Bxa v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	BXA v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 398
CLAIMANT:	BXA
INSURER:	Insurance Australia Limited t/as NRMA Insurance NRMA
REVIEW PANEL
SENIOR MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Wayne Mason
MEDICAL ASSESSOR:	Himanshu Singh
DATE OF DECISION:	5 June 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC) under section 7.26; whether degree of permanent impairment that has resulted from psychological injury caused by the accident is greater than 10%; where Medical Assessor certified that post-traumatic stress disorder (PTSD) and alcohol use disorder caused by the accident gave rise to a permanent impairment of 5% and that the impairment was not greater than 10%; Held – claimant had pre-existing psychological conditions and a pre-existing impairment of 4%; PTSD and aggravation of pre-existing alcohol use disorder caused by the accident; current impairment 15%; accident caused impairment 11%; MAC revoked; Review Panel certified the degree of permanent impairment of the claimant that has resulted from psychological injuries caused by the accident is greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Samuell dated 4 August 2023. 2. The Panel certifies that the degree of permanent impairment of the claimant that has resulted from the post-traumatic stress disorder and alcohol use disorder caused by the accident on 12 June 2019 is greater than 10%.

STATEMENT OF REASONS

BACKGROUND

There is a dispute between [BXA] (claimant) and Insurance Australia Limited t/as NRMA Insurance (insurer) about whether, for the purposes of the Motor Accident Injuries Act 2017 (MAI Act), the degree of his permanent impairment as a result of psychological injury caused by a motor accident on 12 June 2019 (accident) is greater than 10% (dispute).
The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(a) of the MAI Act. The medical dispute was referred to Medical Assessor Samuell for assessment. On 4 August 2023 the Medical Assessor certified that post-traumatic stress disorder and alcohol use disorder caused by the accident gave rise to a permanent impairment of 5%, and that the impairment was not greater than 10% (Assessment).
The claimant sought a review of the assessment under s 7.26 of the MAI Act. The President’s delegate subsequently determined that there was reasonable cause to suspect that the Assessment was incorrect in a material respect. The review application was accepted and referred to a review panel. This review panel (Panel) has been constituted by the President of the Commission to conduct the review of the Assessment.
The parties agree the claimant suffers from post-traumatic stress disorder caused by the accident and that the assessment of the dispute by the Panel can be made on the basis of that agreement: see s 7.25(b) MAI Act. As will be seen, the Panel has found the claimant had pre-existing psychological conditions and pre-existing impairment. The Panel has also found that a pre-existing alcohol use disorder has been made worse as a result of the accident.

THE REVIEW

The Panel is to conduct the Review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the panel is to be constituted by two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) MAI Act. Although styled a "review", the Panel is determining afresh the medical assessment matters referred to it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [9] per Leeming JA (Beazley P and Basten JA agreeing).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128.
Version 9.3 of the Motor Accident Guidelines (Guidelines), effective from 6 December 2024, apply to the Review.

DIRECTIONS AND CASE MANAGEMENT

On 6 February 2025 the Panel directed the parties to file a joint bundle that contained all material relied on for the purposes of the Review. The parties were also directed to provide submissions for the purposes of the Review. A joint bundle and submissions were subsequently filed.
After convening on 1 April 2025, the Panel informed the parties that a re-examination of the claimant was required and would take place on 23 April 2025. The Panel also provided reasons for giving the insurer leave to rely on additional documents from KRS Health Family Medical Practice.
The proceedings were listed for case management on 3 April 2025. The Panel’s report and directions dated 3 April 2025 refer to the matters addressed at that time. For the reasons provided in the report the joint bundle was replaced with a revised joint bundle.
On 8 April 2025 the insurer made a further application to lodge additional documents, namely reports from the Vocational Capacity Centre. The application was opposed by the claimant. For the reasons given by the Panel on 16 April 2025 the insurer’s application was refused.

LEGAL FRAMEWORK

Permanent impairment

If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1)     The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2)     Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3)     In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4)     A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with “Mental and behavioural disorders”, found in cls [6.201]-[6.228] of the Guidelines.
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.”
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.
Subsequent injuries are dealt with in cl 6.34.

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.”
The Panel must 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 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

On 4 August 2023 Medical Assessor Samuell certified that post-traumatic stress disorder and alcohol use disorder caused by the accident gave rise to a permanent impairment of 5% and that the impairment was not greater than 10%.
In his reasons, the Medical Assessor recorded that the claimant was incarcerated, having pled guilty to an assault and malicious damage charge. The claimant denied any history of psychological difficulty pre-dating the accident. He reported that before the accident he was consuming four to five schooners of full-strength beer on weekends and, before imprisonment, was consuming 8 to 10 schooners of full-strength beer a day. He smoked 20 cigarettes per day when not in prison. The claimant denied taking illicit substances. The Medical Assessor recorded that the claimant “has been in trouble with the law with drink-driving in 2005 and 2020”. The history in relation to the claimant’s daughter has been considered by the Panel.
The Medical Assessor recorded as follows with respect to the circumstances of the accident:
“…he was driving a prime mover with a fridge van in its load. He estimated his load weighed around 20 tons. He said he was driving at around 100 kilometres per hour on the Sturt Highway.
He said that a vehicle driving towards him slowly drifted across the lanes and went under his truck. He said that the impact took out the front axle and said that his motor came out of his truck. He said the truck slid on its front axle for 45 metres. He said that the accident occurred when it was dark and raining and he “didn’t see anything”. He said that he got out of his truck, which he said required him to kick open the door. He said that he initially thought that there was a car under his truck and said that there was a car from a smash repairer in front of him. He said that he then looked up the road and saw that there was a vehicle with its horn stuck on. He said that both he and another driver ran to inspect the vehicle. He said that he observed the other driver had been decapitated, with his head in the back seat…”
The claimant reported that the accident made him “feel sick”. He has flashbacks of the accident. He attended his general practitioner (GP) and was referred to a psychiatrist and a psychologist. His first symptoms were sleep disturbance and nightmares. His symptoms have remained unchanged over time. He has flashbacks of the accident two or three times a week. He said that it is difficult for him to sleep throughout the night. He said that he had no problems with sleep before the accident. He has bad dreams two or three times per week.
The Medical Assessor diagnosed post-traumatic stress disorder and alcohol use disorder as a result of the accident. The alcohol use disorder was in remission. The Medical Assessor found that the claimant had a 5% impairment. The Panel has evaluated the PIRS assessment made by the Medical Assessor, including the reasons he has given for the class assigned in each area of functioning.

EVIDENCE

The bulk of the evidence relied on by the parties in the Review is contained in a revised joint bundle filed in accordance with directions made by the Panel on 3 April 2025. All the material in the joint bundle has been evaluated by the Panel.
In addition to the material in the joint bundle there are the further records from KRS Health Family Medical Practice relied on by the insurer. Those documents have also been evaluated by the Panel.

Claim documents

The claimant’s application for personal injury benefits dated 10 June 2021 contains the following description of the accident:
“Was driving and the other car drove in front and had a head on/front on crash and other driver was killed”
It is stated that the injury received as a result of the accident was post-traumatic stress disorder. The claimant recorded that his usual occupation was “truck driver”, and that he had not worked since the accident.
The application for common law damages is also dated 10 June 2021. It contains no additional information.

Statements

The claimant gave a statement dated 24 October 2023. He describes suffering from post-traumatic stress disorder and alcohol use disorder following the accident. He said the accident was “traumatic”. At [4] he refers to being charged with offences related to his then partner. He was refused bail for those offences and sentenced in 2023. At [7] the claimant identifies various matters recorded by Medical Assessor Samuell in his reasons with which he disagrees. At [8] – [10] the claimant addressed difficulties his solicitors encountered obtaining records from the solicitors who acted for him in the criminal proceedings.
The claimant’s solicitor, Morgan Jones, gave a statement dated 13 February 2024. The statement includes a history of the proceedings, and details of the claimant’s incarceration. Reference is made to various attempts to obtain information relating to the claimant’s criminal proceedings, including information provided after the assessment by Medical Assessor Samuell. Particular reference is made to a statement of agreed facts and a report of Peter Watt dated 15 August 2023.
The documents annexed to the statement have been considered by the Panel. That material includes a request for particulars dated 9 February 2023 and a response dated

13 February 2023.

Medico-legal reports

Dr Ben Teoh, psychiatrist, reported to the claimant’s solicitor on 14 April 2021. The doctor recorded a history of the accident, the claimant’s symptoms, and his treatment. The doctor diagnosed chronic post-traumatic stress disorder. The doctor thought the claimant’s prognosis was poor and that he required further treatment. In Dr Teoh’s opinion, the claimant was not fit for his pre-injury work. In a separate report of the same date, the doctor provided a psychiatric impairment rating scale (PIRS) assessment and assessed a 22% permanent impairment.
Dr Sathish Dayalan, psychiatrist, reported at the request of the insurer’s solicitor on

15 December 2021. The report includes a pre-accident history and details of the accident. The pre-existing history included matters relating to the claimant’s daughter. It was noted that the claimant had experienced depressive symptoms. Those symptoms resolved prior to the accident. The description of the claimant’s functioning has been considered, and the doctor’s PIRS assessment as been evaluated.
Dr Dayalan diagnosed post-traumatic stress disorder as a result of the accident. The claimant also had a history indicative of alcohol use disorder. The claimant’s symptoms fluctuated. In the doctor’s opinion the claimant was partially incapacitated for work. He would be restricted from performing duties that required him to drive a truck. He could work in an alternative role for up to 20 hours a week. The doctor apportioned 50% of the claimant’s partial incapacity for work to the accident and 50% to the other factors referred to in the report. The claimant required further treatment, including medication and counselling. The doctor declined to assess permanent impairment on the basis that the claimant “has not attained maximum medical improvement and his impairment is not permanent”.
Dr Teoh reported again on 7 March 2022. The doctor was asked to comment on various matters arising from Dr Dayalan’s report. Dr Teoh disagreed that the claimant was able to work and that he had not achieved maximum medical improvement. In the doctor’s opinion the claimant had reached maximum medical improvement and was not able to work due to persistent symptoms of post-traumatic stress disorder.
Dr Dayalan reported on 17 November 2022. He recorded that the claimant remained unemployed. His symptoms and functioning were recorded. The doctor thought there was inconsistency between what the claimant reported and the records from treatment providers; entries made by his GP since late 2021 indicated that his mood had been normal and that he had been sleeping well. He reported feeling happier, and it was also noted he had worked in fencing which was contrary to the claimant’s account of not having worked since the accident. In the doctor’s opinion the claimant’s presentation was not indicative of someone suffering from a major mental illness. In his opinion the claimant’s post-traumatic stress disorder was largely in remission. He may have some residual symptoms. The claimant continued to suffer from alcohol use disorder and reported he was drinking excessively daily. The claimant required ongoing medication and psychological consultations.

In Dr Dayalan’s opinion the claimant’s capacity for work had been affected by the post- traumatic stress disorder. The extent of the impact has varied over the years. Given the fluctuations in the symptoms and his capacity for work, the doctor recorded that it “is not possible to define a period”, but it would be reasonable that there has been some impairment in his functioning since the accident.
In the doctor’s opinion, due to his psychiatric condition the claimant has been, and will be, restricted from working as a truck driver. The doctor “did not have any reasons to disagree” with the opinion that the claimant would have the capacity to work five days a week, five hours a day as a farm hand or chemical sprayer. The claimant’s main restriction would be that his capacity for work as a truck driver is impaired due to his psychiatric condition. Unless he addresses his alcohol use disorder the doctor had a “guarded view on his ability to resume a normal life”.
The doctor’s PIRS assessments, including his reasons for those assessments, have been evaluated. The doctor assessed a 7% whole person impairment.
Dr Teoh reported on 2 June 2024. The claimant reported that he had not been able to work since the accident. He has persistent insomnia and nightmares and has been socially isolated. He had lost his confidence and has been irritable and argumentative. The claimant continued to take antidepressant medication. The claimant reported that he was in prison for 10 months and was involved in a fight two and a half years ago. He reported being intoxicated at the time. In the doctor’s opinion the claimant’s presentation is consistent with chronic post-traumatic stress disorder and alcohol use disorder. These conditions were caused by the accident. The claimant had no capacity for work. His prognosis was poor and was likely to persist “in the long term”. The claimant would benefit from ongoing treatment.

Material from treatment providers

There are multiple sets of records from KRS Health Family Practice. The first set contains progress notes that commence on 21 March 2001 and end on 1 July 2021. The notes record details of various physical conditions, injuries, and ailments, including those referred to in the “Patient Medical/Surgical History”. The records contain reference to the following matters:
(a)    18 December 2012 -
“…41 yr ols [sic] truck driver abuses amphetamines and drives under sleep deprivation
he presented late Oct
confused /dysathric
was investigated under the stroke pathway
he was admitted
he developed these eopisdes [sic] while in hosp
this was documented and scans arramged [sic]
no signs of Stroke on MRI scans
he was then diagnosed as possible Complex partial seizures and
was started on Sodium valproate
and a letter was written to RTA to stop him from driving for at
least 5-10 yrs as per RTA guidelines
He got very angry,agitated
and refused to take his medications and to have a sleep -deprived
EEg
but he refused and asked that Dr Richard writes another letter to
RTA with another diagnosis other than CPE
Dr Richard wrote a short letter to RTA advising that his
prcsntataion [sic] is a possible complex partial seizures and that he is
not safe on the road (even with his sleep deprivation and
Amphetmine [sic] use)
he will fax a detailed letter to us
and we need to eb [sic] aware that this is an angry pt and a very
difficult non-compliant pt.”
(b)    30 January 2013 – “RTA have cancelled license. Insist he sees addiction medicine specialist or addiction pstychiatrist [sic]…”
(c)    2 January 2015 – had AMI on 2 December 2014 in Darwin. Admitted to Royal Darwin Hospital. “had thrombolysis and one stent…”
(d)    24 March 2015 – “No licence until 28th April due to DUI”
(e)    22 September 2015 – “was stopped by police for drug screen, faintly positive police said that anti-hypertensives can cause a positive test not charged…binge drinks on weekends 10-15 schooners no alcohol on weekdays…”
(f)    16 February 2016 – “…came to see me to have check up caught by police last night ? drug issues and seen by after hrs Dr past hist of IHD- no regular follow up, non complaince with medication…”
(g)    12 April 2017 – “…as he was going through relationship issues with his partner he has lost his driving liscence as well currently lives with his mother c/o sad, depressed speciallt when he is alone…”
(h)    2 May 2017 –“ dass 21 al[l] in ext severe range…”
(i)    14 June 2017 – “…said his depression not good…he says he still takes fluoxetine daily…”
(j)    15 June 2017 – “Used of Amphethamines last used 12 mos ago. and stopped due to the ceased truck driving…”
(k)    27 June 2019 – “…MVA someone died Forrest Hil The other driver fell asleep and went under his truck Scared could not drive now +++ Not his fault Unable to sleep having nightmares Psych: Poor sleep. No early morning wakening. Depressed mood. Low self esteem. No suicidal thoughts.” Post-traumatic stress disorder.
(l)    reports of psychological symptoms after 27 June 2019, including poor sleep, dreams about the accident, depressed mood, referral to a psychologist and anti-depressants being prescribed.
(m)     19 January 2020 – “Doing great loves life now…was helping mate in the coast with bushfires...Normal sleep. No early morning waking. No compulsive behaviours. No suicidal thoughts. No substance abuse.”
(n)    20 February 2020 – “suitable duties now fo 1 month, but feeling great going back to work after around Feb 2020…”
(o)    4 February 2020 – “Unfortunately wife left 3 weeks also with his dog, and he’s not happy…trying to work it out with misses…”
(p)    23 March 2020 – DUI charge...court hearing…feels this incident triggered his nightmares.
(q)    23 June 2020 – court hearing for DUI. Suspended for 12 months – so cannot work.
(r)    7 September 2020 – “Tarcutta Hotel Had a punch up with another bloke Other bloke though he was talking to his girl No cops involved Also saw psychiatrist say increase antidepressant…”
(s)    29 March 2021 – concerned about drinking.
(t)    4 June 2021 – still having flashback of the accident. Discussion around binge drinking.
The records from KRS Health Family Practice printed on 21 February 2022 have been considered. The patient notes cover the period 1 July 2021 – 4 February 2022. These notes include reference to “PTSD”, alcohol excess, “alcohol rehab”, and depression. On

4 February 2022 it was recorded that the claimant was “doing fencing now 4 hours per day cash on hand”. The various referrals contained in the records, together with reports from specialists, have been considered, as has correspondence from the delegate of the South Australian Register of Motor Vehicles, Queanbeyan Drug and Alcohol Service, and Royal Darwin Hospital. A letter from Dr So to the claimant dated 4 May 2015 refers to his “recent myocardial infarction”.
Clinical records of the KRS Health Family Medical Practice as at 5 July 2023 cover the period 4 March 2022 to 5 July 2023. The notes include references to the claimant completing a number of courses and applying for work. There is reference to the claimant binge drinking and being in gaol. Notes recorded on 20 December 2022 refer to the claimant having assaulted a female and partner at a pub while intoxicated three weeks earlier.
Records from KRS Health Family Medical Practice printed on 10 April 2024 cover the period 1 July 2023 to 8 February 2024. The notes include reference to “PTSD”, legal matters associated with criminal charges, and the claimant’s dog. In a number of entries, the following is recorded “Psych: Normal sleep. No early morning wakening. Normal mood. No suicidal thoughts.”
The clinical records from KRS Health Family Medical Practice covering the period

8 April 2024 to 19 March 2025 have been considered. Attendances in 2024 refer to “PTSD” and depression. There is reference to the claimant seeing a psychologist and being prescribed medication. Notes relating to attendances in January, February, and March 2025 also refer to depression and “PTSD”. On 17 January 2025 Dr Saldevar recorded “Psych: Normal sleep. No early morning wakening. Normal mood. No suicidal thoughts.”
In a report dated 8 February 2024 Maddie Lawler recorded that the claimant had been referred after expressing suicidal ideation. He declined further follow up as he advised that “the SI was expressed out of frustration and that he [had] an upcoming appointment with a counsellor and psychiatrist.”
Dr Grama, psychiatrist, reported to Employers Mutual Limited, on 13 March 2024. The doctor diagnosed post-traumatic stress disorder as a result of the accident. The claimant reported that he used to drink excessively prior to going to gaol. “He did not seem to report drinking excessively at the current time”. The claimant’s prognosis was guarded, as was the likelihood of him returning to work. He did not have any work capacity.
Dr Saldevar’s handwritten responses to questions asked by EML by letter dated

26 October 2023 have been noted. Various certificates of capacity refer to “MVA-Post Traumatic”. The claimant was certified as having no capacity for any employment from

May 2024 to April 2025.
There are DASS 21 forms dated 12 April 2017, 15 June 2017, 4 July 2019, 21 November 2019 and 2 April 2020 together with a trauma screening questionnaire dated 21 November 2019. This material has been evaluated by the Panel.
A mental health care plan was prepared on 15 June 2017. The plan refers to the claimant’s relationship of 20 years breaking up, and loss of license due to log book fines. There was a referral to Wagga Applied Psychology Services on 15 June 2017.
A Centrelink certificate dated 2 May 2017 refers to the claimant being sad, depressed, not motivated and experiencing insomnia. The certificate dated 16 June 2017 is in similar terms.
The claimant was referred to Thrive psychology by Dr Saldevar on 27 June 2019. The referral records that the claimant had been involved in a fatal collision two weeks earlier. Fluoxetine had been prescribed. On 4 February 2021 there was a referral to Wagga Community Health to address the claimant’s binge drinking. The 2021 referrals to psychologists have been considered.
There are a number of Allied Health Recovery Requests (AHRR) relating to psychological treatment for post-traumatic stress disorder, each of which has been considered.
The clinical records of Skye Anderson, of Thrive Psychology, have been evaluated. Some of the clinical notes are handwritten and are difficult to read in part. There is reference to the accident and the claimant having difficulty sleeping. Matters relating to the claimant’s daughter and his alcohol consumption are recorded. There are references to flashbacks of the accident. Typed notes commence on 14 July 2020 and include references to the claimant drinking too much.
There are a series of reports from Ms Anderson. The reports record that the claimant reported experiencing trauma-like symptoms following the accident. On 30 August 2019 she reported that, based on his presentation, the claimant was not able to return to his pre-injury duties of driving trucks. Gradual exposure to the workplace, trucks, and ultimately “getting back behind the wheel is the goal. Therefore having him return to work in some capacity is going to be imperative”. A report dated 8 April 2020 records the claimant reported his mental health continued to be significantly decreased since the accident. He advised he was excessively consuming alcohol to manage his emotional distress. He reported trauma symptoms including upsetting memories of the accident, difficulty initiating and sustaining sleep, irritability and mood variability, difficulty concentrating and flashbacks.
In a report dated 12 November 2020 Ms Anderson stated that the claimant had been diagnosed with post-traumatic stress disorder. He reported mood variability, and ongoing trauma symptoms. Returning to work in some capacity “would be useful”, as it would help him manage his trauma symptoms. He required ongoing treatment. The last report is dated 25 March 2021. Treatment with Ms Anderson was due to cease for the reasons explained in the report. The claimant continued to experience trauma symptoms.
The reports from Dr Adesanya, psychiatrist, have all been considered by the Panel. The doctor diagnosed post-traumatic stress disorder as a result of the accident. There is also reference to the claimant using large amounts of alcohol. Higher doses of Fluoxetine were to be trialled. In a report dated 21 May 2021 the doctor recorded that while the claimant reported some reduction in his symptoms, he still experienced occasional flashbacks, nightmares, and alcohol consumption. He planned to attend an alcohol rehabilitation program. Improvement was also reported on 15 July 2021.
Documents from Wagga Wagga Hospital record that the claimant presented to the emergency department on 12 June 2019 following a head on motor vehicle accident. An ambulance report of the same date records details of the accident.
An inpatient discharge summary from Calvary Health Care records that the claimant was admitted on 5 August 2021 and discharged on 20 August 2021. The following presenting problems were recorded:
“Admitted with a year long history of worsening mood, following an accident…Since then [the claimant] reported struggling with his mental state, with insomnia, nightmares, flashbacks, low mood, anhedonia, poor memory and concentration…”
The discharge summary records that the principal diagnosis was major depressive disorder and post-traumatic stress disorder.
The clinical records of Julie Hyland, psychologist, include details of the accident, drink driving offences, and excessive drinking. There are also references to the claimant’s daughter that have been considered, as have all the matters referred to in the progress notes.
The reports from Work Focus Australia deal with steps taken for the claimant to return to work. A number of vocational options were identified, including farm hand, forklift driver, store person, and plant operator.
A KyzEngage Initial Exercise Assessment Report dated 23 June 2020 records that an exercise assessment was conducted. Goals were set, barriers identified, and recommendations made.
Reports from Resilia are addressed to EML Workers Compensation. Among other things, the reports record the claimant’s psychological symptoms, his vocational experience, and vocational interests. The psychological and vocational testing results have been considered, as have the return to work recommendations. A psychological functional assessment report dated 31 August 2022, prepared by Lyn Burgess, records that the claimant had capacity for work five hours a day five days a week. The claimant’s reported psychological symptoms and his functioning are recorded. The DASS results recorded in the report have been considered.
Clinical records of Justice Health and Forensic Mental Health Network refer to the claimant consuming 10-12 beers a day in the four weeks prior to incarceration. It is recorded that the claimant experienced depression and suffered from “PTSD”.
A Licence Search Certificate from the Northern Territory government records a number of disqualifications in 2014, 2015, and 2016. The disqualifications relate to the claimant driving with illicit drugs in his system.
A Statement of Agreed Facts in R v Hockley dated 30 June 2023 relates to an incident at the Tarcutta pub on 26 November 2022. All the agreed facts have been considered by the Panel.
Mr Peter Watt, psychologist, reported on 15 August 2023. The trauma history recorded in the report has been considered. That history includes matters relating to the claimant’s father and daughter, the accident, and “being bashed up” while in custody. The drug, alcohol, and criminal history recorded in the report have been considered. Details of the offences on

26 November 2022 are addressed. Mr Watt diagnosed a number of conditions, including moderate post-traumatic stress disorder, adjustment disorder, and alcohol use disorder. In his opinion, when the offence occurred, the claimant was likely experiencing post-traumatic stress reactions and self-medicating with alcohol. He likely experienced a disruptive, impulse-control reaction, a momentary loss of self-control, which resorted to aggressive behaviours during the incident that led to the offending. A management plan was suggested.
Records from the Department of Communities and Justice include various court documents, forms, orders, a sentencing assessment report, pre-sentence reports, and other records, all of which have been considered.

The PBS records disclose that the claimant was issued with 19 prescriptions for the SSRI antidepressant fluoxetine 20 mg, 28 tablets x 5 repeats, between 16 January 2017 and

10 June 2021, mainly by Dr Saldevar. This is a total of 3,192 tablets which should last almost 10 years at one daily. Only 140 tablets were dispensed between February and June 2021. It is unlikely the claimant has been utilising the prescriptions. He explained he did not use psychotropic medication while in Junee Correctional Facility. He was provided with two prescriptions for clonidine, 100 tablets x 5 repeats, on 19 November 2020 and

20 March 2021, a total of 1,200 tablets, to control nightmares. He acknowledged he does not use this medication.
The certificates of capacity contained in the joint bundle have all been considered. The most recent certificate, dated 9 April 2024, records that the claimant had no capacity for employment between 2 April 2023 and 2 May 2024.

SUBMISSIONS

Claimant’s submissions

The claimant relies on written submissions dated 7 March 2025. He argues that Medical Assessor Samuell’s assessment was incorrect in a material respect. The claimant’s submissions focus on the classes the Medical Assessor allocated to various areas of functioning contained in the PIRS, specifically with respect to social and recreational activities, and concentration, persistence and pace.
In the claimant’s submission, while the Medical Assessor assigned a class 1 for social and recreational activities, according to the examples given in the PIRS Tables the social isolation he experiences is more consistent with a class 3 to class 5 assessment.
The claimant submits that the reasons provided by the Medical Assessor for his assessment of concentration, persistence and pace “are so sparse and so lacking in detail that it is not possible to understand why he rated the claimant’s impairment as he did” (class 1). In his submission, the lack of reasoning provides reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The claimant relies on a statement from his solicitor with respect to the matters referred to at [26] in his submissions. The claimant submits that these matters “are directly relevant” to the assessment of social functioning. In his submission, a finding should be made that he falls within “a class 3 to 5 assessment”.

The claimant also relies on the certification by his GP on 19 October 2023 that he has no capacity for work, and the opinion of Dr Teoh dated 2 June 2024. The Panel notes that

in this report Dr Teoh did not include an assessment of permanent impairment.
The claimant’s case is that his permanent impairment as a result of the accident caused psychological injury is greater than 10%.

Insurer’s submissions

The insurer relies on written submissions dated 21 March 2025. The submissions record that while the insurer does not dispute the claimant’s injuries had a significant effect on him, the Panel would “not be satisfied the claimant presents with a degree of WPI that is greater than 10%”.
The insurer refers to the claimant’s pre-accident psychological history at [4.1] and notes Medical Assessor Samuell recorded the claimant denied any history of psychological difficulty pre-dating the accident.
The insurer argues that the claimant should be rated as class 1 for self-care and personal hygiene, social and recreational activities, travel, concentration, persistence and pace, and adaptation. The insurer’s submissions refer to the evidence it relies on in support of its submissions with respect to each area of functioning.

With respect to social functioning, the insurer submits there is evidence of a pre-existing class 3 impairment “based on the intermittent relationship with his then long-term partner (characterised by documented periods of separation pre-accident) and domestic violence, although not within that relationship, but a prior relationship”.

RE-EXAMINATION FINDINGS

The claimant was re-examined by Senior Medical Assessor Mason and Medical Assessor Singh (Medical Assessors) via MS Teams on 23 April 2025.

Brief personal details

The claimant lives with his mother and half-brother in his mother's home. He is in receipt of the Centrelink Jobseeker allowance with a medical exemption from work seeking because he said his GP has certified him fit for 0 hours; he stated he “is not allowed to work". He remains under the restrictions of an intensive corrections order until 26 November 2025 subsequent to the assault on his partner on 26 November 2022. He said there is also an apprehended domestic violence order in place which ends later this year.

Psychosocial history

The claimant described a normal birth and development. He never met his father and learned at 16 years of age that he had died in a motor vehicle accident. His mother worked as the manager of the drug and alcohol counselling service at a hospital. He said he gets along well with his mother, although at times "it has its moments". He has a half-sister who also lives in the area and a half-brother who also lives with his mother. He lived briefly with one of her partners, did not get along well with him, and did not regard him as a father. When asked about abuse during childhood he said he was physically punished but not often.
Schooling consisted of primary schooling from year K to year 5 while the family lived on the south coast. After moving he attended public school in year 6 and then high school from years 7 to year 10. He said he did not like high school, was okay at sport and completed year 10 with an average result in 1988. A report from the headmaster indicated he was an average student whose effort was poor, but he caused no major disciplinary problems.
After leaving school he obtained a position as an apprentice diesel mechanic and attended TAFE. He did not complete his training and after three years he commenced work as an interstate truck driver. He said he has worked for six or seven different companies since then as a long-distance truck driver. He acknowledged being put off work "1 or 2 times for running late". When asked if there were periods when he was unable to work, he said there were “a few months here and there” of unemployment because of loss of license and use of drugs.
The claimant then said he worked on the railways between 2006 and 2010, and this involved him working in different states. He said he was initially on track maintenance for six months and then subsequently as a front-end loader operator. He said he had completed tickets for front end loader, excavator, bobcat, upright, backhoe and forklift. His heavy vehicle driver's licence is current but he “was not allowed to drive” because his GP Dr Saldevar said he has no capacity.
Leisure activities prior to the accident consisted of watching football, riding motorcycles, attending family functions, going to the pub on weekends and going fishing with his mates on the south coast every now and then.
With regard to relationships, he was initially involved with a lady which was “on and off” for four or five years. They had no children together. He said the relationship was okay, but when specifically asked he agreed it was characterised by the excessive use of alcohol and violence initiated by both of them.
He was then involved with another lady. He described this as an "on and off" relationship since 1996 or 1997. He said she had left him on three or four occasions because of his drinking and also because of his extended absences as a long-distance truck driver. When asked to be more specific about this he said they were apart for a few months "here and there". When further pressed he said they had been separated on one occasion for 12 months. He also added that he was "mostly home on weekends" and said he could do trips to Perth and back within a week.
They had a daughter who was born in 1999. He stated that his daughter came between them and caused some disruption in the relationship. He said in August 2017, one month after her 18th birthday, his daughter suicided by hanging in the garage of the family home. She was initially found by her mother and the claimant attended when he was contacted by her mother. He explained they had been separated at that time and were living apart. When asked how he was affected he said it was not good on that day, but he went back to work after two weeks and was fine. When asked if he understood why his daughter suicided, he said it was something to do with a boyfriend. There had been a lot of text messages between them in the period of time leading up to her suicide, but he had chosen not to read them. He seemed unaffected as he provided this information.
Further attempts to elucidate his periods of cohabitation with the mother of his daughter did not result in any clarity about the situation. He was asked about a statement he had provided to Dr Dayalan in December 2021 that he had not been involved in a relationship for four years at that time. He said this was not the case and that the relationship was in existence for two or three years prior to the accident but had not been since the accident. When it was put to him that he had been living in Borambola with a mate during that time he said "[she] used to stay there on and off".
When asked about past insurance claims he said there was nothing major. He had been involved in some minor motor accidents but had never made a claim and there had been no compensation payouts. He said there had never been a worker's compensation claim.
The claimant said forensic history consisted of “a few speeding fines, a few assault police charges, a few drug possession charges and a few logbook fines”. He said he had spent two or three days in prison in 1992 when he was arrested over a long weekend and could not get bail until the Tuesday. In general terms he tended to understate this history. The summary provided by his instructed psychologist for the most recent court proceedings was:

“Criminal history commenced at the age of 19 years with various traffic offences as well as resist and assault police which resulted in a 30 hour community service order. From 1993 he had been convicted on a number of occasions for malicious damage, assaulting police, assault, assault occasioning actual and bodily harm, and property damage through to 2006. In 2006 he received a suspended sentence with a 12-month good behaviour bond for assaulting and resisting police in the execution of duty. He was ordered to participate in counselling and treatment including drug and alcohol rehabilitation and anger management. He was also convicted of driving under the influence of an illicit drug on various occasions from 2014, and driving with middle range PCA in 2020.”

Pre-accident history

Medical history consists of an acute myocardial infarction while he was working on the railway in 2014 in the Northern Territory. He then said he had forgotten to provide this detail when previously asked and further added that he again worked for the railway for four months in 2016. He was admitted to hospital in December 2014 where a stent was inserted and he was discharged on aspirin 100 mg, ticagrelor and a cholesterol lowering agent which he could not remember. He denied any other surgery. When further questioned he acknowledged a number of broken bones, particularly in his hands, sustained during altercations.
The claimant denied any past psychiatric symptoms or treatment. He was questioned about an entry in the Family Medical Practice Kooringal record dated 2 May 2017 which noted he was depressed with suicidal ideation; DASS 21 scores were all in the extremely severe range. He was accompanied to the appointment with his mother. Fluoxetine 20 mg was prescribed, and a GP mental health care plan was prepared for counselling. The claimant denied this was the case and said he had never obtained the prescription, had never taken the medication and never attended counselling. The Medical Assessors note this entry was five months prior to the death of his daughter. At that time he had lost his driver's licence for 12 months for the use of amphetamines. Another mental health care plan had been provided in June 2017 and fluoxetine 20 mg prescribed. He then attended in August 2017 and next in January 2018 for cardiac medication. The claimant denied family history of psychiatric illness. However, the records indicate his maternal cousin had depression due to use of marijuana and also suffered from schizophrenia. His sister has anxiety and depression, and his 18-year-old daughter suicided in August 2017.
Current medications consist of ramipril 1.25 mg, atorvastatin 80 mg, aspirin 100 mg and the antidepressant fluoxetine 20 mg. In the past he had used ticagrelor as a blood thinner.
With regard to substances, the claimant said he smokes 20 cigarettes/day although on some days he does not have any, noting he had no access to cigarettes while in prison. Alcohol use commenced at age 19. He said this had been confined to weekends while he was working. He described a pattern of binge drinking when he would consume between 6 and 10 standard drinks per day. He enjoyed drinking in company at hotels and this often led to fights. He said he currently drinks only while at home and does not go to hotels. He consumes up to 20 standard drinks per day and then may not have any for two days. He denied any problems such as loss of license or involvement in fights as a consequence of drinking. He acknowledged some arguments with his mother and brother but no physical fighting.
The claimant acknowledged the use of amphetamines while truck driving. He also acknowledged their use resulted in a confusional state in 2012 when he was assessed by a neurologist in Melbourne and then subsequently in Wagga Wagga, at which time he was advised to cease the use of amphetamines. He denied subsequent use of amphetamines. He said he used cocaine once or twice when he was young and that has not continued. He denied the use of cannabis and opioids.

History of the motor accident

On 12 June 2019 the claimant was driving an articulated heavy vehicle loaded with celery from Leeton to Sydney. He was not wearing a seatbelt. At approximately 7.30pm in drizzling rain he had passed through Forest Hill on the outskirts of Wagga Wagga and was travelling in an easterly direction at 100 kmph. He noticed an oncoming car also travelling at 100 kmph drift completely onto his side of the road. He said he attempted to pull off the road to the left, but the vehicle came into a head-on collision with his truck. He suffered a small blunt force injury to his left cheek. He said another man travelling in a utility in front of him stopped and came back. He got out of the cabin and said to the man he thought the car was under the front of his truck. At that point he heard a horn and ran back down the road on his own to discover the driver of the car sitting in the front seat had been decapitated. The claimant said he did not see where the head was and did not want to look.
He said he cannot remember who phoned 000. He called his boss, and his mother and police arrived within 10 minutes. He said it was declared a crime scene, and the road was closed until 3.00am. He said other people had gathered. He was taken to Wagga Wagga base hospital by ambulance where he underwent blood and urine tests supervised by the police. He advised the test results were negative for all substances. He was then taken to the police station to provide a statement and was returned to the scene of the accident by police via an alternative route. He said by then his partner had turned up and took him home.

History of symptoms and treatment

The claimant said he was in shock. He stated he had never seen a motor accident like that before. This statement was challenged because he had been a long-distance truck driver for many years. He then acknowledged that he had seen many other serious accidents but added, "not up close like that". He said he went strange, or weird. He said he was always remembering it and was always dreaming about it. He said he began to drink a lot of alcohol. He said he had a photograph of it in his head and added that it is always in his mind.
He was asked if he was referring to a memory of the events or an actual image. He said it was an actual image and a memory, like a photograph, that is always in his mind, and it never goes away. He said he just stares into space. He was asked if he had been able to talk about it and he said he could discuss it with his mother or a friend. He was asked if there were other symptoms and he said "no, that’s it". He was asked if things remind him of the accident and stir up his symptoms and he said “no, they are there all the time”. With regard to the dreams, he said they are still occurring every night, and they consist of the car colliding with his truck and the decapitated man.
He then added “I don’t do anything, I just stay at home, I don’t mix with people, and I drink alcohol”. He said the alcohol consumption quite quickly increased to approximately 20 standard drinks per day. He then described how he did not do anything or go anywhere and had to be reminded to eat by his mother when she cooks.
The claimant said he had thought about suicide. When asked if he had a plan, he said it was "probably hanging by a rope”. He said he did not do it because he was concerned about the people he would leave behind.
With regard to sleep the claimant said he goes to bed at 9.00pm or 10.00pm and simply lies there for one to two hours. When he does eventually get to sleep, he wakes up two or three times through the night to go to the bathroom and have a drink. He said he gets up at 7.00am or 8.00am but then has another sleep during the day.
He attended his local GP Dr Saldevar on 27 June 2019 with symptoms of fear, inability to drive and depression and he was referred to psychologist Ms Skye Anderson. In July 2019 the antidepressant fluoxetine 20 mg was prescribed and by September he was able to travel to the south coast for a few weeks where he enjoyed the break. He was noted to still have some dreams about the accident and some poor sleep. In November he again went to the South Coast for three weeks for fishing. The GP noted he was going well on medication, with no nightmares, normal sleep, normal mood, normal self-esteem, no suicidal thoughts and no nightmares. In January 2022 the GP noted he loved life, loved his dog and was sleeping normally. When questioned about this the claimant denied it was the case.
His mood deteriorated in March 2020 when his wife left and took his dog; he was then living with another friend. In May 2020 he was charged with driving under the influence and lost his license until June 2020. In September 2020 he was referred to psychiatrist Dr Adesina Adesanya in Canberra who advised increasing fluoxetine to 40 mg but the claimant was resistant to the idea. Further review by Dr Adesanya in October 2020 indicated the ongoing use of fluoxetine 40 mg and the addition of clonidine 100 mg for treatment of nightmares. In November and December 2020, he reported he was having no more nightmares, the new medication was working, he was happy, and he was going to the South Coast fishing.
Treatment consisted of referral to psychologist Ms Anderson; he attended 11 counselling sessions until she ceased practice in March 2021. He said he had not found the counselling particularly helpful. He was subsequently referred to psychologist Julie Hyland and attended 13 sessions between May 2021 and December 2022. Again, he did not find it particularly helpful.
The claimant noted his alcohol consumption had increased significantly. He was admitted to Hyson Green, the detox unit of Bruce Private Hospital in Canberra in August 2021 for four weeks. EMDR was attempted but abandoned and fluoxetine had been ceased due to reported lack of benefit. The diagnosis was major depressive disorder and post-traumatic stress disorder.
In December 2021 he reported to his GP there were no more nightmares, normal sleep, normal mood and no suicidal thoughts. In January 2022 he noted he was happy but was drinking more over the year. Then in February 2022 the GP noted he had completed alcohol rehab and was doing fencing four hours/day cash in hand and was considering working as a postman or delivery driver. In March dreams were reported as normal. His truck driving licence had been reinstated, and he was preparing his resume. His GP reported he was compliant with all medications. He was reported to be doing “chemical handling” and “confined spaces” certificates and was applying to GrainCorp for truck driving work. In October 2022 he was symptom-free, the medications were unchanged and the insurer was considering his application for his dog to be recognised as a support animal.

Injuries or conditions since the accident

In May 2020 the claimant was convicted of driving under the influence of alcohol and lost his license for 12 months. He acknowledged being in a couple of fights.
The claimant acknowledged the alcohol-fuelled violent assault on his partner in November 2022 which resulted in his incarceration in the Junee Correctional Centre for 10 months until 29 September 2023. He described the period in detention as "not real good" and said he was assaulted on a few occasions; he noted while in prison he took his heart and antidepressant medications regularly. The prison medical record made no reference to symptoms of post-traumatic stress disorder.
When specifically questioned he confirmed that he had not used any medications during the 12 months prior to the assault on his partner as noted in the sentencing assessment report of 21 September 2023. He remains under the restrictions of an intensive corrections order until 26 November 2025 subsequent to the assault on his partner in November 2022. He said there is also an apprehended domestic violence order in place which ends later this year. He confirmed he has no intention to make contact with his ex-partner.
The claimant denied that any of these events resulted in a negative psychological impact.
Since released from prison the claimant has lived with his mother and his half-brother. When asked if he pays rent, he said he pays her “a bit”. He said he does not go out to help her with the shopping and he does not buy clothes.

Current symptoms

The claimant said he continues to have flashbacks “all the time”, continues to have traumatic dreams “all the time” and continues to have disturbed sleep. He continues to be socially isolated. He continues to be unable to work because his GP will not let him, and he continues to consume up to 20 standard drinks of alcohol per day. He complained of erectile dysfunction caused by the antidepressant medication. He said he is not involved in any relationships and does not see any friends.

Current treatment

The claimant said he takes the antidepressant fluoxetine 20 mg daily. He is not consulting a psychologist and not consulting a psychiatrist. He sees his GP regularly for certificates.

Mental state examination

The claimant’s appearance was consistent with his age. He was located alone in a room in his lawyer's office. He was identified from his photograph on a current heavy vehicle driver's licence in the same name. He was interviewed using the Microsoft Teams application with a good internet connection. The interview commenced at 1.00pm and concluded at 2.40pm.
The claimant was neatly casually dressed and well presented. He had a clear sensorium and did not appear to be under the influence of a substance or in a state of withdrawal. He displayed the mannerism of protruding his tongue as he was speaking; this is possibly a tic, a nervous mannerism or a symptom of tardive dyskinesia.

He was a difficult historian who frequently responded to questions with "I don’t remember" or "a few here and there" or "off and on". He was rarely able to be specific in response to questions regarding previous history. He had no difficulty in providing accurate details of the accident and his subsequent symptoms.
The claimant displayed no evidence of either anxiety or depression as would be expected from someone suffering from both post-traumatic stress disorder and major depressive disorder. His range of affective expression was full and appropriate. His description of the symptoms of post-traumatic stress disorder were not consistent with symptoms described by most sufferers of this condition. He described the constant presence of images, flashbacks and memories and continuing nightly nightmares now five and a half years after the event. For most post-traumatic stress disorder patients these experiences are intermittent and extremely disturbing when they do occur.
The claimant had no problems with concentration throughout the 100-minute interview. He stated his memory was poor, but the Medical Assessors noted he was able to explicitly deny multiple reports by his GP in the clinical records of functioning that were at odds with his claimed condition. When it was put to him that he had been able to drive to the South Coast for various fishing holidays with friends as noted by his GP he aggressively asserted that his mother or his partner had been driving. He challenged the Medical Assessors to provide photographs that he was actually driving and that it was not his brother behind the wheel.
The claimant was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.

Current functioning

When asked to describe a normal day the claimant said he does not go anywhere, and he smokes and drinks a lot. He said he does not do much. He does not help around the house because his mother does it all. He said if she does not cook then he does not eat.
Self-care and personal hygiene: The claimant said he showers and changes his clothes once weekly or once every 10 days. His mother does the laundry and cooking. He does not help with house or yard work. His brother looks after the garden and the outside of the house. He said sometimes his mother cooks and sometimes she gets take away food. He does not eat if she does not provide food. He is moderately impaired.
Social and recreational activities: The claimant said he does not have any fun. He said he does not go out to clubs, hotels or entertainment venues. He said a mate visited him for a beer in the past, but he moved away nine months ago and he no longer sees anybody. This is evidence that he is capable of social interactions with friends. He said he does watch the news but does not watch football. He does not tinker in the garage. He does not attend family events. He is mildly impaired.
Travel: The claimant holds a driver's licence but said he does not drive because he is usually drunk. He reported that he had sold his motorcycle, but he still owns a utility; he gets his brother or the “old girl” to drive it. He said he either walks or gets someone to take him. He is able to travel by train but would not use a bus. He denied being able to travel by air. He is mildly impaired.
Social functioning: The claimant said he is not in a relationship and does not meet up with women. He gets along okay with his mother and brother but has no friends. He then said he does talk to friends on the phone. He does not see his sister because she had a falling out with his mother but he does speak to her on the phone. He described the loss of his "on-again off-again" relationship as a consequence of the alcohol fuelled assault. He said he does have a Facebook account, but he does not post anything. He is moderately impaired.
Concentration, persistence and pace: The claimant said concentration is not real good because he has no interest. He said he had never liked reading and only liked watching the news on television. He is able to do his own online banking. He acknowledged he did complete a chemical and grain handling course at Gundagai three or four years ago. He was able to undertake a basic retraining course. He is mildly impaired.

Adaptation: The claimant reported that his GP will not allow him to work. The Medical Assessors do not agree with his treating GP that he is incapable of work due to post-traumatic stress disorder and depression. They note he has been able to work subsequent to the accident and his presentation at interview indicated competence. They do agree that with his reported level of alcohol consumption he should not work. It is noted that he does not contribute to the household. He denied doing any voluntary or community work. He is moderately impaired.

Consistency of presentation

Aspects of the claimant's presentation and history were inconsistent. There were contradictions with the history recorded by his GP Dr Saldevar which included a number of reports that he was functioning well prior to assaulting his partner. He informed the GP that he was reliably taking medications, including psychotropic medication, but this was not in fact true for the 12 months prior to the assault on his partner.
He denied a past history of psychiatric illness despite clear reports by his GP that he was both anxious and depressed in 2017 before the death of his daughter; this assessment was supported by DASS 21 scores which were all extremely severe. This appeared to have been caused by the loss of his driving licence. He had been prescribed psychotropic medication at that time but denied this was the case and denied taking the medication.
He denied significant depression following the death of his daughter despite informing other mental health professionals that he had been extremely depressed. It is also noted that he had provided various examiners with different histories regarding the stability of the relationship with his partner. Finally, his description of his psychiatric symptoms caused by the motor accident do not accord particularly well with the symptoms suffered by most people with post-traumatic stress disorder and with depression.

Summary

The claimant was involved in a traumatic motor accident which resulted in horrific injuries and the death of the other driver. He subsequently developed symptoms consistent with an acute stress disorder and then went on to experience symptoms consistent with post-traumatic stress disorder. A pre-existing alcohol use disorder was made worse by the accident. He subsequently spent 10 months in prison following an alcohol-fuelled violent assault on his partner in November 2022.

His treating psychiatrist diagnosed both post-traumatic stress disorder and alcohol use disorder as did his treating psychologists. Dr Teoh diagnosed chronic post-traumatic stress disorder and alcohol use disorder. Dr Dayalan diagnosed post-traumatic stress disorder largely in remission and alcohol use disorder. Treating practitioners at Hyson Green Private Hospital in Canberra diagnosed post-traumatic stress disorder and major depressive disorder although he had ceased his antidepressant medication.
Mr Watt, psychologist, who prepared a report for the court in 2023, diagnosed an underlying moderate post-traumatic stress disorder, adjustment disorder with mixed anxiety and depressed mood and severe alcohol use disorder in partial remission. He also diagnosed an unspecified disruptive impulse control and conduct disorder and alcohol intoxication.
The Medical Assessors note Mr Watt indicated in his report 7 of 10 factors indicating the presence of personality disorder were present in a screener. He then attributed the presence of these factors to post-traumatic stress disorder. The Medical Assessors disagree with this attribution and consider the screening did indicate the presence of antisocial personality disorder.

Diagnosis and reasons

DSM-5-TR criteria for post-traumatic stress disorder are present as follows:

Criterion A. The claimant directly experienced the accident in which the other driver died as a result of decapitation.

Criterion B. He described involuntary and intrusive distressing memories of the event every day, distressing dreams every night, and flashbacks all the time. He did not describe psychological distress or marked physiological reactions at exposure to reminders of the traumatic event. His description of these symptoms is not consistent with the experience of other patients with this condition

Criterion C. He did not describe persistence avoidance of stimuli or avoidance of external reminders. He does not meet criterion C.

Criterion D. He did describe diminished interest and participation in significant activities. He did not describe the other 6 criteria required in this area. He does not meet criterion D.

Criterion E. He did describe sleep disturbance. He did not describe the other 5 criteria required in this area. He does not meet criterion E.

Criterion F. Duration has been more than one month.

Criterion G. The disturbance has caused distress and impairment in social functioning. Criterion H. The disturbance is most likely attributable to the physiological effects of alcohol.

In summary, with regard to post-traumatic stress disorder criterion A is met, criterion B is partly met, criterion C is not met, criterion D is not met, criterion E is not met, and criterion H is excluded by his use of alcohol. The Medical Assessors concluded that post-traumatic stress disorder was initially present but was now in remission.
Major depressive disorder or a persistent depressive disorder were not diagnosed. Major depressive disorder requires a depressed mood most of the day nearly every day, diminished interest and pleasure in all activities, psychomotor agitation or retardation nearly every day, fatigue and loss of energy nearly every day, feelings of worthlessness or inappropriate guilt nearly every day, diminished ability to think nearly every day and recurrent thoughts of death. The claimant did not describe these symptoms and thus does not meet DSM-5-TR criteria for diagnosis of this condition.
DSM-5-TR persistent depressive disorder requires depressed mood most of the day, more days than not, for at least two years. Also required are poor appetite or overeating, low energy or fatigue, low self-esteem, poor concentration, and feelings of hopelessness along with insomnia or hypersomnia. The claimant meets only the last of these symptoms, which again could be caused by his use of alcohol. He does not meet DSM-5-TR criteria for this condition.
The claimant meets DSM-5-TR criteria for alcohol use disorder as follows:

Criterion A. He described a problematic pattern of alcohol use. He consumes between 10 and 20 standard drinks of alcohol per day. He has demonstrated inability to cut down. This has resulted in inability to function as a partner and to earn a living. He has used alcohol in situations such as driving which has resulted in loss of license and the assault of his partner. He continues to use alcohol despite knowledge that it is harmful and despite efforts by his GP and participation in alcohol treatment programs to get him to stop. When questioned about this he did not acknowledge either tolerance or withdrawal symptoms. There was no evidence he was experiencing intoxication or withdrawal symptoms during the interview. If his description of his level of alcohol intake is accurate the condition is serious and should result in disordered liver function tests; however, the clinical record indicates the highest gamma GT level was 59 in 2009. No recent figures were available to confirm the claimed level of alcohol consumption.
The claimant also had a pre-existing amphetamine use disorder and satisfied the DSM-5-TR criteria for that condition. Amphetamine use disorder was diagnosed because of repeated loss of licence for testing positive to amphetamines. The claimant acknowledged use to support his long-distance truck driving activities, and his use of amphetamines is documented in the evidence before the Panel, including records from treatment providers.
The claimant also met DSM-5-TR criteria for antisocial personality disorder prior to the motor accident and continues to do so as follows:

Criterion A. He has displayed a pervasive pattern of disregard for and violation of the rights of others since 15 years of age as follows: He has repeatedly performed acts that are grounds for arrest. His behaviour has been characterised by impulsivity and failure to plan ahead. He has displayed irritability and aggressiveness as indicated by repeated physical fights and assaults. He has shown reckless disregard for safety of self and others. He has displayed consistent irresponsibility as indicated by repeated failure to sustain consistent work behaviour or honour financial obligations. He has displayed lack of remorse.

Criterion B. He is older than 18 years of age.

Criterion C. It is not clear if there was a conduct disorder with onset before 15 years of age.

Criterion D. The condition is not due to schizophrenia or bipolar disorder.
The Medical Assessors note the claimant’s recurrent history of loss of driving licence, loss of jobs, problems with police, and loss of interpersonal relationships. He frequently presented to his GP with the symptoms of anxiety and depression subsequent to these events. This occurred most recently in 2017 prior to the death of his daughter. These symptoms resolved when he was able to resume work. The Medical Assessors consider he developed intermittent adjustment disorders with mixed anxiety and depressed mood.

Causation and Reasons

The claimant was involved in a serious motor accident which resulted in the death of another person and did result in an initial acute stress disorder. It is likely this went on to become post-traumatic stress disorder during the months following the accident. The condition is now in remission.
The claimant had a past history of drug and alcohol use which at times resulted in difficulties with the law and multiple court appearances, fines and intermittent loss of license and jobs.
The Medical Assessors are satisfied that the accident did result in excessive alcohol use as an attempt at self-medication and that this alcohol use did result in further loss of license, assault of his partner, imprisonment for 10 months and the ending of the relationship with his partner. The level of alcohol consumed by the claimant increased post-accident as a result of the accident and represents a material worsening of a pre-existing alcohol use disorder.
The Medical Assessors are not satisfied that there is evidence the amphetamine use disorder was made worse by the accident.
The antisocial personality disorder was not made worse by the accident. Personality disorder is by definition "an enduring pattern of inner experience and behaviour that deviates markedly from the norms and expectations of the individual's culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment". (DSM-5-TR p 733). There is thus no possibility of an exacerbation of a personality disorder.
In the view of the Medical Assessors the adjustment disorders were not exacerbated by the accident because the claimant developed an acute stress disorder which evolved into post-traumatic stress disorder.

Psychiatric Impairment Rating Scale – Current Impairment

Psychiatric diagnoses	1. Alcohol use disorder	2. Post-traumatic stress disorder (in remission)
Psychiatric diagnoses	3. Antisocial personality disorder	4.
Psychiatric treatment description	Intermittent psychotropic medication Psychological counselling Brief psychiatric consultation Psychiatric hospitalisation Alcohol detox admission Ongoing GP consultation

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	3	The claimant said he showers and changes his clothes once weekly or once every 10 days. His mother does the laundry and cooking. He does not help with house or yard work. His brother looks after the garden and the outside of the house. He said sometimes his mother cooks and sometimes she gets take away food. He does not eat if she does not provide food. He is moderately impaired.
2. Social and Recreational Activities	2	The claimant said he does not have any fun. He said he does not go out to clubs, hotels or entertainment venues. He said a mate visited him for a beer in the past, but he moved away 9 months ago, and he no longer sees anybody. Following the accident he was able to travel to the South Coast for fishing holidays with friends for periods of 1 week and 3 weeks which he reported to his GP he had enjoyed. He is capable of social interaction. He said he does watch the news but does not watch football. He does not tinker in the garage. He does not attend family events. He is mildly impaired.
3. Travel	2	The claimant holds a driver's licence but said he does not drive because he is usually drunk. He reported that he had sold his motorcycle, but he still owns a utility; he gets his brother or his mother to drive it. He said he either walks or gets someone to take him. He is able to travel by train but would not use a bus. He denied being able to travel by air. He is mildly impaired.
4. Social Functioning	3	The claimant said he is not in a relationship and does not meet up with women. He gets along okay with his mother and brother but has no friends. He then said he does talk to friends on the phone. He does not see his sister because she had a falling out with his mother, but he does speak to her on the phone. He described the loss of his "on-again off-again" relationship as a consequence of the alcohol fuelled assault. He said he does have a Facebook account, but he does not post anything. He is moderately impaired.
5. Concentration, Persistence and Pace	2	The claimant said concentration is “not real good” because he has no interest. He said he had never liked reading and only liked watching the news on television. He is able to do his own online banking. He acknowledged he did complete a chemical and grain handling course at Gundagai 3 or 4 years ago. He was able to undertake a basic retraining course. In the clinical judgement of the Medical Assessors the claimant is mildly impaired in his ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings.
6. Adaptation	3	The claimant is not able to work in his pre-accident employment as a truck driver. He reported that his GP will not allow him to work. The Medical Assessors do not agree with his treating GP that he is incapable of work due to post-traumatic stress disorder. They note he has been able to work subsequent to the accident and his presentation at the re-examination indicated competence. They do agree that with his reported level of alcohol consumption he should not work. It is noted that he does not contribute to the household. He denied doing any voluntary or community work. He is moderately impaired.
List classes in ascending order: 2 2 2 3 3 3
Median Class Value: 3
Aggregate Score: 15
% Whole Person Impairment: 15%

*%WPI ^{= Percentage Whole Person Impairment}

Psychiatric Impairment Rating Scale – Pre-existing Impairment

Psychiatric diagnoses	1. Alcohol and amphetamine use disorders	2. Intermittent adjustment disorders with mixed anxiety and depressed mood
Psychiatric diagnoses	3. Antisocial personality disorder	4.
Psychiatric treatment description	Occasional GP consultation

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	1	The claimant stated he showered regularly, wore clean clothing and attended to his nutrition adequately. He was unimpaired.
2. Social and Recreational Activities	1	The claimant enjoyed getting together with friends at a local hotel. He was unimpaired.
3. Travel	2	The claimant stated his ability to travel was unimpaired. However, he intermittently lost his licence for testing positive to prohibited substances (alcohol and amphetamines). He was able to use public transport and travel by air. He was mildly impaired.
4. Social Functioning	2	The claimant was involved in an "on-again off-again" relationship. The documentation indicates this relationship was intermittent and that there were extensive periods of separation. It also appears the claimant’s relationship with his daughter had been strained prior to her death. These interpersonal difficulties were consistent with the diagnosed pre-existing personality disorder. Additionally, the alcohol use disorder gave rise to difficulties in the claimant’s relationships including tension and arguments. He was mildly impaired.
5. Concentration, Persistence and Pace	1	The claimant said he had no difficulties with concentration, persistence and pace. He was unimpaired.
6. Adaptation	2	The claimant was working full-time as a long-distance heavy vehicle driver at the time of the accident. However, there was a history of intermittent loss of driving licence and therefore inability to work due to substance use issues. This indicates a repeated failure over time to adapt to the stresses of being a long-distance truck driver. He was mildly impaired.
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

A pre-existing impairment of 4% has been calculated using the PIRS. There is no subsequent impairment.

Effects of treatment

There is no evidence that treatment has been effective. No treatment effect allowance is made.

Diagnoses caused by the accident

Post-traumatic stress disorder (in remission) and alcohol use disorder.

Degree of permanent impairment caused by the accident

15% - 4% = 11%.

DETERMINATION

As observed by the medical members of the Panel in their re-examination findings, aspects of the claimant's presentation and history are inconsistent. In arriving at its findings, the Panel has evaluated to the totality of the evidence.

Pre-existing psychological conditions

The Panel is satisfied, on the balance of probabilities, that prior to the accident the claimant had an alcohol use disorder. In arriving at this finding, the Panel has given weight to:
(a)    the history given by the claimant that he would binge drink on weekends prior to the accident, consuming up to 10 standard drinks a day;
(b)    the claimant’s report that prior to the accident his relationships had been adversely affected by excessive use of alcohol;
(c)    the pre-accident records of treatment providers that describe the level of the claimant’s alcohol consumption, such as the KRS Health Family Practice notes dated 22 September 2015 in which it was recorded that the claimant “binge drinks on weekends 10-15 schooners no alcohol on weekdays”;
(d)    the evidence that prior to the accident the claimant lost his licence for driving under the influence of alcohol, and
(e)    the opinion formed by its medical members that the diagnostic criteria for alcohol use disorder was satisfied.
The Panel also finds that prior to the accident the claimant had amphetamine use disorder, antisocial personality disorder, and intermittent adjustment disorders with mixed anxiety and depressed mood. The Panel agrees with and adopts the reasons given by its medical members in their re-examination findings with respect to each of these conditions.

Pre-existing impairment

The Panel is satisfied there is objective evidence of a pre-existing symptomatic permanent impairment as a result of the claimant’s pre-existing psychological conditions. In their re-examination findings the medical members of the Panel have estimated the overall pre-existing impairment using the method set out in the Guidelines. The Panel agrees with and adopts those findings.
In particular, the Panel is satisfied that the claimant’s functioning with respect to travel, social functioning, and adaptation was mildly impaired before the accident. Among other things, he had lost his licence due to both the alcohol and amphetamine use disorders and his relationships had been affected by the alcohol use disorder and the antisocial personality disorder.
The Panel finds that the claimant had a pre-existing psychological impairment of 4%. That impairment is to be subtracted from his current impairment rating: Guidelines cl 6.218.

Accident caused psychological conditions

The claimant was involved in a traumatic motor accident which resulted in the death of the other driver. He subsequently developed symptoms consistent with an acute stress disorder and went on to experience symptoms consistent with post-traumatic stress disorder. The parties agree and the Panel finds that as a result of the accident the claimant developed a post-traumatic stress disorder. The Panel finds that the post-traumatic stress disorder is now in remission.
The medical members of the Panel have given reasons for their findings that the amphetamine use disorder, antisocial personality disorder and intermittent adjustment disorders with mixed anxiety and depressed mood were not made worse by the accident. The Panel agrees with and adopts those reasons and finds that the accident did not cause or contribute to these conditions.
The Panel has found the claimant had a pre-existing alcohol use disorder. Following the accident his alcohol consumption increased both in terms of quantity and frequency. The Panel has given weight to:
(a)    the claimant’s reports that he experiences involuntary and intrusive distressing memories of the accident, distressing dreams, and flashbacks;
(b)    the claimant’s reports that following the accident he increased his alcohol consumption to manage his emotional distress as a result of the accident. The Panel notes that this explanation was provided to the medical members of the Panel, treatment providers and medico-legal specialists;[1]
(c)    Medical Assessor Samuell’s opinion that the claimant had an alcohol use disorder as a result of the accident;
(d)    Dr Dayalan’s opinion that the claimant presented with a history indicative of alcohol use disorder that was caused or materially contributed to by the accident;
(e)    Dr Teoh’s opinion that the claimant’s presentation is consistent with alcohol use disorder as a result of the accident;
(f)    the reports of increased alcohol consumption contained in the records of the claimant’s treatment providers (including but not limited to the records of KRS Practice and Skye Anderson, psychologist) and records from Corrective Services NSW, and
(g)    the opinion of its medical members that the alcohol use disorder has been made worse by the accident.
[1]
Medical Assessor Samuell found that the accident caused alcohol use disorder was in remission. The Medical Assessor assessed the claimant in July 2023 when he was in prison. He had an alcohol use disorder before he went into prison. The condition was in remission while the claimant was in prison because he had no access to alcohol. He resumed drinking after leaving prison. The Panel is satisfied, on balance, that the alcohol use disorder was only in abeyance while the claimant was in prison.
The Panel is satisfied the accident could have resulted in the worsening of the alcohol use disorder and did result in the worsening of that condition. The Panel is also satisfied that the claimant has been and is excessively consuming alcohol to manage his emotional distress as a result of the accident. The Panel finds that the claimant increased his consumption of alcohol after the accident as an attempt at self-medication of his psychological symptoms caused by the accident. This constitutes a worsening of the alcohol use disorder as a result of the accident that is more than negligible. The Panel is satisfied that the accident was a necessary condition of the worsening of the alcohol use disorder.

Impairment as a result of the accident

The Panel has evaluated the medical evidence, medico-legal reports, the diagnostic findings of its medical members and the totality of the evidence relied on by the parties. Among other things, the Panel has considered the assessments of impairment provided by Drs Teoh and Dayalan, including their findings and reasons with respect to each area of functioning in the PIRS.
The Guidelines stipulate that the evaluation of permanent impairment should only consider the impairment as it is at the time of the assessment: cl 6.21. Accordingly, the Panel has given weight to the assessment of impairment made by its medical members. Medical Assessor Samuell’s assessment is nearly two years old and was undertaken when the claimant was in prison. The other assessments are older still.
The accident occurred in June 2019. Although the claimant’s post-traumatic stress disorder is in remission, he continues to experience involuntary and intrusive distressing memories of the accident, distressing dreams, and flashbacks. While alcohol intoxication is a temporary condition, alcohol use disorder is by definition not temporary. The Panel is satisfied that the claimant’s psychological impairment has been present for a period of time (almost six years), and is static, well stabilised and unlikely to change by more than 3% whole person impairment in the next year regardless of treatment.
The Panel agrees with and adopts the precise findings of its medical members with respect to the claimant’s current impairment, including the class they have assessed for each PIRS area of functioning. The Panel finds that the claimant’s current permanent impairment is 15%.
After deducting the pre-existing impairment of 4%, the Panel finds that the degree of permanent impairment of the claimant that has resulted from the psychological injuries caused by the accident is 11% and is greater than 10%.
Given its findings the Panel revokes the certificate of Medical Assessor Samuell dated

4 August 2023 and issues a new certificate certifying that the degree of permanent impairment of the claimant that has resulted from the post-traumatic stress disorder and alcohol use disorder caused by the accident is greater than 10%.

DE-IDENTIFICATION OF THE DECISION

These reasons contain sensitive personal information. Having weighed the matters referred to in rule 132(4) of the Personal Injury Commission Rules, including the safety, health and wellbeing of the claimant, and whether the public interest in giving the direction significantly outweighs the public interest in open justice, the Panel is satisfied that its decision should be de-identified before it is published.
The Panel directs that, pursuant to rule 132 of the Rules, the decision be de-identified prior to publication.

See for example Ms Anderson’s reports dated 8 April 2020 and 12 November 2020. See also report of

Dr Dayalan dated 15 December 2021: “He resorted to drinking beer to calm himself.”

[2025] NSWPICMP 398

5 June 2025