BPW v AAI Limited t/as AAMI
[2023] NSWPICMP 658
•7 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | BPW v AAI Limited t/as AAMI [2023] NSWPICMP 658 |
| CLAIMANT: | BPW |
| INSURER: | AAI Limited t/as AAMI |
| REVIEW PANEL | |
| SENIOR MEMBER: | Brett Williams |
| MEDICAL ASSESSOR: | Paul Friend |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 7 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review by medical review panel under section 7.26; whether the claimant’s permanent impairment, as a result of the accident, caused psychiatric injury greater than 10%; where claimant suffered post-traumatic stress disorder as a result of previous accident; where Medical Assessor found that the claimant suffered post-traumatic stress disorder as a result of subject accident, assessed pre-existing impairment, and certified that his accident caused injury did not give rise to a permanent impairment that was greater than 10%; Held – pre-existing impairment assessed; the accident caused an aggravation of post-traumatic stress disorder with depressive symptoms that gives rise to a 5% permanent impairment; the claimant’s permanent impairment is not greater than 10%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Barrett dated 8 January 2022 and certifies that: (a) the claimant’s permanent impairment that has resulted from the aggravation of post-traumatic stress disorder with depressive symptoms caused by the motor accident is 5%, and (b) the claimant’s permanent impairment that has resulted from the aggravation of post-traumatic stress disorder with depressive symptoms caused by the motor accident is not greater than 10%. |
STATEMENT OF REASONS
BACKGROUND
BPW (claimant) was injured in a motor accident at Tomewin, NSW, on 25 February 2018 (accident). He has made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as AAMI (insurer), the insurer of the other vehicle involved in the accident.
A dispute arose between the claimant and the insurer about whether he is entitled to damages for non-economic loss. Specifically, there is a dispute about whether the degree of permanent impairment of the claimant as a result of the psychological injury caused by the accident is greater than 10%. That dispute is dispute is a medical dispute[1] as it is a dispute about a medical assessment matter.[2]
[1] Section 7.17 MAI Act.
[2] Sch 2 cl2(a) MAI Act.
The medical dispute was referred to Medical Assessor Barrett for assessment. The Medical Assessor gave a certificate dated 8 January 2022 in which she certified that exacerbation of pre-existing post-traumatic stress disorder was caused by the accident and gave rise to a permanent impairment of 10%, and that the impairment as a result of this injury was not greater than 10% (Assessment).
The claimant sought a review of the Assessment under s 7.26 of the MAI Act. The President’s Delegate subsequently determined that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. The review application was accepted and referred to a Review Panel.
The Review Panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the Review of the Assessment.
THE REVIEW
The Panel is to conduct the Review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the panel is to be constituted by two medical assessors and a member assigned to the Motor Accidents Division of the Commission.
The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128.
Version 9.2 of the Motor Accident Guidelines (Guidelines), effective from 10 November 2023, apply to the Review.
DIRECTIONS
On 16 March 2023 the Panel directed that the claimant was to lodge with the Commission: a joint agreed indexed and paginated bundle that contained all material relied on by the parties for the purposes of the Review, and the submissions he relied on for the purposes of the Review. The insurer was directed to lodge with the Commission its submissions relied on for the purposes of the Review.
The Panel issued a report and directions dated 11 May 2023. The report noted that the directions made by the Panel on 16 March 2023 were not complied with. Further directions were made for the provision of a joint bundle and submissions. The parties were advised that the Panel considered that a re-examination of the claimant was required and confirmed that the examination would be conducted by Medical Assessors Friend and Hong (Medical Assessors) on behalf of the Panel by MS Teams on 21 June 2023.
The parties provided a joint bundle dated 23 May 2023. The claimant provided undated submissions and the insurer provided submissions dated 5 June 2023.
The Panel subsequently asked the claimant to provide it with a copy of his electronic diary of his patients for the period 1 February 2018,[3] together with the clinical notes of BHV from 3 December 2019 to date, and the clinical records of BJT[4] (who is a professor of psychiatry). The requested material was subsequently provided. The parties were given an opportunity to make submissions in relation to this material. Neither party did so.
[3] Request made on 26 June 2023.
[4] The records of BHV and BJT were requested on 14 September 2023. BHV’s records were received on 13 October 2023 and BJT’ records were received on 10 November 2023.
The Panel has considered all the material in the joint bundle, the diary records, the notes of BHV and BJT, together with the submissions from each party.
STATUTORY PROVISIONS
No damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%: s 4.11 MAI Act.
If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a medical assessor under Division 7.5: s 4.12(1) MAI Act.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2) Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with ‘Mental and behavioural disorders’ within the Guidelines.
Psychiatric Impairment caused by mental and behavioural disorders is assessed in accordance with clauses [6.201]-[6.228] of the Guidelines.
ASSESSMENT UNDER REVIEW
Medical Assessor Barrett gave a certificate and reasons dated 8 January 2022. The Medical Assessor’s reasons record the claimant’s psychosocial history and pre-accident history. A significant past medical and psychiatric history was acknowledged. There was a prior motor accident in March 2015, that resulted in a cervical spine injury that required surgical intervention. The claimant reported that prior to the 2015 accident he considered himself psychologically “robust and resilient” and that he had an optimistic nature. The Medical Assessor thought that the claimant “tended to minimise his past psychiatric history”. There was a referral to BTO, psychiatrist, with symptoms of anxiety and urinary frequency. He had had brief trials, of a few months each, of a number of antidepressants, including the SSRI antidepressant paroxetine and dual action serotonergic and noradrenergic agent, duloxetine. In the period just prior to the subject accident, he stated he was “pretty much back to how [he] was before” then [sic] 2015 accident, considering himself about 90% well. He stated he was independent but acknowledged his daughter was performing most of the chores. He would shower daily and shave when he was going out. He described himself as quite active, jogging a few times a week, swimming at the pool daily, performing some gardening and going out to restaurants with his daughter and family friends and a long-term friend from high school.
The Medical Assessor recorded a history that the claimant had returned to driving, although he avoided driving with the morning or evening sun, given the circumstances of his 2015 accident apparently involved the effects of the morning sun. The claimant reported that in the period prior to the subject accident he was working three or four days a week, normal hours each day, and that his workload was 30% medico-legal work and 70% clinical work. He stated there were no AHPRA restrictions on his practice.
The Medical Assessor’s reasons include a history of the accident and symptoms and treatment following the accident. The claimant reported that he had developed flashbacks of the accident “pretty much immediately”. He slept poorly and woke unrefreshed. He feared having another accident, reported that he avoided driving for a few months as he had lost confidence, and that when he returned to driving he was “very cautious”, especially near cyclists or motorbikes.
The Medical Assessor’s reasons record that the claimant reported inappropriate guilt, stating he felt ashamed of having had two accidents and that he was not able to provide greater financial support for his children. He described his mood as irritable and low, although he can be cheered up by his son. He described comfort eating and having gained 27kg in weight over a period of four years. He described low energy. He stated he could only concentrate for periods of 15-20 minutes. Medical Assessor Barrett raised with him that this appeared inconsistent with the capacity to provide psychotherapy, usually in standard 50 minute appointments, and he acknowledged that he does perform 50 minutes sessions but from “fairly well-worn scripts” with long term patients which he regarded as not cognitively challenging.
The claimant reported that he continued to see BTO, that he trialled reboxetine (Edronax), and that he continued to take diazepam. There had been no further motor accidents. His symptoms continued; he experienced flashbacks of the accident most days, which increased in frequency over time. He reported that the flashbacks occur out of the blue and intrusively. There had been no change in his symptoms of anxiety when travelling.
The claimant’s current functioning with respect to self-care, social functioning, travel, social functioning, concentration, persistence and pace, together with work and adaptation are recorded.
In terms of consistency, the Medical Assessor thought that the claimant’s reports of only being able to concentrate for periods of 15 or 20 minutes were inconsistent with him providing specialist psychiatric treatment to patients for sessions of 50 minutes. A reduction in concentration capacity of 15 to 20 minutes was considered to be inconsistent with the capacity to continue to work as a medical specialist, even in a part-time role.
In the opinion of the Medical Assessor, although the claimant tended to minimise his past psychiatric history, describing himself as 90% improved prior to the subject accident in 2018, this was inconsistent with the records of the treating psychiatrist, BTO, and accounts of his functioning in the period immediately prior to the accident in the contemporaneous records of the treating occupational therapist and neurologist, which indicated ongoing cognitive difficulties, impacting his capacity to work, and that his pre-existing post-traumatic stress disorder was ongoing at the time of the subject accident. In the Medical Assessor’s opinion, there had subsequently been an exacerbation of the pre-existing post-traumatic stress disorder after the subject accident, with avoidance of driving again for a period of a few months, flashbacks involving the accident, increased avoidance of socialising, increased avoidance of recreational activities, such as swimming, and once he returned to driving, increased avoidance of other situations including the location of the accident. In her opinion, in a person without pre-existing post-traumatic stress disorder, the accident would have been unlikely to trigger post-traumatic stress disorder and would not have fulfilled DSM-5 criteria A for post-traumatic stress disorder.
The following ratings were assessed under the PIRS:
Category Class
Self Care and Personal Hygiene 2
Social and Recreational Activities 3
Travel 2
Social Functioning 3
Concentration, Persistence and Pace 2
Work and Adaptation 4.
The median class value was 2.5 rounded to 3. The aggregate score was 16. The whole person impairment was 17%.
Pre-existing impairment was found to be 7%, with the following ratings assessed under the PIRS:
Category Class
Self Care and Personal Hygiene 1
Social and Recreational Activities 2
Travel 2
Social Functioning 2
Concentration, Persistence and Pace 2
Work and Adaptation 4.The Medical Assessor reduced the current whole person impairment of 17% by 7% to arrive at a degree of permanent impairment caused by the accident of 10%.
EVIDENCE
As recorded earlier, the material relied on by the parties is contained in a joint bundle dated 23 May 2023. The Panel requested, and was provided with, the claimant’s electronic diary from 1 February 2018, together with additional records from BHV and BJT. The claimant subsequently provided his diary from 7 February 2017 – 29 June 2023. He was unable to print the diary with the duration of appointments noted on the entries.[5]
[5] Message from the claimant’s solicitor to the Commission dated 7 July 2023 attaching the diary records.
A report from BJU to BTO dated 28 August 2015 records that the claimant had been involved in a life-threatening motor vehicle accident in March 2015, with his vehicle written off. He reported that he had noticed anxiety and irritability, and had trialled Zoloft for “2/12” and then Valdoxan with minimal effect.
In a report to BJW dated 3 September 2015, BKZ, Neurosurgeon and spinal surgeon, reported that the claimant had been involved in a motor vehicle accident in March that year. His gait was off balance and his legs felt wobbly. Upper extremity symptoms were worse on the left side. Significant degenerative changes in the cervical spine were found, and surgery was discussed.
BLR, clinical neuropsychologist, reported to BMZ on 12 July 2016. The report records that the claimant had been referred for neuropsychological assessment in relation to concerns about cognition since a motor vehicle accident in 2015. A few days after the accident he had a feeling of jetlag and clouded consciousness for several months, and was sleeping more than before. The claimant reported significant ongoing problems with anxiety despite treatment. He has ongoing memory problems, problems with the names of familiar people, where he put his keys and why he went into a room. His concentration is better in the morning. He deferred a lot of organization to his daughter who now does his mail, billing and paperwork. He slows down YouTube to keep up. He was only seeing long standing patients as he did not feel capable of managing new clients.
In BLR’ opinion, the claimant likely sustained a mild traumatic brain injury in the 2015 accident, which appeared to have resulted in significant post-concussional symptoms. He had also developed some problems with anxiety; he reported severe ongoing psychological symptomatology, including depressive symptoms, which were highly likely to be contributing to ongoing cognitive complaints. Aging could have slowed down his recovery. Uncomplicated recovery should have occurred.
In a report to the claimant’s solicitors dated 2 September 2016, BLR noted that the claimant struggled to complete medicolegal reports, was drained after seeing patients back to back, only seeing familiar and less complex patients, and ceased all medicolegal work. He reduced his travel for work. She expressed the opinion that the claimant had likely sustained a mild traumatic brain injury in the accident which appeared to have resulted in significant post-concussional symptoms, which had persisted ever since with varying severity. He also developed significant problems with anxiety, reporting severe ongoing psychological symptomatology that was “highly likely” to be contributing to ongoing cognitive complaints. He reported experiencing significant difficulty maintaining his previous level of work in terms of rate and complexity. His prognosis would depend on his response to intensive treatment over the coming months. That his symptoms had persisted despite treatment was “concerning”. He was, however, “making steps in the right direction”.
In a report dated 6 September 2016, BTO, psychiatrist, recorded that the claimant had experienced difficulties at work after the 2015 accident, including engaging patients involved in motor accident and difficulties focusing. He was only able to work one to two days a week and “finds this most difficult”. He experienced ongoing physical symptoms, together with irritability and a sense of helplessness and powerlessness. He was less confident, and his self-esteem was markedly lower. Because of psychological difficulties he was experiencing in his practice, the claimant had attempted to obtain a position at a University college as a live in tutor. He was not successful as the claimant “had marked difficulty in focusing and concentrating”. The claimant reported being depressed, despairing, irritable and anxious. The doctor diagnosed post-traumatic stress disorder and mild neurocognitive disorder. The doctor was “guarded in regard to complete recovery given the length of time [the claimant] has experienced his symptoms”. His need for psychological treatment may continue indefinitely given the significant impact the accident has had on him.
In a report dated 12 December 2016, BLN, psychiatrist, recorded that after the 2015 accident, the claimant avoided difficult patients, closed his Wollongong practice (in August 2016), did not have new cases and forensic assessments, and does telepsychiatry every Monday and Friday. His irritability was less. He attended bible study twice since he moved to Glebe. He tried to swim twice a week, and goes out with his daughter for meals. He used to like golf, social tennis, movies and surfing. He nominated three psychiatrists as his friends. He said that people stopped inviting him out and he does not take calls or turn up. His memory is like a sieve, and he slows down YouTube to 70%.
BLN expressed the opinion that the claimant did not meet the diagnostic criteria for post-traumatic stress disorder or depressive disorder. He met the criteria for the principle diagnosis of an adjustment disorder with anxiety. These conditions were related to the 2015 motor accident. In his opinion, the claimant should be able to return to a normal life, and could return to full-time employment.
In a report dated 17 February 2017, BNI, neurological surgeon, recorded complaints of constant neck pain. The claimant’s cognitive function was impaired. He uses notes. His memory was poor, and had poor concentration. He needed to focus on one task, and was not able easily to deal with the unexpected or with multiple tasks. He experienced cognitive and physical fatigue, and was working one day a week. His prognosis was guarded. From a neurological point of view there was no reason that he could not increase work. However, the doctor formed the view that “the psychological problems of which he complains are a significant barrier to his returning to his pre-injury work as a psychiatrist”. His cognitive symptoms were more likely to be psychological.
On 18 April 2017 BMK, clinical psychologist, provided a report on a joint neuropsychological assessment she undertook at the request of the claimant and the insurer in relation to the 2015 motor accident.
BMK found that there were no signs of depression, anxiety or irritability. The claimant’s cognition was unimpaired. The claimant reported a marked deterioration in his ability to work as a psychiatrist and a need for anti-depressant and anti-anxiety medication since the motor accident. He reported a range of cognitive, emotional and physical problems including depressive and post-traumatic stress disorder symptoms. He also reported significant limitations in his hours of work and the type of work he could undertake, marked impairment in his capacity to perform domestic tasks, and diminished interest and involvement in leisure and social activities. He also indicated severe and wide-ranging physical, emotional and cognitive problems on psychological questionnaires. The doctor diagnosed anxiety symptoms and possibly mild depressive symptoms in the context of serious issues with his physical health. There was no objective evidence of mild traumatic brain injury. He limited his work as a consultant psychiatrist to one day a week due to cognitive, emotional and physical problems. He only sees old patients “who make allowances for him”. At [6.9] the report records a that the claimant experienced a range of cognitive, physical, emotional symptoms/problems and functional limitations. Those symptoms were taken from a list provided by the claimant, found at appendix D to the report.
On 12 October 2017, BMZ reported that the claimant’s cognitive and mood disturbance had been ameliorated somewhat by a reduced workload of one day a week. In a report to BMZ of 17 October 2017, BMQ, occupational therapist, recorded that the claimant was working one day a week with “known clients”.
In a report dated 2 November 2017, BTO, psychiatrist, stated that the claimant had been involved in a significant motor vehicle accident (the 2015 accident) that has impacted him from a physical and psychological point of view. He experienced ongoing depressive and anxiety symptoms, and lacked the ability to focus and concentrate. The claimant had to substantially restrict his clinical practice to one day a week. In the doctor’s opinion, the claimant “currently has no capacity to productively participate in a conclave or a Supreme Court hearing…”. The doctor stated that he was “unable to advise … when, if at all, [the claimant] will recover to the extent that he will be able to actively participate in the light of his marked psychological symptoms.”
In a report of 8 January 2018, BNI recorded that documents provided to him, that included radiology and reports from other practitioners, did not persuade him to alter his opinion.
On 6 February 2018, BMQ, reported to BMZ. She recorded that the claimant was struggling to readjust to living in Sydney. He continued to struggle to remember people’s, including some patients he had known for 20 years. He will continue to work one day a week in his practice. In addition to physical fatigue since the accident, the claimant reported that he experiences cognitive and mood fatigue.
In a report dated 26 March 2018, BTO recorded that the claimant continues to consult with him on a regular basis. No reference is made in the report to the accident on 25 February 2018. The report records that the claimant had reduced working hours to one day a week, and no longer consults on medico-legal matters. He had not been able to form a relationship. Cognitive functioning remained impaired and he experienced difficulties with concentration. While he had improved, the claimant continued to demonstrate both physical and psychological symptoms that have markedly intruded into his capacity for work. If not for the accident on 5 March 2015, the claimant would have worked beyond the average retirement age of 67 years.
In a further report of the same date, BTO reviewed BLN’s report. He disagreed with BLN’s diagnosis. In BTO’s opinion, the claimant’s prognosis for recovery was poor. His condition had become chronic, and his whole person impairment exceeded 10%.
In a report of 5 June 2018 BMZ referred to a second motor accident. The report records that the claimant’s “features are concerning for an exacerbation of his existing myeloradiculopathy”. Investigations were ordered and the claimant was referred to BNJ for pain consultation and management.
There are two reports of BKZ, neurosurgeon and spinal surgeon, dated 25 October 2018. In the reports, the doctor refers to a recent motor vehicle accident and some increased neck pain. There were no obvious problems on imaging that required surgery. The claimant may need multidisciplinary assessment of pain management.
There is a hand-written report of BTO addressed to BHV dated 7 March 2019. The report states that the claimant was seen that day, that he was experiencing a number of psychological and physical difficulties, and would benefit from having 6/52[6] away from his work. The doctor had noticed significant weight gain, and the claimant still had anxiety in regard to his physical status. On 8 March 2019 BHV certified that the claimant was unfit for work until 21 April 2019 while undergoing “further rehabilitation for physical and mental injuries arising from a motor vehicle accident on 25 February 2018.” There is also a report from the doctor dated 3 September 2019 that states the claimant “has been reviewed by his psychiatrist who has recommended that [he] take a long break” from work and return initially one day a week. In this regard, the claimant had been asked to take a break from 13 September 2019 to 25 October 2019.
[6] The Panel has assumed this means six weeks.
In a report dated 1 June 2020, BLX, psychiatrist, took a history of a motor accident on 25 February 2018. He gave a history of having been involved in a previous motor accident some three years previously. The claimant described an increase in his level of anxiety and increasing depression over time. He cut down his practice from three full days to two days for two hours each during which he saw only long-term patients not suffering from acute post-traumatic stress disorder. He was unable to work because of difficulties with concentration arising from his psychological problems. He is not able to deal with patients with post-traumatic stress disorder. The claimant developed symptoms of both anxiety and depression following a frightening motor accident on 25 February 2018. He had been involved in a previous motor accident in March 2015 in which he suffered significant neurological damage to his cervical spine and developed an adjustment disorder with mixed anxiety and depressed mood. He had barely recovered from that accident when the subject motor accident occurred, resulting in symptoms consistent with post-traumatic stress disorder. There are some symptoms of depression which are a component of his post-traumatic stress disorder. Although the claimant had made a good recovery from the first motor accident he remained particularly vulnerable at a physical level. The doctor assessed a 19% whole person impairment. Pre-existing impairment was 0%.
The clinical notes of BMR have been considered. The notes are also included in the clinical notes from the Broadway General Practice.
The clinical notes from Broadway General Practice include the following entries:
21 November 2016 There is a history of headaches, impaire[d] memory and difficult word finding…history of serious MVA on 5.3.2015…
19 June 2017 …PTSD – seeking psychiatrist
10 May 2018 …allowed to debrief re traumas…sees BTO regularly… changed from Cymbalta to Aropax.
10 August 2018 …rejuvenated by his trip to the Holy Land and Greece…
21 September 2018 …Mental State ISQ - very composed
15 November 2018 bruising anterior L side chest wall (allegedly punched Monday 12 November 2018)…
21 December 2018 …not feeling physically and mentally good enough to respond appropriately to the needs of psychiatric patients. Have recommended pain clinic and break from clinical practice…
17 January 2019 Endep 75 mg, increase to 125 mg.
7 February 2019 …returned to work this week..
7 March 2019 …saw BTO this morning…concerned re anxiety and weight gain…has advised 6 weeks away from work…
30 April 2019 …has returned to work…have indicated … that I am not entirely satisfied with is current physical and mental state in regards to being able to function at work…
3 September 2019 BTO has advised a long break from work and when he does return limit his work to one day a week… Prescribed Diazepam and Amitriptyline 25 mg.
BHV’s notes from 3 December 2019 to 12 October 2023 include the following references:
10 December 2019 neck pain, disrupt sleep.
1 February 2020 116kg, lower back, apprehensive return to work due to pain affecting concentration.
6 April 2020 finding pain and anxiety overwhelming… recommended 3 weeks away from work
30 April 2020 pain and anxiety discussed
5 November 2020 motor incident last night, loud bang in Winnebago waiting for it to be towed felt very agitated by the sudden unexpected event
11 February 2021 anticipatory anxiety regarding anniversary of accident
7 October 2021 going well 4-6 hours per week psych telehealth is upper limit before fatiguing
25 March 2022 PTSD continues to wax and wane – feels guilty about irritability
12 August 2022 PTSD and MDD remain problematic and an extra layer of fatigue…reassured…will very likely be transient
8 September 2022 mornings struggling with MDD symptoms low mood/low energy/irritability and night PTSD symptoms panic/insomnia/nightmare… Had a good session with BJT (psychiatrist) this morning who gave me green light to increase Edronax 12mg (4mg x3) mane and 8mg (4mg x2) nocte … some scope to 12mg BD down the track if needed
22 December 2022 Edronax gave some relief. Review by BJT regularly.
BHV’s records include a number of medical certificates, the contents of which have been considered. There is a letter to NCAT dated 22 May 2023 in relation to a hearing in July 2023, re excessive rent increase. The letter records that the claimant has a chronic medical condition restricting his work capacity to 10-12 hours per week light duties since a motor accident in February 2018.
BJT records include the following references:
25 January 2022 initial assessment. On edronax
22 March 2022 involved in an argument on weekend with neighbour and neighbour called police…increase edronax.
8 September 2022 increase edronax
10 February 2023 Has just spent six weeks at the farm. Has been doing some phone consultations - 10 hrs per week.
30 May 2023 reports that he is continuing to work about 15 hours per week
8 August 2023 feels less depressed on Edronax
There is a schedule of damages dated 5 April 2018. The schedule relates to a claim for damages arising from an accident on 5 March 2015. The schedule particularises a claim in the sum of $3,024,222. It is recorded that the claimant sustained, among other injuries, post-traumatic stress disorder and neurocognitive disorder as a result of the accident. A range of physical disabilities are particularised, in addition to fatigue, disturbed sleep, anxiety, depression, stress, frustration, irritability, anger outbursts, hypervigilance, personality changes, flashbacks, reduced memory, loss of confidence and self-esteem, depressed mood, ruminating about the future and death, feeling panic, helplessness, powerlessness, guilt, shame and fear. It is stated that the claimant suffered a 50% reduction in his earning capacity; namely two and a half days a week.
The schedule records that since the 5 March 2015 accident the claimant had returned to work on a restricted basis, had decreased his workload by shutting down his practice in Wollongong, was no longer taking on new clients, only treating long term clients, and no longer completing medico-legal work. It is stated that “currently, [he] can only work one day per week.” It is argued that it is extremely unlikely that he will ever be able to operate his practice at his pre-accident capacity. Ongoing treatment, including medication, for his psychological injury is claimed. A claim for care is made. It is recorded that he “remains dependant on his family”, that he is restricted in his ability to look after himself, and had received assistance from friends and family for meal preparation housework, laundry, gardening, car washing and shopping.
There is an application for personal injury benefits dated 24 May 2018. The application relates to the subject accident. The application records as follows with respect to the injuries suffered in the accident:
“NO PHYSICAL INJURY BUT MENTAL SHOCK AND SYMPTOMS OF ANXIETY & PTSD”
The following is recorded on page 4 of the application:
“I HAD SOME PTSD SYMPTOMS FOLLOWING MY MVA 05 MARCH 2015 WHICH WERE IN REMISSION PRIOR TO MVA 25 FEB’18”
Page 4 of the application was amended by the claimant[7] on 25 May 2019 to include reference to prior physical injuries involving his neck.
[7] Page 146 of the joint bundle.
The joint bundle includes a number of certificates of capacity (25 May 2018, 18 June 2018) and medical certificates. The certificates have been considered, as have various referrals. There are also on-line reviews of the claimant.
There is a statement from Martin Roberts dated 5 July 2020. The statement relates to the circumstances of the subject accident. He was the rider of the motor bike that collided with the vehicle driven by the claimant. He describes riding along the Tomewin Mountain Road. He states that he saw a four-wheel drive approach him. He states that he was spooked, and took evasive action. He applied the brakes and the bike went out from under him. The bike slid down the road. The statement describes events that occurred immediately after the accident.
A statement of Noel Provan dated 8 July 2020 has been reviewed. Mr Provan had been riding with Mr Roberts. He did not see the accident. An interaction with an individual assumed to be the claimant after the accident is described.
SUBMISSIONS
Claimant’s submissions
The claimant relies on written submissions that are undated, provided to the Commission on or about 17 May 2023. The submissions include a description of the accident. With respect to Medical Assessor Barrett’s assessment of whole person impairment it is argued that the Medical Assessor:
(a) did not err in her determination that there was no pre-existing impairment for self-care and personal hygiene;
(b) erred in assessing the claimant as having a class 2 pre-existing impairment for social and recreational activities. It is submitted that the Medical Assessor did not put to the claimant the contents of the claim for damages (the schedule of damages). It is submitted that this was a document drafted by the claimant’s solicitors, and is not sufficient to identify a class 2 pre-existing impairment. It is argued that any deduction for pre-existing impairment in this category should be a class 1;
(c) with respect to travel, it is argued that the claimant avoided driving eastwards in the morning and westward in the evening, and that this represented a minor deficit in terms of travel. He reduced his work days as a result of budgeting considerations and patient preference. Further, the claimant had no difficulty travelling to new environments, and did not require supervision when travelling. It is submitted that the Medical Assessor does not apportion, or report that she has considered and determined not to apportion, any of the purported mild pre-existing impairment to the claimant’s concurrent physical conditions or secondary mental factors or his analgesic medication regime. The claimant submits that any deduction with respect to pre-existing impairment in this category should be a class 1;
(d) erred in her assessment of a class 2 for social functioning, and any deduction with respect to pre-existing impairment for social functioning should be a class 1;
(e) did not err in her determination that there was class 2 pre-existing impairment for concentration, persistence and pace, and
(f) erred in her finding of class 4 for adaptation, and any deduction with respect to pre-existing impairment for adaptation should be at its highest a class 2 or class 3. The claimant submits that he was consistently working part-time, three days a week, twenty hours per week prior to the accident without the need for regular absences/periods off work. The claimant did reduce his work days from two days to one day at his Sydney rooms as a result of budgeting considerations and patient preference.
The claimant argues that if the assessment was performed according to law, it is at least likely, if not inevitable, that the claimant would be found to have a diagnosable psychiatric/psychological condition and that he would be found to have whole person impairment that exceeds 10%.
Insurer’s submissions
The insurer relies on written submissions dated 5 June 2023. The submissions provide background to the dispute, and traverse the claimant’s pre-accident psychiatric injury and claim. Among other things, the insurer points to BTO’s report of 25 March 2018 wherein he expresses the opinion that the claimant’s whole person impairment as a result of the 2015 motor accident “exceeds 10%”. The insurer argues that Medical Assessor Barrett made no error in her assessment of social and recreational activities. With respect to travel, the insurer argues that Medical Assessor Barrett was entitled to rely on the claimant’s reported symptoms at the time of her assessment, as corroborated by the supporting documents. It is submitted that those contemporaneous records support the assessment of at least mild impairment. Her assessment of class 2 was not an error.
It is argued that there was no error in the assessment of class 2 for social functioning, nor was there an error in assessing class 4 for work and adaptation. In this regard, the insurer pointed to various histories recorded by treating doctors in relation to the claimant’s capacity for work prior to the accident.
The insurer points to the claimant’s submissions at [29] that record he was working 3 days per week prior to the accident, and argues that he “doubles down” by explaining the reduction to one day was “as a result of budgeting consideration[s] and patient preference” and that prior to the accident was working 20 hours per week. The insurer submits that this is at best disingenuous given the contemporary histories referred to, which are entirely supportive of the claimant having reduced his work to one day per week in the several months before the subject accident due to his physical and psychiatric incapacity caused by injury sustained in the 2015 accident.
The insurer argues that, around the time of the subject accident, to support his prior claim for the 2015 accident, the claimant relied on evidence from his treating psychiatrist, BTO, that the previous accident diminished his working capacity to only one day per week. The insurer goes on to argue that in his report dated 26 March 2018, a month after the subject accident, BTO noted that as a result of the previous accident, “[i]t is [his] opinion that his whole person impairment exceeds 10% according to the guidelines”. The insurer observes that, although dated after the subject accident, this report was focussed on the 2015 accident. The insurer also points out that there is no mention of any effect of the subject accident, “perhaps because there was no psychiatric effect.”
In the insurer’s submission, Medical Assessor Barrett’s findings are consistent with BTO’s opinion. The insurer submits that the Medical Assessor noted that:
“[a]s stated, contrary to the claimant’s tendency to minimise his pre-accident psychiatric state, the evidence from BTO’s letters…and the persistence of functional impairment up until just days prior to the subject accident, indicate that the pre-existing posttraumatic stress disorder, caused by the 2015 accident, was ongoing, symptomatic and causing persisting impairment, at the time of the subject accident.”
It is submitted that it is not just BTO’s reports, but other contemporaneous records, which are inconsistent with the claimant’s asserted minimal impairment arising from the 2015 accident and any impairment causally related to the subject accident. It is argued that such inconsistency, “perpetuated in the recent submissions of the claimant”, is a relevant consideration when the Panel is assessing the claimant.
RE-EXAMINATION
Who attended the assessments
The assessments were conducted by audio-visual link. The Medical Assessors were in their Sydney offices. The first assessment on 21 June 2023 took one hour but the claimant’s video dropped out and he could not re-join. The second assessment on 13 September 2023 took two and a half hours.
At the start of the re-examination on 13 September 2023, the claimant raised concerns with the Medical Assessors that Medical Assessor Hong had assessed one of the claimant’s patients for the Commission in proceedings related to that patient and unrelated this claim. Neither the claimant nor Medical Assessor Hong could recall the patient involved. The claimant did not object to the re-examination proceeding, nor did he object to Medical Assessor Hong being involved in the re-examination or being a member of the Panel.
On 19 October 2023 a message was sent to the parties on behalf of the Panel raising this matter. The parties were advised that, if either party objected to Medical Assessor Hong’s involvement in this Review as a member of the Panel conducting the Review, they were to make the objection in writing, and provide submissions in support. On 23 October 2023 both parties advised the Panel in writing that they did not object to Assessor Hong being on the Review Panel.
History
Psychosocial history and pre-accident history
In terms of developmental history, the claimant was born in Australia as the second of five siblings. He had a good early life and was not exposed to any developmental trauma. He is not aware of a family history of mental illness. He attended a selective high school and then attended university to study medicine. He became a psychiatrist in 1996 and became a forensic psychiatrist in 1998.
In terms of general history, he does not have a forensic history. He does not have epilepsy or liver disease. He said he has borderline hypertension. He does not have drug or alcohol problems.
He worked at a hospital as a public psychiatrist for about three years. He was a junior consultant and due to difficulties with some of the senior consultants, he suffered anxiety and stress symptoms and eventually left to work full-time in private practice. He had six sessions with BMV and engaged in psychodynamic therapy. He did not take antidepressants and recovered completely, and did not suffer further psychological problems until the 2015 motor accident.
He did not experience suicidal ideation, and has never experienced psychotic symptoms throughout his life. He became vegetarian and was "on and off vegan". He described a healthy and active lifestyle. He said he was very sociable and socialised almost every evening. He enjoyed some sporting activities, such as golf.
On 5 March 2015, the claimant was driving on his own from his Sydney Practice. He said he was "sun-blinded" and drove into the back of an emergency vehicle. He did not need to go to hospital immediately, however, he sustained a spinal injury and needed decompression surgery in October 2015. He lost his ability to walk properly and lost control of his bladder and bowel, and he stated it took about two or three years before he had significantly improved physically.
He does not have Dupuytren’s contractures and said that he had a giant cell carcinoma removed from his left hand, but because of the cervical injury, there were some problems with his hand strength and cramps, and he would drop things. The claimant normally kept handwritten notes, and due to his hand condition, he started using a dictaphone. He said he can still write a few pages of notes, but his writing is less legible.
From the 2015 accident, he developed depression, anxiety and post-traumatic stress disorder (or an adjustment disorder with trauma-related symptoms). He started having treatment with BTO, psychiatrist, and had treatment for seven years until BTO ceased his practice in late 2021. He has not had treatment with other psychiatrists or psychologists until after the subject accident. He had not had admissions or group-based treatments. He tried several antidepressants, including Zoloft, Lexapro and Venlafaxine.
Towards the end of 2017, he took Cymbalta, maybe 60 or 90mg, Epilim and Lyrica. He decided to be medication-free during Christmas 2017 and relied on regular exercises. He stopped all his medication, except Panadol Osteo.
In terms of relationship history, the claimant married his childhood sweetheart and they were together for 10 years and divorced. He has children from that relationship. He then had a few girlfriends, and his next major relationship was about 18 years ago. He has a child from that relationship. The relationship did not last long. There were some access issues. His child elected to come and live with him about three years ago, but recently moved out, partly due to the claimant’s irritability. He noted that his irritability affected his three adult children.
At the time of the 2015 accident, he was in a long-distance relationship. They visited each other and maintained that relationship for about four years. After the 2015 accident, that relationship ended, he said because he could not travel, and then she had had other family responsibilities so they drifted apart and then separated.
He did not have another partner until 2017. They did not live together before the subject accident. After the subject accident, she moved in with him briefly. They were together for maybe 12 months and the relationship ended in 2018 or 2019 after the subject accident, and he said that he became intolerant of her humour because he lost his sense of humour after the accident. He had been irritable and they had not spoken since they separated.
He reported that he had difficulty with sexual functioning due to the cervical injury from the 2015 accident, and then gradually this improved and he was sexually active again in 2017, but then this declined again after the subject accident.
In terms of work history, the Medical Assessors discussed with the claimant his work diary and he noted that this only captured his work involving patient contact. In addition to the diary, he estimated working 15 hours per week doing paper-based work. This might be a file review for a lawyer and other medico-legal work before the accident. Before the accident, he worked one day a week at his Sydney practice and did face-to-face work and paper-based work. Now, he only does TeleHealth work (phone-based work) for half a day, twice a week and no other work.
The claimant reported that he had a private practice for 6 to 12 months in Wollongong. He was driving to Wollongong to see patients face to face between 2016 and 2017, and then closed the practice in early 2017 due to the difficulty with the commute.
The Medical Assessors asked the claimant about the difficulty with being in a conclave and Supreme Court hearings, as BTO had written in his report dated 2 November 2017. He said that he found conclaves to be adversarial and he was too irritable. With clarification, he agreed that his concentration was at a point where he could not participate in the court hearings.
At the resumed assessment on 13 September 2023 the Medical Assessors discussed with the claimant the case with respect to which BTO referred in his 2 November 2017 report. The claimant noted that this related to an underaged claimant in an accident, and that he is not a child psychiatrist. The Medical Assessors confirmed there were other issues related to his mental health that impacted on his capacity to attend the conclave and court hearing.
The Medical Assessors asked him about his health in the second half of 2017, in the periods leading up to the subject accident.
The claimant reported that physically he was a lot better. He swam every one or two days, and went jogging. His bladder and bowel control were good.
He reported that if he walked long distances he would use a cane stick, and he can walk 1 or 2km, for example walking to the pool, without a problem. If he is tired he might be a bit ataxic. He has not had a fall.
In terms of his psychological symptoms in the period before the subject accident, he said he had some depression and anxiety, he could be irritable, “argumentative and intolerant” and could raise his voice, but has never been one to act out or threaten people.
In terms of his cognitive capacity, the claimant reported that he felt clouded and wondered whether there was some problem during the decompression surgery. Some medication also affected his cognition and he said that when he stopped taking Epilim and Lyrica, he had better mental clarity. He felt his cognition was good but not perfect in the second half of 2017. He said that he could do a whole day of telepsychiatry work, 9.00 to 5.00pm. He was doing a combination of medico-legal work and treating patients as a private psychiatrist, but he tried to not take on new patients at that time. He might see 10 or 11 patients face to face in the Sydney practice, one day a week, and did two days of telepsychiatry. In total, he worked three full days in a week.
In terms of recreational activities, the claimant said he enjoyed ten-pin bowling with his children every two to four weeks. He went to the golf range and can hit about 20 balls, but struggled beyond that due to his neck condition. He goes swimming, and sometimes uses the gym at the same facility. He said he was having social and recreational activity, but overall less than he would before the 2015 accident.
He socialised with maybe five to seven friends from school and university, and a couple of psychiatrist friends and they would go to a café and a restaurant. They visit each other for dinner and this might happen every one to four weeks.
History of the motor accident
The subject accident happened on 25 February 2018. The claimant was driving and there were three passengers, including a friend who is a doctor and two of his brothers. He said that he was near his farm on a dangerous section of the road that he knew well. On one side there was no fence, and there was a steep mountain drop, and was quite dangerous. He said there was a motorcycle rider who lost control and crossed the road and into his lane. He tried to make way for the motorcycle rider, but had limited space due to the dangerous drop on one side of the road, and he ran over the motorcycle and sustained damage to the underside of his car, and punctured a tyre. The claimant recalled it was very frightening and that he felt paralysed. His brother had to coax him out of the car and told him that the motorcycle rider was alive. He said the rider then came to him and thanked him for not killing him in the accident. The other three passengers were not injured in the collision.
The Medical Assessors discussed with the claimant whether a collision happened or whether this was a near miss, and he said that the insurer did an investigation report about two years after the accident and claimed that he caused the accident and that the accident did not even happen, which was completely false, and that the motorcycle rider was lucky to be alive.
The claimant's brother changed the tyre. He remembered he was in shock and had urinary incontinence, so his brother drove him back to the farm which was nearby. He stated the car was repaired with about $5,000 worth of damage, and the motorcycle was written off.
He had pre-existing physical injuries and reported that his neck and back injuries were aggravated. He said that physically he was pretty good before the accident and he had been swimming regularly, and was getting strong. However, he was injured again. He has not needed surgical treatment and had two cortisone injections and has improved, but he does not believe his physical injury has completely returned to how he was before the accident. He uses a doughnut cushion to reduce the strain on his back.
The claimant's walking capacity has increased, and now he can walk 500 metres, but he does not like slopes or uneven ground. He said that he would struggle to walk to the pool as he did before the subject accident, and he does not want to do anything that can unsettle or injure his back again and he does not want to take a chance. If he tries to run or walk quickly he will suffer cramps, and he worries he will fall. In terms of lifting capacity, he is not sure and said that it might be 5kg.
History of symptoms and treatment following the motor accident
The claimant reported being frightened and said that he gradually developed post-traumatic stress disorder symptoms with intrusive memories and nightmares relating to the motorcycle rider’s face.
He said he did not suffer much depression before the subject accident. Depression became a significant problem around two years after the accident, and with antidepressants, he stated his depression has improved in the past one year. However, his post-traumatic stress disorder remains at a similar level.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant has not had further car accidents. The Medical Assessors asked the claimant about the assault in 2019. He explained that there was a neighbour who had personality problems and had been in jail. He had borrowed money from the claimant and tried to intimidate him and would not return the money. The man punched the claimant in the chest twice. He suffered bruising and no other physical problems. He went to the police and his brother then took over and through mediation, the money was returned to him. The claimant said he has not had any association with the man since. He said that he did not suffer a psychological injury from that incident, and does not believe it affected his mental health as "I have been punched harder before".
Current symptoms
When depression became more severe around two years after the accident, the claimant described having motivational problems, having no energy and hopelessness. With treatment, the depression has significantly improved but he still has fleeting depressive cognitions. He stated “nothing lingers” and that he has "mild transient" depressive symptoms.
The claimant's current symptoms are predominantly related to post-traumatic stress disorder, problems with irritability, anxiety and sleep. He continues to have flashbacks and nightmares related to the motorcycle rider.
When the anxiety is severe, he said there is a sense of doom and a build-up of dread feeling with a fast heart rate and palpitations. He had suicidal ideation and this ceased with treatment, around one year ago. He has middle insomnia and broken sleep. His concentration and memory are still affected and impaired.
The flashbacks involve the image of the motorcycle rider's face and eyes, sliding on the road into his lane and he cannot do anything because to the left is the cliff and he has no choice but to go over the motorcycle. Flashbacks might happen two or three times a week.
Before the accident, he had lost about 10kg successfully and was less than 100kg. Since the accident, he gained weight and is currently 128kg. He thinks he might have gained 1kg in 2023, and said that when he is anxious, he might eat more carbohydrates. He also reported that he is not comfortable doing exercise because of a knee problem, and he knows he needs to go back to swimming but has been feeling embarrassed about his body size, and has not yet returned to swimming.
Current and proposed treatment
The claimant is currently taking:
• Edronax (Reboxetine) 4mg tablets, five tablets daily until one month ago. His depressive symptoms improved and the dose was reduced to four tablets, and the goal is to reduce to a maintenance dose of three tablets daily.
• Doxycycline for a facial rash.
• Panadol as needed for pain.
He took Minipress but experienced side effects.
He consulted BTO until late 2021. About one month later, he commenced treatment with BJT, recently every four weeks. He has not consulted a psychologist since the subject accident as he does not feel the need to. The claimant has not had a psychiatric admission or group-based treatment.
Clinical Examination
Mental state examination
The claimant had a facial rash and appeared overweight. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and reactivity. He had serious manners and smiled briefly. He spoke spontaneously and readily. The claimant provided a clear history and recalled dates well overall, and provided a reasonable amount of detail. He maintained a normal speed and pace.
Current functioning
The claimant discussed that before the accident he felt confident. He was working, had a girlfriend, enjoyed swimming. He often thinks about what things would be like if the subject accident did not happen, and that his life would have been a lot different.
He was living in a rental property with his son. Due to the recent rental crisis and significantly increased rents, he had moved out 10 days ago. His son also moved away. He is now living in his motorhome. He thinks he cannot afford to live in Sydney anymore and might live on his farm full-time. In the meantime, he has been staying at different places in his motorhome. His family farm has 92 acres. His brother lives in a cabin and a friend, who is a doctor, also lives on the same property in another cabin.
Ten days ago, when he was still living in Haymarket, he showered regularly and ate regularly. He only cooked once a week. He explained that he did not want to cook and his son did not want to cook, so they mostly bought takeaway food. He said he switched between being vegetarian and a vegan, and since he moved there are fewer choices for vegan food now.
He reported that he did not normally use the bus or train before the subject accident, but did not think there was any difficulty doing so, even though he had incontinence problems. After the subject accident he avoided using buses and trains and said his bladder problem is a concern and he did not like being around people and because there is no toilet.
He spoke about having lost friends over time because he does not want to go out with them. Even though his depression has improved, he has not reconnected with them.
Because his family is geographically separated, he predominantly speaks with them by phone. They have a get-together during Christmas 2022 and they celebrated Easter this year at his parent's home. He said as a family, they do not usually celebrate birthdays.
The claimant had been overseas twice since the subject accident, to Jerusalem. In June 2018, he went with his son and brother and in October 2019, with his friend who is a doctor. He flew locally to his farm and had driven there several times. When driving, he said he feels anxious and tired, and he is anxious when there are motorcycles around. He does not like driving near Haymarket because there are a lot of Uber drivers who are not particularly careful on the road. The claimant recently went to visit his daughter in regional NSW, and drove back to Sydney with two stops along the way. He purchased a motorhome in 2019, and said that this suits him because he can stop and there is a toilet and shower in the motorhome.
He attended his daughter’s wedding in June 2019, but left after about two hours and felt overwhelmed, and suffered an anxiety attack. He said that because of his near-death experience from the accident, he has been studying the Bible a lot and has become more spiritually inclined.
He likes poetry and listening to the Bible. He wants to return to swimming and bushwalking, but has not yet done this. He worries he might injure himself on uneven ground or pull a muscle. When he is at the farm, he said he enjoys the view and has a library of books. He has books on poetry and scriptures that he enjoys reading, and he also listens to recordings and YouTube. His brother and a doctor friend live on the same property, but they are busy and working, and about once a week they will share a meal together and this is his main recreational contact. He said that he does not encourage visitors to his farm because it is dangerous to drive to the property.
In 2023, he said he went to the farm once every four weeks and stayed for two weeks at a time, and this was partly to reduce the tension with his son, who lived full-time in Haymarket. He was living with his daughter, who had moved out a year ago.
The claimant said he does not have many friends left now. About once a month, while living in Sydney, he would have a meal with a friend at home. He said that he has refused a lot of invitations before and therefore a lot of friends no longer contact him. He saw his daughter recently on Father’s Day, and drove there in his motorhome.
In terms of work after the subject accident, the claimant discussed his work diary. He will book a patient in for half an hour in the software, but in reality, this can be 15 minute or 30 minute consultations. He does not leave gaps between patients and works half a day, twice a week. All of these consultations are phone based and he does not see patients face to face anymore. He reported that before the accident, he rarely saw new patients and since the accident, he has not taken on new patients. He is starting to enjoy work again as his depression lifted, and he does psychotherapy.
He does not perform medico-legal work or any paper-based work. The last time he had done any medicolegal work was in 2018. He said he will write all the general practitioner (GP) letters and the patient scripts during the session with the patient on the telephone. He does not do any work outside those sessions. He does not do paperwork or have other income-generating activities. Therefore, his recent work diary represents his maximal work capacity now.
The Medical Assessors discussed with the claimant his diary, noted that he did a lot of work immediately after the subject accident, and that it was not until around December 2019 that his work hours started to reduce. The claimant discussed that he felt he had suffered delayed onset post-traumatic stress disorder that was gradually worsening, and a couple of years after the accident he became severely depressed. This affected his work capacity and he had been working in a similar pattern since 2019. He explained that delayed onset post-traumatic stress disorder is a well-recognised phenomenon and this is caused by the subject accident, and similarly his depression was also caused by the subject accident. The Medical Assessors confirmed with the claimant that after the second injection in late 2019, he had physically improved.
The Medical Assessors discussed with him that his work hours reduced not long after the assault by a neighbour, and the depression may have developed not long after that. He does not agree the assault caused a psychological decline.
FINDINGS
Diagnosis and reasons
The claimant has a complicated history. He suffered brief psychological symptoms many years ago and remained well until the 2015 accident. After the 2015 accident, he developed post-traumatic stress disorder with minimal depressive symptoms and had improved, and he described good psychological functioning overall, at least for a short period of time before the subject accident.
After the subject accident on 25 February 2018, the claimant suffered an aggravation of pre-existing physical injuries. He developed symptoms of post-traumatic stress disorder after the subject accident, then developed increased depressive symptoms around late 2019 to early 2020, and in the last one year his depression has improved with treatment, but the post-traumatic stress disorder remained at a similar level. The Medical Assessors accepted the subject accident was a frightening experience and fulfilled the DSM-5 post-traumatic stress disorder criterion A event description, and that the claimant developed all of the DSM-5 post-traumatic stress disorder symptoms as a result of the subject accident.
As his depression has improved and his medication has been reduced, the Medical Assessors considered his condition to have stabilised now.
Causation and reasons
The evidence establishes, on balance, that at the time of the accident the claimant suffered from a pre-existing post-traumatic stress disorder, and that this condition was caused by a motor vehicle accident that occurred on 5 March 2015. His pre-existing psychological injury improved and was mildly symptomatic in the period leading up to the subject accident.
The Medical Assessors are satisfied that the circumstances of the subject accident were subjectively and objectively frightening. The Medical Assessors are also satisfied, on balance, that the claimant developed an aggravation of the pre-existing post-traumatic stress disorder, and that the circumstances of the subject accident could have produced post-traumatic stress disorder in an otherwise healthy person.
Around two years after the subject accident, the claimant developed severe depressive symptoms and further impairment, as noted in his reduced work hours. The Medical Assessors considered several possibilities causing this:
· his physical injuries were causing depressive symptoms. The Medical Assessors note that his physical injuries improved after the second cortisone injection, but he subsequently experienced increased pain.
· A physical assault by a neighbour, which he said was not frightening as he had been hit harder before. Nevertheless, he was bruised and sought help from the police, and this encounter would have been a frightening one.
· A spontaneous decline in his post-traumatic stress disorder.
Exercising their clinical judgement, the Medical Assessors found that the claimant developed increased depressive symptoms due to a combination of factors and the effects of the subject accident made more than a negligible contribution to the increased depressive symptoms, as he experienced increased pain which was only temporarily improved with treatment. The assault by a neighbour in November 2018 did not cause a new psychological injury or result in additional impairment.
1. Psychiatric Impairment Rating Scale
Current PIRS
Category Class Reason for Decision 1. Self Care and Personal Hygiene 2 The claimant eats regularly and has a healthy diet, and showers regularly when he had a rental property (10 days ago). He said he may have gained 1kg in 2023. He cooks once a week and generally buys takeaway food, and chooses healthy vegetarian or vegan options. This is almost 1. 2. Social and Recreational Activities 2 He regularly and actively participates in enjoyable activities with his family and a friend in Sydney once a month, and another friend and his brother on his family farm, once a week. He does not need a support person or prompting.
He enjoys going to his farm and spending time with the family there, both before and after the subject accident. He also enjoys some family gathering, e.g. Easter and Christmas.
He refused invitations to social events with his friends as he does not tolerate large social gatherings.He enjoys golf. His neck injury affected golf and he could only hit 20 balls at a time at the range. His physical injuries and pain are not assessable in the PIRS.
He also enjoyed two trips overseas since the accident.
He has books on poetry and scriptures that he enjoys reading, and he also listens to recordings and YouTube.
He enjoys recreational activities, which he does on his own and with people. He does not need a support person or prompting, because he initiates and goes on his own.3. Travel
2 The claimant is anxious and can drive everywhere in his motorhome with a toilet. He has avoided public transportation since the subject accident. 4. Social Functioning
3 The claimant's relationship with his partner was initially fine and she moved in with him briefly after the subject accident. Subsequently, the relationship ended and his irritability was one of the reasons.
He is socially avoidant and ceased contact with most of his friends.
He is able to maintain a couple of long-term friendships and has regular contact.The relationship with his general family is overall reasonable, although his irritability does affect the relationships to a mild degree. There has been no domestic violence or physical aggression.
5. Concentration, Persistence and Pace 2 The claimant reported having reduced concentration.
He can perform intellectually demanding tasks for up to 30 minutes. He can talk to his patient and write a letter during the sessions, and most of these sessions are 30 minutes. The first assessment took 1 hour and the second assessment took 2 hours 30 minutes, and the Panel did not detect overt concentration impairment or reduced pace or persistence.6. Adaptation
4 The claimant's work has further deteriorated and recently, only around 10 hours per week and this is all patient contact work. List classes in ascending order: 222 234 Median Class Value: 2 Aggregate Score: 15 % Whole Person Impairment: 8 % *%WPI = Percentage Whole Person Impairment
In terms of BLX's permanent impairment assessment, he rated self-care and personal hygiene as 3, noted binge eating, that the claimant's brother did all the cooking, and that he does not shower regularly. The Medical Assessors determined that this history is outdated and rated 2 for this category, particularly as the claimant is independent in all self-care and personal hygiene activities now and has improved since that assessment.
In terms of social and recreational activities, BLX rated 3 but he was not aware of the claimant's regular social and recreational activities with two friends and his family. The Medical Assessors rated 2.
In terms of the claimant's adapation impairment before the subject accident, the Medical Assessors took a different history and has reviewed his work diary, and came to a different rating with the additional information. The Medical assessors confirmed his reduced work hours with him, as noted in his diary.
Psychiatric Impairment Rating Scale
Pre-existing/subsequent impairment
The claimant has not sustained a subsequent injury. The assault by a neighbour did not result in a permanent worsening of his psychiatric condition, nor did it result in any permanent impairment. The absence of ongoing references to that incident in the clinical notes, supports this finding.
Pre-existing whole person impairment
Category
Class Reason for Decision Self-care & Personal Hygiene
(before the accident)1 The claimant had no impairment before the subject accident.
He showered regularly and exercised regularly. He had a good diet and successfully lost weight, more than 10kg over 3 months immediately before the subject accident.
He said he was independent and cooked, and bought some groceries. He did the washing and some cleaning at home. His brother helped him with the heavier tasks. His lowest weight was less than 100kg.Social & Recreational Activities
2 He confirmed having fewer social and recreational activities overall, as a result of his anxiety symptoms from the first accident.
He ate out with his friends and children, and had dinner at home with his friends. He enjoyed ten-pin bowling and went swimming with his daughter.Travel
1 He said he lost confidence driving after the first accident, then his driving improved. He could drive 900km to his farm, 2-3 times in 2017. He went to the farm 5-10 times in 2017; he flew there and drove 2-3 times.
He said he was cautious driving in the morning sun or evening as it was similar to the circumstance of the first accident. He said he did not stop driving in the morning sun, he would use the visor or wear sunglasses.
He said he closed his Wollongong practice as commuting 2 times per week was too much for his neck, and not because of his psychological health.
He did not think there were any problems using public transportation, even though he had incontinence problems and busses and trains did not have toilets.
From a psychological perspective, there was no impairment.Social Function
2 He said he had a good relationship with his children and friends.
He was dating a lady and was sexually active again, and they did not live together until after the subject accident.
He confirmed having some irritability and anxiety in his interactions with people, which was why he did not want to participate in conclaves, which he considered to be adversarial.Concentration, Persistence & Pace
2 He confirmed some concentration problems and could not participate in a court hearing. He had trouble remembering names and recalling information quickly. Adaptation
2 BTO and BMZ noted The claimant worked 1 day per week. His diary showed he was working around 20 hours per week in direct patient contact. He estimated doing an additional paper-based 15 hours per week. Although, he worked around 35 hours per week, he could not do everything he used to do as a result of the psychological injury from the first accident, and he had refused some work. List classes in ascending order:
1 1 2 2 2 2 Median Class Value: Aggregate Score:
2 10 Whole Person Impairment:
5
Apportionment
Pre-existing impairment = 5%
Effects of treatment
The claimant has gained symptomatic relief and moderate substantial functional improvement. 2% has been added to account for this.
The degree of permanent impairment caused by the motor accident 8-5+2=5%
DETERMINATION
The Panel adopts the precise examination findings and conclusions of the Medical Assessors based on their examination of the claimant, and the specific findings pertaining to diagnosis, causation, PIRS ratings, and permanent impairment.
The Panel finds that the evidence establishes, on balance, that at the time of the accident the claimant suffered from a pre-existing post-traumatic stress disorder with depressive symptoms, and that this condition was caused by a motor vehicle accident that occurred on 5 March 2015. We find that this condition was mildly symptomatic in the period leading up to the subject accident.
The Panel is satisfied, on the balance of probabilities, that the circumstances of the subject accident were subjectively and objectively frightening, that the accident was capable of causing an aggravation of post-traumatic stress disorder, and did cause an aggravation post-traumatic stress disorder. The Panel is also satisfied that the depressive symptoms associated with the claimant’s diagnosed post-traumatic stress disorder have been aggravated by the accident for the reasons given by the Medical Assessors.
The Panel finds that the accident was a necessary condition of the aggravation of post-traumatic stress disorder with depressive symptoms. But for the accident the claimant would not have developed an aggravation of this condition.
The Panel finds that the aggravation of post-traumatic stress disorder with depressive symptoms caused by the accident gives rise to a 5% permanent impairment. The Panel therefore finds that the claimant’s permanent impairment that resulted from this injury is not greater than 10%. Because the Panel has made different findings to Medical Assessor Barrett with respect to whole person impairment, we have revoked the certificate and issued a new certificate.
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