BSX v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 331
•12 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | BSX v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 331 |
CLAIMANT: | BSX |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
SENIOR MEMBER: | Brett Williams |
MEDICAL ASSESSOR: | John Baker |
MEDICAL ASSESSOR: | Himanshu Singh |
DATE OF DECISION: | 12 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC) under section 7.26; whether degree of permanent impairment of the claimant that resulted from psychological injury caused by the accident is greater than 10%; Medical Assessor found that unspecified trauma- and stressor-related disorder caused by the accident had resolved and gave rise to no assessable permanent impairment; Held – claimant developed generalised anxiety disorder as a result of the accident that gave rise to a 7% permanent impairment; MAC revoked and new certificate issued certifying that the degree of permanent impairment that has resulted from the psychological injury caused by the accident is not greater than 10%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Samuell dated 26 March 2024. 2. Certifies that the degree of permanent impairment of the claimant that has resulted from the generalised anxiety disorder caused by the motor accident on 2 July 2019 is not greater than 10%. |
STATEMENT OF REASONS
BACKGROUND
There is a dispute between BSX (claimant) and Insurance Australia Limited t/as NRMA Insurance (insurer) about whether, for the purposes of the Motor Accident Injuries Act 2017 (MAI Act), her degree of permanent impairment as a result of a psychological injury caused by a motor accident on 2 July 2019 (accident) is greater than 10% (dispute).
The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(a) of the MAI Act. The medical dispute was referred to Medical Assessor Samuell for assessment. On 26 March 2024 the Medical Assessor certified that unspecified trauma- and stressor-related disorder caused by the accident had resolved and gave rise to no assessable permanent impairment (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 Assessment was incorrect in a material respect. The review application was accepted and referred to a review panel. This review panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the review of the Assessment (Review).
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. Although styled a "review", the Panel is determining afresh the medical assessment matters referred to it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [9] per Leeming JA (Beazley P and Basten JA agreeing).
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 9.3 of the Motor Accident Guidelines (Guidelines), effective from 6 December 2024, apply to the Review.
DIRECTIONS
On 6 February 2025 the Panel directed the parties to file a joint bundle that contained all material relied on for the purposes of the Review. The parties were also directed to provide submissions for the purposes of the Review. A joint bundle and submissions were subsequently filed.
LEGAL FRAMEWORK
Permanent impairment
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.”
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with ‘Mental and behavioural disorders’, found in clauses [6.201]-[6.228] of the Guidelines.
Pre-existing impairment
Pre-existing impairment is addressed in clauses 6.31-6.33 as follows:
“Pre-existing impairment
6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.
6.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.”
In order to measure impairment caused by a specific event, a medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in the Guidelines, and subtract this value from the current impairment rating: cl 6.218.
Causation
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.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.
ASSESSMENT UNDER REVIEW
Medical Assessor Samuell gave a certificate and reasons dated 26 March 2024. As recorded earlier, the Medical Assessor certified that unspecified trauma - and stressor-related disorder caused by the accident had resolved and gave rise to no assessable permanent impairment.
In his reasons, the Medical Assessor recorded that when asked about the onset of mental health difficulties the claimant reported it was “when the injury wasn't getting better”. She was unable to provide any further specifics about the timing of the onset. She said, “[m]aybe an incident on the road set me off.”
The claimant reported seeing three different psychologists as she moved multiple times. She had not seen a psychologist in 2024 and was uncertain as to when she last sought psychological treatment. The claimant “did not provide clear reasons for the absence of ongoing psychological treatment” and had taken no medication for her mental health.
The claimant reported that she had a “mental breakdown” when she experienced car difficulty, that she may feel anxious if she is driving for a lengthy period and has difficulty with her sleep due to physical discomfort. She also told the Medical Assessor that stress from school also affects her ability to sleep. She reported being “depressed and stroppy”.
The Medical Assessor found that there was significant contemporaneous evidence that there was psychological difficulty post-dating the accident that was related to the accident. He accepted there has been a trauma related condition. The Medical Assessor determined that the accident did not satisfy the stressor criterion of a post-traumatic stress disorder and diagnosed unspecified trauma - and stressor-related disorder.
The Medical Assessor noted that there were “some serious, concurrent stressors”, such as a relationship breakdown and children with serious mental health conditions, and that it was difficult for the claimant to parent as a single parent with limited support. He was satisfied that the accident “appeared to make a non-trivial contribution to the development of the diagnosed condition.”
Medical Assessor Samuell determined that at the time he assessed the claimant her condition was in clinical remission, stating that she was “functioning at present without clinically significant symptoms, nor significant psychiatric disability.” The Medical Assessor did not address the PIRS categories or assess impairment.
EVIDENCE
The documentary evidence before the Panel consists of the joint bundle filed by the parties in accordance with the Panel’s directions. The Panel has considered all this material.
Claim documents
In her application for personal injury benefits dated 1 August 2019 (claim form) the claimant provided the following description of the accident:
“I was stationary with my indicator on awaiting a vehicle that was about to exit a car park. The at-fault vehicle began reversing (in an attempt to get the car park of the exiting vehicle) and collided with the front of my vehicle”.
The claimant recorded that she sustained the following injuries as a result of the accident:
“Recurrent severe headaches, intermittent nausea, intermittent loss of some sensation in the arms, recurrent neck pain. Shoulder & back pain.”
In a police report dated 30 September 2019 the accident is described as a “minor traffic crash”. The report records the time, date, and drivers involved in the accident. The claimant’s vehicle is “unit 1”. The impact type is described as “front to rear”, and the vehicle manoeuvre recorded was “reversing’. No description of the accident is included in the report.
The claimant’s application for damages under common law dated 14 July 2021 contains no description of the accident or her injuries.
On 7 February 2022 an internal reviewer informed the claimant in writing that the insurer’s determination that her physical and psychological whole person impairment does not exceed 10% had been affirmed.
Statements
The claimant has provided a statement dated 17 April 2022. She described the circumstances in which the accident occurred, and the development of symptoms in her neck later in the afternoon. Further symptoms are described at [11] of the statement. The claimant describes a range of psychological symptoms that developed after the accident, including: being emotionally distraught; experiencing intrusive memories; insomnia; flashbacks; panic attacks; feeling hopeless; reduced memory and concentration, and avoiding driving.
The claimant describes the treatment and investigations she has undergone. She was referred to a psychiatrist, Dr Ben Hadikusumo, and psychologist, Dr Fei Chung. She states that she “lost faith” in the psychologist “and in some way the profession, as she didn’t seem to address the struggles” the claimant was experiencing.
At [25] of her statement the claimant describes the ways in which her quality of life has changed since the accident, including: she stays away from others; experiences physical pain; is apprehensive about driving; has reduced memory and concentration, and limits her physical activity. Her mother has mentioned to her that she was short tempered and snappier.
Brad Currie has provided correspondence addressed “to whom it may concern”, in which he states that prior to the accident he performed in a group with the claimant over an eight year period, and during that time she “was a constant performer on a weekly basis and did not miss any events”. In December 2023 she had to “pull out prematurely” from a performance due to “illness from headaches, dizziness which resulted in vomiting and unable to continue”.
Medical Assessor Parmegiani’s assessment
On 6 April 2021 Medical Assessor Parmegiani certified that post-traumatic stress disorder and secondary depression caused by the accident were not minor injuries for the purposes of the MAI Act. The matters referred to by the Medical Assessor in his reasons under the heading “Psychosocial history and pre-accident history” have been considered by the Panel.
The claimant reported that because of her persistent physical symptoms and her inability to take her children out to theme park rides, which she had done regularly before the accident, she experienced significant distress. She stated that she was constantly reminded of the accident by the persistent symptoms of pain. When questioned specifically, the claimant admitted that she had experienced intrusive memories of the accident and flashbacks of the car reversing quickly towards her. She also experienced occasional nightmares. She felt particularly tense when she was driving, but did not report increased startle response. She avoided driving and became increasingly more irritable in her interactions. She was referred to a psychologist and psychiatrist for treatment.
The Medical Assessor noted that the claimant was clinically well from a psychiatric perspective before the accident. In his opinion the accident satisfied the criterion A requirement for a diagnosis of post-traumatic stress disorder. The persistent symptoms of intrusive memories of the accident and flashbacks, avoidance of driving, dysphoric mood and hyperarousal were in his opinion sufficient to support the diagnosis. She had also begun to experience symptoms of a secondary depressive illness, “best labelled as an adjustment disorder rather than a full major depressive disorder.” On the basis of her current symptomatology, the Medical Assessor diagnosed post-traumatic stress disorder complicated by secondary depression. These injuries were “non-minor injuries”.
Medico-legal reports
Dr Malcom Wallace, orthopaedic surgeon, reported to the claimant’s solicitor on 7 July 2021. The doctor recorded that following the accident the claimant experienced neck and left shoulder pain. She continued to suffer from posterior cervical spinal pain radiating to the left shoulder girdle and upper part of the left arm. She had suboccipital headaches and complains of nocturnal pain. She stated that there is restriction of motion in her cervical spine. There was a prior history of a motor accident in 2012. There was no past history of neck symptoms or pain. The doctor referred to a range of disabilities arising from the claimant’s injuries and notes the various radiological investigations that have been undertaken. In the doctor’s opinion the claimant had suffered musculoligamentous injury to the supporting structures of the cervical spine and cervicogenic headaches. She had difficulty with sustained postures and requires days off work here and there for severe headaches.
Dr Trevor Lotz, psychiatrist, reported to the claimant’s solicitor on 23 July 2021. There was a past history of post-natal depression and domestic violence. Her mother had been diagnosed with borderline personality disorder, and her children diagnosed with the conditions referred to in the report.
Dr Lotz recorded the claimant’s psychological symptoms that developed following the accident and diagnosed an adjustment disorder. On mental state examination the claimant was depressed and teary. Her prognosis was “unfavourable”. She required further treatment.
In the doctor’s opinion:
“…her ability to work has been affected by her injuries, not only the pain, but her cognitive difficulties and her change in attitude with irritability. Hypothetically, if [the claimant] had to commute to work this would also affect her level of anxiety, as she has described excessive anxiety in traffic.”
In a separate report dated 23 July 2021 Dr Lotz provided a PIRS assessment and found that the claimant had a 12% permanent impairment.
Dr Lotz next reported on 15 February 2022. The doctor was asked to address the opinions of other psychiatrists who had assessed the claimant. The doctor agreed with Dr Parmegiani, who identified features of anxiety, depression and noted symptoms of post- traumatic stress disorder. In the doctor’s opinion the appropriate diagnosis was other specified trauma and stressor related disorder (adjustment type). He thought it was possible that there had been gradual improvement in the claimant’s condition. However, without further assessment and interview of the claimant he could not conclude whether she had made a substantial recovery. His opinion remained as expressed in his earlier report.
Dr Lotz reported again on 2 March 2022 following a further assessment of the claimant by telephone, there having been a technical issue with the audio-visual link. She reported ongoing pain in her shoulder. She uses diazepam to reduce her anxiety and as a muscle relaxant. The claimant remained unemployed. She reported labile mood with anergia, anhedonia, fatigue and lack of motivation. She continued to have social avoidance. While she drives her children to school, she has noted significant anxiety in traffic. She described panic attacks when driving and hypervigilance. She had become more irritable with her children. The doctor diagnosed trauma and stressor-related disorder (adjustment type). The claimant’s whole person impairment was 12%. Dr Lotz did not agree with Dr Vickery that the claimant’s condition had improved. Nor did the doctor agree that the symptoms described by Dr Parmegiani supported a diagnosis of post-traumatic stress disorder.
Nancy Stephenson, occupational therapist, reported to the claimant’s solicitor on
24 July 2021. A history of the accident, injuries and treatment is recorded, and material from treatment providers summarised. The claimant reported ongoing physical symptoms, including neck pain, together with feelings of depression. The impact the claimant’s injuries have had on her social life are recorded. The pain diagram at [11.1] of the report has been considered, as have the claimant’s reports of pain as recorded at [11.2].
The functional capacity assessment has been considered, including the various restrictions reported. At [13] the psychological impact of the claimant’s injury is recorded. The claimant reported that she suffered from feelings of depression because of her ongoing pain, restrictions, and her inability to operate and expand her business as she had hoped. She suffered occasional nightmares about the accident and has to drive past the scene of the accident on occasion. The claimant reported she is more anxious when driving and is very fearful when people pull out in front of her and will start shaking. She reported that the accident was the second motor vehicle accident that she had been involved in. The claimant reported that she is more irritable with her children when her pain is aggravated. She has less motivation to socialise with friends and finds it hard to make plans because of the unpredictable nature of her migraines and her pain.
Ms Stephenson made various recommendations about treatment, including psychological counselling. She also assessed the claimant’s capacity to undertake activities of daily living. The claimant’s past and future care needs were assessed. Those needs included child care, vehicle cleaning, and assistance with heavier domestic cleaning. Equipment recommendations were also made. In Ms Stephenson’s opinion the claimant had a number of occupational limitations as a result of her accident caused injuries. Those limitations included driving anxiety and feelings of depression. She was not suited to roles involving driving, process work, factory work, hospitality or cleaning. Her employment opportunities are poor.
Associate Professor Shatwell, orthopaedic surgeon, reported to the insurer’s solicitor on
6 December 2021. The doctor diagnosed a minor soft tissue injury to the claimant’s lumbar spine as a result of the accident. The injury “would have settled within a day or so of the accident”.
The accident, in the doctor’s opinion, was “a very low speed frontal collision in a fit young individual restrained by a seatbelt in which the airbags of the vehicle did not deploy”. I his opinion:
“The idea, there could be any significant musculoligamentous disruption in such a collision, is not tenable. The forces involved would be less than those exerted on the cervical spine by sitting down on a chair.”
In A/Professor Shatwell’s opinion, the claimant’s fitness for employment would not have been affected by the accident. Any restrictions required are for the degenerative cervical spinal pathology shown in the radiological investigations. The forces involved and the energy expended in the accident would not have caused any trauma likely to precipitate “posttraumatic migraine”. The forces would not have caused any aggravation of the minor degenerative change seen on the investigations. In the doctor’s opinion, the diagnosis of musculoligamentous injury “is not compatible with the history given of a pain-free period of six hours before [the claimant] was aware of a pain in her neck”.
Dr Vickery, psychiatrist, reported to the insurer’s solicitor on 8 December 2021. The claimant reported left neck and shoulder pain which restricts the use of the left arm and pain when she holds her hands above her shoulders. The “significant personal stressors” referred to by the doctor have been considered by the Panel. The claimant reported anxiety when driving. She was frustrated by her pain perception and her resulting restricted functionality. There was no apparent clinically significant anxiety, melancholic depression, paranoid delusional ideation or formal thought disorder, and no apparent cognitive impairment. There was no psychiatric impairment noted in the clinical examination, and no diagnosable psychiatric disorder or injury. The claimant did not require psychiatric treatment.
In a separate report of the same date, Dr Vickery stated that there was no whole person impairment.
Records from treatment providers
An activities of daily living assessment report dated 26 September 2019, prepared by Jocelyn McKinley (an occupational therapist), is said to “provide recommendations to minimise the risk of further injury and maximise recovery”. The report includes a summary of the claimant’s pre and post-accident history, including employment. The medications listed in the report include Diazapam (for anxiety), Apo-Escitalopram (for depression/anxiety), and Temazepam (for difficulty getting to sleep). Various functional limitations are referred to, including that the claimant reported experiencing anxiety occasionally when driving, and fearing being hit by another car. There is also reference to impairment in concentration and memory, and feelings of anxiety while driving. The claimant’s reduced work capacity arose from her physical injuries. Pain was a limiting factor. The treatment an assistance recommendations referred to in the report have been considered.
An AHRR prepared by Dr Boehm on 7 February 2020 is for referral to a psychologist to treat “post-traumatic stress disorder following MVA in July 2019”. It is recorded that the claimant:
“…reported since the MVA she has flahsbacks [sic] and avoids driving whenever possible for fear of another MVA. If she has to drive somewhere she feels anxious and at times bursts into tear on the road when other cars are too close, feeling jumpy and holding her breath when stressed and experience tight chest. [The claimant] also stated she had nightmares about being involved in a car crash recently following a scary near- miss on the road. [The claimant] also said she avoids driving past the scene of MVA and the other day she needed to drive past it and she felt sick in the stomach. When asked about the probability of her being in another MVA, she replied 50%. [The claimant] also stated she still ruminates about the MVA and gets angry when she does.”
The AHRR dated 2025[1] relates to psychological treatment. The signs and symptoms recorded are: ongoing anxiety with driving; chronic pain; low mood if the claimant has to do a lot of driving, isolation, disturbed sleep and irritability.
[1] Pages 340-343 of the joint bundle.
The PBS and Medicare patient summary has been considered. The claimant had a short course of Sertraline in 2016 for a period of about 60 days. She said she was prescribed an antidepressant after the birth of her child and that she ceased it after a brief course. This is consistent with the record.
The claimant received a restricted supply of 15 diazepam 5mg tablets on 10 July 2019. The claimant reported that she would be prescribed diazepam as she occasionally used this medication for her symptom of “anxiety”. The prescription of limited supply is current best practice for this medication enabling monitoring of use. Between 2016 until 10 July 2019 this is the only prescription of Diazepam 5mg and supports a finding on no excessive use by the claimant, as it would have appeared regardless of the prescriber on the PBS record.
The Medicare patient summary demonstrates a common pattern of patient’s seeking medical assistance in a high turnover general practitioner environment. The claimant said she would use the available medical practitioner when necessary.
A report from Dr Koshy George, neurologist, dated 1 July 2020 relates to the claimant’s migraines. It is recorded that the claimant’s post-traumatic migraines are resolving.
The reports from Ms Fei Chung, psychologist, have been considered. In a report dated
23 October 2019 it is recorded that the claimant gave a history of post traumatic symptoms as a result of the accident. A K10 was also administered. The results confirmed she was experiencing moderate levels of psychological distress. In her report of 4 August 2020 there is reference to “other life stressors” apart from the accident. Ms Chung stated that:
“The latest information indicated to me [the claimant] not longer meets the criteria for PTSD as a result of the MVA and therefore I will not apply for further sessions under CTP.”
Ms Chung’s report to the insurer dated 5 February 2020 addresses the diagnostic criteria for post-traumatic stress disorder. She also addresses a question from the insurer with respect to how the claimant’s ongoing symptoms are causally related to the accident.
In a report dated 23 July 2020 Dr Hadikusumo, psychiatrist, stated that:
“[f]rom a psychiatric perspective, I can come to no conclusive diagnosis. I have explained this to [the claimant] and she accepts that she may not meet the bar of evidence for a psychiatric diagnosis. She did benefit from ongoing psychological support and as such have recommended that this continue as long as it is benefitting her.”
The various mental health care plans have been considered, as have medical certificates from Queen Street Medical Centre. On 31 May 2022 Dr Vial referred the claimant to Living Well Psychologists for “therapy for severe PTSD as a result of a MVA 2019 and severe neck pain since accident”. The referral states that the claimant was having severe anxiety as a result of and exacerbated when driving.
Reports from Harry Theodore, clinical psychologist, dated 15 July 2022 and 26 October 2022 record that the claimant had been referred for severe anxiety while driving “in the context of PTSD and associated chronic pain from a motor vehicle accident in 2019”. DASS21 scores from July and October 2022 are recorded in the October 2022 report.
The records from Living Well Psychology, Mr Theodore’s practice, have been considered. The notes are handwritten. There is reference to a motor accident, neck and shoulder injury, and “fears driving”. The impression was “PTSD?”. The “PTSD Symptom Scale” dated 15 July 2022 has been considered, as have the DASS21 reports dated 15 July 2022 and
26 October 2022.
The progress notes from Queen Street Medical Centre include references to the following:
(a) various pre-accident health issues
(b) matters relating to the claimant’s children
(c) 5 July 2019 – whiplash – severe pain – emotionally distraught
(d) 25 July 2019 - Recently had MVA resulting in whiplash – ongoing pain - Upset and tearful re home life situation
(e) 9 August 2019 – MVA in July - ongoing problems – neck pain
(f) 19 September 2019 – reason for contact: whiplash, L) shoulder pain, depression
(g) 9 October 2019 – mental health plan – lots of stress with children also recently broke up with husband, just last Sunday - Kessler Psychological Distress Scale (K10) performed: Score of 34 indicates probable distress!
(h) 11 October 2019 – “presented really stressed this morning feels overwhelmed with life: has to juggle looking after 2 young children ( 6 and 4yo), sorting rent, dealing with recent relationship breakup, family stressors (mother in law) an drecovering [sic] from whiplash injury finds it really challening [sic] looking after her children during holiday period, especially … is very hard to handle does not have much family support (sister an[d] father up in Cairns), finds own mother causing more problems than help, does not feel comfortable to ask friends as …very challenging kid…” - discussed restarting antidepressants to help over acute crisis
(i) 23 October 2019 – seen psychologist
(j) 13 November 2019 – still significant anxiety when driving
(k) 12 December 2019 – neck pain much better – still some shoulder pain
(l) 7 January 2020 - still has mental health consultation with shrink company …that has been really helpful
(m) 13 March 2020 - here for referral to psychiatrist, Dr Benjamin Hadikusumo - Depressive anxiety disorder - wanting to start Pristiq - DASS-21 indicates moderate anxiety/depressive symptoms - also requesting referral to psychiatrist upon psychologist’s suggestion
(n) 25 June 2020 - becoming bothered by her neck/shoulder pain again
(o) 3 August 2021 - she has severe anxiety and was diagnosed with PTSD as it was her second MVA - had whiplash and traumatic headaches - no wearing masks causing trouble breathing and panic attacks - will wear when possible however cannot cope for long periods
(p) 9 September 2021 - gets PTSD from driving - constant pain in neck and down arms
(q) 31 May 2022 - severe PTSD due to driving and needs therapy
(r) 31 May 2023 - Left Neck pain with radiculopathy
(s) 10 January 2024 - severe anxiety when driving
The last entry in the notes is dated 22 March 2024 and relates to a telephone consultation. The reason for visit was left neck pain with radiculopathy. There were complaints of migraines that required management. The notes record that the claimant “is stressed”.
Progress notes from Kirra Beach Family practice were printed on 11 June 2024. The first entry is dated 2 June 2008. The Panel has considered all the entries in the progress notes. The consultation notes recorded on 27 August 2012 state:
“RTA saturday whilst passenger in husband's car-was hit on her side from L. tyre backwards; was wearing seat belt pt had headache straight away; developed back pain in 1hour;y'day 4 pm worsening back pain…o/e tender medial L. lumbar muscles…”.
There was reference to mid back pain on 6 December 2012. The last attendance at the practice was on 28 February 2013. The records include various tests and investigations.
A report from Dr Vial dated 3 July 2024 refers to severe recurrent migraines, severe neck and shoulder pain due to “motor vehicle accident 2019”, and “PTSD”. With respect to post-traumatic stress disorder the report records “severe anxiety when driving – emotional destress”. The report also refers to mobility issues and chronic pain.
SUBMISSIONS
Claimant’s submissions
The claimant relies on written submissions dated 9 April 2024. The submissions address background matters and s 7.26(2) of the MAI Act. She argues that Medical Assessor Samuell “completely failed to have regard to, refer to, or utilise the Permanent Impairment Rating Scale (PIRS)”, and “completely failed to ascertain and state the facts on which his assessment with respect to each of the 6 scales contained in the PIRS is based.”
The claimant also argues that the Medical Assessor’s reasons “are so brief that a reader cannot reasonably understand the basis or logic underpinning the medical assessment because none of the areas of functional impairment contained in the PIRS are addressed, evaluated or commented upon.” In the claimant’s submission, the medical assessment was incorrect in a material respect.
The claimant’s case is that her degree of permanent impairment as a result of the psychological injury caused by the accident is greater than 10%.
Insurer’s submissions
The insurer relies on written submissions dated 12 March 2025. The submissions refer to the evidence the insurer relies on to support the following arguments:
(a) the accident did not have a material effect on the claimant’s mood;
(b) the claimant’s functioning, apart from driving, has not been affected by the accident, and
(c) in the event the Panel observes conflicts between the claimant's account and contemporaneous records, the Panel ought provide her with an opportunity to respond.
The insurer submits that the accident is not a material cause of the claimant's low mood as shown by the evidence that: her need for antidepressant medication arose from her home life situation (Dr McQuillan 25 July 2019); antidepressants were restarted “due to a crisis, again, in her home life” (Dr Rockliff-Boehm 11 October 2019); and her mood was affected by premenstrual dysphoric disorder (Dr Morris 25 June 2020). Further, in the insurer’s submission the accident was not said to have affected the claimant's mood except through the discomfort of her physical injury (Dr Rockliff-Boehm 11 October 2019 and Dr Hadikusumo 23 July 2020).
The insurer argues that the claimant’s whiplash injury was “only one of a number of health issues recorded by her GP at the first post-accident consultation on 5 July 2019” and it was recorded that it was the claimant having "lots of health issues" that caused her distress (Dr Rockliff-Boehm 9 October 2019).
The insurer argues that the claimant's functioning, apart from driving, has not been affected by her psychological injury. In this regard, the insurer notes that on 23 October 2019, when she first consulted a psychologist, the psychological issue that was reported as relating to the accident was avoidance of driving or anxiety when driving. The insurer points to Dr Hadikusumo’s observation that it was only the claimant’s driving that was affected, and submits that in contrast, other functional limitations reported were not related to the accident or were related to her physical injuries.
The insurer points to the report made by the claimant that she was not returning to work because she could not organise childcare for her son (Dr Rockliff-Boehm 11 October 2019), that she reported difficulty concentrating when reading due to blurry vision (Dr Reich
6 February 2020), and reported not socialising due to pain (Ms Stephenson 24 July 2021) or due to migraine (Dr Vial 3 July 2024).
In the insurer’s submission “the claimant does not appear to be a reliable historian”. In support of this submission, the insurer notes:
(a) the claimant initially complained on 7 January 2020 that she had blurry vision for one week. One month later, she gave a history that she had blurry vision since the accident;
(b) in August 2020, the claimant's psychologist, Ms Chung, stated that the claimant reported having driven a long distance, contrary to her self-report in her “PTSD Checklist”;
(c) the claimant said to Dr Vial in October 2021 that she had only just started driving again, when records prior to that date show that she had been driving, and
(d) there are some conflicts in the medicolegal reports regarding when the claimant returned to work. Dr Wallace recorded that she was off work for six months after the accident (i.e. until December 2019). Ms Stephenson recorded that the claimant was off work until October or November 2020, except for one session done at the request of an old customer about six months after the accident. Dr Shatwell, recorded on 6 December 2021, that the claimant had not been able to recommence her business in the past year (i.e. in 2021). Dr Lotz did not record any period off-work in his report in 2021 and recorded that the claimant was unemployed in his report in 2022.
Given the “various inconsistences” in the claimant’s treating records and expert reports, the insurer makes “an anticipatory submission” that if conflicts occur between the claimant’s account and contemporaneous records the Panel “ought to provide the [c]laimant with an opportunity to respond.”
RE-EXAMINATION REPORT
The claimant attended the re-examination by MS Teams. She was assessed by Senior Medical Assessor Baker and Medical Assessor Singh. The claimant was at home alone. Her children were outside the house supervised by their grandfather and on a walk during all the re-examination.
Psychosocial history and pre-accident history
The claimant provided a complex developmental history. She said that she was the second daughter of a two-sibling family. She said she had regular telephone contact with her elder sister. She remained in contact with her parents at least once weekly. She said that her son was diagnosed with “Asperger’s Syndrome”, attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD). She said her daughter was diagnosed with oppositional defiant disorder. The claimant said that she had organised for her children to be assessed at the local mental health services, and their names are on a waitlist.
The claimant was born in South Australia. The family moved to Queensland when she was a child. The claimant said she had memories of attending a child psychologist prior to primary school. Her memories of her attendances only included the claimant sitting and drawing pictures. She said she was told that she had experienced an episode of child abuse when she was about four years of age. She said that the person who enacted the abuse was a foster child, in his early teens.
The claimant said she had always been an artistic person. She was taught by her mother to sing and play the keyboard. Her mother was also a performer and sang earlier in her life. The claimant said she was also a visual artist and she had continued creating sketches and art works throughout her life. She said she attended her primary education in Robina and continued until the first term of Year 10. She was asked why she left school at this time and the claimant said she was unhappy at the school and chose to attend QTAFE, where she completed her Year 10 equivalent education. She said about the same time she was singing and performing. She hoped to work in the entertainment industry as a singer.
The claimant provided the following history about her musical career. She said her mother trained her voice when she was a young child. She said she also had three other voice coaches in the past. She said that she was never training in musical theory prior to the motor accident. She had not sat theory and performance graded examinations. She had been singing professionally since about 16 years of age. She had written and published her songs on platforms such as Spotify. She was working regularly as a singer for a band for about eight years prior to the accident. She enjoyed her performing art and was recognised in her community where she performed about twice each week.
The claimant was asked about her mother’s mental health. She was not sure about her mother’s mental health however she was at times erratic. The claimant said she had spoken to various medical, psychological and psychiatric clinicians about her mother. She said that the term “borderline personality disorder” was suggested. She was unsure about whether her mother had any formalised diagnosis.
The claimant was asked about her medical history and said that she had surgery on her nose to assist with breathing. She said she had also had her enlarged adenoids and tonsils surgically removed. She said that she recovered from these surgical treatments without impairment.
The claimant said that when she was a P-plate driver, she had lost her licence for having a very low amount of alcohol in a road-side breath test. She said she had been returning from an evening of performing. She had no other driving offences throughout her driving career. She drank alcohol rarely, and said she did not use illicit substances or gamble. The claimant said that after the 2019 accident she had been prescribed medicinal cannabis which she mixed with tobacco and smoked about 10 times daily.
The claimant said that in 2012 she was in her first motor accident. Her husband was driving. She said the driver at fault was exiting a service station and crashed into the passenger side of the car where she was the passenger. She said she injured her lower back. She had difficulty sitting, and was referred to a physiotherapist. She said that she had no physical complications giving birth to her children after this motor accident. She continued on her career as a performing artist.
The claimant said that she had a brief period of postnatal depression after the birth of her son. She was treated with antidepressant medication for a short period. She had significant side-effects from the prescribed antidepressant medication and chose to change to natural alternative therapies. She said she preferred not to use prescribed medication if possible.
The claimant provided the following work history before the motor accident. She said on leaving the QTAFE she commenced working during the day in hospitality. Her first job was working for Hungry Jacks as a crew member. She then progressed to work in different cafés and small business restaurants. She did not hold a responsible service of alcohol or responsible gambling certificate. She also worked as a receptionist for different small businesses throughout her career.
The claimant said she would usually sing professionally at least two sessions every fortnight. She said she had developed a strong working relationship with the band leader, and she was reliable, committed, passionate and capable of singing the band’s complete repertoire of songs on demand. She said she had been performing with the band for about eight years prior to stopping suddenly and never returning after the motor accident on 2 July 2019.
The claimant said prior to the motor accident in 2019 she had completed a QTAFE certificate in therapeutic massage and a small business skills course. She said she was working as a therapeutic massage therapist from her home. She said that she had difficulty due to the location of her home. A few days before the motor accident the claimant had organised to rent a small business premises in her local town. She planned to run her small business from this location.
History of the motor accident
The claimant was asked to describe the motor accident that occurred on 2 July 2019. She said that her daughter had gone to the performance space where she was a participant in a school dancing event. She said that the event was soon to commence, and she decided to park in the parking area close to her daughter’s event.
She said she was waiting for a car to exit a car parking space. There was another car also waiting for the same space. After the first car had left the space, the other competing vehicle for the car park suddenly pulled into the space. The claimant was moving her vehicle as she had to find another space. Whilst performing the manoeuvre the claimant’s car was hit from behind. The claimant’s car was stationary when unexpectantly the car in the car parking space suddenly drove into the car that the claimant was driving. The claimant said she was frightened by the force of the crash, and it was as if the other driver had “put her foot to the floor and deliberately drove in to her car.” The claimant exited her car to find that the tow bar and tow-ball had crashed not her car.
The claimant said she exchanged details with the other driver. The claimant parked her car and went immediately to her daughter’s performance. She went home after her daughter’s performance. The same evening of the accident the claimant developed neck pain, and she noticed her neck was sore. She went to her local public hospital emergency room and was examined and discharged.
History of symptoms and treatment following the motor accident
After two days the claimant’s pain had not improved. She went to her general medical practice and was assessed by her general medical practitioner. The claimant said she began to experience ongoing pain and recurrent headaches. She said she would have fuzzy vision, headache, nausea, vomiting and dizziness. She was referred to a neurologist for assessment. She was diagnosed with post-traumatic migraine. Post-traumatic migraine is not a psychiatric diagnosis but is a condition associated with recurrent migraine headaches.
The claimant was commenced on medication to treat her neck pain and recurrent migraines; she continued to have pain and recurrent migraines at the time of the re-examination.
The claimant said she had been referred to a psychologist by her general practitioner. She said that her anxiety was different since the motor accident. The claimant said that it was common for her to feel “anxious” before performing. She said she had not been impaired by her anxiety. She said that this type of anxiety was not excessive, and she did not have any apprehensive expectation of not been able to sing, drive or work before the motor accident.
Current symptoms
The claimant said that since the motor accident she had developed the following symptoms that had persisted:
(a) excessive anxiety and worry occurring more days than not for more than six months since the accident. She said that her anxiety and worry was so excessive that her capacity to recall the band’s repertoire of songs was incomplete. She said she tried to return to singing but had a panic attack which resulted in her fleeing the performance space. She had never returned to singing in public;
(b) excessive worries driving, however whilst she had an excessive worry about having another motor accident she had not stopped driving her car since the accident;
(c) the claimant said she had tried to divert her excessive worrying to writing new songs and learning new skills. She said she had recently completed a course where she was taught how to improve her musical theory skills in conjunction with learning how to produce music with her original lyrics using “garage band”. She said she had released two songs and was hopeful of releasing another, and
(d) increased irritability, poor sleep, muscle tension and feeling always on edge. She said she had been prescribed diazepam as a “muscle relaxant” to treat her persistent muscle tension.
The claimant also reported other symptoms such as nightmares, and fear of driving about the motor accident. She said these symptoms have not fully resolved however the severity of these trauma related symptoms had reduced. The claimant said that she was not depressed in her mood, but she did have a dysphoric mood which she described as “lots of anxiety.”
Current and Preposed Treatment
The claimant reported she had been treated by her general practitioner and a psychologist. She reported that she lost rapport with her initial psychologist. She continued to attend her general practitioner about once per fortnight after her insurer ceased funding. She was unable to afford a psychologist for many months after the psychologist funding was ceased. She reported she was receiving cognitive behavioural therapy, mindfulness and relaxation treatment. She attended her psychologist about once every fortnight.
The claimant had been referred for treatment by a psychiatrist. She had been treated with selective serotonin reuptake inhibitors (SSRI) such as APO-escitalopram however she had ceased this medication, as she did not identify any benefit. She said that she preferred natural alternative medications. She was not using any natural medications at this time. She said she had not been admitted to a psychiatric hospital for this psychological injury.
Mental State Examination
The claimant was assessed using MS Teams. The connection was good with no technological difficulties. She appeared reasonably groomed. She was agitated and rapport was difficult to establish and sustain. She would talk for extended periods and wander off topic. She required assistance to remain on topic frequently throughout the re-examination. She reported her mood as anxious. Her affect was labile and at times dysphoric. She was agitated and irritable at times during the re-examination. She was tearful when talking about her lost singing career. When she was talking about her losses since the motor accident she became more disorganised in her thinking. She provided relevant answers to questions asked. She did not present with a formal thought disorder. She did not have any delusional ideas or psychotic symptoms. She was orientated to time, person and place, and her cognition appeared normal. She was able to concentrate for the duration of the re-examination. She had no suicidal thoughts or thoughts of harm to others.
Current Functioning
The Medical Assessors reminded themselves that cl 6.215 of the Guidelines states that the PIRS must not be used to measure impairment due to somatoform disorders or pain.
Self-care and personal hygiene: The claimant was independent in her own home. She was able to purchase groceries and cook meals. She was able to clean the home however she was slower in her work schedule and less interested in her selfcare and personal hygiene. She presented at the re-examination as mildly unkempt. She was able to live independently and look after herself adequately. She sometimes misses meals. She was assessed as having a mild impairment in this area of functioning.
Physical injuries and Pain: The claimant said that she was unable to lift her arms as high to perform some tasks as she could have before the accident, and she would have neck pain most days. She said that she could not perform some heavy cleaning duties due to her physical injuries and pain. She had help from social community services to clean her house and mop the floors as her pain was too great to use a heavy mop. These physical and pain impairments were not included in the assessment of this area of functioning.
Social and recreational activities: The claimant said she still maintained her interest in her hobby of making music. She said she still was able to create new original music. She said that she could still play keyboard and she still enjoyed music. She said she could still compose new lyrics, and she was working on her new song as the day prior she had a new idea and some new lyrics she was developing.
The claimant said she could still use her song publishing platform, Spotify. She said she had a Spotify channel, and she would release new songs into this community platform. She said she remained interested in music.
The claimant said she was still able to sketch and enjoy her visual art. She said she did less of this form of art than prior to the motor accident.
The claimant was less interested in her children’s activities however she still supported her children’s interest. She was assessed as having a mild impairment in this area of functioning.
Physical injuries and Pain: The claimant said she was no longer able to sing. She said she had too severe neck pain and was unable to hold her neck in the correct position for her to reproduce the lyrics on note as she could have easily prior to the accident. She said she found this loss of function frustrating and distressing. She was tearful when she spoke about this loss of physical function. These physical and pain impairments were not included in the assessment of this area of functioning.
Travel: The claimant said she was able to leave her home to perform the necessary activities for her and her children. She was fearful of future motor accidents, but she would excessively worry and the excessive worrying was her concern whilst driving. She had reduced her range of driving. She had negotiated with the father of her children to drop them off a service centre that was about halfway between his property and her home. She was assessed as having a mild impairment in this area of functioning.
Physical injuries and Pain: The claimant reported that driving or sitting for too long exacerbated her neck pain. She said she would need to stand about once every 30 minutes to stretch. These physical and pain impairments were not included in the assessment of this area of functioning.
Social functioning: The claimant said that she had left the father of her children after the motor accident in 2019. She said they separated after he had not shown her “empathy and understanding” for her injuries from the motor accident. She said they had angry verbal arguments. She said the verbal arguments were too much “like DV”. She said she was not physically injured during this verbal conflict. She said she took the children who live mainly with her. She stated that that whilst the relationship was not very happy before the motor accident the motor accident did contribute significantly to her final decision to separate. She said she had hoped that things would get better – however this failed to eventuate.
The claimant said she would telephone her sister frequently and her mother often. She said she was helped by her father such as his assistance at the time of this re-examination. She was assessed as having a moderate impairment in this area of functioning.
Physical injuries and Pain: The claimant reported that she would have pain and when in pain or suffering from headaches she was more irritable and “snappy” to others in her house. She said her pain restricted her interest in new relationships. These physical and pain impairments were not included in the assessment of this area of functioning.
Concentration persistence and pace: The claimant said she was responsible and managed the home finances. She said she had recently completed a course which involved some musical theory and assistance with using digital musical platforms such as “garage band”. She enjoyed the course. She said she is hopeful of releasing a new song. She was able to concentrate during the re-examination. She said she could use the computer keyboard much like her one keyboard and input notes, as well as place in recorded snippets. She was assessed as having a mild impairment in this area of functioning.
Physical injuries and Pain: The claimant said should she have a migraine, headache or neck pain she would not make music. She said she would be too irritable at these times. These physical and pain impairments were not included in the assessment of this area of functioning.
Adaptation: The claimant said she was still making music, and she was still releasing her songs. She said she was not doing any other arts regularly. She would do less music than she had prior to the motor accident and was less creative than she was before the accident. She said she was no longer as happy in her art and producing of new music as she would have been before the motor accident. She was assessed as having a mild impairment in this table of functioning.
Physical injuries and Pain: The claimant said she was unable to work as a therapeutic massage therapist as she could not use her hands with the physical intensity and proficiency. She said she was restricted in heavy work such as working for long hours in the salon. She said her pain would become too severe and she was unable to remain positive during the treatments.
The claimant said she was unable to perform singing for long sessions as she was unable to hold and position her neck due to pain she endures when singing for long periods. She said she was unable to sit for long periods and this interrupted the business component of the band’s future offers for performance. Since leaving the band she had not performed in public. These physical and pain impairments were not included in the assessment of this area of functioning.
Diagnosis
The Medical Assessors diagnosed the claimant as suffering from DSM-5-TR F 41.1 Generalised Anxiety Disorder. This diagnosis is the best diagnosis to explain all of the claimant’s symptoms and presentation. It recognises the nature of the motor accident as not being sufficient to meet all the criteria for post-traumatic stress disorder (PTSD). The actions of the claimant at the time of the accident to attend her daughter’s performance and not proceed to hospital for immediate treatment is inconsistent with the requirements of post-traumatic stress disorder F 43.10 Criterion A, Exposure to actual or threatened death, serious injury, sexual violence. For these reasons the claimant does meet criteria for post-traumatic stress disorder.
The Medical Assessors note that Dr Lotz’s diagnosed “trauma and stressor related disorder (adjustment type)”. This description is not a complete diagnosis as neither of the two descriptors to define the condition listed below were used by this medical assessor:
· “1. Adjustment – like disorder with delayed onset of symptoms that occur more than 3 – months after the stressor or
· Adjustment – like disorder with prolonged duration of more than 6 months without prolonged duration of stressor” was chosen.
This results in the diagnosis “trauma and stressor related disorder (adjustment type)" as being incomplete and does not define the claimant’s psychological injury in compliance with DSM-5-TR diagnostic criteria. The documented diagnosis is incomplete as they do not describe the claimant's anxiety that was initially a symptom and after the motor accident deteriorated to becoming a diagnosed DSM-5-TR compliant disorder as described below.
For these reasons the diagnosis as documented by Dr Lotz “trauma and stressor related disorder (adjustment type)” is not preferred.
The diagnosis DSM-5-TR F 41.1 Generalised Anxiety Disorder is the preferred diagnosis as the claimant’s condition regarding the presence of anxiety is well documented in the forwarded documents.
Prior to the accident the claimant had episodes of anxiety which had not prevented her from pursuing her career as a therapeutic masseuse, professional singer and caring mother. For these reasons the claimant did not have a pre-existing anxiety disorder as she was not disabled or impaired by her symptom of anxiety.
After the accident the claimant’s anxiety became more severe and she did suffer impairment in her capacity to work as the professional singer and caring mother because of her excessive anxiety and worry caused by the motor accident. The severe anxiety caused by the motor accident did affect the claimant capacity to function as a professional singer, and mother and was definable and complaint with DSM-5-TR F41.1 criteria:
A. Excessive anxiety and worry (apprehension expectation), occurring more days than not for at least 6 months, about a number of events or activities such as working as a professional singer.
B. The individual finds it difficult to control the worry.C. The anxiety and worry associated with three (or more) of the following six symptoms (with at least some symptoms having been present for more days than not for the past six months): as demonstrated by the date of the motor accident occurring on 2 July 2019:
1.Restlessness or feeling keyed up or on edge
2.Difficulty concentrating
3.Irritability
4.Muscle tension
5.Sleep disturbance (difficulty falling asleep or staying asleep, or restless, unsatisfying sleep).
D. The anxiety and worry cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
E. The disturbance is not attributable to the physiological effects of a substance (e.g. a drug of abuse, a medication) or another medical condition (e.g. hyperthyroidism).
F. The disturbance is not better explained by another medical disorder…
For these reasons the diagnosis of DSM-5-TR F41.1 generalised anxiety disorder best defines the psychological injury sustained in the accident by the claimant at the time of the re-examination.
The Medical Assessors recognise that the claimant does suffer from physical symptoms and conditions related to the accident. The diagnosis of post-traumatic Migraine is not a psychiatric condition as defined in DSM-5-TR. The pain due to the claimant’s neck injury is not excessive and she has not lost her capacity for independence in her home duties, care of her children or capacity to create new music and write new lyrics. For these reasons the claimant does not have a somatic symptom disorder as defined by DSM-5-TR.
The claimant had previously suffered a physical injury to her back from a motor accident in 2012. This physical injury did not prevent her continuing in her career.
The claimant had further physical injury and pain associated with this motor accident. Pain from physical injury and all presented caused have been considered.
Causation
The Medical Assessors are satisfied that whilst the claimant may have had various psychiatric symptoms and developmental events before the accident, she did not have a diagnosed psychiatric or psychological condition or a pre-existing psychological impairment. She was a reliable worker and participant in the social and performance life of the band for which she sang. The symptoms she reported had not prevented her from creating new music, writing new lyrics and performing with the band. for many years prior to the motor accident.
The term “anxiety and depression” is not a formal psychiatric diagnosis. The term “anxiety” does not define whether the person is having appropriate normal levels of “anxiety” required for performance of complex tasks such as performing in public – whether the “anxiety” impairs functioning because of an “excessive anxiety and worrying”, as required to diagnose DSM-5-TR F41.1 generalised anxiety disorder.
The type and nature of the motor accident on 12 July 2019 made a more than negligible contribution to the deterioration in the claimant’s mental state. Because of the motor accident the claimant could have suffered from the diagnosed generalised anxiety disorder.
The Medical Assessors are satisfied that the accident did cause the psychological injury diagnosed as generalised anxiety disorder.
The Medical Assessors assessed the claimant’s current whole person impairment as set out in the table below:
Psychiatric diagnoses
DSM-5-TR F 41.1 Generalised Anxiety Disorder
Psychiatric treatment description The claimant had received psychological and psychiatric treatment. She was prescribed Diazepam
a known anxiolytic for treatment of her “muscle tension” which is a known symptom of the diagnosed psychological injury. She is continuing psychological treatment.Category Class Reason for Decision 1. Self-Care and Personal Hygiene
2
The claimant was able to remain independent in her own home. She was able to purchase groceries and cook meals. She was able to clean the home however she was slower in her work schedule and less interested in her selfcare and personal hygiene. She presented at this re-examination as mildly unkempt. She was able to live independently and look after herself adequately. She sometimes misses meals. She was assessed as having a mild impairment.
2. Social and Recreational Activities 2 The claimant said she still maintained her interest in her hobby of making music. She said she still was able to create new original music. She said that she could still play keyboard and she still enjoyed music. She said she could still compose new lyrics, and she was working on her new song as the day prior she had a new idea and some new lyrics she was developing.
The claimant said she was still able to sketch and enjoy her visual art. She said she did less of this form of art than prior to the motor accident.
The claimant was less interested in her children’s, activities however she still supported her children’s interest. She was assessed as having a mild impairment.3. Travel
2
The claimant said she was able to leave her home to perform the necessary activities for her and her children. The claimant said she was fearful of future motor accidents, but she would excessively worry and that the excessive worrying was her concern whilst driving. She had reduced her range of driving. She had negotiated with the father of her children to drop them off a service centre at was about halfway between his property and her home. She was assessed as having a mild impairment.
4. Social Functioning
3 The claimant said that she had left the father of her children after the motor accident in 2019. She said they separated after he had not shown her “empathy and understanding” for her injuries from the motor accident. She said they had angry verbal arguments. She said the verbal arguments were too much “like DV”. She said she was not physically injured during this verbal conflict. She said she took the children who live mainly with her. She stated that that whilst the relationship was not very happy before the motor accident the motor accident did contribute significantly to her final decision to separated. She said she had hoped that things would get better – however this failed to eventuate.
The claimant said she would telephone her sister frequently and her mother often. She said she was helped by her father such as his assistance at the time of this re-examination. She was assessed as having a moderate impairment.
5. Concentration, Persistence and Pace
2
The claimant said she was responsible and managed the home finances. She said she had recently completed a course which involved some musical theory and assistance with using digital musical platforms such as “garage band”. She said she had enjoyed the course. She said she is hopeful of releasing a new song. She was able to concentrate during the re-examination. She said she could use the computer keyboard much like her one keyboard and input notes, as well as place in recorded snippets. She was assessed as having a mild impairment.
6. Adaptation
2
The claimant said she was still making music, and she was still releasing her songs. She said she was not doing any other arts regularly. She would due less music than she had prior to the motor accident. She would be less creative than she was before the motor accident. She said she was no longer as happy in her art and producing of new music as she would have been before the motor accident. She was assessed as having a mild impairment.
List classes in ascending order: 2, 2, 2, 2, 2, 3 Median Class Value: 2 Aggregate Score: 13 % Whole Person Impairment: 7 %
Pre-existing injuries
The claimant said that she did have treatment for a brief depressive episode when her son was born. She said that she did receive antidepressant medication from her general practitioner. She said that whilst she had a brief episode of illness, she was not impaired by this episode.
The claimant said that she had experienced anxiety during her life. She said that the experience of anxiety she had prior to the motor accident had not caused her to stop work or singing. She said she was a regular performer for about eight years in the same band. She said had never been impaired din her singing for any reason prior to the accident.
The Medical Assessors find that whilst the claimant had symptoms and may have had brief episodes of illness the claimant was not psychologically impaired before the accident. For these reasons the pre-existing assessment of impairment was assessed as 0% WPI.
Subsequent injuries
There were no subsequent injuries.
Treatment effects
The claimant was using Diazepam 5mg for treatment of her muscle tension. She was not using any other psychiatric medication.
Medicinal cannabis is not an evidence-based treatment for trauma, anxiety or depression in compliance with college guidelines.
For the above reasons the claimant was assessed as having 0% WPI treatment effect. As the continuation or withdrawal of evidence-based treatment would not alter her whole person impairment due to her psychological injury.
DETERMINATION
The Panel is satisfied that as a result of the accident the claimant developed clinically significant psychological symptoms. In this regard, the Panel gives weight to the following evidence:
(a) the history obtained from the claimant when she was re-examined by the medical members of the Panel;
(b) the activities of daily living assessment report dated 26 September 2019, two months after the accident, in which it was recorded the claimant reported experiencing anxiety occasionally when driving, fearing being hit by another car;
(c) the AHRR prepared by Dr Boehm on 7 February 2020 in which the doctor recorded that the claimant reported that since the accident she experienced flashbacks, avoided driving, felt anxious when driving, and had nightmares;
(d) Ms Chung’s reports, including her report dated 23 October 2019 wherein she recorded the claimant’s history of post traumatic symptoms as a result of the accident;
(e) the progress notes from Queen Street Medical Centre;
(f) the contents of the Mental Health Care Plans prepared following the accident;
(g) Dr Vial’s referral to Living Well Psychologists dated 31 May 2022;
(h) the reports from Harry Theodore, clinical psychologist, and
(i) the records from Living Well Psychology, including the DASS21 questionnaires.
The Panel is satisfied that as a result of the accident the claimant suffered a psychological injury. The Panel gives weight to and agrees with the finding of its medical members that the best diagnosis to explain all the claimant’s symptoms and presentation is generalised anxiety disorder.
The Panel finds that the accident was a necessary condition of the occurrence of the generalised anxiety disorder, and that but for the accident the claimant would not have suffered from this condition.
The Panel has considered the class descriptors for each category of functioning in the PIRS and has evaluated the history provided by the claimant when he was re-examined by the medical members of the Panel.
The Panel notes that the clinical judgement of its medical members, both of whom are psychiatrists, is the most important tool in the application of the PIRS: cl 1.217 Impairment Guidelines. The Panel has given weight to the findings of its medical members with respect to the class they assigned for each PIRS area of functioning, and agrees with and adopts their findings, and the reasons they have given in support of those findings.
The Panel agrees with and adopts the reasons given by its medical members for their conclusion that the claimant did not have a pre-existing or subsequent impairment.
The Panel finds that:
(a) the degree of permanent impairment of the claimant that has resulted from the adjustment disorder caused by the accident is 7%, and
(b) the degree of permanent impairment of the claimant that has resulted from the generalised anxiety disorder caused by the accident is not greater than 10%.
The Panel has found that the degree of permanent impairment of the claimant that has resulted from the generalised anxiety disorder caused by the accident is 7%, and that the permanent impairment is not greater than 10%. Given those findings, the Panel revokes the certificate of Medical Assessor Samuell dated 26 March 2024 and issues a new certificate certifying that the degree of permanent impairment of the claimant that has resulted from the generalised anxiety disorder caused by the accident is not greater than 10%.
DE-IDENTIFICATION OF THE DECISION
These reasons contain sensitive personal information. Having weighed the matters referred to in rule 132(4) of the Personal Injury Commission Rules, including the safety, health and wellbeing of the claimant, and whether the public interest in giving the direction significantly outweighs the public interest in open justice, the Panel is satisfied that its decision should be de-identified before it is published.
The Panel directs that, pursuant to Rule 132 of the Rules, the decision be de-identified prior to publication.
0
3
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