BPQ v BVM
[2024] NSWPICMP 797
•27 November 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | BPQ v BVM [2024] NSWPICMP 797 |
CLAIMANT: | BPQ |
INSURER: | BVM |
REVIEW PANEL | |
MEMBER: | Alexander Bolton |
MEDICAL ASSESSOR: | John Baker |
MEDICAL ASSESSOR: | Michael Hong |
DATE OF DECISION: | 27 November 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of certificate and reasons of Medical Assessor (MA) Fukui dated 9 May 2023 who found the claimant suffered a Major Depressive Disorder and who assessed a whole person impairment (WPI) of 17%; the accident giving rise to this claim occurred on 28 May 2018 when the claimant’s husband had been transporting their son to a class and on returning home was involved in a fatal accident; the claimant was informed by telephone by another son that her husband had been fatally injured in the accident and thereafter immediately suffered a grief reaction; the insurer submitted that the claimant was exaggerating her symptoms and had also not disclosed a pre-accident psychiatric history; on examination the claimant was questioned at length about any possible prior psychiatric history and the Panel concluded that the claimant did not have any prior psychiatric disorder notwithstanding prior life stressors; there were some inconsistencies detected in the claimant’s responses but when questioned, the Panel was satisfied about her answers; Held – certificate of MA Fukui revoked; Panel was satisfied that the claimant had suffered a Major Depressive Disorder and assessed whole person impairment at 13%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Fukui. 2. The Review Panel determines that the claimant has suffered a Major Depressive Disorder. 3. The claimant has a 13% whole person impairment. |
STATEMENT OF REASONS
INTRODUCTION
This is an application by the insurer for review of a Certificate of Medical Assessor Fukui (the Medical Assessor) dated 9 May 2023.
The Medical Assessor found BPQ (the claimant) suffered a Major Depressive Disorder which was caused by the accident and gave rise to a permanent impairment of 17%.
There is a dispute between the claimant and the insurer about the degree of permanent impairment under Schedule 2 s 2(a) of the Motor Accident Injuries Act 2917 (the Act).
The following injuries were referred by the Personal Injury Commission (the Commission) for assessment:
(a) post-traumatic stress disorder and Major Depressive Disorder.
The incident
The accident occurred on 28 May 2018. The claimant was not part of the accident and did not see it happen.
On the day of the accident, the claimant’s husband drove her youngest son to boxing classes in South Granville. Shortly thereafter, the claimant heard police and ambulance sirens and immediately had a “bad feeling as it only takes 6 minutes to go and come back”.
She tried phoning her husband “a few times but he did not pick up”. She recalled that due to “that bad feeling getting worse”, she woke her son and “asked him to drive the same route” that her husband would have used. She recalled that before her son returned home, friends and family from the area came to the house and were offering her their condolences.
The claimant reported that eventually her son returned home and told her that her “husband had died in a car accident”.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Review Panel (Panel) have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned – see WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46].The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel has come to its own conclusion and has taken its own history.
Insurers submissions
Ground one – failure to read or engage with the insurer’s reply submissions
The insurer submitted that there was objective evidence the claimant was exaggerating symptoms in February 2020 and again in July 2022 and stated “That must be taken into account by any Medical Assessor and it is imperative that symptom validity testing is undertaken during the course of the assessment on behalf of the PIC”. The insurer says that the Medical Assessor failed to address this specific request entirely and did not consider the possibility of symptom exaggeration in her certificate.
The insurer says that at section 16 of the certificate, the Medical Assessor commented that “Her lack of engagement in the assessment process may have reflected her tiredness of the prolonged legal process after having seen numerous health care professionals”. The insurer submits that it could also have been explained by deliberate symptom exaggeration, but the Medical Assessor declined to turn her mind to that possibility, despite it being squarely alleged by the insurer in its submissions.
The insurer refers to page 3, paragraphs 2 and 3 of the certificate, the Medical Assessor stated “She denied a psychiatric history… She stated, “nothing was wrong with me”. The insurer says that it appears that report was accepted without question, even though the insurer’s submissions specifically drew the Medical Assessor’s attention to the claimant’s prior reports to Ms Mansuri on 9 January 2019 that at the time of her husband’s death in May 2018 she had still been in a state of grief in relation to her mother’s passing in March 2018, which was repeated to Dr Rikard-Bell on 10 December 2021. The insurer says that the departure from that history to the history as told to Dr Cipriani and Dr Taykar that she had disconnected from her mother many years ago was set out in the insurer’s submissions but was not addressed by the Medical Assessor or put to the claimant for explanation.
The insurer says that the claimant’s denial of any psychiatric history is inconsistent in the face of the objective evidence.
The insurer says that as set out in the its submissions, the timing of Ms Moodley’s examination on 10 February 2020, and the subsequent change, for the worse, in her reported symptoms by November 2020 when seen by Dr Taykar, must be considered in the context of Ms Mansuri’s records that noted the claimant’s report of financial difficulties as early as 6 February 2019, and that she had “consulted with a specialist regarding compensation” on 4 March 2020. The insurer says that in failing to seek from the claimant an explanation for the marked difference in reported symptoms between February 2020 and November 2020, the Medical Assessor fell into error.
Ground 2 – failure to read or engage with the medico-legal reports of Ms Moodley and Dr Cipriani
The insurer says the Medical Assessor did not acknowledge the following medical reports which were before her:
(a) the report of Ms Vanitha Moodley dated 20 February 2020, and
(b) the report of Mr Dino Cipriani dated 15 July 2022.
The insurer submitted that the documentation which the Medical Assessor considered was listed by her and did not include the reports of Ms Moodley and Mr Cipriani. The insurer says that either they were missed, or the Medical Assessor did not consider them to be relevant, in which case the Medical Assessor should have set out her reasons for concluding the reports were not relevant and why they should not be taken into account, yet she did not do so.
The insurer stresses the relevance of those reports which it summarised as follows:
(a) Ms Moodley undertook the first independent examination of the claimant on 10 February 2020. The history and background she obtained, and the claimant’s presentation were markedly different from subsequent examinations in that it was more positive, suggested a far greater level of functioning and noted prior life stressors which were not reported to other doctors.
The insurer submits the subsequent difference in presentation cannot reasonably be explained by the claimant’s report to the Medical Assessor that she was “feeling worse now than she did immediately after her husband’s death”, that examination having occurred one year and nine months after the accident, and not “immediately after” it.
(b) The insurer submits that procedural fairness dictated that the claimant’s presentation at that examination and the history she provided should have been put to her for explanation in light of the inconsistency between that presentation and history and her clinical presentation to the Medical Assessor.
Ms Moodley administered standardised psychological tests, the results of which revealed no issues with her cognitive functions and a deliberate aggrandizement of cognitive dysfunction that could not be accounted for by any other factor.
(c) Mr Cipriani provided a very detailed report. He also administered psychological testing, the results of which indicated deliberate underperformance on cognitive tests. He diagnosed a Prolonged Grief Disorder, which was not acknowledged nor addressed by the Medical Assessor.
Ground 3 – failure to read or engage with the claimant’s treating material
The insurer submits that given that the claimant was noted to have been a reluctant historian who did not engage in the assessment, then a thorough and proper consideration of all of the available material was all the more critical.
The insurer says that included within its reply were the following:
(a) clinical records produced by Dr Mervat Akladious as at 5 July 2021;
(b) clinical records produced by Dr Assad Saboor;
(c) clinical records produced by the Norval Street Medical Centre (Dr Abdallah);
(d) clinical records produced by AA Chiswick Road Medical Centre;
(e) clinical records produced by Chester Hill Family Medical Practice;
(f) clinical records produced by Mr Kasim Abaie, Today Psychology;
(g) clinical records produced by St Mary’s Medical Centre (Dr Moussad);
(h) clinical records produced by Dr Mervat Akladious as at 7 October 2022;
(i) records produced by Medicare, and
(j) records produced by Medicare Pharmaceutical Benefits Scheme (PBS).
The insurer says that the Medical Assessor did not refer to any of the above clinical records at all in her certificate.
The insurer says that in particular, the clinical records of the claimant’s treating general practitioner (GP), the Norval Street Medical Centre, which contain the records of Ms Nilaab Mansuri which differ slightly from the records provided by the claimant’s solicitor, are highly relevant to the assessment of the claimant, yet those records in particular have not been acknowledged or referred to, and no explanation has been provided as to why..
Ground 4 – failure to comply with clause 6.41 of the Motor Accident Guidelines
The insurer submits that in light of the inconsistences between the claimant’s clinical presentation during the assessment and the documentation provided to the Medical Assessor, the Medical Assessor has failed to comply with clause 6.41 of the Motor Accident Guidelines (the Guidelines) which requires that:
“Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person's attention.... The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness”.
Insurers submissions going to whole person impairment (WPI) assessment
The insurer submits the psychological injuries do not give rise to any ongoing WPI in excess of the 10% threshold. The insurer says that in support of that submission:
(a) the first independent examination of the claimant was undertaken by Ms Vanitha Moodley, psychologist on 10 February 2020, in person. The claimant attended unaccompanied, save for interpreters. That examination occurred at the request of the insurer. Ms Moodley administered standardised psychological tests: Mini- Mental Status Examination 2-Short Version; Test of Memory Malingering (symptom validity test); Impact of Event Scale-Revised; ES-R.
(b) In her report dated 20 February 2020, Ms Moodley notes that she obtained the following history from the Plaintiff:
(i) She tearfully recounted her father had been gunned down outside of her uncle’s home when she was four years old and that her mother had passed away at the age of 72 of a pulmonary condition exactly one month and three weeks before the accident. They had a close relationship.
(ii)On travelling to Australia with her late husband in 1989, they lived with her parents-in-law who treated her badly. After an 18 month return to Lebanon, the claimant and her husband returned to Australia without their son who was to be brought back to Australia by her parents-in-law. However, they kept him there for five years.
(iii)The claimant did not become tearful when recounting the accident or the receiving of news of her husband’s passing.
(iv)Her mood was consistent with grief and bereavement.
(v)She said that after the accident, her memory and concentration were very bad and sometimes she forgets the days of the week. However, no evidence of cognitive decline was observed over the course of the examination.
(vi)Prior to the accident the claimant enjoyed socialising with friends and cousins and went out with her late husband. She has four grandchildren but only has contact with her daughter’s children. She had good relationships with her children. Her late husband always dealt with conflict between her children – usually between her two oldest sons.
(vii)Following the accident, the claimant spent more time with her niece which appears to have resulted in some conflict with her daughter who accused her or preferring her niece. Her family would visit and call her. The conflict between her sons got worse and that caused her too much stress and she could not cope and manage them. Her youngest son was depressed and blamed himself for the accident. She did not know how to help him.
(c) Psychological testing revealed:
25.no issues with her cognitive functions. She was able to do serial seven calculations (slowly, consistent with her below average academic ability); no struggle with attention or concentration was observed and she had adequate and reasonable abstract thought ability;
(i)deliberate aggrandizement of cognitive dysfunction that cannot be accounted for by age, level of education, language or cultural background, depression (even in severe forms), post-traumatic stress disorder or any form of anxiety disorder, psychosis, medical conditions affecting energy levels, or level of pain. Results were significantly below chance and inconsistent with genuine cognitive impairment, and
(ii)an absence of post-traumatic stress disorder.
The claimant was examined by Dr Taykar on behalf of her solicitors on 28 October 2020 by video link. On that occasion, the symptoms reported were very different. The insurer notes Dr Taykar did not administer any psychological testing.
The claimant was examined by Dr Rikard-Bell on behalf of the insurer on 10 December 2021 by video link. His report is dated 11 March 2022. The insurer notes the following:
(a) Again, a different history and background was provided compared to that obtained by Ms Moodley, whose examination was first in time.
(b) The claimant said that when the accident occurred, she was still in a state of grief in relation to her mother’s passing. That is consistent with the same report of Ms Mansuri on 9 January 2019. However, the insurer says this is inconsistent with the report to Ms Moodley and Dr Taykar, when the claimant said she had disconnected from her mother many years ago as she left her mother in Lebanon when she was age 18. Dr Rikard-Bell was also not told about the difficulties with the claimant’s parents-in-law and forced separation with her eldest son.
(c) To Dr Rikard- Bell, the claimant described her daily routine was waking at 12pm; returning to her room to eat; sitting on the sofa. Her daughter prepared the dinner. She said she relied on her daughter to help with her hair when showering and to assist with clothing and managing the household.
(d) The claimant reported still having a close relationship with her children, but that there was a lot of stress in the family.
(e) The claimant said she was unable to focus on managing tasks or complicated
issues. She said she could not follow recipes. Dr Rikard-Bell did not administer any psychological testing.
(f) The claimant said she was not interested in seeing friends or social interaction. She does not like to go out without a support person. She did not like to travel or drive since the accident.
The insurer acknowledges Dr Rikard-Bell assessed WPI at 15% having provided a report dated 11 March 2022. However, the insurer does not rely on that assessment for the reasons that follow;
(a) In light of the contrast between the history reported to Ms Moodley and Dr
Rikard-Bell, the insurer sought reassessment by Ms Moodley. Due to Ms Moodley’s ill health, he could not undertake that examination.
(b) Mr Cipriani, psychologist examined the claimant in person on 15 July 2022. The claimant attended alone, except for an interpreter. His report the insurer notes the following:
(i)The claimant denied ever having known her father.
(ii)On this occasion, the claimant said she could not remember the year she came to Australia, consistently reported as 1989 at the three previous examinations. She could not remember the ages of her three children. She could not recall the level of formal education she had received in Lebanon.
(iii)She said she was happy with her husband but Mr Cipriani noted the report she had not been treated well by him during the first 20 years of their marriage as documented in the report to Ms Mansuri on 28 November 2019.
(iv)When asked about the passing of her mother, the claimant said she was ‘just a bit sad’ at the loss of her mother, as she had left her in Lebanon a long time ago. Her mother had died a couple of days after she had arrived in Lebanon. She stayed for the funeral but was not very sad. She did not cry much. She had cried at leaving her husband to travel to Lebanon in the first place which she had done at her husband’s insistence. The insurer notes that the claimant stayed in Lebanon for a month.
(v)As to her role caring for her husband, she said he was independent in activities of daily living and that she received a carer’s allowance because she lived with him.
(vi)She had no plans to enter the paid workforce at any stage of her life prior to the accident. She would have continued to care for her husband, receiving a carer’s pension indefinitely.
(vii)She reported her niece would cook for her and clean the house. At the time of the examination, she said her daughter did everything for her. Her niece drove her to the cemetery once a month. For a year she went every day but now her children do not let her go all the time.
(viii)Mr Cipriani administered standardised testing which covered intellectual functions, memory functions, performance validity and academic achievement. It seems she scored relatively poorly in all testing. Mr Cipriani confirmed she failed the test of memory malingering with results suggesting she had no memory at all, which he noted was inconsistent with her ability to provide a history on examination and attend treatment with Ms Mansuri. Performance validity testing indicated deliberate underperforming on cognitive tests.
(ix)Mr Cipriani noted the claimant’s report of financial difficulties as early as 6
February 2019 which he felt represented an emerging motive for compensation seeking and significant factor reinforcing the Plaintiff’s lack of response to treatment.
(x)He diagnosed a Prolonged Grief Disorder, the symptoms on which he felt had been influenced and maintained by family members reinforcing the sick role [based on the history provided to him and his review of the available material] since 2020 on the basis she previously told Ms Moodley in February 2020 that she was independent in activities of daily living, domestic tasks and driving but now says she cannot perform any of those tasks and was totally reliant on her daughter and niece.
(xi)He considered the claimant did not have a permanent impairment as a result of psychological injuries related to the accident. Testing revealed she was exaggerating symptomatology and disability. On that basis, he believed that previous WPI assessments were probably invalid due to the claimant’s tendency to exaggerate symptoms and family members reinforcing the sick role. With respect to Dr Rikard-Bell’s assessment, he noted there was no reference to the evidence of Ms Moodley that testing revealed symptom exaggeration, which was also present on testing administered by Mr Cipriani.
For those reasons and based on that opinion, the insurer does not rely on the WPI assessment of Dr Rikard-Bell and submits that it ought to be considered invalid.
Following on from the above, the insurer submits:
(a) There is evidence the claimant was exaggerating symptoms in February 2020 and again, in July 2022. That must be taken into account by any Medical Assessor and it is imperative that symptom validity testing is undertaken during the course of the assessment on behalf of the PIC.
(b) The WPI assessments of both Dr Taykar and Dr Rikard-Bell ought to be considered invalid. Both had before them the opinion of Ms Moodley, yet despite being on notice of potential symptom exaggeration, neither performed any validity testing.
(c) The claimant has reported a significant deterioration in symptoms since February 2020. The insurer submits that most of that appears to have occurred, based on a comparison of her evidence, between February and November 2020.
(d) Ms Mansuri’s clinical records note that the Plaintiff first ‘consulted with specialist re compensation’ on 4 March 2020, approximately three weeks after she had been examined by Ms Moodley.
With specific reference to the Psychiatric impairment rating Scale (PIRS):
(a) Self-care and personal hygiene. The Insurer submits a class 1 impairment assessment is appropriate.
(b) Social and recreational activities the insurer submits this category ought to be assessed as a class 1 impairment. The claimant told Mr Cipriani she does not like anything, does not like people and does not like talking to anyone. She said she does not like to go out anywhere. It is submitted the claimant’s report is unreliable, noting also the evidence of symptom exaggeration, and that this category ought to be assessed as a class 1 impairment.
(c) Travel. The insurer submits this category ought to be assessed as a class 1 impairment.
Social functioning. The insurer submits this should be assessed as a class 1 impairment.
(d) Concentration, persistence and pace. The insurer submits this should be assessed as a class 1 impairment.
(e) Adaptation The insurer submits this should be assessed as a class 1 impairment.
The insurer submits that the claimant does not present with any ongoing WPI greater than 10%.
Claimant’s submissions
The parties were each directed to lodge a bundle of documents upon which they relied with respect to the insurer’s review application. The insurer lodged its bundle of documents on 9 July 2024. The claimant did not lodge any bundle of documents pursuant to the direction which issued by the Panel on 13 June 2024. The claimant did however lodge submissions in reply to the insurer’s review application on 20 July 2023.
The claimant notes that in her certificate, the Medical Assessor stated that although the claimant was unreliable during the assessment process, the information provided by her was not inconsistent with the documents. The claimant submits that it is fair and reasonable to accept that the tiredness of the claimant demonstrates the effect that the accident has had on her sleep and her ability to function.
It is the claimant's submission that the Medical Assessor has properly considered the test of inconsistency and applied the test in this matter when providing her opinion. On this basis, the claimant submits that the insurer's submission would fail.
The claimant submits that the medical evidence alone obtained by the insurer, being that of Dr Rikard-Bell, plainly sets out the claimant's complaints, issues and current functioning as well as the WPI as a result of the injuries. The claimant says that Dr Rikard-Bell accepts the claimant as suffering a recognised psychiatric illness and certifies 15% WPI for these injuries which are causally related to the subject incident.
The claimant says that the insurer is not in a position to pick and choose which medical evidence they prefer when a report commissioned by them does not assist them in defending a claim. The claimant says that it is unfair that she has been subjected to repetitious medical assessments which, the claimant submits, are an abuse of process and are not in line with the Act, that is, to provide a fast. just and expeditious resolution of a claim.
Medical evidence
The Medical Assessor concluded in her certificate and reasons that the claimant presented with a history and findings consistent with Major Depressive Disorder on a background of grief reaction. The Medical Assessor said that the claimant described persistent depressed mood and sadness, loss of interest, anhedonia, anergia, loss of appetite, poor sleep and thoughts about death. Her self-care had declined, and she had stopped driving, cooking and attending to housework. The Medical Assessor said that the claimant therefore described a significant decline in her level of functioning.
The Medical Assessor said that the claimant denied a past psychiatric history. She reported functioning well and enjoying her family life prior to the subject motor accident. She developed significant psychological symptoms following the sudden death of her husband from the subject motor accident.
The Medical Assessor was of the finding that the claimant’s psychological injury was causally related to the subject motor accident.
The Medical Assessor said that the claimant did not meet the diagnosis of post-traumatic stress disorder as she was not actually exposed to the trauma of the subject accident, nor did she witness the accident or the death of her husband. She therefore did not meet Criterion A of Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria for post-traumatic stress disorder.
The Medical Assessor diagnosed the claimant as having a Major Depressive Disorder.
The Medical Assessor provided the following Permanent Impairment Rating Scale (PIRS)
Psychiatric diagnoses
1. Major Depressive Disorder
2.
3.
4.
Psychiatric treatment description
Antidepressant medication, psychological therapy, psychiatric review.
Category
Class
Reason for Decision
1. Self Care and Personal Hygiene
2
BPQ showers every two days, and her daughter helps and sits with her in the bathroom. She stopped cooking and doing housework but will eat the food placed in front of her. I noted that she was well groomed for the assessment in that she wore lipstick and wore some jewellery. Her hair was covered by a hijab, however.
2. Social and Recreational Activities
3
She does not go out except for medical and psychology appointments. She does not go out for social events and does not like interact with people. If her children’s friends visit, she retreats into her room.
3. Travel
3
She stopped driving and her daughter drives her to attend appointments. She reported experiencing anxiety when she gets in her car.
4. Social Functioning
2
She is supported by her adult children and denied any deterioration in her relationship with her family. However, she is less tolerant of her grandchildren although she does enjoy seeing them. She avoids social interactions with people outside of her family. She sees her brother less frequently.
5. Concentration, Persistence and Pace
3
She is not interested in reading or watching television. She used to check the bills but no longer can be bothered. There was no evidence to suggest that she has significant cognitive impairment or that it is impacted by her depressive symptoms of loss of interest and tiredness.
6. Adaptation
3
BPQ has never been in paid employment. Her usual role has been that of a parent and housekeeping. She stated that she has stopped cooking and cleaning the house and that her daughter assists with those tasks. There was no evidence to suggest that she was incapable of cooking or cleaning the house but rather a loss of interest and tiredness has resulted in her children taking over these tasks.
List classes in ascending order:
2, 2, 3, 3, 3, 3
Median Class Value:
3
Aggregate Score:
16
% Whole Person Impairment:
17 %
Report of Dr Takyar, consultant psychiatrist dated 7 November 2020 - Dr Takyar provided diagnoses of Major Depressive Disorder and Generalised Anxiety Disorder following the death of her husband. He said there was a guarded or poor prognosis. His WPI assessment was 19%.
A report from Ms Mansuri, clinical psychological registrar, dated 9 January 2019 noted a diagnosis of bereavement and Major Depressive Disorder. The claimant was reported to have had 10 sessions of psychology. Ongoing stress was noted and associated with financial hardship and family difficulties and her difficulties in coping with her children.
Report by Dr Saboor, psychiatrist, dated 26 September 2018 addressed to Centrelink notes a diagnosis of depression and treatment on mirtazapine 15mg.
A report of Mr Abaie, psychologist, dated 4 April 2020 noted an initial appointment in relation to psychological therapy and counselling with Major Depression. On 23 January 2021 it was noted that there had been six appointments in relation to Major Depression, grief and insomnia.
A further report by Mr Abaie, dated 13 March 2021, noted a diagnosis of Major Depressive Disorder with grieving and insomnia due to the death of the claimant’s husband following the accident on 28 May 2018. He recorded the claimant’s severe stress and worry due to her husband’s death and lack of support.
Dr Rikard-Bell, consultant psychiatrist, provided a report for the insurer dated 11 March 2022.
Dr Rikard-Bell noted a report on 27 August 2018 of Dr Akladious who said there was Major Depression and on 5 December 2018 noted there was still Major Depression.
Dr Rikard-Bell reported that there has been no previous anxiety, depression or psychological treatment or counselling.
Dr Rikard-Bell said that the claimant felt a great loss as well as guilt about the death of her husband as she had asked him to drive their son to a boxing class on the day of the accident.
He concluded a diagnosis of Major Depressive Disorder with WPI of 15%. His PIRS assessment was as follows:
Psychiatric Diagnoses
1. Major Depression
Psychiatric Treatment
-Description
Psychological counselling
Antidepressant medication
Category
Class
Reason for Decision
Self-Care & Personal Hygiene
2
Currently BPQ finds it difficult to get up in the morning and take care of herself. She relies on her daughter to help her with her hair when showering and to assist with clothing, as well as assist with managing the household. She lacks motivation to care for herself well, nevertheless she appeared well groomed and presented neatly attired. Therefore, there is mild impairment of
self-care and personal hygiene.
Social & Recreational Activities
3
In terms of socialisation, BPQ reported she was not interested in seeing friends, going out or interacting in a social context. She has pushed others away and she has no interest in seeing others. She can tolerate visits; however, she does not like to go out without a support person. Therefore, there is moderate impairment of social and recreational activities.
Travel
3
In terms of travel, BPQ reported that she no longer drives and if she has to go out someone in the family will drive her, as she does not like to travel or drive since the motor vehicle accident. Therefore, there is moderate impairment of travel.
Social Functioning
2
In terms of relationships, BPQ has a close relationship with her children, however, there has been a lot of stress in the family. Her children struggle to be cohesive and they are very reclusive. One son has been gaoled and her daughter provides a lot of support for the family. Therefore, there is mild impairment of social functioning.
Concentration, Persistence & Pace
3
In terms of concentration, BPQ cannot focus on managing tasks or cope with complicated issues. She cannot sustain attention to follow recipes or fulfil any complicated tasks. Therefore, there is moderate impairment of concentration,
persistence and pace.
Adaptation
2
In terms of adaptation, BPQ was not working prior to the accident. Her children are all adults and she does not need to care for them. There is no indication that she would be moving into the workforce in the future, however her depression would most likely relate to a reduction in her functioning. Therefore, there is mild impairment of adaptation.
List classes in ascending order:
2
2
2
3
3
3
Median Class Value: Aggregate Score:
Whole Person Impairment: 15%.
There was no apportionment for pre-existing injuries.
There was no adjustment for treatment effect as these symptoms were still ongoing and further treatment was recommended.
Ms Moodley, psychologist, provided a report dated 20 February 2020 for the insurer. She noted that prior to the accident, the claimant’s mother passed away, in Lebanon. The claimant attended the funeral and stayed there a month. Following her return three weeks later the motor vehicle accident occurred which resulted in the fatality of her husband.
Ms Moodley administered a number of tests. She reported that the claimant’s response on the test of Memory Malingering (TOMM), where she failed to correctly recognise an excessive number of the stimulus items on both learning trials, were well-below expectations for individuals with genuine cognitive impairment and was not consistent with what is known of genuine disorders affecting memory and concentration.
Ms Moodley said that the claimant’s score of 32 on Trial 1 and 29 on Trial 2 suggested deliberate aggrandisement of cognitive dysfunction that cannot be accounted for by age, level of education, language or cultural background, depression, even in severe forms, post-traumatic stress disorder or any form of anxiety disorder, psychosis, medical conditions affecting energy levels, or level of pain.
Ms Moodley said that overall, the claimant’s results suggested poor effort, which was substantiated in her performance on the TOMM where her scores on both trials were significantly below chance and inconsistent with genuine cognitive impairment. Her performance on Trial 2 which was worse than her performance on Trial 1 provided strong evidence of embellishment of cognitive related symptoms. She did not provide a diagnosis.
The insurer obtained a report dated 15 July 2022 from Mr Cipriani, psychologist.
He noted that the claimant had previously failed performance validity testing and was fabricating memory deficits as per the results and report of Ms Moodley of 20 February 2020. He said that the claimant fabricated intellectual, memory and academic impairments, confirmed by her failures on performance validity testing and unlikely memory problems reported on the Structured Inventory for Malingered Symptomatology for example, not remembering her date of birth or address.
Mr Cipriani said that a review of documents and current clinical presentation indicated that the claimant developed a Prolonged Grief Disorder based on DSM-5-TR criteria, which was not a minor injury, given the reported and documented symptoms lasting more than four years. Grief relating to the death of her mother two months prior to the death of her husband on 25 May 2018 appeared to have been less than experienced after the death of her husband but may have contributed to grief over the loss of her husband to some degree.
He said that her symptoms had been influenced and maintained by family members reinforcing the sick role and compensation seeking since 2020. She was previously independent in activities of daily living, domestic tasks and driving but now claimed that she could not perform any of these and was totally reliant on her daughter and niece.
It was reported that the claimant’s son was in gaol but was due to be released within a few months of this examination. There was also conflict with the claimant’s daughter-in-law and grandchildren. Additionally, it was reported that there were issues concerning an apprehended violence order against the claimant and her son.
Mr Cipriani concluded that from a psychological perspective, he did not currently regard the claimant as having permanent impairment due to her previous psychological injury, particularly as she was exaggerating symptomatology and disability, which he said was presumably to enhance her claim.
Mr Cipriani said that previous assessments of WPI were probably invalid due to the claimant’s tendency to exaggerate symptoms, for example memory and concentration problems, and family members reinforcing the sick role which were not considered in assessing WPI based only on self-report.
Mr Cipriani said that the 19% WPI assessment by Dr Takyar of 2 February 2020 and the 15% WPI assessment reported by Dr Rickard-Bell of 11 March 2022 did not refer to the evidence provided by Ms Moodley in her report of 20 February 2020 for symptom exaggeration. He said that his current assessment found that the claimant continued to grossly exaggerate cognitive complaints and reported disability in independent living skills.
Medical examination
The claimant was examined by Senior Medical Assessor Baker and Medical Assessor Hong on 6 November 2024. There report and findings follow.
“History
1. Psychosocial history and pre-accident history
In terms of developmental history, BPQ was born in Lebanon and came to Australia around 1989. She was engaged in Lebanon and married in Australia when she was 18 years of age.
In terms of her education history, she had completed nine years of school. she had never been employed in the mainstream jobs market since her arrival in Australia. she was always a homemaker. She performed household chores and homemaker duties.
She does not use recreational drugs and does not abuse alcohol.
On specific enquiry, she does not recall having a specific medical disorder. Her daughter takes her to the GP for check-ups.
Regarding her son's forensic history and him being incarcerated, her response was that he was ‘crazy’ so she wouldn't know anything about what he does.
On inquiry about the apprehended violence order (AVO) against her son and her, she said she doesn't know anything about both matters. The Panel asked her about not being able to see her two grandchildren because of the AVO. She said she doesn't want to see anybody, but doesn't know whether she's allowed to see them legally or not.
In terms of past psychiatric history, BPQ stated that she had no history of psychiatric issues and had never seen a counsellor or received psychological or psychiatric treatment. She said she was very happy. She added after her husband's death, she became unhappy.
BPQ confirmed having witnessed her father being killed at the age of four years. She said she has almost no memory of this traumatic event, other than the fact that he died in front of her.
A couple of weeks before the subject accident, BPQ went to Lebanon and saw her mother before she passed away. Then she returned to Australia. She has not had grief counselling related to her mother, and has no overt psychological problems related to that loss now. She said she left Lebanon when she was young and was not very close to her mother.
BPQ does not have a past psychiatric or psychological disorder.
2. History of the motor accident
Regarding the subject accident on 28 May 2018, BPQ confirmed it occurred during Ramadan, and they were fasting. She recalled she told her husband to drop off their son for a boxing lesson. She was supposed to take her son to boxing but she did not. She does not remember how she became informed of the accident and she did not go to the location of the incident. She said she remembered that when she was told he had died, she screamed, she cried for all that day. She does not recall going to the hospital or having to identify her husband’s body.
BPQ married at age 18 years of age and said her whole life was spent with her husband. She does not know is he had any medical or psychological conditions. She could not confirm his health issues or a diagnosis of multiple sclerosis, but she recalled that he had severe recurrent leg pain. She could not confirm whether she received a Carer’s payment from Centrelink. She said she was always with him, went out with him, and they were happy together; she stated that he was her life.
BPQ answered many questions during the assessment with ‘I don’t remember.’ She was reassured during the re-assessment however she remained avoidant about thinking or remembering the motor accident and its consequences to her life since her husband’s death.
3. History of symptoms and treatment following the motor accident
BPQ developed anxiety and depressive symptoms shortly after the subject accident. She experienced driving anxiety and no longer drives since the accident.
BPQ looks at her husband's photo and her daughter plays a recording of the Koran for her to listen to. She said she is not supposed to recover from her husband’s death. On further enquiry, she said she is not happy and could not expect to be happy since the death of her husband. She said her daughter tells her to get out and leave the room where she spends most of her days alone. She said she avoids going out as outside of her room the environment is too noisy and she goes back to her room quickly due to her finding the noise distressing.
BPQ said she is dead. On further enquiry, she said she is tired and has heart aches and ‘life is not beautiful’. She said if her husband returns, she would be happy. Then said she was uncertain and would not know if she was capable of being happy in the future or that she may still be unhappy, indefinitely. She prays for her husband that he is resting. She prays for herself, ‘Dear Lord, I want to recover’, but she has not been able to recover.
BPQ does not remember having said goodbye to her husband after the accident, at a wake or funeral.
BPQ said she sees her husband in her room every night or ‘something in my room’, without true psychotic symptoms. This experience reported by BPQ could be hypnogogic or hypnopompic hallucinations. Visual experiences such as hypnogogic and hypnopompic hallucinations within accepted normal human experience and commonly occur at the time of induction of sleep or waking from sleep. She frequently sees her husband standing next to her bed and once she sits up in bed, he is gone. She then said these are nightmares and he pushed her body.
BPQ said she is ‘not permitted’ to sleep at night, because she is used to her husband being next to her and he is not here now.
4. Details of any relevant injuries or conditions sustained since the motor accident
BPQ has not had further accidents or sustained other psychological injuries. The Panel noted her son’s legal history.
5. Current symptoms
BPQ described having depressed moods and nothing cheers her up.
The Panel explored her anxiety, and she said she is afraid of everything, the dark, people and cannot relax. She said she wants to live. She is generally tired. She reported having major problems with her concentration and memory. She cannot sleep at night and usually sleeps during the day. She does not know her weight and does not know if her weight changed in 2024.
She does not talk to anyone, and does not get angry. She does not have active suicidal ideation. She said she killed her husband because she told him to take their son to boxing. She said, ‘I am to blame.’
6. Current and proposed treatment
BPQ is currently taking Mirtazapine 30 mg, but reported this to be ineffective. She consulted Dr Assad Saboor and Mr Kassim Abaie, psychologist and psychiatrist, but not for a long time now. She has not had a psychiatric admission in relation to this psychological injury.
There are no proposed treatments for BPQ in the future.
Clinical Examination
7. Mental State examination
BPQ was assessed by video and was at home. Drs Baker and Hong were in their Sydney offices.
Ms Lama Al-Akharas was the Arabic interpreter.
BPQ wore a black hijab and appeared well-groomed. Her eyebrows were done not long ago. Her face was fully visible. She gestured regularly and was increasingly animated as the assessment progressed. She was not agitated. She often closed her eyes during the assessment. There was no psychomotor slowing or abnormal movements, or latency in her response. She was moderately restricted in her affect range and reactivity. She spoke spontaneously and was not thought disordered, however she was often imprecise, vague and responded ‘I don't know’. Many questions were repeated and reframed, to ensure that BPQ’s comprehension was normal.
The Panel discussed with BPQ about her concentration, that was good even after 1 hour of assessment and she agreed.
8. Current functioning
BPQ is 52 and has four adult children and four grandchildren. She says her daughter does not live with her, but generally comes to help with cooking and cleaning. She thinks there are three adult children living at home, but they come and go, and make a lot of noises, so she's often in her room and never really knows who is at home.
The Panel asked about festivals or special events, BPQ said she does not have anything or any happiness in her household. She does not celebrate the new year, she does not prepare food with other women during Eid and does not fast during Ramadan anymore.
BPQ said she does not see anyone, only her family. She said her body aches everywhere. She does not want to leave her room, and said her daughter comes to help, fix her bed, clean and help shower her. She does not take walks with her daughter or alone. BPQ said her daughter dresses her as she has pain and is unable to dress herself without assistance. She said she only wears simple clothes as this was more appropriate since the commencement of her widowhood.
BPQ does not go to visit her husband's grave anymore, even around the anniversary of his death, she could not remember when she stopped attending his grave. She does not remember attending his funeral. She said she does not go to visit his grave, because she cannot walk outside of her home.
BPQ said her husband is upset with her, therefore comes to her every night. She prays and said ‘God, please forgive me’. She said she is to blame for her husband’s death as she was the person who should have died instead.
BPQ completed 9 years school and has never been employed.
The Panel asked about her functioning, before and after the subject accident, she said she did not need to work as she was married and did household chores and looked after the children.
BPQ said she wore makeup before the subject accident but not now. She said her daughter fixes her eyebrows, her moustache, and helps her shower as she cannot stand, so she does not shower daily. She cannot change her clothes without assistance, she said in case she falls.
BPQ does not eat much, generally once a day ‘so I don't die’. She said her daughter makes and brings food to her.
BPQ said she does not go to the shops. She has a driver's licence and no longer drives, she goes to her appointment with her daughter, as she worries about being in accident similar to her husband. She does not want to walk, as she has aches in her whole body.
BPQ does not watch television and does not have a TV in her room. She does not follow the news or listen radio. She does not cook, and does not like to be in the kitchen. She does not have visitors, and her family, cousins and friends do not contact her. She said she does not want to see anyone. She has a brother is in Australia, but he does not visit her.
Review of Documentation
9. Summary of relevant documentation
Dr Ash Takyar IME psychiatrist's report dated, 7th November 2020, diagnosed major depression disorder, generalized anxiety disorder, with WPI 19%.
Dr Fukui's Certificate 20 April 2023 diagnosed major depression disorder with WPI 17%, and the Panel noted she recorded a generally similar history, but overall the panel found her concentration, persistence and pace to be less impaired, and noted some inconsistency in the available documentation related to her cognitive difficulties.
The Panel noted Dr Fukui wrote that she's not interested in reading or watching television, and cannot be bothered checking her bills anymore, and said there's no evidence that she has significant impairment, but Dr Fukui rated concentration, persistence and pace as 3. The panel noted that she stopped some tasks because of motivation problems and depression, but not due to her cognitive difficulties and based on her presentation on the day of assessment, the Panel rated 1.
Ms Mansuri, treating psychologist, reported on 9th January 2019, diagnosed bereavement, major depression disorder, and she had 10 sessions already.
Dr Assad Saboor treating psychiatrist 26th September 2018, wrote a Centrelink about her having depression.
Kassim Abaie, treating psychologist, 13th March 2021, diagnosed major depression and grieving.
Dr Christopher Rikard-Bell IME psychiatrist provided a report dated 11th March 2022, diagnosed major depression disorder and he assessed her WPI at 15%. Dr Rikard-Bell noted before the accident BPQ was a happy person, cared for herself well, related well to friends and family, enjoyed supporting and caring for the family, and she could drive and travel without any problems.
Dr Rikard-Bell assessed her adaptations as 2, but seemed to focus on her ability to work, even though she's never worked previously. The panel considered her life roles before the accident, which predominantly revolved around looking after her family, and since the accident, and overall considered this to be more impaired at level 3.
Ms Moodley, independent psychologist, 20th February 2020, noted BPQ's previous life trauma, but she had no prior psychiatric disorder. She noted that before the accident, BPQ was able to do a lot of things, look after the family, bake, cook, watch Arabic television, and socialize with friends and cousins. She said BPQ was not forthcoming about discussing her husband's multiple sclerosis. She performed psychometric testing, Tests of Memory Malingering (TOMM) and said that the results suggested deliberate aggrandisement of cognitive dysfunction. Nevertheless, she suggested further treatment for her psychological condition. She did a mini mental state examination, and the result was commensurate with her education.
Mr Dino Cipriani, independent psychologist reported on 15th of July, 2022, said that it's difficult to estimate BPQ's pre-morbid intelligence, but probably low average. The responses on the mathematical tasks were consistent with limited schooling. On the Structured Inventory of Malingered Symptomology (SIMS), her score was above the cut-off for fabricated memory complaints. The panel considered this result when assessing her and concluding that her CPP should be a 1. The Panel noted there is no evidence that beyond exaggerated cognitive impairment, she had non-genuine impairment in other categories of the PIRS, as the other evidence from different treating and assessing psychologists and psychiatrists, consistently portrayed her as being impaired and limited in daily functioning, aside from inconsistency in her self-reported memory. Mr Cipriani discussed other stressors, including her son's incarceration to be released within months of his examination, alienation from daughter-in-law and grandchildren due to ongoing conflict and AVO against her and her son.
Determinations
10. Diagnosis and causation
BPQ had encountered trauma early in life, and went to Lebanon to see her mother before she passed away. Within weeks of returning to Australia, her husband passed away in a road accident, and she suffered persistent depression, consistent with Major depression disorder. She described consistently impaired daily functioning. There was inconsistency identified in her self-reported cognitive dysfunction, this was brought to her attention during the assessment, and the Panel has assessed and deemed her to have only minor deficit in her concentration, persistence and pace.
The Panel diagnosed a Major depressive disorder and noted her psychological symptoms and functioning are entrenched and permanent. She has a grief reaction which is prolonged, and has an additional Prolonged grief disorder.
The Panel accepted she experienced grief and personal stressors before the subject accident and discussed these with her during the assessment. The Panel concluded this was not a psychiatric disorder, and she did not have a pre-existing psychiatric condition.
The Panel noted she was assessed by Ms Moodley on 10 February 2020 and presented as more positive, despite prior life stressors not reported to other assessors, and subsequently, she has declined further. The Panel noted her explanation of those non-MVA life stressors. The overall evidence showed she has declined gradually after the subject accident, and there were no new psychological injury and the chain of causation was not snapped.
BPQ has no past psychiatric history and developed her current psychological symptoms immediately after the accident and her condition deteriorated gradually over time. The Panel noted difficulties related to her son and daughter in-law, and there are no other stressors or contributing factors identified. The Panel concluded there is more than a negligible contribution from the subject accident to BPQ's current psychological injury.
The insurer submitted, there is evidence the claimant was exaggerating symptoms in February 2020 and again, in July 2022. That must be taken into account by any Medical Assessor and it is imperative that symptom validity testing is undertaken during the course of the assessment on behalf of the PIC. The Panel has considered this and applying clinical judgment, and identified exaggerated symptoms in her cognitive functioning.
In assessing her permanent impairment, the Panel confirmed an inconsistency in her reported impairment in concentration, persistence and pace, but not in other domains of her functioning, and rated her PIRS accordingly.
11. Psychiatric Impairment Rating Scale
1. Self Care and Personal Hygiene
2
BPQ said she needs help with showering due to her body aches and fall risk. BPQ's physical symptoms and impairment, are not assessable in the PIRS. She does not know her weight, and her weight is unlikely to be significantly altered as she has not noticed a difference. She eats once a day only and does not need prompting with eating. Overall, her psychological impairment is consistent with 2.
2. Social and Recreational Activities
3
She avoids social gatherings and does not have any social and recreational activities, and does not attend any special celebrations since the accident.
3. Travel
3
BPQ is anxious and worries she would be struck by a car like her husband, and does not go out on her own. She is always accompanied, generally by her daughter. She no longer drives since the accident.
4. Social Functioning
2
She does not have contact with her friends or cousins, or other family. She said her children come and go and her relationship with her children and grandchildren has declined and remained intact.
5. Concentration, Persistence and Pace
1
BPQ reported having reduced concentration and acknowledged she focussed well during the assessment, even after 1 hour (she was assessed for 75 minutes). The assessment is an intellectually demanding task.
The Panel concluded she has no deficit or minor deficit, attributable to the normal variation in the general population.
6. Adaptation
3
BPQ has never worked. Comparing her productivity before and after the subject accident, the Panel concluded she has moderate impairment, as she does not contribute to her household chores or look after her family, as she used to. Her physical symptoms are part of the problem but are not assessable in the PIRS.
List classes in ascending order: 122 333
Median Class Value: 3
Aggregate Score: 14
% Whole Person Impairment: 13 %
*%WPI = Percentage Whole Person Impairment
12. Psychiatric Impairment Rating Scale
Pre-existing/subsequent impairment
BPQ has not sustained a subsequent injury.
She has no past psychiatric disorder.
13. Apportionment
Nil.
14. Effects of Treatment
0%
Based on this assessment, BPQ's treatment has had negligible effects in symptomatic relief and in functional improvement.
Conclusion
Degree of permanent impairment caused by the motor accident
13 %”
The Panel adopts the findings of Senior Medical Assessor Baker and Medical Assessor Hong.
Causation
The claimant was waiting for her husband to return home on the night of the accident. The claimant’s husband and left for a few minutes, to take their son to a boxing class and then to return home. The claimant’s husband did not return within the usual period of time and she heard sirens nearby, causing her some immediate concern. The claimant asked her son to investigate and subsequently he returned and reported that her husband had been involved in a fatal accident.
The claimant blames herself for not having volunteered to take her son to boxing classes. She thinks that if she had done this then her husband would still be alive.
While the claimant had suffered the loss of her mother, some months before her husband’s accident, the Panel is satisfied that there are no other psychological problems relating to that particular loss.
The claimant has endured other substantial events before this accident involving her husband, including the shooting of her father when she was very young, her husband’s parents not releasing her son to return from Lebanon to Australia for approximately five years, the death of her mother shortly before her husband’s accident, incarceration of her son and personal problems with her daughter-in-law. However, it is the opinion of the Panel that these other incidents do not affect the assessment of the claimant that she has a Major Depressive Disorder arising from the death of her husband in the accident.
The Panel is satisfied that the claimant’s condition of a Major Depressive Disorder is causally related to the accident which occurred on 28 May 2018.
Reasons
Whilst the claimant has had other significant stressors in her life, on the day of the accident was nothing out of the ordinary and she was undertaking normal activities preparing dinner, awaiting the return of her husband from dropping off their son to a boxing class. At that time, the claimant’s husband was involved in a fatal accident, suffering immediate grief. The claimant’s husband, without warning or expectation, taken from her.
Can it be said that the claimant’s disabilities emanate and are caused by the accident? The Panel is satisfied that this is the case.
The Panel is also satisfied that the accident and its impact on the psychiatric well-being of the claimant has had a more than negligible effect on her.
Conclusion
The Panel is satisfied that the claimant has suffered a Major Depressive Disorder as a direct consequence of the death of her husband in an accident which occurred on 28 May 2018.
DETERMINATION
The Panel revokes the certificate of Medical Assessor Fukui.
The Panel determines that the claimant has suffered a Major Depressive Disorder
The claimant has a 13% WPI.
0
2
0