Busby v AAI Ltd t/as AAMI

DETERMINATION OF REVIEW PANEL
CITATION:	Busby v AAI Ltd t/as AAMI [2025] NSWPICMP 489
CLAIMANT:	Nathanial Busby
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Dr Michael Hong
MEDICAL ASSESSOR:	Dr Himanshu Singh
DATE OF DECISION:	7 July 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); medical assessment of whole person impairment (WPI) by Medical Assessor; claimant injured in motor vehicle accident; MA assessed 13% WPI; insurer sought review under section 7.26; Review Panel re-examined claimant; Held – Review Panel revoked MAC; 3% WPI assessed; new MAC issued.
DETERMINATIONS MADE:	1. The Review Panel revokes the certificate of Medical Assessor Yu Tang Shen dated 24 November 2023 and substitutes the determination that the following injuries caused by the accident gave rise to a permanent impairment of 3% and is NOT greater than 10%: · post-traumatic stress disorder, and · Major depressive disorder.

STATEMENT OF REASONS

INTRODUCTION

The claimant, Nathanial Busby (Mr Busby), was injured in a motor accident (the accident) on 7 July 2020. Following the accident, he made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as AAMI (insurer).
There is a dispute between Mr Busby and the insurer about whether the degree of permanent impairment resulted of psychological injury caused by the accident is greater than 10%. The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter pursuant to Schedule 2, cl 2(a) of the MAI Act.
The medical dispute was referred to Medical Assessor Yu Tang Shen for assessment. He issued a certificate dated 24 November 2023 in which he certified that post-traumatic stress disorder and persistent depressive disorder were caused by the accident giving rise to permanent impairment (13%).
The insurer sought a review of the further assessment under s 7.26 of the MAI Act. The President’s delegate 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 this Review Panel.
The Review Panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the Review of the Assessment.

THE REVIEW

The Panel is to conduct the Review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the panel is to be constituted by two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128.
Version 9.2 of the Motor Accident Guidelines (Guidelines), effective from 10 November 2023, apply to the Review.

DIRECTIONS

The Review Panel made these directions on 19 November 2024:
“(1) By 4:00 pm on 28 January 2025, the Insurer is to upload to the Commission's portal an indexed and paginated bundle of all the documents relied on by the Insurer in this Review in the following suggested order:
(a)Review documents - the Insurer’s Submissions made to the President's delegate and the President's delegate's decision;
(b)Assessment documents - the Insurer’s Submissions made to Medical Assessor Yu Tang Shen and Medical Assessor Shen’s decision;
(c)All documents that the Insurer relied on, and which were before Medical Assessor Shen; and
(d)Any additional documents that the Insurer seeks to rely on in the course of this Review.
(e)The GP clinical notes and reports for 2 years pre-dating and post- dating the motor accident (if not already included in the bundle).
(f)The Personal Injury Claim Form, the Insurer’s statement, the Police report and Ambulance Incident report and any photographs depicting the damage to the vehicles, and where relevant, the scene of the accident (if applicable, or if not already included in the bundle).
(2) By 4:00 pm on 11 February 2025, the Claimant is to upload to the Commission's portal an indexed and paginated bundle of all the documents relied on by the Claimant in this Review (avoiding as far as possible duplication of documents relied on by the Insurer) adopting the suggested order in direction 1.”

DOCUMENTS PRODUCED

The parties produced the following documents to Pathway:
Claimant
(a)    submissions dated 5 July 2023, 17 January 2024, 11 February 2025,
28 April 2025, and 1 May 2025;
(b)    clinical Records of Limitless Psychology, Workers Doctors, Headspace Central Coast LHD, and Insightful Mind;
(c)    Allied Health Recovery Requests;
(d)    medical reports of Dr Lim, Dr Gupta, Dr Ting, and
(e)    investigation report of Mr Hayes.
Insurer
(a)    submissions dated 19 July 2023 and 13 December 2023;
(b)    certificate of Medical Assessor Shen;
(c)    decision of the President’s delegate;
(d)    Application for Personal Injury Benefits;
(e)    Application for damages under common law;
(f)    clinical records of Headspace Castle Hill, Hall Psychology & Coaching, and Windsor High School;
(g)    report of Dr Kneebone;
(h)    NSW Ambulance Report, and
(i)    NSW Police Report.

STATUTORY PROVISIONS
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 cls [6.201]-[6.228] of the Guidelines.

Pre-existing impairment

Pre-existing impairment is addressed in cls 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.”
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with “Mental and behavioural disorders” within the Guidelines, namely cls [6.201]-[6.228] of the Guidelines.
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 Shen examined Mr Busby on 20 November 2023 and provided his certificate on 24 November 2023 which certified that the injuries caused by the accident gave rise to a permanent impairment of 13%. The Panel summarises the report as follows:
[2] The following dispute was referred for assessment to Medical Assessor Shen,
· psychiatric condition including but not limited to post-traumatic stress disorder.
Medical Assessor Shen discussed the submissions of Mr Busby and the insurer at [3]-[4]:
[3]-[4] Mr Busby had submitted that he had sustained physical injuries as well as a Post-Traumatic Stress Disorder with 15% whole person impairment (WPI). The Insurer had submitted that there was a significant pre-existing psychiatric condition which had not been taken into account by the independent examiner Dr Rastogi.
Medical Assessor Shen stated that he had considered all of the documents provided in the application and reply, and he had also considered any late documents at [5]-[6].
Medical Assessor Shen took a psychosocial and pre-accident history at [8]:
[8] Mr Busby had a lot of friends before the accident and had a large social group, but after the accident he became more socially anxious and stopped attending school, particularly as the route to school passed by the site of the accident. He tries to keep active as much as he can, but this is limited by his back pain. Mr Busby described the reduction in contact with friends and going out. Before the accident, he said there were a few deaths in his family which impacted his mental health, with depression and anxiety, having had depression since the start of 2017. He had received treatment from Headspace and had been on a brief trial of an antidepressant. When he finished treatment with Headspace, he was still depressed but feeling better. He could sleep but was still depressed. He showered daily and had no issues with self-care. He had a good relationship with his family and would see his friends at school and sometimes outside. His concentration was good. Generally, he attended school. He denied alcohol and substance use. He was well apart from being overweight.
Medical Assessor Shen took a history of the accident at [9]:
“[9] The subject accident occurred on the 7 July 2020. He said they had been visiting his brother in Victoria, during COVID lockdown, so they had to rush home to avoid the lockdown. He said that his mother was driving, and he was the front seat passenger, and he was wearing a seatbelt. He said his mother was driving carefully on a wet night, and as they came at turn, the other car hit the metal barrier and T-boned the front of their car, and his mother was gasping. They climbed out of the van via the back as the front doors were crushed in. He saw the other driver's head, laying over the back of the seat and it was moving. He said he didn't hit his head, but he had whiplash and seatbelt bruising.”
Medical Assessor Shen took a brief history of Mr Busby’s post-accident symptoms and treatment at [10]:
[10] Mr Busby felt guilty for surviving the accident and constant feelings of shame and anger. He had been more hypervigilant, unable to sit still when outside, and his concentration and sleep had been disrupted. He felt depressed and had less capacity to enjoy positive experiences. He had difficulty with sleep sometimes and he was overeating.
Medical Assessor Shen then conducted a clinical examination at [14] and his observations as to Mr Busby’s current performance are set out at [15]:
“[14]He presented as a casually dressed, with long unkempt hair, and mildly dishevelled young man. He had an average build and appeared to be his stated age. He engaged cordially in the assessment and provided relevant answers to questions asked, spontaneously supplying detail. He told me he was feeling anxious, hypervigilant, and depressed. He displayed limited emotional reactivity and was mostly flat in his emotional expression. He spoke articulately and in a logical sequence most of the time, without much prompting. He complained of feeling tired easily, and having recurrent intrusive memories of the subject accident. He felt pessimistic and self-critical. He had death fantasies, but no suicidal ideations. He was alert, appeared grossly cognitively intact and was able to sustain his concentration for the duration of the assessment.
[15]He said he showers himself about every 2 days, and was able to do it independently without reminding, but he feels that the water weighs down on his back and he feels weak. He has not had a haircut for a few months at least, or even a year. He said he can cook simple meals, like plain rice and pancakes. He said he has not been driving, and he has his Learner's licence, but he has not taken any driving lesson due to his level of anxiety in the car. He said he can take public transport, but with difficulties due to his level of anxiety and pain. He said he often travels with his mother, though he would be able to take public transport alone when he was attending school, and as the route would pass by the site of the subject accident, it would cause heightened anxiety and contributed to him not attending school. He said his concentration now has been very difficult, and he enjoys history so he can read books on that topic for 2 hours, but he cannot focus on other topics for longer than 1 0 minutes. Prior to the subject accident, he said he was good at concentrating, and he was able to read a lot. He is currently not working or studying, though he intends to start TAFE next year. He said he left school a few months ago when he was mid-way through Year 12. He had stopped attending school from the start of this year, due to heightened anxiety. He has not undertaken any work since the subject accident, though prior to the accident he was working at his uncle's restaurant on a casual basis.”
Medical Assessor Shen then reviewed and commented on the documentation at [17]:
[17] Medical Assessor Shen briefly commented on the report of Dr Rastogi on
16 September 2020, who had diagnosed Mr Busby with having Post-Traumatic Stress Disorder with pre-existing depression. Dr Rastogi had assigned WPI at 15%.
Medical Assessor Shen set out his diagnoses at [19] of:
(a) post-traumatic stress disorder, due to the circumstances of the subject accident, including the risk of death, and seeing the other driver who had died, meeting Criterion A, and he has sufficient symptoms to meet the symptom-based criteria, and he has sufficient level of distress and impairment, and
(b) persistent depressive disorder, due to the chronicity of his depressive symptoms which has endured for longer than two years both of which had been caused by the accident.
At [24], Medical Assessor Shen set out his opinion on the permanent impairment psychiatric impairment rating scale (PIRS) as applicable with ratings of 3 for each of social and recreational activities, concentration, and adaptation, arriving at a median value of 3 and WPI of 13% with no percentage reduction for existing impairment, commenting that despite having residual depressive symptoms, there were no significant associated functional impairment by the time he completed treatment with Headspace just prior to the subject accident.

EVIDENCE AVAILABLE TO THE REVIEW PANEL

The case history summary from the ambulance report of 7 July 2020 is as follows:
“C/t MVA high mechanism. O/a Pt passenger of vehicle (Toyota HiAce) that has T-boned another vehicle at approximately 50–60km/h, nil cabin intrusion or dashboard deformity on passenger side of vehicle, nil airbags deployed. Pt denies headstrike, LOC, c-spine pain or tenderness on palpation. Pt c/o R-sided chest pain with visible seatbelt bruising visible, also c/o whiplash and unable to put chin to neck without discomfort and pain. Pt GCS 15, well perfused, talking in full sentences, PEARL and denying any other injuries or pain already discussed. Pt refusing analgesia from paramedics. O/e Pt talking in full sentences, chest sounds clear and equal air entry bilaterally, good central and peripheral perfusion, CRT <2s, GCS 15, FAST negative, PEARL, normocardic, normopnoeic, normotensive, afebrile. Pt denying headstrike, LOC, neck pain, c-spine pain, nausea. Abdomen soft and non-tender on palpation, nil deformity, nil contusions or abrasions. Pt transported to Westmead Children’s Hospital for further assessment. Monitored throughout with nil deterioration.”

The crash summary details from the police report of 30 July 2020 are as follows:
“Approximately 21:18 on Tuesday 7th July 2020, VEHl to wit a red Subaru WRX, bearing NSW registration DWL38A was travelling in a southerly direction along Wisemans Ferry Road, Cattai. As VEHl has entered a left hand bend, the nearside of the vehicle as collided and scrapped along a guard rail for approximately 4 meters. It is believed that the Driver of VEHl has over-corrected to get away from the guard rail, which has made VEHl lose control. It is unknown if the there is a contributing factor of VEHl aqua-planning, or if VEHl has lost control due to the Driver over-correctinq the steering. VEHl has left the guard rail and travelled across the unbroken dividing lines, into VEH2. VEH2 being a Toyota Hiace; camper-van, bearing TAS registration H83FH.”
The police report states that the insured driver died in the accident.
The Panel noted that at [19] of Medical Assessor Shen’s report, he referred to
Mr Busby as having suffered post-traumatic stress disorder due to the circumstances of the accident, including the risk of death and seeing the head of the other driver who had died in the collision.

SUBMISSIONS
Submissions of the insurer dated 13 December 2023

The Panel summarises the submissions of the insurer dated 13 December 2023 by reference to paragraph numbers:
The insurer submits that Medical Assessor Shen has materially erred and that the matter is capable of review.
The insurer submits that Medical Assessor Shen’s report fails to explain how
Mr Busby’s pre-accident functioning was assessed in light of his significant psychiatric history, or how that history was considered in determining his current PIRS category.
The insurer submits that Medical Assessor Shen did not properly consider Mr Busby’s health issues and social situation in the years before the accident.
The insurer submits that a proper review of the pre-accident clinical records would have revealed a pre-existing psychiatric condition with a corresponding PIRS rating indicating WPI.
By failing to make such a finding, the insurer submits Medical Assessor Shen erred in determining Mr Busby’s current WPI without accurately discounting the pre-existing impairment based on the available evidence.
The insurer highlights the following evidence of Mr Busby’s functioning prior to the July 2020 accident:
Clinical notes from Head Space Castle Hill provide:
·12 August 2019: Suicidal thoughts daily; refusal to attend school; felt hopeless, bullied, and overwhelmed.
·5 September 2019: Grief over grandmother’s death.
·11 December 2019: Ongoing suicidal thoughts; questioning gender fluidity; seeking psychiatric referral.
·11 May 2020: Longstanding depression since age 6; family dysfunction; suicidal ideation; bullying at school; protecting sister from abuse.
The insurer submits these notes indicate longstanding depression, family stress, counselling, and school attendance issues necessitating psychiatric referral.
Medical Assessor Shen had access to these records, which indicated a psychiatric history affecting Mr Busby’s school attendance and social functioning, and which should have informed his assessment of pre-existing impairment.
The insurer submits a proper examination of this evidence would have supported a PIRS rating of class 2–3 in each category, corresponding to a pre-existing psychiatric impairment of 7% to 22%.
The insurer submits Medical Assessor Shen erred in the following PIRS categories:

Self Care and Personal Hygiene

Medical Assessor Shen found no deficit (class 1) because “he was showering daily, had no issues with self-care and attending school in Year 8 or 9.”
However, Head Space records show school refusal and concern from Mr Busby’s mother.
The insurer submits a more appropriate rating would be mild impairment, class 2.

Social and Recreational Activities

Medical Assessor Shen found no deficit (class 1) because Mr Busby “would see his friends at school and sometimes outside school.”
Records show he refused to attend school, felt socially out of place, and was bullied.
The insurer submits class 2 was more appropriate.

Social Functioning

Medical Assessor Shen found no deficit (class 1) because Mr Busby had “a good relationship with family” and saw friends regularly.
This is inconsistent with records showing school refusal and social isolation.
The insurer submits class 2 was appropriate.

Concentration, Persistence and Pace

Medical Assessor Shen found no deficit (class 1) based on Mr Busby’s report that “his concentration was good.”
Records contradict this, showing he found school too hard and refused to attend.
The insurer submits class 2 was more appropriate.

Adaptation

Medical Assessor Shen found no deficit (class 1), noting Mr Busby “faked sick occasionally” but generally attended school.
This is inconsistent with clinical records indicating frequent school refusal and discussion of home schooling.
The insurer submits class 2 was more appropriate.
Medical Assessor Shen found moderate impairment in social/recreational activities, concentration, and adaptation based on infrequent social attendance, poor concentration, and school dropout due to anxiety.
The insurer submits Mr Busby’s pre-accident social and educational challenges were largely unchanged post-accident. His disinterest in school and poor concentration were ongoing issues, culminating in him leaving school and planning to attend TAFE. Thus, no new impairment arose from the accident.
The insurer submits that no change to Mr Busby’s psychiatric condition resulted from the accident.
The insurer submits Medical Assessor Shen’s PIRS ratings for pre-existing impairment are inconsistent with evidence showing Mr Busby’s significant psychiatric issues prior to the accident.
The insurer submits correcting these errors would result in finding Mr Busby’s current psychiatric impairment is unchanged from his pre-accident impairment, i.e., nil impairment from the accident.
Accordingly, under s 63 of the Motor Accidents Compensation Act 1999 and the principles in Meeuwissen v Boden, the insurer submits the matter should be referred to the Review Panel.

Submissions of the claimant dated 17 January 2024

The Panel summarises the submissions of Mr Busby dated 17 January 2024 by reference to paragraph numbers:

[1]-[2] The insurer seeks a review of Medical Assessor Shen's Certificate dated
24 November 2023 (the application). The application is brought purportedly pursuant to Section 7.26 of the MAI Act.
[3] The insurer complains that Medical Assessor Shen has erred in material respects, namely:
(a)    failure to discount accurately assessed pre-existing psychiatric impairment based on the evidence before the Medical Assessor;
(b)    failure to have regard to the plaintiff's health issues and social situation in the years leading up to the motor vehicle accident, and
(c)    failure to show how the plaintiff's pre-accident functioning has been assessed in light of the plaintiff's significant pre-accident history and how in light of that history he has taken it into consideration when deciding on his current PIRS categories.
[4] The application is opposed by Mr Busby. The assessment certificate has been carefully prepared. It is well rationalised and reasoned. There is nothing in the certificate which would warrant the application being granted and Mr Busby being reassessed.
[5] Mr Busby submits the insurer’s application has no merit and should be rejected.
[6] It is agreed that while the requirement of s.7.26(5) of the MAI Act for the President to be ‘satisfied there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application’ does not require a determination of the likely success of the complaint but it does require an analysis as to whether the complaint is soundly based.
[7] Mr Busby submits that in considering a referral to a review panel, there is a requirement of acceptance by the 'gatekeeper' that there was an error in a material respect.

Background
[8] Medical Assessor Shen examined Mr Busby on 20 November 2023. The certificate was issued on 24 November 2023. The certificate was provided to the parties on 29 November 2023. Mr Busby was assessed in respect of a diagnosed post-traumatic stress disorder.
[9] From page 2, the examiner noted the parties' respective positions. It was noted Mr Busby had been diagnosed with post-traumatic stress disorder and assessed at 15% WPI by Dr Rastogi. The insurer's submissions related to 'significant pre-existing psychiatric injuries' are acknowledged as well as the submission that such psychiatric injuries were not taken into account by Dr Rastogi. The Assessor noted the insurer was arranging an examination with another examiner.
[16] Mr Busby notes cessation of treatment with Headspace prior to the subject accident is supported by the evidence before the Medical Assessor and was addressed in the material before the Medical Assessor which included:
• claimant's submissions (See A1 of Mr Busby's application, Page 2, paragraphs 20 and 21), and
• clinical records of Head Space Castle Hill (See A11 of Mr Busby's application, page 86).

[34]-[37] On page 8, the Medical Assessor notes Mr Busby meets the diagnosis for post-traumatic stress disorder and persistent depressive disorder. The Medical Assessor then goes on to assess post-accident WPI which he assessed at 13%. The Medical Assessor then applied PIRS scale based on his opinion of pre-accident psychological illness. The Medical Assessor found 0% WPI with respect to pre-accident impairment and on page 13 the states: 'Despite having residual depressive symptoms, there were no significant associated functional impairment by the time he completed treatment with headspace just prior to the subject accident'.
[40] Contrary to what is contemplated by the Act and the Guidelines, the insurer simply seeks a review on the basis that, to its mind, the Medical Assessor has not placed enough weight on those parts of the material it prefers (namely the Headspace Castle Hill clinical records) as a basis upon which to advance an argument that there has been a failure in a material respect.
[41] As raised in the submissions before the Medical Assessor, Mr Busby submits there is a clear distinction between a claimant having previously undergone psychological treatment and there being objective evidence of permanent impairment at the time of the accident.
[42] The issue of possible pre-existing impairment was a live issue before the Assessor and both parties made details submissions in that regard. It is clear from the certificate that the Medical Assessor was well aware of the issue and undertook the correct process as required by the Guidelines. For example:
• the Medical Assessor estimated the overall pre-existing impairment using precisely the method set out in the Guidelines and subtracted this value (0%) from the current impairment rating (13%) – See cl 6.218 of the Guidelines, and
• the Medical Assessor undertook an analysis of the documents before him including the clinical records of Headspace Castle Hill and the submissions made by the parties.
The insurer's complaints
[43] Mr Busby submits the insurer's complaints cannot warrant a further examination.
[44] The insurer submits the Medical Assessor ought to have found there was no change to Mr Busby's pre-existing psychiatric impairment as a result of the motor vehicle accident.
[45]Mr Busby submits the Guidelines make plain the difficulties with assessing psychiatric impairment, which have complex effects on the individual and for this reason one defers to the Medical Assessor's gambit of skills: cl 6.201 of the Motor Accident Guidelines.
[46] The Medical Assessor's clinical judgment is the most important tool in the application of the PIRS scale (and not a solicitor's as the insurer purports to substitute in this matter): cl 6.217 of the Motor Accident Guidelines.
[47] The insurer's submissions are wholly reliant upon their interpretation of the clinical records of Headspace which were addressed in both Mr Busby's submissions and Insurer's submissions which were before the Medical Assessor.
[48] The Medical Assessor has clearly had regard to that material as set out clearly in the certificate. Mr Busby submits the Certificate of Medical Assessor Shen is well reasoned in all respects and based on his expert clinical opinion. There is no basis to believe the assessment is incorrect in a material respect.
[49] Although it was open to the Medical Assessor to come to a different opinion as sought by the insurer, the Medical Assessor came to the opinion he did after what was clearly a careful review of the material provided to him including submissions of the insurer with respect to the very same issues they complain about in their Application for Review.
[50] In assessing WPI, the Medical Assessor has gone so far as to provide his assessment of any pre-existing WPI on pages 12 and 13.
[51] The Medical Assessor determined this to be 0% WPI rating Mr Busby in Class 1 in each category with respect to pre-accident WPI. Mr Busby submits that assessment is soundly based and takes into account the Medical Assessor's careful examination, the medical evidence before him, and the submissions made by the parties.
[52] The insurer seeks to supplant the Medical Assessor's findings with their own based on excerpts of the clinical records. The insurer has then sought to suggest what PIRS categories the Assessor should have utilised.
Assessment of pre-accident whole person impairment
[53] Mr Busby submits that it is well established that the PIRS Class Descriptions are guidelines only and are not determinative. Clause 6.220 of the Guidelines states clearly that they are intended to be illustrative rather than literal criteria.
[54]-[55] Clause 6.220 further states:
'...The medical assessor should obtain a history of the injured person's pre-accident lifestyle, activities and habits, and then assess the extent to which these have changed as a result of the psychiatric injury...'.
[56] The Medical Assessor has performed precisely that task as set out in the certificate from pages 2 to 5.
[57] Mr Busby submits caution must be exercised in considering clinical records. As well as considering the clinical records the Medical Assessor was required to utilise his clinical judgment based on his experience and examination. The Medical Assessor appropriately did so in Mr Busby's submission.

Self Care and Hygiene

[59]-[65] The insurer submits Mr Busby should have been rated at least Class 2 in this category, citing the Headspace clinical notes (paragraph 16) showing he refused to attend school and his mother was concerned. Mr Busby submits this does not amount to an error. He was discharged from treatment by 11 May 2020 as he felt better able to cope. The phrases cited by the insurer do not, in Mr Busby’s view, relate to Self-Care and Personal Hygiene. In any case, they refer to a session around 12 August 2019, well before he ceased treatment. Mr Busby submits these excerpts do not materially undermine the assessment, noting the Medical Assessor based his opinion on clinical experience, examination, and the records. The records also describe Mr Busby as casually dressed and generally well-groomed, except for 12 August 2019 when his grooming was between dishevelled and sound. Mr Busby further notes there was no objective evidence of impairment at the time of the accident, as he had stopped treatment beforehand.

Social and Recreational Activities

[66]-[70] The insurer argues this category should have been rated at least Class 2 for pre-existing impairment, rather than Class 1 as assessed. It relies on select phrases from Headspace records indicating Mr Busby refused school, felt socially out of place, and was vulnerable to bullying in the year before the accident. Mr Busby notes these references relate to a period before he ceased treatment. He also points to records showing he was “talking to three of his closest friends,” which suggests no impairment in social or recreational activities. In any case, the insurer’s selected phrases do not indicate any error. The Medical Assessor properly applied his full expertise in reaching his conclusions.

Social functioning

[71]-[75] The insurer again refers to Headspace clinical records, claiming they are inconsistent with the Medical Assessor’s determination. Mr Busby submits the Medical Assessor properly exercised clinical judgment, and the records do not raise concern as they relate to a time before he ceased treatment. Mr Busby also submits that other entries in the records support a Class 1 rating, such as him talking to friends, trying to attend school more, wanting to socialise, and planning to join a sports team (see Page 9 of Mr Busby’s application). The selected excerpts do not provide objective evidence of pre-existing impairment, as already outlined in Mr Busby’s submissions before the Medical Assessor. Any inconsistency between the records and the assessment is unsurprising given
Mr Busby’s condition had improved and he had ceased treatment before the accident. As such, Mr Busby submits the records are of limited value in assessing pre-accident impairment.

Concentration, Persistence and Pace

[76]-[78] The insurer disputes the Medical Assessor’s finding that Mr Busby had good concentration before the accident, relying on earlier references that he refused school, did not enjoy it, and found it difficult. Mr Busby submits that even if accepted, this does not amount to objective evidence of permanent impairment at the time of the accident. Moreover, the Headspace clinical records relied on by the insurer also include references supporting the absence of impairment, such as Mr Busby being described as highly intelligent and insightful, writing poetry, and enjoying games.

Adaptation

[79]-[84] The insurer argues the Medical Assessor erred in finding no psychiatric deficit before the accident, noting Mr Busby sometimes faked being sick and refused school, with his mother considering homeschooling. However, Mr Busby submits these references occurred before he ceased treatment due to improved management. The records also state he was in the second top class (p. 90). The Medical Assessor acknowledged periods of school refusal (p. 6 of the certificate) but ultimately concluded, based on all evidence and Mr Busby's presentation, that there was no assessable impairment before the accident. Mr Busby submits the Class 1 pre-accident WPI rating was appropriate, grounded in the Medical Assessor's experience, examination, and consideration of his pre-accident mental state. Notably, Mr Busby's school attendance worsened after the accident, especially as his bus passed the crash site.

Assessment of current whole person impairment

[85]-[89] The insurer argues the current WPI assessment is incorrect, claiming Mr Busby was already impaired before the accident and has not worsened. However,
Mr Busby submits the insurer does not identify any error in the actual PIRS ratings for current WPI. As pre-accident impairment has already been addressed, Mr Busby makes no further submissions on current WPI and defers to the Assessor’s 13% rating. He notes the accident was serious and involved a fatality, after which he was diagnosed with post-traumatic stress disorder and received extensive treatment with limited improvement. Mr Busby submits his significant impairment, as assessed by Medical Assessor Shen, stems from the accident. The insurer’s claim at paragraph 29 that there was no change from pre-existing psychiatric impairment is not supported by evidence.

Further submissions of the claimant dated 11 February 2025

The Panel summarises the further submissions of Mr Busby dated 11 February 2025 by reference to paragraph numbers:
[3] Mr Busby notes this review application was made by the insurer on
14 December 2023 following receipt of the certificate of Medical Assessor Shen dated 24 November 2023.
[4] Due to the delay in the Panel being convened there is additional material that was not before Medical Assessor Shen which Mr Busby has included in the bundle as it is relevant to the issue in dispute being the extent of WPI.
[5] Mr Busby relies upon an updated report of Dr Richa Rastogi (A2) dated
27 January 2024. In that report Dr Rastogi again certified 15% WPI. Dr Rastogi assessed Mr Busby at 17% but deducted one tenth due to pre-existing depression. Mr Busby submits this is the incorrect approach as there was no objective evidence of WPI at the time of the accident. Mr Busby submits the correct approach was adopted by Medical Assessor Shen in Mr Busby's submission.
[6] Mr Busby also relies upon the Vocational Assessment Report of Mr Horace Ting who conducted an extensive vocational assessment.
[7] Mr Ting notes at page 7 of his report the emotional and behavioural sequelae including withdrawal from social activities and being unable to complete a film. On page 14 of his report Dr Ting records that Mr Busby has become withdrawn, and exhibits reduced social self-efficacy. He notes a loss of motivation for various activities and low energy levels due to disturbed sleep. Mr Ting notes
Mr Busby does not drive and avoids crowds and people.
[8] Mr Busby also notes the Factual Investigation Report completed by the insurer. The report of Mr Carl Hayes dated 18 August 2020 (A9) documents the seriousness of the motor accident which caused Mr Busby's psychiatric injury. The factual report refers to the police statement. On page 10 of the factual report there is reference to Mr Busby fearing the car might "go up close".
[9] It is also recorded that Mr Busby looked at the wreckage and saw the deceased driver's head leaned over the back seat. Mr Busby stated that he felt faint and eventually fell onto the ground into a small puddle.
[10] Documents have now been produced by the school counsellor at Windsor High School. Those records commence from page 397 of the insurer's bundle. The records appear to be consistent with those of Headspace in that Mr Busby had of his own volition sought to stop treatment prior to the subject accident at page 421 of the insurer's bundle it is recorded that on 24 February 2020 Mr Busby informed the school counsellor that he felt his mental health had improved over recent months and as such he was taking a break from Headspace. It was recorded that Mr Busby was presently happy and had a small friendship group with which he spent time with. It was noted Mr Busby would continue to self-refer as the need arises in the future.
[11] It then appears the school counsellor contacted Mr Busby on a few occasions to check in on him.
[12] Again, on 18 May 2020 it is recorded that Mr Busby reported his general mental health had been better.
[13] On 27 May 2020 there is reference to Mr Busby feeling pressure however he submits this is a symptom which does not necessarily reflect any psychological injury or impairment at the time.
[14] On 3 August 2020 the school counselling records make reference to the subject motor accident which occurred on 7 July 2020. It is recorded that Mr Busby felt rattled since the accident with reports that he felt more anxious and shaky. It is recorded that he had seen his GP and been placed on antidepressants and that he also reported feeling angry for no apparent reason.
[15] It is also recorded that prior to the accident Mr Busby was starting to feel much better from a mental health point of view however now felt he had regressed. He had spoken to his mother again about seeking external support.
[16] Mr Busby submits this evidence supports his contention that prior to the subject accident there was no objective evidence of permanent impairment and his life in fact was in a positive stage. It is submitted that the evidence reflects a significant downturn following the accident. To the extent that Mr Busby’s pre-injury symptoms are relevant, he submits the evidence reflects that he was a psychologically vulnerable young man who was involved in a tragic accident causing the death of the insured driver. Mr Busby submits it is in those circumstances understandable that there would be a significant downturn and impairment.
[17] Mr Busby also relies upon the insurer's Internal Review Decision dated
16 May 2024 wherein they denied approval of further psychological treatment (A10). It was acknowledged by the internal reviewer at page 6 of the Internal Review Decision that he remains symptomatic however was not satisfied that psychological treatment is adequate or beneficial. The internal reviewer made reference to the recommendations of Dr Kneebone with respect to trauma focused treatment.

Submissions of the claimant dated 28 April 2025

The Panel notes the submissions of Mr Busby dated 28 April 2025 are in respect to producing additional documentation, being clinical records of Workers Doctors as at April 2025 and so are not reproduced.

Further submissions of the claimant dated 28 April 2025

The Panel notes the further submissions of Mr Busby dated 28 April 2025 are in respect to producing additional documentation, being clinical records of Headspace Central Coast LHD as at 30 April 2025 and so are not reproduced.

RE-EXAMINATION BY THE PANEL

The medical members of the Review Panel assessed Mr Busby by audio-visual link on 15 April 2025 at 3.00pm.

Psychosocial history and pre-accident historyHistory -

Mr Busby was born in Hawkesbury Hospital. He grew up initially in the area and later moved around a fair bit when he was younger as his family moved houses. He was mainly living in the Hawkesbury area. He had three older half-siblings, two sisters and one brother growing up. His mom and dad separated before he was born. He grew up with his mom and would see his dad every other weekend. His oldest sibling later moved out to live elsewhere.
He later grew up with his two siblings and his mother. He stated that there were some court issues between his parents. His mom wanted to move close to her grandmom, and his dad resisted that, so there was a court case. He does not remember much about that time, as he was around five to six years old. Later, he, along with his two siblings, moved to live with his grandmother.
He stated that there were struggles growing up. They moved a lot of places so he moved to different schools several times and there was minor bullying in his first primary school. The bullying was only up to year three and after leaving the primary school, the bullying stopped. They struggled with money as well but he stated that he was doing quite well.
Mr Busby stated that around the age of 12, he was struggling with deaths in the family; around that time, there was the suicide of his uncle and the death of his grandfather. He started to struggle with depression and mild anxiety and he began to attend Headspace to get help. When asked to give some details about that he stated that he did not remember much. He said there were not many problems with sleep or appetite. He did not enjoy school, and it became challenging sometimes. He stayed home at times due to the length of the time it took to drive and attend school. However, his attendance at school was decent according to him.
He had sessions with psychologists once every fortnight and had one meeting with a psychiatrist. At the age of around 14, he stopped attending Headspace as he started to feel more positive in his mood. He stated that the accident happened around four to five months after he had stopped seeing Headspace. He stated that in that time he was not having any mental health issues and there was no ongoing treatment during that time that was required. He was getting better and he was feeling better. Things were a lot better and it was a great change. He wanted to see how things would be without Headspace. He was pretty happy in his life and enjoyed that period at school and was very social at that time.
The Panel brought to the attention of Mr Busby that as per the Headspace records, he was discharged only two months before the accident and there is history of depression from age 6 rather than age 12. There is also history of persisting suicidal thoughts from age 6 and not age 12 and being on a safety plan, not long before the accident. Mr Busby stated that he is not very sure of the timeline. He stated that yes, he had suicidal thoughts as there were issues with his sister and her partner.
Mr Busby stated that time before the accident he was doing well. He was good in his personal care and he was showering regularly. He confirmed he was overweight at that time and struggled with his weight and with bullying related to his weight. He was going well at school. He did struggle sometimes, but overall, he was feeling much better.
In terms of other background history, Mr Busby gave a family history of suicide of his uncle and mental health issues with his sister. He said probably she had depression but he was not sure. Mr Busby stated that he does not have any significant medical history.
Mr Busby stated that he was a non-smoker and he denied any history of illicit substance use and there was no history of alcohol use.

History of the accident

Mr Busby stated that on 7 July 2020 they were driving back from Victoria after visiting his older brother. The COVID-19 pandemic caused early closure of the State border and they had to shorten their trip and return to Sydney. He was the front passenger of a campervan with his mother driving. It was a very rainy day and they stopped at his sister's place on the way. His mother initially wanted to stop at his uncle's place for the night, but he wanted to come straight home. Around 30 minutes from home his mother was driving on Wisemans Ferry Road, Cattai.
There was a bend and she saw the car coming from the opposite direction. The driver had lost control and the car hit the guardrail and slid into her lane causing a collision with the campervan. It was dark and wet and he had just woken up 10 minutes before this. He said the front doors were stuck and they had to climb to the back of the vehicle to get out. There was all glass over the road and they sat on the side. His chest was hurting and he was having a panic attack. There was a house in front and people came out and helped them.
He stated that he lied down and probably fainted and lost consciousness for five seconds. He kept thinking that he did not want to die. Later the Fire and Rescue arrived. The police and ambulance also came. Mr Busby saw the head of someone moving in the car and he was told that that it was the driver of the other car who died on the spot and he said the fire people later wrapped a silver thing around Mr Busby. He was taken to Westmead Children's Hospital. His mum’s head struck the windscreen and she was also taken to the Westmead Hospital.
Mr Busby stated that he had whiplash injury in the accident and had bruising on his chest. He was put in a neck brace and had various X-rays of chest, neck, head and back and was kept at the Westmead Children's Hospital for the night for observation and they were discharged the next day, along with his mother and they were driven home.

History of symptoms and treatment following the accident

Mr Busby stated that he was in pain after the accident and roughly around two weeks later, the back pain got worse. Mr Busby stated that as soon as the accident happened and he heard that the driver is dead, he became depressed and anxious. He did not enjoy his friends and he became antisocial. He hated going to the school and did not want to pass the place where the accident happened. He started to have nightmares about cars, accidents and cars crashing in his room. He began to overeat to help with his emotions and he gained weight and reached up to 96kg. He became very anxious and was very suicidal at one point. The COVID-19 pandemic situation did not made his anxiety worse.
He would not leave his room and stayed at home all day in the period after the accident. He said his grades went down and his attendance went down at school as well. He attended Year 11 but his attendance was not regular and he eventually left school in Year 12. He continues to have anxiety when he walks near a car. He would have headaches and poor concentration. He also lost motivation and would become easily tired. The pain in the back continued and restricted him from standing, sitting for long and would make him fatigued. He saw his general practitioner and a neurosurgeon and had chiropracty and physiotherapy sessions. He also had other investigations such as MRI. He was told that if he had any operation on his back then that may worsen his back pain.
Mr Busby also saw psychiatrist and psychologist. He did not restart seeing Headspace for a while.

Details of any relevant injuries or conditions sustained since the accident

Mr Busby did not mention any other relevant injuries or conditions sustained since the accident.

Current symptoms

Mr Busby lives with his mother and his sister. He has recently finished a course in business administration. This was a 12 month course which he did online and was through Centrelink, and completed in the normal time. He is currently not working.
Mr Busby stated that he continues to attend Headspace on a fortnightly basis. He is also taking the treatment prescribed to him. However, he is not improving. He continues to have flashbacks of the accident. He is often anxious, and depressed most of the days. He has suicidal thoughts on a daily basis. He attempts to distract himself by watching TV, smoking medicinal marijuana and listening to music, and said they bring him positive thoughts in his mind.
He has developed trust issues towards people. He is irritable and struggles to control his emotions at times. He stated that the nightmares have decreased however may still happen and then he would “see the accident”. He continues to avoid driving. He only had two driving lessons so far with his mom and he had panic attacks. His mom will drive him or he will walk or catch public transport if he has to go somewhere. He gets triggered and anxious by any vehicle which is moving and then he becomes anxious.
He is hypervigilant and is always watching for signs of danger. His mind makes up various scenarios about dangerous situations and that something bad may happen. He has struggled to travel though he went with his mother to Melbourne a year ago and it was a very anxiety provoking situation and he was very anxious, and was having bad anxiety attacks, but eventually when he was flying back home, he calmed down.
Mr Busby stated that he gets pain especially by standing or doing something. Standing for 30 minutes aggravates his pain. Making his bed is also painful, it starts with pain in the back and then in the right shoulder blade, and then spreads to the sides. His sleep is affected because of the pain. He also continues to have vivid nightmares of the car accident though they are infrequent. He would have nightmares of the scene leading up to the accident and of the young man who died.
He may wake up in early morning with anxiety and then struggles to fall asleep again. He has very vivid memories about the accident as well still going on, anything in the movies or loud car noises make him shake with anxiety. He would walk far away from the road as he is extremely jumpy near a road and shakes while he is in a car, and he is constantly watching the road as a passenger.
Mr Busby stated that his older brother lives in Melbourne and works as an architect and he has a decent relationship with him. He has a good relationship with his mom. Mr Busby recently finished a course and he stated that it was quite enjoyable. The course was for two semesters and had 10 units and it took him 11 to 12 months to do that. He is on Centrelink. He was not sure and did not feel confident starting work, which may require any physical exertion.
Mr Busby alleges that his solicitor advised him not to look for work until his claim is settled. The Panel noted this information during examination and brought it to the attention of the Commission.

Current and proposed treatment

Mr Busby is taking his prescribed medication for anxiety and pain. He takes Escitalopram 20 mg and Meloxicam 7.5 mg every day. He also takes medicinal marijuana from online prescription and it helps him with his anxiety. He takes the flower and he smokes the flower every day and it helps him with anxiety symptoms. He also consumes alcohol over the weekend and may have six to eight drinks. He is a non-smoker. He denied any illicit substance use. He continues to have psychology sessions on a regular basis.

Clinical examination - mental state examination

Mr Busby was seen by the Panel on 15 April 2025 via video conference. He was located at his home and the Panel members were in their offices. Mr Busby appeared clean. He interacted well during the assessment. There were no signs of agitation or retardation. He was calm and cooperative during the assessment. He maintained good eye to eye contact and rapport was established. He gave a good history. He had a spontaneous speech with normal rate, tone and volume and was coherent. He described his mood as low and anxious and presented as restricted in affect. He described his sleep and appetite as disturbed.
He described low levels of energy and motivation. He reported trust issues and lack of enjoyment. He reported suicidal thoughts as a daily occurrence. However, he has tools to distract himself. He denied any self-harm behaviour. He denied any suicidal intents or plans. He had some future plans to study and to travel one day and said that he loves history. He described repeated memories of the accident along with nightmares, flashbacks and hypervigilance. He continues to be avoidant of cars and driving and has struggled to travel.
He did not describe any grandiosity, racing thoughts or increased energy levels. There was no evidence of formal thought disorder, no delusional pattern of thinking and no perceptual abnormalities. He described his attention and concentration as low. He had an intact judgement and had reasonable insight into his issues and was help-seeking.

Current functioning

Mr Busby stated that he also struggles to look after himself. He may shower once every two days. He had the removable shower head installed which has helped him to shower as standing in the shower was aggravating his pain. He would do some very basic chores at home.
He tries to help his mother as much as he can at home. He may mow the lawn but then it aggravates the pain. The pain starts from the back and then spreads. He continues to struggle with nightmares and that causes difficulty in sleeping along with the pain and wake up early in the morning with anxiety.
Mr Busby likes to write. He will write stories about himself and he wants to be a writer. He spends his time watching TV and films. He may walk into town. He does not see his friends and he is not in contact with them since he left school, and after the accident he tranquilizer medication his friendship until he left school. He is not going out socially. He has started to go out to a pub or drink sometimes on his own but that is not very frequent. He mostly spends time at home. He struggles to be out in a social situation as he gets jumpy. He gets anxious if there is a loud car noise and he feels shaky. He is even anxious walking on the road and he walks away from the road and is constantly watching his surroundings.

Comments on consistency

There were some inconsistencies that were brought to Mr Busby's attention during the assessment. Mr Busby stated that there was a period of six to seven months when he stopped to see Headspace for his mental health issues before the accident. However, the Panel brought to the attention of Mr Busby that as per the records he was only discharged two months before the accident from Headspace. He also stated that he has a history of depression and anxiety from the age of 12. However, it was again brought to the attention of Mr Busby that as per the records he had depression from the age of six and also suicidal thoughts.
Mr Busby stated that after the accident when he returned to school his attendance went down and his grades went down as well. However, the Panel brought to the attention of Mr Busby that his grades were similar, and in the final year, his grades were possibly better as per the school records after the accident. The Panel read out his grades immediately before the accident, and immediately after the accident, and before he left school. Mr Busby stated that he did not feel that it was better and he was struggling with his concentration at that time. The Panel accepted his school attendance reduced after the accident.

Review of documentation - summary of relevant documentation

The Panel noted the independent medical examination report by Dr Richa Rastogi, consultant psychiatrist, dated 16 September 2022. The report stated that the diagnosis is post-traumatic stress disorder and exacerbation of major depressive disorder as a result of the accident. He has reached maximum medical improvement and further treatment is unlikely to cause functional gains of more than 3%. He has suffered from a primary psychological injury associated from the accident. The final WPI is 15%.
The Panel noted the independent medical examination report by Dr Richa Rastogi, consultant psychiatrist dated 27 January 2024. The report stated the diagnosis is persistent post-traumatic stress disorder and exacerbation of pre-existing depressive disorder. There is a history of pre-existing disorder, major depressive disorder with anxiety but reasonably controlled. There is 1/10 deduction for pre-existing depression of 1.7%. The final WPI is 15%.
The Panel noted the medical assessment certificate for psychological permanent impairment from Medical Assessor Yu-Tang Shen, dated 24 November 2023. The certificate stated the psychological injuries caused by the accident give rise to a permanent impairment of 13% and is greater than 10%, for post-traumatic stress disorder and persistent depressive disorder. The pre-existing impairment is 0% despite having residual depressive symptoms there were no significant associated functional impairment by the time he completed treatment with Headspace just prior to the accident. There has been mild benefit from counselling, but not convincing as to have any material benefit on his overall mental state, hence there is no treatment uplift.
The Panel noted the independent medical examination report by Dr Mark Kneebone, consultant psychiatrist dated 4 March 2024. The report stated Nathanial's diagnosis using DSM-5 criteria were thought to be post-traumatic stress disorder and major depressive disorder moderate severity. To date Nathanial's treatment has only involved counselling which appears to have been mainly supportive in nature given the intertwined nature of post-traumatic stress disorder, major depressive disorder and chronic pain, a comprehensive multidisciplinary approach to treatment involving such interventions as cognitive behaviour therapy and pharmacological treatments is required. His treatment to date is thus thought to have been inadequate. Given that Nathanial has not received appropriate treatment to date a finding that he had reached maximum medical improvement enabling a determination of permanent impairment was not able to be made.
The Panel has noted the additional documents provided to the Commission following the medical examination by the Panel. The medical Panel has noted the additional documents, and it does not change the opinion of the medical Panel.

Diagnosis and reasons

Mr Busby currently meets the DSM-5TR criteria of post-traumatic stress disorder and major depressive disorder. Mr Busby has sustained a psychological/psychiatric injury because of the accident on 7 July 2020, which has led to a diagnosis of post-traumatic stress disorder. He has also suffered an exacerbation of his pre-existing depressive disorder and currently meets the criteria of major depressive disorder as per DSM-5.
Mr Busby meets the DSM-5-TR diagnostic criteria for post-traumatic stress disorder as highlighted below:
A.Exposure to actual or threatened death, serious injury:
1.     Directly experiencing the traumatic event(s).
B.Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
1.     Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).
2.     Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s).
3.     Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring.
C.Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:
1.     Avoidance of or efforts to avoid distressing memories,
2.     Avoidance of or efforts to avoid external reminders
D.Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1.     Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
2.     Markedly diminished interest or participation in significant activities.
E.Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1.     Irritable behaviour and angry outbursts (with little or no provocation), typically expressed as verbal or physical aggression toward people or objects.
2.     Hypervigilance.
3.     Exaggerated startle response.
4.     Problems with concentration.
5.     Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).
F.Duration of the disturbance (Criteria B, C, D and E) is more than 1 month.
G.The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
H.The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.
Mr Busby meets the DSM-5-TR diagnostic criteria for major depressive disorder as highlighted below.
Five (or more) of the following symptoms have been present during the same two-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure;
•      depressed most of the day, nearly every day as indicated by subjective report -he has reported pervasive low mood;
•      markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day -he has not been able to enjoy most of the activities and hobbies;
•      insomnia nearly every day-he can’t get good sleep at night and naps in day;
•      fatigue or loss of energy nearly every day -he is constantly tired during the day;
•      diminished ability to think or concentrate, or indecisiveness, nearly every day - he has struggled with concentration after the accident when he returned to school and during the recent course, and
•      recurrent thoughts of death (not just fear of dying).
The above symptoms have persisted more than a few months, and more than two weeks:
· the symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning, and
· the episode is not attributable to the physiological effects of a substance or to another medical condition.

Causation and reasons

Mr Busby's psychological/psychiatric injury is directly caused by the accident. He has developed post-traumatic stress disorder following the accident and has also suffered an exacerbation of his pre-existing depressive disorder. His pre-existing diagnosis appears to be persistent depressive disorder with episodes of major depressive disorder. He is currently experiencing symptoms which meet the DSM-5 criteria of both post-traumatic stress disorder and major depressive disorder.
There is evidence in the documents provided and history given by Mr Busby that there was some improvement in his symptoms before the accident and he was discharged from the care of Headspace. There were some impairments in his level of functioning which still continued. There is no past history of a diagnosis or symptoms of post-traumatic stress disorder. Hence the Panel concluded his post-traumatic stress disorder is directly caused by the accident.

Summary of injuries referred by the parties

The following injuries WERE caused by the accident:

· post-traumatic stress disorder and major depressive disorder.

In the Panel’s opinion, Mr Busby's impairment is permanent as it has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. The impairment is considered permanent as it is unlikely to change substantially and by more than 3% in the next year with or without medical treatment.

Degree of permanent impairment psychiatric impairment rating scale

The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.

Psychiatric diagnoses	1. Post-traumatic stress disorder.	2. Major depressive disorder.
Psychiatric diagnoses	3.	4.
Psychiatric treatment description	Treatment under the care of GP, psychiatrist and psychologist. Treatment with antidepressant medication, psychological intervention and treatment with pain medication. He also takes prescribed medicinal marijuana.

Category	Class	Reason for Decision
1. Self-Care and Personal Hygiene	2	Mr Busby showers once every two days and washes his hair. He gained weight from eating when stressed since the accident.
2. Social and Recreational Activities	3	Mr Busby likes to write. He will write stories about his own self and he wants to be a writer. He spends his time watching TV and films. He may walk into the town. He is not going out socially. He has started to go out to a pub or drink sometimes on his own but that is not very frequent. He does not need prompting or a support person in recreational activities. He mostly spends time at home. He struggles to be out in social situation as he gets jumpy.
3. Travel	2	Mr Busby has struggled to travel. He had only two driving lessons and he had panic attacks while he was with his mom. His mom will mostly drive him or he will walk or catch public transport. He gets anxious in any vehicle even in public transport when it starts to move and there is always anxiety and he is constantly watching and scanning the environment. His mind makes up various dangerous situations that something bad may happen. He travelled with his mom to Melbourne a year ago. They flew but it was a very anxious process and had bad anxiety attacks. He eventually calmed down when he came back.
4. Social Functioning	2	Mr Busby has a good relationship with his mom and they have been quite close. He has an older brother who lives in Melbourne and works as an architect and has a good relationship with him as well. Things are getting better with his older sister as well. He is not in a relationship and has never been in one. He reported that things were not great with his siblings and mom at one point. However, they are getting better. He has friends after the accident, but does not have contact with his friends since he left school.
5.Concentration, Persistence and Pace	2	Mr Busby stated that when he did the course it was quite enjoyable. It was provided by Centrelink and he finished both the semesters in each with 10 units. It took him 11 to 12 months, the normal time. There was reading, writing and multiple-choice questions and he could do it on his own pace though he struggled with concentration during the course. He also stated that after the accident when he went back to school for some time his grades went down and he struggled with concentration then as well. As he passed a normal course and can focus on intellectually demanding tasks for 30 minutes, this is consistent with 2.
6. Adaptation	3	He continued school after the accident, and then completed further education. Mr Busby wants to work and stated that he still struggles with his concentration and that will be a barrier. The Panel concluded Mr Busby can perform a job which requires less than 20 hours per week and which is less stressful. He is currently not working. He has not started to work yet and he is currently on Centrelink.
List classes in ascending order: 2 2 2 2 3 3
Median Class Value: 2
Aggregate Score: 14
% Whole Person Impairment: 7 %

*%WPI ^{= Percentage Whole Person Impairment}
Psychiatric Impairment Rating Scale – Pre-existing/subsequent impairment

Psychiatric diagnoses	1. Major depressive disorder	2.
Psychiatric treatment description	Treatment under the care of his GP and psychologist. Treatment with Headspace.

Category	Class	Reason for Decision
1. Self-Care and Personal Hygiene	2	Mr Busby stated that his personal care was fine before the accident. The Panel noted he was on a safety plan for suicidal ideation and had weight problems, related to his mental health. There was mild impairment immediately before the accident.
2. Social and Recreational Activities	1	He was not actively involved in school in the recreational activities but there was no evidence of impairment.
3. Travel	1	Mr Busby was fine in travelling. He mostly caught a bus to school and denied any issues there. He travelled with his mom to Victoria before the accident. He was fine with that and said it was a long drive.
4. Social Functioning	1	Mr Busby was living with his mom before the accident and his sister was not living with them at that time. He had a close relationship with his mom and denied any issues. He had friends.
5. Concentration, Persistence and Pace	2	Mr Busby struggled at school. His grades were not good. He was seeing Headspace for ongoing issues with depression, anxiety and poor focus and concentration.
6. Adaptation	2	Mr Busby was a minor and was not working at that time. However, at school, he was not fond of schoolwork and his average scores were C and D and had an erratic attendance at school as well. There were some deficits as he was not regular in his school and schoolwork.
List classes in ascending order: 1 1 1 2 2 2
Median Class Value: 2
Aggregate Score: 9
Pre-existing % Whole Person Impairment: 4 %

*%WPI
Apportionment – pre-existing/subsequent impairment

4% for pre-existing impairment.

Effects of treatment

There is no significant effect from the treatment received so far. Hence, no adjustment was made.

HOW THE PANEL DEALT WITH THE SUBMISSIONS

The Panel took note of the submissions of the insurer, including the submission that the Headspace Castle Hill Notes indicate longstanding depression, family stress, counselling and school attendance issues necessitating psychiatric referral.
The Panel took note of the submission that a proper examination of the evidence would have supported a pre-accident PIRS rating of 2-3 in each category corresponding to an existing psychiatric impairment of 7% to 22%.
The Panel took into consideration these submissions. However it conducted its own clinical examination of Mr Busby. Contrary to the submission made by the insurer, the appropriate classification for Self-Care and Personal Hygiene was 2 for the reasons stated on the right-hand side of the PIRS.
With respect to category 2 Social and Recreational Activities, the appropriate category was 1 as in the opinion of the Panel there was no evidence clinically of impairment.
As to category 3 Travel, the appropriate class was 1 for the reason that the Panel took a history from Mr Busby which it accepted as truthful that he was fine in travelling, giving the example of having travelled to Victoria with his mother before the accident.
As to category 4 Social Functioning, again the appropriate category was 1 for the reasons listed on the right-hand side of the table above.
As to category 5 Concentration, Persistence, and Pace, the scoring was 2 because
Mr Busby had struggled at school, his grades were not good, and he was seeing Headspace for ongoing issues with depression, anxiety, and poor focus and concentration.
Finally, as to category 6 Adaptation, again the appropriate score was 2 for the reasons that the Panel set out on the right-hand side of the table.

CONCLUSION

After taking all of this into account, the Panel came to the view that the appropriate pre-existing percentage WPI was 4%.
The Review Panel revokes the Certificate of Medical Assessor Yu Tang Shen dated
24 November 2023 and substitutes the determination that the following injuries caused by the accident gave rise to a permanent impairment of 3% and is NOT greater than 10%:
· post-traumatic stress disorder, and
· major depressive disorder.

[2025] NSWPICMP 489

7 July 2025