol certificate.
She and her partner have been together since late 2019. She said they split soon after their son was born because they had personal problems. She did not attribute these difficulties to the motor accident. They have since reconciled. She advised she had recently been pregnant but miscarried at 12 weeks in mid-September 2024. She said she had been desperately ill with nausea and had not been planning to have another baby. She said it was somewhat of a relief that she had lost the child, and she is now less depressed than she was when she was pregnant and suffering from morning sickness. This experience was rather traumatic for her because the hospital did not believe she was miscarrying, and it ended up happening at home in the bathroom where she was assisted by her partner. She said she was not able to look. She said she does wish to have another baby, but she does not want to get pregnant again until next year.
Her work history consisted of being a food delivery driver for Red Rooster for eight months prior to the birth of her daughter. In August 2021 she took a job helping an aunt with her catering business. She said she would work for three or four hours on weekends when events took place, but this was not every weekend. She also helped her aunt prepare Christmas hams for sale, which was part of the business. This continued until April 2023 when a rift developed between the families. Since then, she has done some casual merchandising work with her partner early in 2024, but they were both laid off after she did only 20 hours.
Leisure activities prior to the motor accident consisted largely of sport and she enjoyed playing basketball. That has not been possible since the motor accident due to physical pain.
[BNF] confirmed there had been no previous insurance claims for motor accident or worker's compensation matters and none since the subject motor accident. She denied any history of problems with the law.
She denied any significant medical history apart from lower back, bilateral hip and bilateral knee pain arising from the motor accident. This pain interferes with her ability to function as a mother and housewife, and she needs assistance from her partner and children for some daily tasks. She denied any surgical interventions. She currently weighs 100 kg. The panel noted she weighed 140 kg prior to the birth of her second child. She said she has changed her diet and has been fasting which has resulted in significant weight loss. She said she feels healthier. She has not used Ozempic although she had been given a prescription for it; she said she did not have it filled.
Past psychiatric history consists of not insignificant anxiety and depression during primary school and early high school arising largely from bullying and harassment by other students. She was questioned about extensive absences from high school consisting of 205 days of partial absences and 185 days of whole absences from 2013 until 2018. [BNF] said these mostly followed the motor accident but did acknowledge she had difficulties with attendance prior to the motor accident due to bullying. She denied any history of deliberate self-harm prior to the motor accident.
When asked about family psychiatric history she said her father had recently commenced the use of antidepressant medication because his father was suffering from Alzheimer's disease and had assaulted his mother. He (her maternal grandfather) died in 2023 resulting in her father's depression.
[BNF] does not use cigarettes and drinks alcohol rarely. She said she did use illicit cannabis in 2019 because of pain and anxiety. She said this did not continue. She acknowledged asking her medical practitioner at Windsor Family Practice for cannabis last year but it was not prescribed. She said the last time she used cannabis was in the middle of last year at a party. She denied the use of other recreational drugs and said she does not gamble.
Current medications consist of Panadol Osteo two or three tablets taken three times daily for pain. [BNF] advised she had become addicted to Nurofen tablets in the past so had stopped using them. On further questioning she stated she was not using an antidepressant.

History of the Motor Accident

The subject motor accident occurred on 10 March 2017, now seven years and eight months ago. She was a year 11 student travelling to school in a government bus. Her brother was also on the bus. She said she was seated on the driver's side of the bus towards the rear and was looking out of the window when the bus was impacted by a speeding car fleeing from police. She said she hit her head on the wall or window, fell between the seats and then stood up and held onto the seat in front of her to avoid falling out the side door of the bus while it was spinning.
When the bus stopped spinning, she said all of the students looked at each other until one of them said “get off the bus” and they all ran out and sat on the side of the road waiting for help to come. She said blood was pouring from her left eyebrow and she had bruising and a sore hip. She also described multiple grazes from shattered glass. She and her brother were taken to the hospital in Windsor by ambulance where they spent four or five hours. She said a laceration of her left eyebrow was glued and her brother's injuries were sutured. She said she did not have an X-ray or brain scan. She was then taken home by her parents.

History of Symptoms and Treatment Following the Accident

[BNF] said that she was sore and tired the next day and slept for a week. She believes she was away from school for a few weeks. She described being anxious and uneasy and unable to use the bus. She said she was developing panic episodes if she attempted to go near the bus. She described ongoing panic attacks and continues to avoid using a bus. She said she obtained her driving licence soon afterwards and was able to drive herself to school but could not use the bus. She said she was missing a lot of school because of pain, and she had to push through this to complete her art major. She was unable to participate in sport. She said she was able to enjoy going to some classes such as the English classes in the senior school.
[BNF] described experiencing flashbacks of the motor accident. She said they were like video replays in which she saw every detail over and over again. In addition, she described being able to hear and smell the events of the motor accident. In response to a direct question, she said she did not see the driver who died in the motor accident. She said she did not know him but believes he ruined her life. She said he was only 19 or 20 and she did a Facebook search for him. She was distressed when she noted he had totally destroyed his new car and lost his life.
In response to a question about depression [BNF] said her mood has been up and down. She saw a pain specialist who gave her some sleeping tablets (Endep/amitriptyline) in 2019, but she said they did not work. She did not keep taking them but at one point had attempted to overdose by taking approximately 10 tablets at one time. She also stated she had been prescribed antidepressants by her general practitioner. These consisted initially of sertraline, then duloxetine and finally escitalopram. She said she had also attempted suicide using sertraline. In addition, [BNF] said following the motor accident she had attempted to relieve her distress by cutting herself with scissors or a piece of glass. She was very clear she had not engaged in this practice prior to the motor accident.
When asked about treatment she had attempted psychological counselling. She believes she attended approximately monthly for a period of perhaps 18 months. She said the psychologists were unreliable in making and keeping appointments and she had the sense that they did not take her seriously. She described becoming disillusioned with them and not continuing because of that. She said on one occasion she attended an appointment to learn the psychologist had gone away on holiday. [BNF] said she did not have a sense of being particularly helped by the psychological consultations. She has not had any psychological treatment since the birth of her son two years ago.
[BNF] was questioned about postnatal depression. She has had two children since the motor accident and on each occasion has been treated with antidepressants for symptoms of depression. She was asked if the postnatal depression was worse than the other experiences of depression since the accident. She said she believed she did not really feel depressed after the birth of her children and was “just struggling with the baby blues”. She said she had felt more depressed at other times prior to the birth of her children. She added she felt more depressed prior to her recent miscarriage in September 2024 but that had now resolved without antidepressant treatment.

Injuries or Conditions since the Motor Accident

[BNF] described the death of her paternal grandfather from Alzheimer's disease in 2023. She said this was a sad time, but she did not describe developing significant depression as a consequence.
In April 2023 the historical sexual abuse of her younger sister by her cousin was disclosed, resulting in a split between their families and the loss of her part-time job in her aunt's catering business.
In January 2024 [BNF] developed significant anxiety while driving home from the airport. She described symptoms consistent with hyperventilation consisting of tingling and numbness in her fingers and around her mouth. She was afraid she would faint. This developed to the point where she was experiencing panic attacks, and she has been unable to drive since then. [BNF] was clear she was able to drive in an unrestricted manner for six years before this development.
The Medical Assessors explored the causation of these symptoms, but the claimant did not reveal any initiating event.

Current Symptoms

[BNF] said she is not currently depressed. She said her last significant depression was during the recent pregnancy and before her miscarriage in September 2024. She said that this period was so bad she was unable to get out of bed.
She continues to experience flashbacks of the motor accident if she is exposed to cues or reminders. These flashbacks occur in more than one sensory modality. She remains afraid to drive although it is not clear what caused her driving phobia in January 2024. She said she is somewhat socially phobic and sees very few friends. She will not travel to other people’s homes, preferring visitors come to her home.
[BNF] raised the question directly with the Panel of whether she was bipolar. She said sometimes she feels she might be manic. When this was explored there was no concrete evidence for it in the way of psychiatric symptoms and she has not been diagnosed by any of her health care professionals. She then went on to explain that a friend has bipolar disorder, and she gets quite stirred up by her when they are together.

Current and Proposed Treatment

[BNF] is not using psychotropic medication and has no plans for further psychological counselling. She said she is keen to get her GP to help explain her current difficulty with driving. She plans to continue using Panadol Osteo to control lower back pain, bilateral hip pain and bilateral knee pain.

Mental State Examination

[BNF] was alone in the bedroom of her home in Western Sydney at the time of the re-examination (9.00am on 18 November 2024). Her partner and children were present elsewhere in the house. [BNF] was 20 minutes late joining the interview and apologised saying she thought the interview was on the following Monday. She was identified from the photograph on her NSW driver license. She was interviewed by Medical Assessors Chew and Mason using the Microsoft Teams application with a good internet connection throughout the 90 minute appointment.
[BNF] appeared to be dressed in her pyjamas and was seated on her bed. Her hair was tousled and she confirmed she had just woken up. She was an appropriate and cooperative interviewee and provided information willingly and without prompting. She related in an open and forthright manner. She did become particularly distressed when required to provide details of the motor accident but was willing to proceed with the interview.
[BNF] described experiencing flashbacks of the motor accident in a number of sensory modalities. She described being triggered by cues and reminders of the motor accident. She described preferring to avoid thinking about the motor accident. She did not describe current nightmares associated with the accident. She did describe hyperventilation, significant anxiety and panic attacks in a car. She noted the onset of a specific driving phobia in January 2024 without any specific cause. The panel noted she had been able to drive for many years since the motor accident until this occurred.
In addition to the above, [BNF] described being impaired by symptoms of physical pain in the lower back, hips and knees. The symptoms interfere with her ability to function as a housewife and mother and to participate in any form of sporting activity.

[BNF] was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.

Current Functioning

[BNF] described a fairly restricted lifestyle in which she did not travel anywhere by herself and had to be driven by her partner. She is unable to play sport and perform many of the functions of a mother and housewife because of physical pain. She said she usually goes to bed about 8:30 or 9.00pm and usually wakes at 7.00am. However, her sleep is particularly disturbed by pain resulting in only four or five hours sleep as was the case the night before.

Self-care and personal hygiene

[BNF] said this was better lately and she is now showering approximately every second day. She said she does struggle to do the laundry, but this is largely because of physical pain, and she gets her partner and children to help. She also relies on her partner for some but not all housekeeping duties. From a psychiatric point of view, she is mildly impaired.

Social and recreational activities

[BNF] said she does occasionally see members of her family if they come to her and on a rare occasion a friend will visit. She said a lot of the difficulty arises from constant pain and she is not comfortable being outside of her home environment. She said she sees her home as a safe place. She is reluctant to travel to see friends because she does not feel safe away from her home. She is moderately impaired.

Travel

[BNF] is currently not able to drive and has not been able to do so since January 2024. Prior to that she was driving in an unrestricted manner. She said she is unable to use a bus because she says she will develop a panic attack. She is able to catch a train but does feel a sense of anxiety. She said she does not believe she could travel by plane.
She has travelled to Fiji on a cruise ship and travelled to Queensland for a holiday by car.
The panel does not believe her current inability to drive is related to the motor accident because she had been able to drive for many years prior to January 2024. She is mildly impaired as a result of the accident.

Social functioning

[BNF] said the relationship with her partner Jarod is strong and they are not in danger of separation. Their separation following the birth of their son was not related to the motor accident. She described a good relationship with her children. She is now on speaking terms with her parents but said her siblings do not like her and do not speak to her. She is mildly impaired.

Concentration, persistence and pace:

[BNF] said she struggles with concentration and does have memory problems. She said she can easily be overwhelmed by a concatenation of circumstances. She is able to watch the news and shows like “Married at First Sight” on television. She is not able to go shopping because of anxiety and relies on her partner for this. He also attends to the family money. There was no clinical evidence throughout the interview that [BNF] had a significant concentration or memory problem. She is mildly impaired.

Adaptation

[BNF]’s accident occurred while she was still at school. She is not currently working but said she has applied for 15 jobs in the past two or three weeks and has not had a single reply. She said she wants to contribute and to feel useful but needs to find work within her psychological as well as her physical capacities. The Panel notes while her physical condition appears relevant to her inability to work she has, for the last four years at least, continued to function as a mother for two young children. She is mildly impaired.

Consistency of Presentation

[BNF]’ presentation was internally consistent, consistent with the documentation provided and consistent with the diagnoses the panel has made.

CONSIDERATION OF THE ISSUES

Diagnosis

[BNF] is a 24-year-old woman with a pre-existing history of episodes of anxiety and depression throughout her childhood which resulted in a significant degree of school refusal. This appears to have had its origin in bullying and harassment by classmates throughout school. These are best described as time limited adjustment disorders. Despite this, there was no evidence of an ongoing pre-existing condition which resulted in significant impairment and she appears not to have received any mental health treatment before the subject motor accident.
[BNF] was involved in a frightening motor accident now over seven years ago. She suffered some minor physical injuries. The driver of the at fault vehicle died at the scene, a fact she found distressing. [BNF] describes symptoms consistent with post-traumatic stress disorder now in partial remission.
It is the clinical judgment of the medical members of the Panel that [BNF] meets DSM-5 criteria for post-traumatic stress disorder as follows:-
(a)    Criterion A is met by directly experiencing the traumatic event in which a person died;
(b)    Criterion B is met by intrusive distressing memories and flashbacks of the event;
(c)    Criterion C is met by persistent avoidance of external reminders of the trauma (taking the bus);
(d)    Criterion D is met by negative beliefs and expectations about herself and others, an intermittent negative emotional state, diminished interest and participation in significant activities and some feelings of detachment or estrangement from others;
(e)    Criterion E is met by irritability and angry outbursts, problems with concentration and sleep disturbance;
(f)    Criterion F is met because duration is greater than 1 month;
(g)    Criterion E is met because of impairment in social and occupational functioning, and
(h)    Criterion H is met because the condition is not attributable to a substance or another medical condition.
The Panel notes a number of events in the claimant's life during 2023 which include the death of her paternal grandfather, the disclosure of her sister’s childhood sexual abuse, loss of work with her aunt, and her difficulty in finding appropriate work due to pain.
The Panel notes the intermittent episodes of depression experienced by [BNF]. The panel does not believe she meets criteria for major depressive disorder or persistent depressive disorder because of the intermittent nature of these episodes. The panel is of the opinion that these episodes are more consistent with criterion D of PTSD. The Panel is also of the opinion that separate diagnoses of postnatal depression are not warranted based on the self-report of [BNF] who likened these events to "the baby blues", which were not as severe as other episodes she has experienced, and which are currently not causing any symptoms.
The Panel notes the presence of a specific driving phobia which commenced in January 2024. The Panel is of the opinion that this cannot be attributed to the subject motor accident because the claimant had been able to drive for at least six years after that time.
Finally, the panel diagnoses a somatic symptom disorder due to predominant pain which [BNF] says has been poorly explained by her treating rheumatologist and pain specialist. Clause 1.215 of the Guidelines provides the PIRS “must not be used to measure impairment due to somatoform disorders.”

Causation

The panel is satisfied the subject motor accident was of sufficient severity to result in a diagnosis of post-traumatic stress disorder. The panel believe this in fact did arise as a result of the subject motor accident and although some symptoms continue it is now in partial resolution. It is likely the claimant was more vulnerable because of previous difficulties with anxiety and depression. However, there was no convincing evidence of significant pre-existing impairment from that condition.
The panel is also of the opinion that the motor accident gave rise to a somatic symptom disorder with predominant pain. However, the panel does not make any determination regarding the cause of that pain.
The panel notes the presence of a specific driving phobia but there is no evidence linking this condition to the subject motor accident.
The panel has specifically chosen not to diagnose specific postnatal depressive disorders following the birth of her children. These are best regarded as time limited adjustment disorders similar to previous events in her life when she was overwhelmed, such as harassment at school. The panel references the claimant's own assessment that these episodes were not as bad as other depressive events in her life and that she is not currently depressed.

ASSESSMENT OF IMPAIRMENT

General Matters and the Guidelines

It is now nearly eight years since the subject motor accident. The claimant has not received any form of treatment for the last two years. Her condition is regarded as stable despite the recent exacerbation prior to miscarriage.
The PIRS provides in clause 1.219 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 1.220 for five classes with a descriptor for each which is “illustrative rather than literal criteria” 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[12] that is treatment such as medication being consumed to treat the psychiatric condition.
[12] See clauses 1.222 – 1.223 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[13].
[13] See clauses 1.225 – 1.228 and table 17.
The PIRS provides in clause 1.219 for six areas of function:
1.219.7    self-care and personal hygiene;
1.219.8    social and recreational activities;
1.219.9    travel;
1.219.10    social functioning (relationships);
1.219.11    concentration persistence and pace, and
1.219.12    adaptation.
The PIRS then provides at 1.220 for five classes with a descriptor for each which is “illustrative rather than literal criteria” 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[14] that is treatment such as medication being consumed to treat the psychiatric condition.
[14] See clauses 1.222 – 1.223 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[15].
[15] See clauses 1.225 – 1.228 and table 17.
The primary diagnosis is of a post-traumatic stress disorder with a somatic symptoms disorder due to pain.

Application of PIRS

Category	Class	Reason for Decision
Self Care and Personal Hygiene	2	[BNF] said this was better lately and she is now showering approximately every second day. She said she does struggle to do the laundry, but this is because of physical pain and she gets her partner and children to help. She also relies on her partner for housekeeping duties. From a psychiatric point of view, she is mildly impaired.
Social and Recreational Activities	3	[BNF] said she does occasionally see members of her family if they come to her and on a rare occasion a friend will visit. She said a lot of the difficulty arises from constant pain and she is not comfortable being outside of her home environment. She sees the house as a safe place. She is reluctant to travel to see friends because she does not feel safe away from her home. She is moderately impaired.
Travel	2	[BNF] is currently not able to drive and has not been able to do so since January 2024. Before that she was driving in an unrestricted manner. She said she is unable to use a bus because she will develop a panic attack (although she has not attempted it). She is able to catch a train but does feel a sense of anxiety. She said she does not believe she could travel by plane. Her visit to Fiji was on a cruise ship and she travelled to Queensland for a holiday by car. The panel does not believe her inability to drive is related to the motor accident because she had been able to drive for many years prior to January 2024. She is mildly impaired.
Social Functioning	2	[BNF] said the relationship with her partner Jarod is strong and they are not in danger of separation. Their separation following the birth of their son was not related to the motor accident. She described a good relationship with her children. She is now on speaking terms with her parents but said her siblings do not like her and do not speak to her. She is mildly impaired as a result of her psychiatric impairment.
Concentration, Persistence and Pace	2	[BNF] says she struggles with concentration and does have memory problems. She said she can easily be overwhelmed by circumstances. She is able to watch the news and shows like “Married at First Sight” on television. She is not able to go shopping because of anxiety and relies on her partner for this. He also attends to the family money. There was no clinical evidence throughout the hour long interview that [BNF] had a significant concentration or memory problem. She is mildly impaired.
Adaptation	2	[BNF] is not working but said she has applied for 15 jobs in the past 2 or 3 weeks without any reply. She said she wants to contribute and to feel useful but needs to find work within her physical and psychological capacities. The panel notes she has continued to function as a mother for 2 young children for more than four years. She is mildly impaired.

The six classes of impairment listed in ascending order are; 2, 2, 2, 2, 2, 3. The Median class score is 2 and the aggregate score is 13. In accordance with the conversion Table 17, this results in a WPI of 7%

Apportionment – pre-existing/subsequent impairment

The panel found no convincing evidence of a symptomatic pre-existing impairment, even though [BNF] noted difficulties with anxiety and depression during her schooling.
While she currently describes the onset of a specific driving phobia in January 2024, there is no evidence to link this development to the subject motor accident because she has been able to drive during the six years prior to that. No apportionment for subsequent impairment is required.
She says she is not currently depressed and the Medical Assessors found no evidence of a current depression.

Effects of treatment

There is little evidence that treatment has been effective. [BNF] said she received no benefit from her treatment, and she is not currently having any treatment and therefore, no treatment allowance effect is made in accordance with cls 1.222 and 1.223 of the Guidelines.

CONCLUSION

The Panel has determined that the claimant has a WPI as a result of this accident of 7%. There is no pre-existing impairment, no subsequent impairment and no adjustment for treatment.
As the Panel has come to the same conclusion as Medical Assessor Newlyn ordinarily his certificate would be confirmed however, as he has included the degree of WPI that he found (1%) on his certificate and the Panel has found a different figure (7%), the Panel must revoke the certificate.
The Panel directs that, pursuant to Rule 132 of the Rules, the decision be de-identified prior to publication due to the sensitive and personal nature of some of the claimant’s history and in particular the history involving her family members.

[2024] NSWPICMP 829

5 December 2024