BTU v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	BTU v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 111
CLAIMANT:	BTU
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
SENIOR MEMBER:	Williams
MEDICAL ASSESSOR:	Thomas Newlyn
MEDICAL ASSESSOR:	Matthew Jones
DATE OF DECISION:	26 February 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; review of medical assessment of permanent impairment under section 63; where Medical Assessor (MA) certified that psychological injury caused by the accident gave rise to a permanent impairment that was not greater than 10%; Held – the claimant suffers from an accident caused psychiatric injury; the injury does not give rise to a permanent impairment greater than 10%; MA’s certificate confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certificate of Medical Assessor Fukui dated 5 November 2022.

STATEMENT OF REASONS

BACKGROUND

BTU (claimant) was injured in a motor accident at West Wollongong on
16 August 2014 (accident). She subsequently made a claim for damages on Insurance Australia Limited t/as NRMA Insurance (insurer) under the Motor Accidents Compensation Act 1999 (MAC Act).
There is a dispute between the claimant and the insurer as to whether, for the purposes of
s 131 of the MAC Act, the degree of permanent impairment of the claimant as a result of psychological injury caused by the accident is greater than 10% (the dispute). The dispute is a medical assessment matter for the purposes of Part 3.4 of the MAC Act: s 58(1)(d) MAC Act.
The dispute was the subject of a medical assessment conducted by Medical Assessor Fukui. The Medical Assessor gave a certificate and reasons dated 5 November 2022. She certified that persistent depressive disorder, that had been caused by the accident, gave rise to a permanent impairment that was not greater than 10%. The claimant subsequently sought a review of the assessment under s 63 of the MAC Act. On 25 January 2023 the President’s delegate determined that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect (s 63(2B)), and referred the assessment to the Panel for review.

THE REVIEW

The claimant lodged an application for assessment of permanent impairment with the Medical Assessment Service (MAS) on 12 November 2020. The Personal Injury Commission (Commission) commenced operation on 1 March 2021. MAS was abolished by Sch 1 cl 3 of the Personal Injury Commission Act 2020 (PIC Act).
Under Sch 1 cl 14A(1) of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Schedule 1 cl 14F of the PIC Act provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in Sch 1 cl 14A(1) of the PIC Act. As the medical assessment the subject of the review was made on or after
1 March 2021, the new review provisions apply.
The Panel is to conduct the review in accordance with s 63 of the MAC Act. That section provides that the review panel consists of 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 63(3A) MAC 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.

STATUTORY FRAMEWORK

No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%: s 131 MAC Act.
Section 132 of the MAC Act deals with the assessment of 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, the court may not award any such damages unless the degree of permanent impairment has been assessed by a Medical Assessor under Part 3.4.
The method of assessing the degree of impairment is dealt with in s 133 as follows:
“133 Method of assessing degree of impairment
(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.
(2) The assessment of the degree of permanent impairment is to be made in accordance with—
(a) Motor Accidents Medical Guidelines issued for that purpose, or
(b) if there are no such guidelines in force—the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.
(3) In assessing the degree of permanent impairment under subsection (2) (b, 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.
Note—
See Part 3.1 for Motor Accidents Medical Guidelines”
Version 5 of the Medical Assessment Guidelines (Assessment Guidelines), effective from

12 February 2021, apply to this review as does version 1 of the Motor Accident Permanent Impairment Guidelines effective from 1 June 2018 (Impairment Guidelines).
Causation of injury is to be determined in accordance with cls 1.5 – 1.7 of the Impairment Guidelines, as follows:
“Causation of injury
1.5    An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) 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 claims assessor) in considering such issues.
1.6    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.
1.7    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 1.35 of the Impairment Guidelines states that psychiatric impairment is assessed in accordance with ‘Mental and behavioural disorders’ within the Guidelines.
Impairment caused by mental and behavioural disorders is assessed in accordance with

cls [1.201] – [1.228] of the Impairment Guidelines.

DECISION UNDER REVIEW

Medical Assessor Fukui gave a certificate and reasons dated 5 November 2022. The Medical Assessor certified that persistent depressive disorder with anxious distress had been caused by the accident and gave rise to a permanent impairment that is not greater than 10%.
The Medical Assessor’s reasons include relevant history, together with details of symptoms and treatment. She recorded that there were no inconsistencies in the claimant’s history or presentation.
In the Medical Assessor’s opinion, the claimant had developed a significant pain condition and psychological distress following the motor accident. Whilst she had a pre-accident diagnosis of obsessive-compulsive disorder (OCD), she did not have a history of significant depressive or other anxiety disorder prior to the accident. The claimant had developed pervasive depressive symptoms characteristic of major depressive disorder with low mood, anhedonia, anxiety, panic attacks, negativity, impaired cognition and sleep disturbance. The claimant had panic attacks which settled over the years. She had become socially anxious and significantly socially withdrawn and avoidant.
The Medical Assessor determined that the diagnosis of major depressive disorder superseded the diagnosis of adjustment disorder given that the claimant’s symptoms were more pervasive, and her condition had been ongoing for eight years. Furthermore, as she had suffered major depressive disorder for greater than two years, the claimant’s condition was more appropriately designated as persistent depressive disorder with anxious distress. In addition to chronic pain, she had chronic migraine and an exacerbation of her pre-existing OCD. In the Medical Assessor’s opinion, the claimant did not report symptoms characteristic of post-traumatic stress disorder. Her recurrent panic attacks represented anxiety symptoms characteristically present in major depressive disorder rather than a separate diagnosis of a panic disorder.
In Medical Assessor Fukui’s opinion, the timing, nature and development of the claimant’s symptoms are consistent with the accident having been the cause of her psychological injury. She assessed a 7% permanent impairment. There was no pre-existing impairment as the claimant was functioning well, working in excess of full-time hours, and enjoying her activities prior to the subject accident. There was no subsequent impairment. One percent was added for mild treatment effect, giving an 8% permanent impairment.

EVIDENCE

In accordance with directions made by the Panel on 25 July 2023 the parties lodged a joint agreed bundle of documents relied on in the Review. The Panel has read and considered all the material in the bundle.

Medical reports

Dr Davies, neurosurgeon, reported to the claimant’s solicitor on 16 August 2016. Following the accident the claimant experienced pain in her lower neck that radiated into her right arm. Her pre-accident migraines had been worse since the accident, and were more frequent. There was a history of pre-accident low back pain after she was struck by a vehicle while riding a bike when she was 22 years of age. There was also a history of left shoulder bursitis. The claimant’s social and employment history was recorded, and the radiological investigations summarised. In addition to the physical injuries suffered in the accident, the doctor referred to reports of ongoing stress and anxiety. A pain physician was to be involved in treatment. In the doctor’s opinion, the claimant was not fit to undertake heavy manual handling activities. Her migraines limited her activities and interfered with her sleep.
Dr Robert Kaplan, psychiatrist, reported to the insurer on 2 December 2016. A history of the accident was recorded, as were the claimant’s post-accident physical and psychological symptoms. A pre-accident history of OCD is recorded. The doctor recorded that the condition settled spontaneously after several years. In the doctor’s opinion the claimant had, in addition to her physical injuries, developed an adjustment disorder with depression and anxiety, with an alternate diagnosis of major depressive disorder.
Dr Takyar, psychiatrist, reported to the claimant’s solicitors on 16 April 2018. A history of a motor accident on 16 August 2014 was recorded. The claimant reported a change in her mental state a few days after the accident whilst driving to the shops. She experienced panic attacks and was referred to a psychologist. Psychiatric symptoms are recorded. The claimant had ceased work. There was a history of OCD, that had been treated by a psychiatrist. The condition had gone into remission. There were no reported symptoms of OCD, or depressive and anxiety symptoms prior to the accident. Following the accident the claimant had seen a psychiatrist and a psychologist. The doctor diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood as a result of the accident. In the doctor’s opinion, the claimant’s condition had not stabilised. He none-the-less assessed an 8% whole person impairment as a result of the diagnosed psychiatric condition.
Dr Noore, specialist pain medicine physician and consultant psychiatrist, reported to

Dr Jasim on 23 April 2019. The report contains a history that the claimant experienced multifocal pain following the accident. She presented as depressed. Treatment recommendations were made, including psychotherapy, pain education, antidepressants and physiotherapy.
Dr Noore reported to Dr Jasim on a number of occasions, including 23 July 2019,

2 September 2019, 15 June 2020, 20 July 2020, and 21 September 2020. The reports have been read and considered.
Dr Noore reported to the claimant’s solicitor on 28 May 2019. The doctor recorded that the claimant experienced pain in her neck that radiated into her right hand. Migraines had been exacerbated by the accident. The claimant had also developed a range of pervasive depressive symptoms. Major depression had been diagnosed. There had also been a worsening of pre-existing obsessive compulsive disorder symptoms. The doctor diagnosed medication overuse headaches and medication related side effects such as cognitive impairment and weight gain. Despite treatment the pain continued. The claimant suffered from chronic severe pain associated with depression and disability. Further treatment was required.
Dr Coroneos, neurosurgeon, reported to the insurer on 15 April 2019. A history of OCD was recorded, together with other conditions and surgery. Migraine headaches were diagnosed when the claimant was 23. There was a history of neck and lower back pain following a motor accident in 1992. A history of the accident on 16 August 2014 was recorded. Among other symptoms, the claimant reported experiencing “chronic anxiety”. The doctor could not “determine any significant neurosurgical, cranial or spinal injury having occurred” as a result of the accident. In his opinion, the claimant may have experienced a cervical soft tissue injury caused by the accident. The effects of the cervical soft tissue injury would have ceased after two to four weeks. During that time simple analgesia and physical treatments would have been reasonable and necessary “neurosurgically” but not thereafter as there was no evidence of any significant neurosurgical, brain or spinal injury having occurred. Further, during that period restriction of work activity would have been reasonable and necessary “neurosurgically” but not thereafter. A 0% whole person impairment was assessed by the doctor.
Dr Yu, pain specialist, reported to the claimant’s solicitor on 17 May 2019. In the doctor’s opinion, as a result of the accident the claimant suffered chronic neck pain with right sided radiculopathy, “most likely due to whiplash injury resulting in C5C6 posterior disc protrusion with annular tear”, aggravation of migraine headaches, chronic pain syndrome, and major depression. Her prognosis was difficult to determine. Further treatment was required. The claimant was unable to work in her husband’s business, and her future work capabilities were dependant on her engagement and response to the proposed multidisciplinary pain management approach that had been recommended.
Dr Vickery, psychiatrist and pain management consultant, reported to the insurer on

15 May 2019. The doctor recorded a history of migraines, depression, anxiety and a disturbed sleep pattern. There were no significant personal stressors reported in the previous five years that were not related to the accident. The claimant was described as being “tense and distressed when discussing her current situation”. She experienced anxiety as a passenger. There was no reported recurring intrusive reexperiencing of distressing traumatic events, dissociative symptoms, flashback episodes, excessive physiological reactivity, efforts to avoid traumatic thoughts or an inability to recall traumatic events, a loss of loving feelings, a startle reflex or a belief in a foreshortened future. Previous treatment for OCD was noted. The doctor diagnosed adjustment disorder that was related to the accident. Monthly psychiatric and psychological treatment continued. In the doctor’s opinion, whole person impairment could not be assessed because the claimant had not reached maximum medical improvement. Review in 12 months was recommended. The psychological injuries/disabilities were a direct result of the motor vehicle accident. Treatment had been partially effective and should be continued.
In Dr Vickery’s opinion, the psychological injury had affected the claimant’s return to work capacity on the basis of the history provided. There had been no work capacity. However, there had been some recent recovery. The expected duration of the change for recommencing pre-injury duties was 12 to 24 months. There is likely to be some capacity in the future.
Dr Vickery reported to the insurer again on 22 July 2020. There had been a change in anti-depressant medication following a reported deterioration in depressive symptoms. Reduced hygiene, grooming, and appetite are recorded. Anxiety when socialising was reported. On mental state examination, the claimant’s affect range was “labile” while her behaviour and mood were reported to be “often distressed”. The doctor diagnosed panic disorder, that was related to the accident. While there had been some recovery, the condition was not stable. In the doctor’s opinion, treatment should be continued. The claimant was not fit for work. There was a significant reduction in activities of daily living that was improving.
Dr Vickery provided a supplementary report on 30 July 2020. The report contains his comments with respect to reports from Dr Coroneos, Dr Yu, Dr Takyar, and Dr Noore. Among other matters, the doctor made reference to Dr Noore’s report of 23 July 2019 in which it was noted that the claimant “… was distressed by her migraine, insomnia and depression. She has been through a stressful time recently because of family problems”. The doctor stated that “[i]t is significant there has been ‘a stressful time’ due to ‘family problems’ in mid-2019 which was not commented on in the report by Dr Ash Takyar”. He also recorded that “[t]here was noted to be a significant physical and psychological recovery in 2020”.
Dr Jasim, general practitioner, reported to the claimant’s solicitor on 4 June 2019. The report records that following the accident the claimant complained of cervical radiculopathy, major depressive disorder secondary to post-traumatic stress disorder, severe migraines and tension headaches. Specialist referrals had been made and medication had been prescribed. The claimant was not fit for work and required domestic assistance.
In a report dated 13 December 2019, Dr Takyar recorded that the claimant had not returned to work. Treatment continued, involving a psychiatrist and psychologist. She described her mood as being “generally terrible”. Her sleep had deteriorated, as had her concentration. Hospital admission had been suggested by her treating psychiatrist, but she had declined. The claimant’s mental state had worsened since the last review, with a deterioration in depressive symptoms in particular. The claimant had commenced taking anti-depressant medication a week or so prior to the re-examination. Despite this, the doctor expressed the opinion that the claimant’s psychiatric condition was entrenched and unlikely to change by more than 3% with or without medical treatment. Her condition was both stable and permanent in the doctor’s opinion.

In a separate report dated 13 December 2019 the doctor assessed a 19% whole person impairment as a result of the accident caused adjustment disorder with mixed anxiety and depressed mood.
Rina Setiabudi, psychologist, reported to the claimant’s solicitor on 6 June 2019. A history of the motor accident is recorded, as is the post-accident treatment for the claimant’s physical and psychological injuries. The claimant had been referred to Ms Setiabudi for pain management. She had responded well to treatment. The issues with which the claimant presented including chronic persistent pain, recurrent migraines and major depressive disorder with depressed and anxious features. While she responded well to treatment, she would continue to experience flare up episodes of pain and migraines, and fluctuating mood, including episodes of depression and anxiety. Further psychological treatment was recommended.
Ms Setiabudi reported to the insurer on 14 August 2020. The report contains an account of the treatment provided to the claimant, her progress, and recommendations for future treatment. Improvement had been demonstrated over the course of the 17 sessions that had taken place. Medication had reduced, and activity level and socialisation had increased. Psychotherapy should continue and future psychological intervention may be required.

Clinical notes

The Panel has considered the clinical records of Warrawong Medical Centre. The records include clinical notes that cover the period 19 August 2014 – 26 May 2020.
The clinical notes dated 2 September 2014 include reference to a “post-traumatic stress event”, panic attacks with driving, and the need for psychological counselling. The clinical notes make reference to “PTSD symptoms” on 23 September 2014 and 3 November 2014. On 26 May 2015 there is reference to “swinging mood”, insomnia, and motivation and concentration fluctuating. On 31 March 2016 the claimant was “feeling down agitated stressed out” and reported “swinging mood”. On 29 January 2016 there is reference to “PTSD symptoms”.
The clinical notes make reference to the claimant’s physical injuries related to the accident, and symptoms including migraines. Notes relating to a consultation on 11 July 2018 make reference to major depression and record “PTSD to be excluded”.
On 6 September 2018 there is reference to a prescription for Pristiq 100mg by the claimant’s psychiatrist. Notes for the attendance on 28 September 2018 record “[d]iscontinued Pristiq 100mg by [h]er [p]sychiatrist”. The note for a consultation on 30 October 2018 records:
“…Discontinued Pristiq 100mg by Her Psychiatrist
Developed severe withdrawal symptoms
Crying emotional panic attacks agitated
OCD flaring up
Booked next week with her pain psychiatrist
Thoughts form nil flight of ideas
Thoughts contents nil delusion nil suicide insight intact
Perception nil hallucination nil illusion
Oriented time place person…”
Similar notes are recorded with respect to a consultation on 27 November 2018.
The notes recorded by Dr Jasim following a consultation on 3 December 2018 record that a mental health care plan had been discussed and “filled”. Reference is made to anxiety with depression, chronic migraine headache, motivation concentration being “down”, swinging mood, “confidence down”, and that physical and mental function had been impacted. There is also reference to referral to a psychologist for “CBT sessions”.
The notes for an attendance on 3 December 2018 include the following:
“ongoing anxiety issues
socially isolated
encouraged her to try and go for a swim
to continue to have dinner with friends
once a week
supportive counselling”
The following was recorded following a consultation on 3 January 2019:
“ongoing anxiety issues
social islation [sic] evident
spends time gardening
will try and increase exercise over
the next few weeks
supportive counselling”
Reference is made to ongoing anxiety concerns at a consultation on 26 January 2019. There is reference to major depressive disorder and financial stress at the consultation on

1 March 2019. There were ongoing anxiety symptoms reported on 23 March 2019. On

2 June 2019 reference is made to major depressive disorder and financial stress. On

16 August 2019 there is reference to “Anxiety with depression on CBT sessions”.
Dr Jasim’s notes on 5 November 2019 include the follow entry:
“History:
Psychiatric:
Poor sleep. Early morning wakening. Low self esteem. Depressed mood. Anxious. No stress at work. No relationship problems. No financial problems. No recent bereavement. Irritability. Irrational fears. Panic attacks. No compulsive behaviours. No delusions. No auditory hallucinations. No visual hallucinations. Suicidal thoughts. No suicide attempts. No substance abuse.
Diagnosis:
OCD
Reason for visit:
OCD…”
On 26 November 2019 Dr Jasim recorded:
“…Major Depressive Disorder and her Obsessive thoughts much better with Anafranil
Up dosing Anafranil to 50mg nocte…”
Reference was also made on 26 November 2019 to “financial stress”.
On 10 February 2020 Dr Jasim recorded, among other things, “Psychological symptoms 80% better with Anafranil 25mg in compare with Pristiq or Lovan previously”.
There is reference to “depression and stress” and “anxiety with depression” on

9 March 2020. On 20 April 2020 Dr Jasim recorded “Psychological symptoms progressively [sic] better with Anafranil 25mg in compare with Pristiq or Lovan previously”. The notes for

21 May 2020 include reference to: “Psychological symptoms managed with Anafranil 25mg in compare with Pristiq or Lovan previously”.
The clinical notes refer to other matters (that is matters in addition to those referred to in these reasons), some related to the accident and others unrelated. The Panel has considered the clinical notes in their entirety.

Other evidence

The claim form dated 4 February 2015 has been considered. A version of the accident is recorded. Injuries resulting from the accident are stated to be: whiplash, bruising and “PTSD”. Treatment details are recorded, as is an earlier accident in 1992. A medical certificate, completed by Dr Jasim, is attached to the claim form. The certificate records a diagnosis of “cervical spine disfunction” and post-traumatic stress disorder. There is also reference to shoulder symptoms and tension headache. The proposed treatment plan involved physiotherapy and psychological treatment.
Medical Assessor Gliksman gave a certificate and reasons dated 12 June 2017. The Medical Assessor certified that bilateral occipital nerve blocks, pulsed radiofrequency treatment, and inpatient ketamine infusion were not reasonable and necessary. The treatment with respect to which certification was given was recommended by Dr Yu. The Medical Assessor recorded complaints of migrainous headaches associated with nausea, together with paracervical muscular spasm with symptoms suggestive of paraesthesia affecting the right upper arm. It was recorded that the claimant attended a psychologist to treat her “emotional condition” following the accident. In his reasons, the Medical Assessor stated that clinical examination failed to reveal significant structural injury or clinical/neurological signs that would indicate the need or desirability of the treatments recommended by Dr Yu. In the Medical Assesor’s opinion, in the absence of relevant clinical signs or investigatory findings indicative of relevant pathology, and in the absence of evidence-based effectiveness, such invasive treatments were speculative and unlikely to prove of clinical benefit.

SUBMISSIONS

Claimant’s submissions

The claimant’s written submissions focus on purported errors in Medical Assessor Fukui’s assessment. In this regard, it is argued that the Medical Assessor erred in her assessment for adaption, which the claimant argues should be assessed as a class 4 because pre-injury she worked 40 – 60 hours per week and she now works once a month paying accounts and doing GST. It is argued that the Medical Assessor failed to make an assessment that took into account the reduction in the claimant’s capacity for work since the accident. The claimant submits that the Medical Assessor should have allowed class 4 in keeping with the assessment of Dr Takyar.
The claimant argues that the Medical Assessor erred in assessing concentration, persistence and pace as a class 2. In this regard, she submits that the Medical Assessor “appears” not to have dealt with the claimant’s memory or ability to focus on television or movies, and that she failed to deal with the claimant’s cognitive task capacity. Further, it is argued, the Medical Assessor relied on the fact that the claimant is able to attend to some administrative work for her husband’s business to categorise the claimant in class 2. The claimant submits that the Medical Assessor has not taken or provided sufficient history and had she done so she would have assessed class 3 instead of class 2 for this category.
The claimant submits that the Medical Assessor erred in assessing her in class 2 for social functioning. She submits that the Medical Assessor should have used the history she recorded (as referred to at [11] and [13] in the claimant’s submissions) to “view the claimant’s social functioning as a very low level and should have assessed the claimant at class 3 instead of 2”.
The claimant submits that the Medical Assessor erred in classing her as class 1 for self-care and personal hygiene. She argues that, given the matters referred to relating to her “bathing/showering situation”, her “personal hygiene is not optimum and a class of 1 is insufficient to demonstrate this lack of personal hygiene”. She argues that she should have been assessed as class 3.
In the claimant’s submission, had the Medical Assessor assessed her as falling within the classes she says should have been assessed, whole permanent impairment would have been assessed at median class value 3 and an aggregate score of 18, giving a whole person impairment of 22%.

Insurer’s submissions

In its written submissions, the insurer argues that there was no error in the Medical Assessor’s findings in terms of class assigned for adaption. The insurer submits that the Medical Assessor noted the claimant’s current functioning and took into consideration that one of the reasons she is unable to work was due to pain and not her psychological injuries, and that the descriptors in class 3 best described the claimant’s current functioning.
The insurer argues that there was no error in the Medical Assessor applying a rating of class 2 for concentration, persistence and pace. The insurer submits that the Medical Assessor took into consideration the claimant’s overall functions and a range of activities that required concentration, persistence and pace, and correctly assessed her as class 2 for this area of function.
The insurer disputes that social functioning should be assessed as class 3 instead of class 2. The insurer submits that it is “clear” that the claimant’s relationship with her husband does not meet the description for class 3 where there is no evidence that her marital relationship had been severely strained and/or there has been no periods of separation. The insurer submits the Medical Assessor correctly assessed class 2 for social functioning. Further reasons for this are referred to at [9] in the insurer’s submissions.
In the insurer’s submission, considering the claimant’s overall functioning with respect to self-care and personal hygiene from a psychological perspective, it is evident that the claimant’s functioning is close to the normal variation of the general population and is much more functional than what is described for class 3. The insurer submits that the Medical Assessor correctly assessed class 1 for self-care and personal hygiene.
In the insurer’s submission, the Medical Assessor correctly assessed the class rating for all the areas of function in the psychiatric impairment rating scale (PIRS) and that the claimant had failed to identify any errors that are material. It is argued that the Medical Assessor correctly determined that the claimant’s permanent impairment is not greater than 10%.
As can be seen from the summary above, the insurer’s submissions only go to the appropriate PIRS ratings that it argues should be assessed. The insurer’s submissions do not put causation of injury in issue.

RE-EXAMINATION

The claimant was re-examined on 1 February 2024. The examination took place via audio-visual link through the MS Teams platform. Present were Medical Assessor Newlyn and Medical Assessor Jones (the Medical Assessors), the claimant, and the claimant’s husband. The claimant’s husband did not contribute to the assessment. The technical connection was good and was more than adequate for the assessment to take place.

Consent and confidentiality

The claimant was informed that the examination involved an independent assessment and that it was not a private or confidential discussion. She was informed that no treatment advice would be given by the Medical Assessors, and that written reasons would be prepared by the Panel, and may be read by other parties. The claimant understood the limits of confidentiality with respect to the assessment and continued voluntarily.

Introduction

The claimant is a 54 year-old woman who lives in Wollongong, in her and her husband’s home, where she has lived for approximately 30 years. She has been married to her husband for approximately 30 years. He has his own business. The claimant and her husband have no children but do have pets.
The claimant works in her husband’s business organising the pay roster once a month and the accounts which takes about two hours. She also looks after her husband’s business GST commitments, which she estimated takes her about 24 to 25 hours spread out over three months. She reported she can only work two hours at a time because of migraines.

History of the accident

The claimant confirmed that the accident occurred on 16 August 2014. She reported that she was travelling west and a car from the left hand side ran a stop sign and “T-barred” her. She reported that her husband was following in their other vehicle. He called an ambulance as the claimant thought that she had fractured her sternum. She also had a sore head as her head collided with her side window.
The claimant reported that police responded to the accident, as did an ambulance. The accident occurred at around 9.00am on a Saturday. She reported the ambulance officer told her that the hospital was blocked up with ambulances and they recommended that she attend her general practitioner on the Monday following the accident for follow-up. She reported that her car was towed away and written off.

History of symptoms and treatment following the accident

At the time of the accident the claimant thought she had injuries to her sternum and head. She remembers experiencing a “massive headache.” She reported that the next morning she had a bizarre sensation of her head feeling not attached to her neck. She also had bruising down her chest from her shoulder, and felt very sore and tender. Her neck was also very sore. At the time she thought she would be okay in a month or so.
The claimant saw her regular general practitioner on the Monday, however her normal general practitioner did not undertake CTP work. She saw another doctor in the clinic and this doctor has been her general practitioner ever since. She had an X-ray which showed no abnormalities and was referred to a physiotherapist, whom she saw within a week.
At this point the claimant reported that “NRMA refused to pay for basics from the beginning.” She reported that for the first six months she paid for her treatment out of her own pocket.
The Medical Assessors asked the claimant about her physical injuries over time and she reported that she received clearance from her general practitioner to do heavy work and started doing this again. The heavy work she was involved in was shifting plant equipment, for example 20kg concrete saws. She reported however doing this work she experienced pins and needles down her right arm and in her neck. Her general practitioner sent her for an MRI, which she paid for herself. The MRI showed that she had annular tears on her spinal cord. She was told she was not able to do heavy work again and NRMA sent out an occupational therapist to her house and her workplace.
The claimant underwent a nerve block in her spinal cord at Prince of Wales Hospital, under Dr James Yu, and was prescribed various pain medication. She was prescribed Lyrica for nerve pain up and down her neck and arm, and to help with her sleep. She was prescribed Norflex for muscle spasms for a couple of years, however that “wiped [her] out”.
With respect to her current medications, the claimant reported she is taking Lyrica 75mg in the morning and 150mg at night, as well as Crestor for cholesterol and Inderal 80mg twice a day for her migraines, which are chronic. She also takes Mersyndol, approximately one tablet per week. She commented that for the previous four days leading up to the assessment she had a migraine because she was feeling very stressed. She also takes Maxigesic, mostly for migraines, as well as vitamins.
The Medical Assessors enquired about the claimant’s migraines. She reported that stress contributes to her migraines and that this is on a background of having had migraines since her early twenties. She started receiving Botox injections twenty-five years ago which controlled the migraines well, however they have been less controlled since the accident. Within a few months of the accident she reported having migraines every day. She started paying for Botox injections, which she had stopped, however in the last few years she has been getting these again through her neurologist. She reported that her migraines are now stress induced and they come up through her neck into the back of her skull.
The claimant also reported she has pain down her arm and pins and needles and these symptoms are constant.
The claimant reported she spends a fair amount of time in the garden and that she considers it her therapy and her safe place. She reported that if she does something physical she has problems with her arm, for example for two days it feels like “a dead ache.”
The Medical Assessors asked the claimant about her physical injuries and their limitation on her activities. She reported her injuries limit her in general, and even though she knows things cause her pain she will not stop doing things. She reported that she continues to do housework, however she paces herself. She spends approximately ten hours per week in the garden and she also goes for a walk for one hour five times a week. She goes with her husband as much as possible. She will go early in the morning. She tends to have panic attacks if she is out and sees people and she no longer acknowledges people she sees. She is not sure why this is.
The claimant reported previously being very outgoing and social and that she and her husband would have dinner parties every two weeks, however after the accident her anxiety got very bad, particularly when NRMA sent out an occupational therapist (OT) to the house. She found the OT “strange” and said she would “play [her and her husband] off against each other.” She reported there were “lots of troubles” associated with the OT. She remembers that the OT argued with her general practitioner and would contradict specialist advice. She said the whole situation “flared up to a big thing.” She remembered that she ended up having a big fight with her husband and it was the closest they had come to separation. She reported, “everything imploded and went downhill from there.” This was approximately two years after the accident. She said this was “where all the anxiety stemmed from.” She said at the time her “marriage got into a dark place.”
The claimant also reported that she had had to stop work. She saw a specialist who told her there was no surgery to correct her problems. She was told to forget the life she used to have and that she needed to learn a way to come to terms with it. She lamented that she previously used to ride mountain bikes, go skiing, surfing, wakeboarding and that her life had had “a huge change”.

The claimant is not expecting any upcoming specific treatments and said that “NRMA won’t approve anything.”
The Medical Assessors asked the claimant about any specific psychological or emotional symptoms emanating from the accident, apart from the anxiety caused by interactions with the OT about two years after the accident. The claimant reported that initially she thought she was fine, however two weeks after the accident she drove to the local shops, the first time since the accident, and she had a panic attack at a roundabout. She pulled over and vomited. This was the first time in her life she had a panic attack. She spoke to her general practitioner who suggested she see a psychologist at the practice. She reported she saw her about six times and she assisted the claimant with her panic attacks. The claimant reported this was the only thing that she noticed in the first six months. The claimant reported that she probably had five or six panic attacks in total and that at times her husband would have to come and pick her up. Other than that, she said she “seemed all right.” She thought that everything was back on track, except the pain in the first year. She persisted in trying to return to work, however her migraines got worse and worse.
The claimant also reported that her sleep was particularly bad and that she would go to bed and not be able to sleep, or only sleep for half an hour and then wake up. She would sit up reading a book and she had “nerves firing in [her] neck” and her “brain wasn’t switching off.” She reported that Lyrica helped somewhat and the Norflex unfortunately made her sleep twenty hours a day and she would “stop and stare.”
The claimant reported she became suicidal at one point after the interactions with the OT and she also found herself not leaving the house. She would only shower twice a week and was not doing anything. She was sleeping twenty hours a day and things “went downhill.”
From the two to four-year mark, the claimant reported things “got really bad.” Around the fourth year after the accident the claimant went to see a psychiatrist, Dr Robert Kaplan, for an assessment. She then went to see a psychiatrist for treatment, Dr Noore in Hurstville, who was a pain and spinal clinic psychiatrist. She was referred by Dr Yu. She saw Dr Noore approximately twelve times from the four-year mark onwards and Dr Noore took her off the Norflex and Endep and trialled her on antidepressants. The claimant reported that antidepressants were “not a good mix” for her and she had tried five different agents. She has had no antidepressants since 2019 and the last one was Anafranil, which she described as the worst. She reported she gained no benefits from taking Anafranil.
The claimant has had no psychiatric hospitalisations, however she reported Dr Noore suggested an admission at one stage. She reported that a couple of years before the assessment things were particularly stressful and Dr Noore suggested a twenty-eight day admission with extensive talking therapy, however she would have to pay for it. The claimant said that at the time she was not suicidal.
The Medical Assessors asked about the claimant’s mental health over the last few months and she described it as “up and down” and “a rollercoaster.” She said that knowing that she had doctors’ appointments coming up she would experience anxiety related to this. She reported going to doctors’ appointments meant she had to physically go out of the house and this also caused anxiety. She has found things overwhelming.

Psychiatric history

The Medical Assessors asked the claimant about any previous psychiatric problems. She reported that in 1995 she saw her general practitioner regarding OCD. She described that there were things she used to do, “odd things.” She would have obsessive thoughts which were becoming a problem. She saw a psychiatrist and was commenced on an antidepressant, Sertraline, however she had a massive negative reaction to this. She had severe withdrawal when she had to come off it and then remarkably her obsessive-compulsive symptoms went away. After this point it was only when stress occurred that her symptoms would flare up. She would have obsessive thoughts, for example about what would happen if her husband was in an accident, that he may have had an accident, or about whether she had hit somebody in the car. She even got to the point where she would turn her car around to check.
With respect to her behaviour as a child she reported that there were times when she would not walk on cracks in the pavement, she would have a ritual before bed, and touch things in a certain order. She reported she only developed the obsessions as an adult. Overall, she reported that her OCD was “not so much a problem”, that it would increase with stress, and that she was then able to get things under control. She saw no clinicians as a child. She reported that one of her siblings has OCD.
The Medical Assessors asked about the childhood abuse referred to in the documents. The claimant reported that her mother was very physically abusive. She said at the time her father was away from home working. The claimant has not spoken to her mother since the accident.

Current functioning

The claimant reported that she had not been to a social event with her husband in five years. The week before the assessment was her friend’s fortieth birthday. Although she dressed up for it, she came back within five minutes with a headache and she was sweating.
The claimant reported an incident, about six months ago, where she bumped into somebody in the shops who hugged her and she “totally lost it.” She ran out of the shops and left the groceries behind.
The claimant reported that she performs the housework at home but has to pace herself considerably. She will cook at home and her best dishes would be Asian cuisine. She cooks approximately four nights a week and sometimes she does large batches of cooking, so she can reheat meals on other days. The claimant has food frozen in case she has a migraine. She reported that her husband will go with her to the shops on Saturdays to procure groceries.
The claimant reported that she is independent with respect to her own self-care and personal hygiene such as showering, dressing and grooming. She reported however she will only shower four to five times a week and always on days when she goes for a walk or works in the garden. She reported that her husband does help her at times for physical reasons because she has trouble reaching her neck and shoulders. With respect to her hair, the claimant goes with her best friend to a woman’s house and she cuts their hair there.
The claimant has semi-regular contact with her sister, approximately every two months. Her sister is often travelling, and will come and visit her. There is one other couple with whom the claimant socialises and she described the woman as “like a little sister” and commented that her husband gets on well with her friend’s husband. They see them approximately every month and they will come over to the claimant’s house for dinner and they will occasionally go over to their place.
The Medical Assessors asked the claimant how she passes time at home, and she reported that she reads a lot, particularly fantasy fiction because it is “so different from reality”. The claimant also watches television including historical shows and documentaries. She goes walking on a regular basis, four to five times a week, often with her husband but sometimes by herself, for about an hour each time. She very much enjoys gardening and spends up to ten hours per week gardening, however she tends to suffer the physical consequences of this. The claimant lamented the loss of some of her hobbies, including cake decorating, which she used to do a lot. She does this no longer as it is “hard on [her] neck”. She also finds that doing jig-saw puzzles is challenging for her neck and if she does this for an hour she develops a migraine.
The claimant is able to drive a motor vehicle by herself, for example to the supermarket which is 1.5km away from home, or to the lake which is 5km away, where she likes to walk.
The claimant described her sleep as poor. Her appetite she described as “all right” and her weight is currently approximately 82kg. She reported she had lost 10kg in six months. She reported that being prescribed antidepressants and Norflex resulted in her putting on 26kg in weight at that stage. Her height is 164cm.
The claimant reported she has variable energy levels and sometimes she will sleep on the lounge in the daytime after she goes for a walk or spends time in the garden. She enjoys the company of her cats and her fish and described them as her “lifeline”.

Mental state examination

There were no signs of neglect but no overt signs of make-up or jewellery. The claimant was polite, cooperative and attentive and displayed no abnormal movements. Her speech was normal in rate and tone and she came across as talkative and freely expressive. There was no evidence of formal thought disorder or delusional thought processes. There was no evidence of current thoughts of self-harm or thoughts of harm to others. She described her mood as “tired” and commented that she was “always tired”. Her affect (expressed emotion) was quite bright and very reactive, congruent and appropriate. She came across as a genuine historian. She was teary at times congruent to the subject of her narrative. The claimant’s cognition, insight and judgement appeared intact in the context of the interview. There was no evidence of perceptual abnormalities consistent with psychosis. Rapport was excellent and the claimant spoke openly and freely.

Summary

The claimant reported a narrative and presented at assessment consistent with having a persistent depressive disorder with anxious features. She satisfies the diagnostic criteria under DSM-5-TR with low mood, sleep disturbance, problems with motivation and enjoyment of activities. She has had a chronic course of symptoms. She also reported significant features of anxiety, particularly related to other people, and social withdrawal. These symptoms have interfered with her day-to-day functioning but fortunately she has maintained some day-to-day functioning capacity. It should be noted that the claimant continues to suffer the physical effects of pain in her neck and migraines, which both appear to be exacerbated by certain activities and stress. The Medical Assessors determined that the persistent depressive disorder with anxious features had been caused by the accident.
The claimant had a history of what appears to be symptoms related to OCD. Although these symptoms had been present for a long time, they did not appear to be particularly active in the period leading up to the accident. For these reasons, the Medical Assessors formed the opinion that there was not a pre-existing impairment as a result of the OCD. While there were some OCD symptoms post-accident (see for example the reference in Dr Noore’s report dated 28 May 2019 and the Warrawong Medical Centre clinical notes) those symptoms did not, in the clinical judgement of the Medical Assessors, give rise to a permanent impairment. In this regard, the Medical Assessors accepted the claimant’s report that her OCD was “not so much a problem”, that it would increase with stress, and that she was then able to get things under control.
The claimant is not currently undergoing any active psychological or psychiatric treatment and there is no treatment effect with respect to her permanent impairment.
The claimant has stabilised in her recovery and reached maximum medical improvement. She is unlikely to change in her level of psychiatric impairment in the upcoming 12 months.
The Medical Assessors assessed the claimant’ whole person impairment as appears in the table below.

Degree of Permanent Impairment

Psychiatric diagnoses	1. Persistent Depressive Disorder with anxious features
Psychiatric treatment description	Nil

Category	Class	Reason for Decision
1. Self-Care and Personal Hygiene	1	Minor deficit attributable to the normal variation in the general population. The claimant is independent with respect to her self-care and personal hygiene. She showers and dresses herself four or five times a week and will cook up to four times a week, including batch cooking at times. While she maintains her ability to perform domestic duties, she paces herself. The claimant would be capable of living independently, without assistance, if required.
2. Social and Recreational Activities	3	Moderate impairment Although The claimant maintains some enthusiasm and capacity to partake in gardening activities, and also is an avid reader and watches television on a regular basis, her social and recreational activity has diminished considerably. She will occasionally have friends (a couple) over or go to their place, however she is no longer going out to social events, is wary and aversive with respect to bumping into people in the community, and has reduced her social network to a small handful of friends. Utilising clinical judgement, there is a class 3 moderate impairment in this category.
3. Travel	2	Mild impairment The claimant is able to travel independently but only to local and familiar destinations. She will sometimes go for a walk by herself but this tends to be in the early hours when no one else is around. She is able to leave the house unaccompanied, however she does this less frequently than previously. Utilising clinical judgement there is a class 2 mild impairment.
4. Social Functioning	2	Mild impairment The claimant maintains a strong and supportive relationship with her husband. She has an ongoing relationship with her best friend, her sister and one other couple. Her social network otherwise has diminished considerably. There has been no evidence of separation or domestic violence in her primary relationship. Utilising clinical judgement, there is a class 2 mild impairment in this category.
5. Concentration, Persistence and Pace	2	Mild impairment The claimant reported she is an avid reader and will readily watch documentaries on television. She concentrated well for the eighty-minute assessment and there was no evidence of gross deficit in concentration or cognitive ability when assessed by the Medical Assessors. Although she is able to focus on gardening and bookwork related to her husband’s business for brief periods of time, she has global difficulty with persisting in tasks of such a nature for more than an hour or two. Although there is a physical or pain related component to her limitation (for example her neck and her migraines), utilising clinical judgement there is a class 2 mild impairment, from a psychiatric perspective.
6. Adaptation	4	Severe impairment The claimant reported working in an employment role in some regularity, but in a significantly reduced capacity. She reported she can work up to two hours at a time in her husband’s business, for example managing GST commitments or dealing with payroll obligations, but she reported little in the way of employment capacity beyond this. Although some of her limitation would be related to her neck pain and migraines, there is a significant clinical psychiatric component that would render her not fit for full employment in the open labour market. She appeared to be fully functioning in this regard prior to the accident. The claimant’s current adaptive capacity appears to be commensurate with her current level of reported activity, that is at a reduced capacity compared to pre-accident, only a few hours a week, and with considerable concessions. This, utilising clinical judgement, is consistent with a class 4 severe impairment.
List classes in ascending order: 1 2 2 2 3 4
Median Class Value: 2
Aggregate Score: 14
% Whole Person Impairment: 7%

*%WPI ^{= Percentage Whole Person Impairment}

Apportionment

Pre-existing/subsequent impairment

Although symptoms related to OCD had been present for a long time, they did not appear to be particularly active in the period leading up to the accident, nor have they been debilitating since. For these reasons, the Medical Assessors formed the opinion that there was no pre-existing impairment.

Effects of treatment

The claimant is not currently receiving any psychological or psychiatric treatment and no adjustment for effects of treatment is justified.
Therefore, the final whole person impairment is 7%.

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, PIRS ratings, and permanent impairment.
The Panel finds that the claimant suffers from persistent depressive disorder with anxious features. The Panel is satisfied, on the balance of probabilities, that the timing, nature and development of symptoms associated with the persistent depressive disorder with anxious features support a finding that the accident made a material contribution to the development of the condition.
The Panel finds that the accident was a necessary condition of the development of persistent depressive disorder with anxious features, and that, but for the accident, the claimant would not have developed this condition.
The Panel is satisfied, based on the claimant’s history (that it accepts), that there were no clinically significant OCD type symptoms leading up to the accident. The Panel therefore finds that there was no pre-existing impairment as a result of OCD.
The Panel finds that while there may have been some OCD symptoms post-accident, those symptoms are no longer marked in the claimant’s presentation. The Panel is satisfied that there is no permanent impairment attributable to OCD symptoms.
The Panel finds that the persistent depressive disorder with anxious features caused by the accident gives rise to a 7% permanent impairment. The Panel therefore finds that the claimant’s permanent impairment that resulted from this injury is not greater than 10%. That being the case, the Panel confirms the certificate of Medical Assessor Fukui dated

5 November 2022.

[2024] NSWPICMP 111

26 February 2024