Choi v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 407
•18 October 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Choi v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 407 |
| CLAIMANT: | Jinsun Choi |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Dr Samuel Lim |
| MEDICAL ASSESSOR: | Dr Thomas Newlyn |
| DATE OF DECISION: | 18 October 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered psychological injury in a motor accident on 23 April 2017 (the motor accident); the psychological condition caused by the motor accident was aggravated by a subsequent motor accident in December 2017; the issue was the extent of any permanent impairment of psychiatric injury caused by the motor accident; the claimant was re-examined by both Medical Assessors and assessed at 17% whole person impairment (WPI); the claimant was diagnosed with persistent depressive disorder with anxious distress which had been exacerbated by the subsequent motor accident; reference to Slade v Insurance Australia Ltd which held that any deduction under Clause 1.34 of the Motor Accident Permanent Impairment Guidelines (Guidelines) for subsequent injuries dependent upon the application of the principles discussed in State Government Insurance Commission v Oakley (Oakley); Panel found that second accident aggravated the condition (second Oakley category); impairment assessment undertaken at the time of the examination and not by reference to the condition at the time of the subsequent accident; GIO v Smith applied; findings made that injury to the neck and right shoulder caused by the subsequent motor accident had resolved; the claimant had sustained injuries to the low back and left shoulder caused by the motor accident; the effects of these injuries were ongoing; Clause 1.34 of the Guidelines (unlike Clause 1.31) did not require a deduction to be made; the making of a specific deduction under Clause 1.34 was problematic given the difficulties in articulating a proper basis for any specific amount in circumstances where the second category in Oakley applied; in the circumstances where there has been a resolution of physical symptoms from the subsequent accident; no deduction made; Held – claimant’s WPI assessed at greater than 10%. |
| DETERMINATIONS MADE: | The Review Panel revokes the certificate of Medical Assessor Samuell dated 18 June 2021 and issues a new certificate that the following injuries caused by the motor accident give rise to a whole person impairment which is GREATER THAN 10%: · persistent depressive disorder (Dysthymia) with anxious distress. |
REASONS
BACKGROUND
Ms Jinsun Choi (the claimant) suffered injury in a motor accident on 23 August 2017 when her vehicle was hit from behind (the motor accident).
Insurance Australia Ltd (the insurer) insured the owner and driver of the other motor vehicle for liability to pay to Ms Choi any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the psychological injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Ms Choi was involved in a further motor accident in December 2017 (the subsequent motor accident) which exacerbated her psychological condition. This exacerbation is a complicating feature of the determination of the assessment in this matter.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Doron Samuell dated 18 June 2021.
Medical Assessor Samuell assessed the permanent impairment at 6%.
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[3]
[3] Section 63(7) of the MAC Act.
On 26 October 2021, the delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 63(2B) of the MAC Act; Claimant’s bundle, page 28.
Pursuant to s 63(3) of the Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission) .
CONDUCT OF THE REVIEW
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The Panel requested the parties to provide bundles of documents for its consideration. The claimant’s solicitor eventually complied with the Panel’s directions.
The parties filed bundles in July 2022 but neither party included the Review Panel decision dated 17 June 2022 which assessed the physical injuries caused by the motor accident. On 8 August 2022 the Panel advised the parties that this certificate would be included in the documents considered by the Panel.
MEDICAL ASSESSMENT UNDER REVIEW
This review is from the assessment of Medical Assessor Samuell dated 18 June 2021 who determined that Ms Choi suffered a 6% permanent impairment due to psychological injury. Medical Assessor Samuell noted the consistent evidence of depression in the clinical records and diagnosed a persistent depressive disorder.
Medical Assessor Samuell concluded that the persistent depressive disorder arose from the physical symptoms sustained in the motor accident.
OTHER MEDICAL ASSESSMENTS
Medical Assessor Home provided a medical certificate assessing the permanent impairment of the injuries to the lumbar spine and left shoulder at 17%. The Medical Assessor concluded that the cervical spine was not injured in the motor accident.[7]
[7] Insurer’s bundle, page 80.
A Review Panel revoked that certificate and issued a certificate dated 17 June 2022 certifying that the permanent impairment was not greater than 10%. That Panel assessed permanent impairment at 8% based on injuries to the lumbar spine and left shoulder.
Dr Tarra Shaw issued a medical assessment dated 13 November 2018 directed to whether the psychological injury caused by the December 2017 motor accident was a minor injury as defined by the Motor Accident Injuries Act 2017 (the MAI Act). [8] The Assessor concluded that there were “numerous levels of inconsistency” and opined that the most likely diagnosis was an adjustment disorder with mixed anxiety and depressed mood with feigning of symptoms of psychosis. The psychiatric condition was caused by the motor accident and exacerbated and worsened by the December 2017 motor accident.
SUBMISSIONS
[8] Insurer’s bundle, page 46.
[9] Claimant’s bundle, page 10.
The claimant submitted that Medical Assessor Samuell made the same observations as
Dr Kim for concentration, persistence and pace but awarded a lower class. It was also submitted that the Medical Assessor failed to give reasons why he assessed Class 1 for adaptation.It was also submitted that the Medical Assessor noted that the claimant had issues with clear and inconsistent responses but failed to specify what they were and failed to consider the mental state and psychological injury as the reasons for this presentation.
The claimant also submitted that the manner of the assessment was degrading and triggered an emotional response from the claimant.
Claimant’s submissions dated 19 October 2021[10]
[10] Claimant’s bundle, page 30.
These submissions were filed in response to the insurer’s application that the assessment of Medical Assessor Home was not incorrect in a material respect. They are not particularly relevant to the Panel’s assessment of psychological injury.
Insurer’s submissions
The insurer did not file any submissions in its bundle of documents responding to the allegation of and the extent of impairment of psychological injury. There are submissions filed by the insurer dated 13 July 2021 relating to error in the assessment undertaken by Medical Assessor Home.
EVIDENCE
Pre-existing psychological injury
There is no suggestion in the material that Ms Choi had a pre-existing psychiatric injury.
Histories following the motor accident
Ms Choi attended her medical practitioner on 25 August 2017 complaining of low back pain and mild discomfort into the left leg.[11] Left shoulder pain was noted on 28 August 2017 and right shoulder pain was recorded on 25 September 2017.[12]
[11] Claimant’s bundle, page 44.
[12] Claimant’s bundle, page 45.
A lumbar spine X-ray dated 10 October 2017 noted a clinical history of low back pain with referred right leg pain.[13]
[13] Insurer’s bundle, page 9.
Physiotherapy to the low back and left shoulder commenced on 26 August 2017.[14] On
5 December 2017 the general practitioner recommended further physiotherapy because of ongoing low back pain and left shoulder pain.[15][14] Insurer’s bundle, page 6.
[15] Insurer’s bundle, page 10.
The physiotherapist noted that on 5 December 2017 the treatment was to the lumbar spine, left shoulder and cervical spine.[16]
[16] Insurer’s bundle, page 23.
On 8 December 2017 Ms Choi attended her general practitioner following a motor accident occurring the previous day. Neck pain and increased back pain were noted.
A physiotherapy request for treatment services commencing on 20 December 2017 noted current symptoms to the cervical and lumbar spine and bilateral shoulder muscle pain.[17]
[17] Insurer’s bundle, page 12.
A physiotherapy progress note dated 6 January 2018 referred to severe neck and back pain and bilateral shoulder pain.[18]
[18] Claimant’s bundle, page 62.
On 1 February 2018 the general practitioner noted that Ms Choi had insomnia for the previous 7 to 10 days, anxiety and stress with driving and occasional depressive mood.[19]
[19] Claimant’s bundle, page 47.
Psychological assessment on 19 February 2018 referred to a number of psychological symptoms with severe elevation of depression, anxiety and stress.[20]
[20] Claimant’s bundle, page 64.
A certificate of capacity dated 22 March 2017 [sic 2018] refers to the December 2017 motor accident causing whiplash injury to the neck, shoulder pain, low back pain and depression and anxiety.[21]
[21] Insurer’s bundle, page 3.
Other medical evidence
Dr Jung Sook Kim, psychologist, provided a report dated 31 August 2020.[22] Dr Kim has treated the claimant since 2 July 2019 and had completed 12 sessions of treatment. The doctor stated that he was unaware of any prior psychiatric history.
[22] Claimant’s bundle, page 14.
Dr Kim diagnosed a major depressive disorder and adjustment disorder with anxiety caused by the motor accident. He opined that the subsequent accident in December 2017 was minor in nature and unrelated to ongoing psychiatric problems. He assessed impairment due to the psychological injury caused by the motor accident at 15%.
Dr John Davis, physician provided a report dated 23 September 2020 when he assessed physical injuries caused by the motor accident.[23] The doctor diagnosed lumbar and cervical disc injury and left shoulder functional impairment as a result of the cervical injury. Dr Davis also opined that there was depression or adjustment to injury disorder which should be confirmed by an appropriate expert.
[23] Claimant’s bundle, page 32.
RE-EXAMINATION
Ms Choi was examined by the Medical Assessors on 15 September 2022. The joint examination report is as follows:
“Ms Jinsun Choi attended the assessment by video link on her own. The assessment was conducted through the Korean speaking interpreter, Nina. Ms Choi relied on the interpreter throughout the assessment to understand the questions and provide her responses. Her identity was verified referencing her NSW driver’s licence.
Psychosocial history and pre-accident history
Ms Choi said that she was fit and healthy before the subject motor vehicle accident. She denied needing any prior surgery. She said that she was not taking any regular medication. She denied having prior mental health difficulties.
She was born in South Korea and grew up in Jinju City. She said she lived in Jinju until she completed her college education. She then lived in other cities in South Korea before coming to Australia in 2009. Ms Choi said she completed a college Degree in Commerce and Marketing or Management. When asked about her employment history in South Korea, she said she was self-employed and owned a mobile phone shop for seven to eight years. She also worked in another position running a Korean restaurant.
After coming to Australia in 2009 (the notes say that Ms Choi came with her now ex-husband and her son), she attended “Hope College” and said that she completed a “Diploma of Religion”. She said that during this period, she worked for a church voluntarily for roughly two years. After completing her Diploma of Religion, she worked for the church as an assistant Pastor in a paid position for a further three years. She said the church then met some financial difficulties which meant that she had to start working in her pre-injury vocation in home cleaning. Ms Choi explained that her relationship with her husband ended in 2015, but before dissolving this relationship he financially supported her. It was not possible to get a clear account from Ms Choi about how long she had been working as a cleaner at the time of the subject motor vehicle accident. During the assessment, she indicated that she had worked as a cleaner “for a few years” and also “for a few months”.
Ms Choi stated that both her parents are in their mid-80’s. They have no major health issues apart from “ageing”. She has a brother and three sisters who are reportedly in good health. She is not aware of significant family history of serious illness. She was previously married for 15 years. This marriage ended in divorce in 2015. She has a 21-year-old son whom she reports is well. She said that her marriage ended because of “personality differences”.Pre-accident functioning
Ms Choi said that before the subject motor vehicle accident of August 2017, she was living independently. Later in the assessment, she stated that she had been living with her son, who was 16 years old at the time of the motor vehicle accident. She stated however, that she was independent with her self-care. She could complete the household chores. Her hobbies included socialising, meeting with friends she had met through the church and attending church services weekly. She would also go to the gym two to three times a week. She could drive herself independently. She was single. She said she was self-employed in her home cleaning business 45 hours a week.History of the motor accident
Ms Choi said that on the day of the subject motor vehicle accident, she was driving in her car and stuck at a red light. She explained there were two other friends with her in the car and they were on the way to a particular place to offer a quote to provide home cleaning services. Her car was then struck from behind by another car. Ms Choi said that she developed pain her left shoulder and her whole back following the motor vehicle accident. She returned home after the incident and said that she could drive her car home. After filing an insurance claim, she said the insurer recommended that her car be written off. She said, however, that this would leave her financially disadvantaged, and she would need to pay more to buy a new vehicle. She elected to have her car repaired.History of symptoms and treatment following the motor accident
Ms Choi told the panel that she went to see her treating doctor one or two days after the motor vehicle accident. She stated that she was prompted to do so due to experiencing pain in her left shoulder and in her lower back. She stated that she commenced treatment in the form of physiotherapy and acupuncture within one to two weeks of the subject motor vehicle accident, and these treatments helped with her pain. She stated however, that she developed some anxiety while driving. She said that driving would make her experience palpitations and some perspiration. She endorsed previously having nightmares of the accident, which interfered with her sleep and said these were in the past. She reported a worsening in her moods. She stated that her appetite became reduced, and she also lost some weight. She denied experiencing any suicidal thoughts. She told the panel that whereas previously she had been outgoing and sociable, that she started to lose interest in this. She explained that she felt less motivated to maintain her previous social contacts. She said however, that she initially did not seek any treatment for these psychological symptoms as she did not know that she needed to. She confirmed that she did not receive any treatment for her mental health difficulties until after the second motor vehicle accident in December 2017. She stated that she eventually returned to work after a few weeks. She could not provide the exact duration that she was away from work. She stated that she was “just working a little bit” to support herself financially. She made references to problems with her insurance claim which impacted on her financial well-being.Details relevant injuries or conditions suffered since the motor accident
Ms Choi said that on the day of the second motor vehicle accident in December 2017 (the supporting documentation points out that this accident took place on 7 December 2017), she was seated in the front passenger seat in a vehicle driven by her friend. Also present in the vehicle was a second friend seated in the rear. She said the vehicle was travelling straight ahead when a car came from the right, colliding with the right side of the vehicle she was travelling in. She said the crash caused her to hurt her right shoulder. She also developed neck pain. She explained that she continued to experience lower back pain and left shoulder pain from the first motor vehicle accident, but these became worse following the second motor vehicle accident. She said that after this accident, she did not go to hospital, but instead went home.
After the second motor vehicle accident, she continued to have physiotherapy and acupuncture. She said that over time, her pain in her right shoulder improved and she became pain free in that shoulder. She said however, that her left shoulder continued to be painful. She stated that her neck pain had also resolved. When asked for details of further treatment, she said that she did not have any surgical procedures but had three injections to her left shoulder. She said that while the first injection improved her pain, the next two injections did not. It was not possible to find out from the history she provided when these injections took place.
She stated she began psychological therapy after the second motor vehicle accident. The notes say that she was referred to see her previous treating psychologist Miss Kwon Ji Hye (Rose) Kwon after the motor vehicle accident of December 2017 and that her first appointment was sometime in February 2018. In 2019, she began seeing her current treating psychologist, Dr Jung Sook Kim. She told the panel that she sees
Dr Kim on average once a month, but when Dr Kim is busier, she might have two months between appointments. She told the panel that she found speaking with
Dr Kim helpful. She stated that she usually feels insecure about the future and continues to be anxious all the time. She said she could speak to Dr Kim about her problems and that Dr Kim has encouraged her to think positively and to engage in exercise.
She said she had been prescribed an antidepressant tablet Cipramil and has been taking this “for several years”. She produced a prescription for this medication showing she was prescribed 20mg daily. She stated that before the Cipramil, she had been taking another antidepressant but could not recall details of this medication. She confirmed that she had only been prescribed medication for her psychiatric symptoms after the second motor vehicle accident. When prompted with reference to the supporting documentation, she confirmed that she had been prescribed Temazepam sleeping tablets. She stated that she had taken this medication “for a while” but was no longer taking this medication. She could not provide details of when she had been taking this medication. She cited her memory difficulties. She stated however, that she recalled told that it was “not very good” to take both these medications together.Current symptoms
Ms Choi described ongoing difficulties with low mood. She denied any suicidal thoughts. She reported experiencing erratic appetite, sometimes missing meals and sometimes eating excessively. She stated that her weight would similarly fluctuate. She described difficulties with initial and intermittent insomnia. She described having a fear of nightmares and said that some of these nightmares involved “being dead”. She said that her energy levels during the daytime are reduced; so she sometimes sleeps during the day. She stated that she felt her low mood was because of the extent to which her life had changed since the accident. She said that she used to have more energy and used to take frequent exercise and would go out to socialise but is no longer able to do these things. She reiterated that this was due to a combination of her pain and her lack of motivation. When asked about describing her hearing voices of her ex-husband swearing and screaming at her, she said that she no longer hears these voices. Through the interpreter, she referred to hearing these voices “many years ago” but they had resolved. She confirmed through the interpreter these voices had started after the motor vehicle accidents (it was not clear whether they started after the subject motor vehicle accident of August 2017 or only after the second motor vehicle accident of December 2017) but maintained they resolved some years ago.Current and proposed treatment
She takes medication in the form of citalopram 20mg daily. She described seeing her treating psychologist every one to two months.Mental state examination
Ms Choi presented as a casually dressed and neatly groomed woman. She engaged in the assessment through the interpreter and relied on the interpreter only to both understand the questions being posed to her and to provide her answers. Despite her descriptions of pain, she was observed to sit throughout the assessment and did not display any pain guarding behaviours. She did leave the room on two occasions, the first was to get her driver's licence and the second was to get her prescription to show to the panel. She was observably dysphoric throughout the assessment but noticeably more distressed and tearful after discussing the second motor vehicle accident of December 2017. She provided her responses in Korean through the interpreter, who confirmed that her answers were generally coherent, with intact logic. However, the interpreter stated that due to some audio difficulties, it was often necessary to clarify her responses with Ms Choi. The interpreter stated that it was possible to clarify Ms Choi’s answers satisfactorily. Some of the answers Ms Choi provided were lacking in detail, particularly in response to questions about her evolving symptoms and the treatment she received. She did not present as evasive or uncooperative. She presented with low mood associated with symptoms of fatigue, anhedonia, disruption to her sleep and eating patterns and feelings of hopelessness. Her sleeping difficulties were characterised by initial and intermittent insomnia. She denied any suicidal ideation. She described some anxiety when driving and referred to nightmares, the content of which was unclear. She did not express any delusional ideas. She denied any ongoing perceptual disturbances. Her concentration difficulties notwithstanding, she could take part in the assessment, although with prompting and clarification from the interpreter.Current functioning
Self-care and personal hygiene
Ms Choi told the panel that she lives on her own. She stated that her ex-husband is sick but did not provide details of his illness. She said that her son has moved in to live with her ex-husband to look after him. She stated, however, that her son continues to visit her every day and helps her with various chores, including cooking, cleaning, and grocery shopping. She stated that she felt tired and unmotivated to carry out these activities. However, she said that she can still attend to her personal hygiene and change her clothes and shower daily. She confirmed that her son prepares all the meals that she consumes. From a psychiatric perspective, this is moderate impairment. Class is 3.
Social and recreational activities
Ms Choi stated that she finds it very hard to talk to people and finds it hard to agree to socialise. She stated that she no longer attends church, however, when her son is with her she will go shopping with him and also take a walk with him. She referenced receiving phone calls from friends but did not take these calls when she did not feel able to. From a psychiatric perspective, this is moderate impairment. Class is 3.
Travel
Ms Choi reports being able to drive her car and being able to drive on her own. She does describe some anxiety while driving, particularly anxiety of getting into another accident. This is mild impairment. Class is 2.
Social functioning
Ms Choi states that her relationship with her son continues to be good and supportive. She did not describe any fights or arguments. She stated however, that she had lost some friendships because of her social withdrawal. This is mild impairment. Class is 2.
Concentration, persistence and pace
Ms Choi stated that she may read a few paragraphs or articles, but after some time, feels that she is tired and her concentration wanes. She estimates being able to read in 10 minutes blocks. During the assessment, she was observed to understand the questions posed to her through the interpreter and did not need these to be clarified. The interpreter confirmed however, that she needed to clarify the responses that Ms Choi provided. This is moderate impairment. Class is 3.
Employability
Ms Choi stated that she has not worked since the second motor vehicle accident of December 2017. She stated the second motor vehicle accident had disrupted her ability to continue working. A significant part of her difficulties with working relate to her physical pain. Absenting physical impairment, the nature of her psychiatric symptoms impacted her motivation and energy levels and would cause her to work less than full time and in a less stressful setting. This is moderate impairment. Class is 3.Comments of consistency
Ms Choi’s presentation was consistent with her description of her symptoms. There were some inconsistencies between her presentation today and that identified in prior assessments, including the assessments conducted by Assessors Shaw and Samuell. However, Ms Choi did report a resolution of some previous psychiatric symptoms, in particular the auditory hallucinations that Assessor Shaw had identified. She also reported some improvement with her physical symptoms, including describing a resolution of the pain in her right shoulder and neck. The interpreter noted that some of her answers were vague and continued to be vague despite attempts to clarify her responses. Some of this could relate to her reported difficulties with memory and concentration. At the assessment today, while it took some time to clarify matters of her history about her psychosocial history, she did not appear evasive or distressed while providing this information. The time taken was reflective of a need to use an interpreter.Summary of relevant documentation
The certificate written by Assessor Doran Samuell, dated 18 June 2021 is noted.
Dr Samuell diagnosed a Persistent Depressive Disorder (Dysthymia) resulting in a whole person impairment of 6%. He noted that she denied a history of psychological difficulty or family psychiatric history and did not identify any medical history of relevance. She denied prior personal injury claims. She was born in Korea and grew up there. She had lived in Australia for 12 years. She denied any adverse early life events or difficulties. Her last relationship was in 2015. He noted that she complained of difficulties with poor memory, poor concentration, does not eat much and only eats when she is hungry, and dreams that someone is yelling at her. He noted that she had been under the care of her general practitioner, a psychologist, a physiotherapist and a Chinese medicine practitioner. He noted that she also disclosed taking an antidepressant medication and a sleeping tablet but could not recall the name of those medications. She had not worked for some time, she had not been in a relationship since her separation which she credited to personality issues. Her relationship with her son was strained. She said that she did not have many friends and did not see the friends that she has as she did not feel like it. She stated that she is not going out and being active but that she was driving with friends and having picnics before the accident. She would also regularly attend the gym. She stated she had not done those activities for some time. She stated that either she or her son would do the cleaning and cooking on occasion. She goes shopping with her son although can go by herself. She dresses herself and showers and toilets herself. She stated that she did not shower every day because of pain. He took note of her involvement in a later motor vehicle accident in December 2017.
The determination dated 26 October 2021 issued by President’s delegate Emma Toohey is noted. This stated that Assessor Samuell had referred to the claimant providing inconsistent and contradictory statements, without providing details of those inconsistencies. This was felt to cause suspicions the medical assessment was incorrect in a material respect. It was felt the Assessor may have denied the claimant procedural fairness noting the inconsistency but not providing any further detail and without recording a response from the claimant if those inconsistencies were brought to her attention.
The injury claim form dated 28 August 2017 states the motor vehicle accident occurred at 8:00am on 23 August 2017 on Garigal Road and Forest Way. This provides a description of the motor vehicle accident indicating the claimant was driving her car on her way into work. No injuries are detailed but a reference to a medical certificate dated, 25 August 2017 is noted. The claimant’s occupation was listed as home cleaner.
There is a resulting motor vehicle accident Personal Injury Claim Form, dated 21 January 2018. This states the claimant’s occupation at the time of this accident was as a self-employed home cleaner.
On 19 February 2018 Miss Ji Hye (Rose) Kwon, Registered Psychologist, wrote to
Dr Hyun Cho, General Practitioner, to say that her review after the 7 December 2017 motor vehicle accident revealed that Ms Choi's symptoms were in keeping with a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. She advised psychotherapy to equip Ms Choi with skills to manage anxiety and irritability.
The certificates of capacity dated 27 March 2018, 20 January 2018, 20 February 2018, 22 March 2018, 17 April 2018, 15 May 2018 and 12 June 2018 are noted. All these except for the certificate dated 12 June 2018, relate to injuries and capacity from the motor vehicle accident of 7 December 2017. The certificate dated 12 June 2018 indicates diagnoses of lower back pain, shoulder pain, depression and anxiety. It states that her treatment is physiotherapy, psychology review and analgesia. She was felt to have capacity for some type of work for three hours a day, four days a week. The injuries and treatments were broadly the same for the other certificates of capacity relating to the accident of 7 December 2017.
The claimant’s handwritten general practitioner notes were reviewed.· These spanned entries from 19 March 2016 to 15 September 2020.
· The last entry before the subject motor vehicle accident documented a clinical contact on 8 July 2017. These entries and prior entries do not show the presence of any psychiatric injuries.
· Entry dated 25 August 2017 references the motor vehicle accident which took place on 23 August 2017. She was noted to be suffering from intermittent lower back pain. She was noted to have received an x-ray.
· Entry dated 28 August 2017 notes that she developed left shoulder pain since the previous appointment.
· Entry dated 8 September 2017 notes persisting lower back pain. It states that she developed paraesthesia in her legs.
· Later entries in September 2017 do not document any psychiatric injuries. The entry dated 25 September 2017 notes that she continues to have right shoulder and right leg pain.
· The 20 November 2017 entry states she had a head injury while at home. She was felt to have suffered a closed head injury. A subsequent CT scan was reported on 21 November 2017 as being normal.
· Entry dated 8 December 2017 notes that she was involved in a motor vehicle accident on 7 December 2017. This states that she suffers from headaches and suffered a neck injury. It states that her lower back pain increased.
· Entry dated 20 January 2018 states that she developed a whiplash injury to her neck. She experiences pain in both shoulders, lower back pain and headaches.
· The entry dated 1 February 2018 stated that she had insomnia for seven to ten days. It states that she developed anxiety and stress with driving. She was also noted to have occasional depressive moods.
· Entry dated 20 February 2018 notes that she worked in January for 10 days, two to three days a week, three to four hours a day and experienced lower back pain and shoulder pain and so stopped work. Her condition was described as “not much change”.
· Entries in May and July 2018 describe persisting shoulder and lower back pain.
· Entry dated 4 September 2018 states that she has insomnia, anxiety and hears voices.
· Following entries in January and February 2018 describe her pain and investigations for this.
· Entry dated 11 May 2020 states that she had had insomnia for two to three months. She was prescribed Temazepam as needed.
The progress notes completed by Dr Jane Lee, date from 13 September 2016 to 2 August 2017. These entries do not detail any psychiatric issues.
The certificate completed by Assessor Dr Tarra Shaw, dated 13 November 2018 is noted. This relates to psychological injuries the claimant suffered in the motor vehicle accident of 7 December 2017. The claimant was felt to have sustained an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Assessor Shaw noted that she reviewed Ms Choi twice, once on 4 September 2018 and the second time on 22 October 2018 because her case was complex, and her presentation unusual, with bewildering aspects to her history and presentation. The claimant was noted to give tangential replies in response to questions about her occupational history. Assessor Shaw noted that trying to clarify with the claimant various personal details took 20 minutes and she did not seem willing to answer basic questions. The claimant was noted to become very distressed while discussing her relationship with her ex-husband. The details of this were unclear but the relationship appeared to have broken down some years ago. Assessor Shaw wrote the claimant had developed significant anxiety symptoms that were likely still “in the Adjustment Disorder diagnostic realm” following the August 2017 motor vehicle accident, but before the December 2017 motor vehicle accident. She described feeling unsafe and insecure after August, scared about everything, her mood changing to very nervous. Her sleep became worse. She could not drive often because of anxiety symptoms. Assessor Shaw noted the claimant described developing auditory hallucinations after the December 2017 motor vehicle accident. This consisted of hearing her ex-husband’s voice ringing close to her ears and hearing him swear, yell and threaten to kill her. Assessor Shaw noted the many levels of inconsistency including between the documentation and the history provided by the claimant and the internal inconsistency of her history. Assessor Shaw indicated that it was difficult to obtain any clarification or logical answers when trying to explore these inconsistencies with the claimant.
The Mental Health Care Plan, dated 27 May 2019 is noted. This gives a diagnosis of insomnia and relationship difficulty. There was otherwise no formulation of her difficulties.
The report written by Dr Jung Sook Kim, psychologist, dated 20 April 2020 is noted. The claimant completed six sessions of treatment from 2 July 2019 to 20 April 2020. She was described as suffering from depression and anxiety for an extended period of time. She was noted to have been involved in two motor vehicle accidents in 2017. She was described as working for 15 hours a week as part of Newstart Allowance. She was described as trying to support her husband who was also involved in the accident. She was described as reporting similar psychiatric symptoms both after the August 2017 and after the December 2017 accident.
The report written by Dr Jung Sook Kim, dated 9 July 2020 is noted. Dr Kim reiterated that she had only seen the claimant since 2 July 2019. She had been seeing another psychologist for about six months during 2018, before seeing the author. She returned to work 15 hours a week from August 2019 but stopped working after six months. She was felt to suffer from a Major Depressive Disorder and Generalised Anxiety Disorder. Dr Kim wrote the claimants condition worsened after the December 2017 accident.
The report written by Dr Jung Sook Kim, dated 31 August 2020 is noted. The claimant reports that her lifestyle had turned upside down following the motor vehicle accident on 23 August 2017. She could not work at pre-injury levels because of a combination of physical and psychological disturbances. She experienced persistent pain after the motor vehicle accident in August 2017. Her psychological disturbances affected her well-being and work capacity. The claimant described the August 2017 accident as having a great impact on her work capacity and psychological functioning. She was noted to have moved in with her husband and had been living with her husband. She described working hard to support her husband who has also been unwell from the accident. The author noted from the claimants psychosocial history that she married in 2000 but separated in 2015. She kept cordial relations with her ex-husband. She came to Australia with her ex-husband and son in 2009. Her whole person impairment was considered to be 15%.Determinations
Diagnosis and reasons
Ms Choi reported no psychological difficulties before the subject motor vehicle accident of August 2017. Because of the motor vehicle accident in August 2017, she developed some anxieties with driving but could resume driving on her own in the vehicle in which the subject motor vehicle accident took place (her own car) which she asked to be repaired so as not to be financially disadvantaged with having to buy a new car if the old car was written off. She also developed a dysphoric response to the loss of role she experienced because of the pain she described developing in her back and in her left shoulder which she attributed to injuries suffered in the subject motor vehicle accident. This resulted in her withdrawing from socialising with her friends and engaging in related social activities that would conceivably be within her physical ability. Diagnostically, her presentation was consistent with an Adjustment Disorder. Consistent with the DSM-5 diagnostic criteria for this condition, she developed emotional and behavioural symptoms in response to an identifiable stressor within three months of the onset of this stressor. In this case, the stressor being the subject motor vehicle accident and the pain from injuries she credited to the subject motor vehicle accident. These symptoms caused disproportionate distress and impairment in her social and occupational functioning above that attributable to that caused by her physical injuries. Consistent with the other diagnostic criteria for this condition, her stress related disturbance did not meet the criteria for another mental disorder and was not an exacerbation of a pre-existing mental disorder. The anxiety symptoms she described did not fulfil the full diagnostic criteria for Posttraumatic Stress Disorder. Her symptoms also did not represent normal bereavement. Persisting symptoms could be attributable to continued stressors, her lasting physical pain.
Following the second motor vehicle accident of December 2017, Ms Choi then went on to experience an aggravation of her Adjustment Disorder because of the disruptive impact of her further physical injuries and as a result of the first motor accident. This led to her presenting with signs and symptoms consistent with a diagnosis of a Persistent Depressive Disorder (Dysthymia) with Anxious Distress. Consistent with this diagnosis, she presents with depressed mood for most of the day, for more days than not, for over two years. She also has more symptoms needed for this diagnosis, including poor appetite or overeating, insomnia or sleep disturbances, reduced energy, feelings of hopelessness and concentration difficulties. She has not been without these symptoms for more than two months at a time. Another diagnosis does not better explain her symptoms. Her symptoms are not attributable to the physiological effects of a substance or medical condition. She has never had a manic episode or hypomanic episode. Her symptoms cause clinically significant distress or impairment in her psychosocial functioning. Her anxiety symptoms would be included under in diagnosis.
She did not present with the full range of symptoms necessary for the diagnosis of a Posttraumatic Stress Disorder.Causation and reasons
Ms Choi did not have a history of mental health problems before the 23 August 2017 accident, corroborated in the supporting documentation. However, she developed signs and symptoms consistent with a DSM-5 clinical psychiatric diagnosis of an Adjustment Disorder shortly after the 23 August 2017 motor vehicle accident. Despite minimal treatment for this condition, she stabilised so she could drive on her own in the car that had been in the subject motor vehicle accident. She also partially returned to work, limited because of the physical pain she reported from injuries suffered in the subject motor vehicle accident. From both her description and the supporting documentation, she experienced partial remission of her psychological symptoms by the second motor vehicle accident in December 2017.
After the second motor vehicle accident in December 2017, she experienced an aggravation of her Adjustment Disorder which resulted in her current presentation of a Persistent Depressive Disorder (Dysthymia) with Anxious Distress. As noted, Ms Choi’s symptoms did not satisfy the full DSM-5 diagnostic criteria for Post-traumatic Stress Disorder.Permanency of impairment
After the motor accident, Ms Choi experienced an Adjustment Disorder which led to her developing a Persistent Depressive Disorder (Dysthymia) with anxious distress after the second accident. Her symptoms have persisted despite her starting psychological counselling and citalopram antidepressant medication. She did report some minimal improvement in her symptoms. Her psychiatric symptoms are perpetuated by persisting physical discomfort from her pain and the loss of function that comes from these physical injuries. Her condition is unlikely to improve by more than 3% in the next year with or without further treatment. Her condition has stabilised.Degree of permanent impairment
| Psychiatric diagnoses | 1. Persistent Depressive Disorder (Dysthymia) with anxious distress | 2. | |
| 3. | 4. | ||
| Psychiatric treatment description | Medication in the form of citalopram 20mg daily, psychological consultation. | ||
| Category | Class | Reason for Decision | |
| 1. Self-Care and Personal Hygiene | 3 | Ms Choi told the panel she now lives alone. She stated that her ex-husband is sick but did not provide details of his illness. She said however, that her son has moved in to live with her ex-husband to look after him. She said her son continues to visit her every day and helps her with various chores, including cooking, cleaning and grocery shopping. She stated that she felt tired and unmotivated to carry out these activities. She said she is can attend to her personal hygiene, change her clothes and shower daily. She confirmed that her son prepares all the meals she eats. From a psychiatric perspective, this is moderate impairment. Class is 3. | |
| 2. Social and Recreational Activities | 3 | Ms Choi stated that she finds it very hard to talk to people and finds it hard to agree to socialise. She stated that she no longer attends church. When her son visits she will go shopping with him and also take a walk with him. She referenced receiving phone calls from friends but does not take these calls when she does not feel able to. From a psychiatric perspective, this is moderate impairment. Class is 3. | |
| 3. Travel | 2 | Ms Choi reports being able to drive her car and being able to drive on her own. She does describe some anxiety when driving, mostly of getting into another accident. This is mild impairment. Class is 2. | |
| 4. Social Functioning | 2 | Ms Choi states that her relationship with her son continues to be supportive. She did not describe any fights or arguments. She stated however, that she had lost some friendships because of her social withdrawal. This is mild impairment. Class is 2. | |
| 5. Concentration, Persistence and Pace | 3 | Ms Choi stated that she can read a few paragraphs or articles, but after some time, she feels tired and her concentration wanes. She estimates being able to read in 10 minutes blocks. During the assessment she understood the questions posed to her through the interpreter and did not need these to be clarified. However, the interpreter confirmed she needed to clarify the responses that Ms Choi provided. This is moderate impairment. Class is 3. | |
| 6. Employability | 3 | Ms Choi stated that she has not worked since the second motor vehicle accident of December 2017. She stated the second motor vehicle accident had disrupted her ability to continue working. A significant component of her difficulties with working related to her physical pain. In the absence of any physical impairment, the nature of her psychiatric symptoms impacts her motivation and energy levels and would require her to work less than full time and in a less stressful setting. This is moderate impairment. Class is 3. | |
| List classes in ascending order: 2 2 3 3 3 3 | |||
| Median Class Value: 3 | |||
| Aggregate Score: 16 | |||
| % Whole Person Impairment: 17 % | |||
Effects oEffects of treatment
There was no evidence treatment has been effective therefore no allowance is made.
Conclusion – Permanent Impairment
After the 23 August 2017 motor vehicle accident Ms Choi developed an Adjustment Disorder which developed into Persistent Depressive Disorder.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[24] and Insurance Australia Ltd v Marsh.[25]
[24] [2021] NSWCA 287 at [40], [41] and [45].
[25] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the joint examination report of the Medical Assessors supplemented by the following further reasons.
Clause 1.34 of the Guidelines provides:
“Subsequent injuries
The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”
Clause 1.34 of the Guidelines was discussed by Wright J in Slade v Insurance Australia Ltd.[26] His Honour determined that the principles discussed by Malcolm CJ in State Government Insurance Commission v Oakley[27] apply in the application of cl 1.34 of the Guidelines.[28]
[26] [2020] NSWSC 1031 (Slade).
[27] (1990) Aust Torts Rep 81-003.
[28] Slade at [92].
In Oakley, Malcolm stated:[29]
“[W]here the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows:
(1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
(3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include [sic] no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”
[29] At 67,577.
In Slade, Wright J discussed the Oakley test and stated:
“92. In a situation such as the present, the second and third categories in Oakley provide common law principles to be applied by a medical assessor when determining, in accordance with the 2018 Guidelines, to what extent damage or impairment have been caused by injury suffered in an earlier motor accident when a subsequent unrelated event leads to further relevant damage or impairment. It is for this reason that par 1.34 requires the medical assessor to calculate: (a) the value of the permanent impairment resulting from the subsequent unrelated injury; and (b) the value of the permanent impairment resulting from the relevant motor accident, but does not require the assessor to subtract one value from the other in every case. Such a subtraction might be appropriate if the situation fell within the third category in Oakley but might be entirely inappropriate in situations within the second Oakley category.”
His Honour noted[30] the second category was discussed in Falco v Aiyaz; Falco v Falzon[31] when Sackville AJA stated:[32]
“Malcolm CJ observed that the second proposition covers what have been described as ‘increased vulnerability’ cases. In these cases, the plaintiff does not recover the full damages resulting from the later accident, ‘but only those extra consequences of the second injury due to the existence of the first injury’.”
[30] Slade at [86].
[31] [2015] NSWCA 202 (Falco) at [13] and [94]; [2015] NSWCA 202; 71 MVR 454 (Falco).
[32] Falco at [95].
There is no reason to find that the first Oakley category applies. The occurrence of the subsequent motor accident was independent and unrelated to the claimant’s physical condition caused by the motor accident. The subsequent motor accident was entirely due to actions of a third party in negligently driving a vehicle into the claimant’s vehicle.
We accept that the second Oakley category applies to Ms Choi. This is because Ms Choi developed an adjustment disorder caused by the motor accident and was clearly vulnerable and susceptible to an exacerbation of her psychological condition by a subsequent incident. The second motor accident and its initial consequences exacerbated the psychological condition because of the effects of the pain and its impact on Ms Choi’s loss of functioning.
Accepting that the second Oakley category applies, the remaining issue is the application of cl 1.34 of the Guidelines. The resolution of that issue is difficult and complicated with no relevant submission from either party.
The impairment assessment is undertaken at the time of the examination and not by reference to a prior occasion, such as the occurrence of the subsequent accident: GIO v Smith.[33]
[33] [2011] NSWSC 802 at [56] (Smith). Smith was approved in Slade.
The claimant’s neck and right shoulder injuries were solely related to the subsequent motor accident given the onset of symptoms at that time. That conclusion is consistent with the findings of the other Review Panel.
The claimant reported to the Medical Assessors, which we accept, that the neck and right shoulder symptoms caused by the subsequent motor accident had resolved. Accordingly, the ongoing physical effects of those injuries play no causative role in the claimant’s ongoing psychological condition.
The claimant sustained low back and left shoulder injuries caused by the motor accident. The effects of these injuries are ongoing. This conclusion is evident from the determination of the other Review Panel and the assessment undertaken by the Medical Assessors in this Panel.
As Wright J stated in Slade, cl 1.34, unlike cl 1.31, does not require a deduction to be made.[34]
[34] Slade at [92].
The making of a specific deduction under cl 1.34 is always problematic given the difficulties in articulating a proper basis for any specific amount in circumstances where the second category in Oakley applies.
In the circumstances of the present case where there has been a resolution of physical symptoms from the subsequent accident, we consider that there should be no deduction. As we have previously stated, we are satisfied that the entire impairment is as a result of the injury caused by the motor accident. We are not satisfied, give the resolution of physical symptoms from the subsequent motor accident, that any permanent impairment results from that event.
In these circumstances, we make no deduction pursuant to cl 1.34.
Conclusion
The certificate issued by Medical Assessor Samuell is revoked. The new certificate is attached at the commencement of these Reasons.
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