CIC Allianz Insurance Limited v Abraham

DETERMINATION OF REVIEW PANEL
CITATION:	CIC Allianz Insurance Limited v Abraham [2024] NSWPICMP 819
CLAIMANT:	Rosalind Abraham
INSURER:	CIC Allianz Insurance Limited
REVIEW PANEL
SENIOR MEMBER:	Williams
MEDICAL ASSESSOR:	Chrisopher Canaris
MEDICAL ASSESSOR:	Samson Roberts
DATE OF DECISION:	3 December 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment under section 7.26; Medical Assessor (MA) certified major depressive disorder with anxious distress, panic disorder, and agoraphobia were caused by the accident and gave rise to a permanent impairment (17%) that was greater than 10%; whether there were pre-and post- accident psychological condition and associated impairment; whether any accident caused injury and impairment; Held – the claimant had a pre-existing unspecified mood disorder and substance use disorder and pre-existing impairment; pre-existing conditions aggravated by the accident; accident caused aggravation gave rise to an impairment greater than 10%; because Panel found different diagnoses and degree of accident caused impairment MA’s certificate revoked and new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Mason dated 4 April 2023 and certifies that: (a) the degree of permanent impairment of the claimant that has resulted from the aggravation of an unspecified mood disorder and substance use disorder caused by the motor accident on 25 March 2018 is 16%, and (b) the degree of permanent impairment of the claimant that has resulted from the aggravation of an unspecified mood disorder and substance use disorder caused by the motor accident on 25 March 2018 is greater than 10%.

STATEMENT OF REASONS

BACKGROUND

Rosalind Abraham (claimant) was injured in a motor accident on Old South Head Road, Vaucluse, on 25 March 2018 (accident). Following the accident she made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on CIC Allianz Insurance Limited (insurer).
A dispute has arisen between the claimant and the insurer about whether the degree of permanent impairment that has resulted from psychological injury caused by the accident is greater than 10%. The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(a) of the MAI Act.
The medical dispute was referred to Medical Assessor Mason for assessment. The Medical Assessor gave a certificate dated 15 March 2022 in which he certified that major depressive disorder with anxious distress, panic disorder, and agoraphobia were caused by the accident and gave rise to a permanent impairment (19%) that was greater than 10%. The matter was subsequently referred to Medical Assessor Mason for further assessment. The Medical Assessor issued a certificate and reasons dated 4 April 2023 in which he certified that major depressive disorder with anxious distress, panic disorder, and agoraphobia were caused by the accident and gave rise to a permanent impairment (17%) that was greater than 10%.
The insurer sought a review of the further 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 this Review Panel.
The Review Panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the Review of the Assessment.

THE REVIEW

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

DIRECTIONS

The Panel made directions for provision by the parties of a joint bundle and written submissions for the purposes of the Review. At a case management conference held on 31 July 2024 the parties confirmed that other than the documents attached to the insurer’s Application to Admit Late Documents dated 15 July 2024 (AALD), the bundle lodged on 14 June 2024 contained all evidence relied on in the Review. The AALD, that comprised over 400 pages, contained documents from Sydney Local Court and NSW Police.
After further directions were made on 31 July 2024, the insurer refined the material from the Local Court and NSW police on which it sought to rely. The refined set of documents were annexed to written submissions dated 6 August 2024. The claimant objected to the insurer’s application to rely on this material. For the reasons given on 9 September 2024 the insurer was given leave to rely on the records from the Local Court and NSW Police. Only the material from the Sydney Local Court and NSW Police that is annexed to the submissions dated 6 August 2024 was relied on by the insurer and considered by the Panel.

STATUTORY PROVISIONS

Permanent impairment

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

Pre-existing impairment

Pre-existing impairment is addressed in clauses 6.31-6.33 as follows:
“Pre-existing impairment
6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.
6.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.”
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with “Mental and behavioural disorders” within the Guidelines, namely clauses [6.201]-[6.228] of the Guidelines.
In order to measure impairment caused by a specific event, a medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in the Guidelines, and subtract this value from the current impairment rating: cl 6.218.

Causation

The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5    An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.’
6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.

ASSESSMENT UNDER REVIEW

Medical Assessor Mason conducted a further assessment of the claimant’s permanent impairment and gave a certificate and reasons dated 4 April 2023, having previously assessed the claimant in March 2022. The findings from the earlier assessment are summarised later in these reasons. The Medical Assessor certified that major depressive disorder with anxious distress, panic disorder, and agoraphobia were caused by the accident and gave rise to a permanent impairment of 17%.
The Medical Assessor recorded that the claimant reported ongoing symptoms of depression which were exacerbated when she attempted to cease antidepressant medication. She described depressed mood most of the day for more days than not, over eating, disturbed sleep, lack of energy and low self-esteem, poor concentration and difficulty making decisions, and feelings of hopelessness. There have been times when these symptoms were more severe and the claimant has felt like killing herself. She also described difficulties leaving her house. She avoided the use of public transport, hated being in crowds and hated being outside the home alone. Thoughts of being in these situations induce panic attacks. She feared that she would go out of control and required the presence of her friend Neil or her dogs to allay this anxiety somewhat. She also described symptoms consistent with panic attacks.
With respect to consistency, the Medical Assessor recorded the history the claimant had previously given was “not entirely consistent with” the documentation. She was questioned in detail about the inconsistencies. While these were largely explained, in a number of instances she denied the reports in the medical records and stated they were inaccurate. Examples included the use of antidepressants for seven years while in Adelaide, the fact that she used her boyfriend’s clozapine continually for two years and the fact that she was not made redundant in 2014.

In Medical Assessor Mason’s opinion the claimant presented with symptoms consistent with persistent depressive disorder with anxious stress, agoraphobia, and panic disorder. There was a substance use disorder involving crystal methamphetamine and marijuana, in relation to which the claimant said she no longer uses these substances. The Medical Assessor was not able to elucidate symptoms consistent with post-traumatic stress disorder and did not make that diagnosis. In his opinion, it is possible the claimant has a vulnerable personality. Further, there was a history of past psychiatric conditions requiring treatment with antidepressant medications, anxiolytic medication and hypnotic medication. There was, however, no evidence that she required antidepressant treatment during the three years prior to the accident. Medicare records indicated the antidepressant desvenlafaxine was last prescribed in March 2015, and the anxiolytic/hypnotic agent nitrazepam was last prescribed in June 2015.
The Medical Assessor diagnosed a pre-existing persistent depressive disorder with anxious distress which had resolved some years prior to the accident, thus accounting for her psychological vulnerability. He recorded that:
“…the claimant was not entirely forthcoming regarding her past psychiatric history during the first examination in March 2022. I questioned her carefully regarding the inconsistencies I was able to identify from the extra documentation. She was mostly able to provide a satisfactory explanation. There were a few instances where discrepancies remain.”
The Medical Assessor referred to the findings of Dr Baron Levi, including the Test of Memory Malingering (TOMM) results that indicated the claimant was malingering. He was “unable to account for the results”, but was “not willing to base a conclusion on one psychological test result when all the clinical data suggests a different outcome”. Medical Assessor Mason stated that he was:
“...convinced the … accident was capable of causing the psychiatric conditions she developed and in fact did so. Had the motor accident not occurred [he did] not believe these conditions would have developed. Given her past psychiatric history, the current conditions are consistent with a response to a traumatic event such as the subject motor accident.”
The Medical Assessor provided reasons for the ratings he allocated for each of the Psychiatric Impairment Rating Scale (PIRS) categories with respect to both the claimant’s current and pre-existing impairment. The pre-existing impairment was 0%. The current impairment was 17%, less than the 19% the Medical Assessor assessed in March 2022.

EVIDENCE

The documentary evidence before the Panel consists of the joint bundle lodged on 14 June 2024 and the documents from the Local Court and NSW Police that were provided as a separate bundle.
The joint bundle comprises 530 pages, and the records from Police and the Local Court Panel comprise over 230 pages. The Panel has considered all this material.

Medical Assessor Mason’s 15 March 2022 assessment

Prior to undertaking the assessment that is the subject of the Review, Medical Assessor Mason gave a certificate and reasons dated 15 March 2022. The Medical Assessor certified that major depressive disorder with anxious distress, panic disorder, and agoraphobia were caused by the accident and gave rise to a permanent impairment of 19%.
The reasons record that the claimant continued to complain of pain in her neck, back, and right arm following the accident. She continued to feel depressed, was frequently distressed, continued to be socially isolated, experienced anxiety when she leaves her apartment, and continued to have the occasional panic attack, although not as frequently as in the past. Her sleep remained disturbed by pain. She did not describe traumatic dreams. When questioned about trauma-related symptoms she said her situation is now much more related to depression.
The Medical Assessor recorded that while the claimant’s treating psychologist and general practitioner had diagnosed post-traumatic stress disorder, he was not able to elicit trauma related symptoms. She did however describe significant depressive symptoms and symptoms of both panic disorder and agoraphobia. These symptoms initially arose from her ongoing pain and physical limitations. As her condition has developed she has withdrawn socially and regressed in terms of her ability to care for herself. There was also a period of serious substance use involving both crystal methamphetamine and marijuana. There was no evidence of a pre-existing psychiatric condition.
Medical Assessor Mason found that the claimant met the diagnostic criteria for major depressive disorder, panic disorder, agoraphobia, crystal methamphetamine use disorder (that the claimant reported had resolved), and somatic symptom disorder with chronic pain. In his opinion, it is entirely plausible that the accident did give rise to these conditions. The accident was more than a negligible contributing factor to the development of her psychiatric conditions. The Medical Assessor provided reasons for the ratings he assigned to each of the PIRS categories.

Medico-legal evidence

Dr Baron-Levi, psychologist, provided two reports at the request of the insurer. In his first report of 24 September 2022, Dr Baron-Levi recorded the claimant’s report that she was “a lot better physically now”. She reported that she suffered panic attacks. There was evidence of pre-existing mental illness. Her pre-morbid depression was a risk factor for further mental illness following a traumatic event. In Dr Baron-Levi’s opinion, the claimant suffered from an adjustment disorder and anxiety following the accident that was “clearly exacerbated by environmental factors”. She was, in his opinion, “now malingering”. The results from the TOMM, that revealed a very low score on the second trial which is considered to be well below the cut-off for non-malingerers, supported his conclusion in this regard. The adjustment disorder was in full remission. He could find no evidence of post-traumatic stress disorder. The claimant’s substance abuse disorder contributed to her depression and anxiety. Her perceived anxiety was in fact stress that was the result of harassment and aggression from a neighbour as well as pressure from a developer wanting to buy her apartment.

Dr Baron Levi concluded that the claimant was putting in a less-than-optimal performance and that she was “clearly exaggerating her symptoms”. He could see no impediment to employment. He nevertheless accepted that the claimant suffered from an adjustment disorder and anxiety following the accident.
In Dr Baron-Levi’s opinion the prognosis was positive in that the claimant was currently living independently, managing her day-to-day activities independently, was socialising with friends, looking after her two dogs and taking them out for regular walks. There was no impediment for the claimant to resume her pre-accident employment.
The test results recorded in Dr Baron-Levi’s report have been considered by the Panel.
Dr Baron-Levi prepared a second report dated 4 April 2023. He canvassed matters addressed in his first report. He confirmed that there was evidence the claimant did suffer from an adjustment disorder and anxiety following the accident. He could find no evidence of post-traumatic stress disorder. He addressed matters raised by the claimant’s treating psychologist, Ms Tull, and refuted her assertion that the TOMM was not a valid measure of exaggeration of symptoms. He also suggested that she may not have had the benefit of seeing pre-accident reports that were available to him.

With respect to the Mr Stollznow’s observations that the claimant had frequent mood swings, became extremely stressed and anxious over minor issues that are part of everyday life, exhibited periods of intense anger often associated being stressed, black and white thinking, suicidal ideation, inability to focus on a task or a conversation topic, obsessive compulsive behaviour, and irregular sleeping patterns, in Dr Baron-Levi’s opinion she had exhibited all of these behaviours prior to the accident. The claimant was, in his opinion, capable of returning to employment “in some capacity”, and “was more than capable of finding employment in the IT Field”. She had the capacity to work on web design, IT system support and on a helpdesk.
Dr Sekel reported to the insurer on 31 May 2023. He noted a number of conditions that were unrelated to the accident, including anxiety and depression, an injury to her right ring finger, and Graves’ disease. He recorded an employment history, social history, and a history of complaints, injuries, and treatment. The doctor also addressed the records from treatment providers. In his opinion, the accident was “of a minor kind”, and did not result in any permanent injuries.
The doctor traversed the claimant’s prior history of psychiatric symptoms, said to have been present since around the age of 25 years and for which she had been taking Lexapro (escitalopram – an antidepressant) for anxiety and depression which she had apparently taken from 2013 onward. She was noted to have seen a psychiatrist, Dr Daud Saeed, some four times possibly around 2020 and to have ongoing consultations with Ms Tull, psychologist.
Dr Sekel reviewed the claimant’s medical records including those of the National Home Doctor Service and the Fountain Street Medical Practice. He considered that she had had numerous presentations for what he characterised as “bizarre psychiatric behaviour”. The doctor concluded that the records did not support any significant physical injuries and concluded from his examination that the accident would not have given rise to anything beyond soft tissue injuries. He speculated that her psychiatric condition might relate to her Graves’ disease. Any soft tissue injury of the neck, shoulders, upper limbs, or back that “might have occurred” would have completely resolved within a maximum of six weeks, and “presumably somewhat earlier than that.” The physical injuries caused by the accident had not resulted in any impairment of earning capacity. There was no need for domestic assistance or treatment beyond “the initial several weeks” after the accident. There was no permanent impairment.
Dr Bodel, orthopaedic surgeon, reported to the claimant’s solicitors on 28 October 2020. The doctor diagnosed soft tissue whiplash injury to the cervical spine and probable right rotator cuff injury as a result of the accident. She suffered ongoing psychological sequelae, and has restrictions arising from her accident caused physical injuries.
Dr Hyde Page, orthopaedic surgeon, reported to the insurer on 10 December 2020. In his opinion, as a result of the accident the claimant developed chronic right sided neck pain. The pain had improved 70% since the accident. She had also developed significant mental health issues since the accident. The doctor diagnosed musculoligamentous soft tissue injuries to the right side of her neck and right shoulder as a result of the accident. He found no inconsistencies between the reported symptoms, complaints and restrictions, and his findings on clinical examination. In the doctor’s opinion the injuries have not resulted in a decreased capacity for work and there was no permanent impairment.
Dr Anderson, consultant psychiatrist, reported to the claimant’s solicitor on 16 October 2020. In the doctor’s opinion the claimant “most likely qualifies for a diagnosis of post-traumatic stress disorder”. The main features have been profound anxiety and agoraphobia behaviour, mood changes, hyperarousal symptoms, disorganisation, sleep difficulty, pronounced avoidance and some re-experiencing of the accident. There has in his opinion been significant impairment. The accident has been the “salient stressor”. There had also been abuse of methamphetamine, cannabis, and benzodiazepines “at some stage”. Treatment should continue. The claimant’s prognosis was for “continuation of the present state”. The doctor’s PIRS assessment findings have been considered. He assessed an 18% permanent impairment.
Dr Whetton, psychiatrist, reported to the insurer on 27 October 2020. The doctor diagnosed adjustment disorder with anxiety and depression, together with substance abuse disorder that was in remission. There was a history of cannabis and ice use. Dr Whetton noted that the claimant had begun to use ice in the aftermath of the accident because she had become “bored and depressed in her mood”. She denied any prior history of psychiatric illness. She said she had worked 16 years and then at the time of the accident had been doing contract work.
In Dr Whetton’s opinion, the claimant does not warrant a diagnosis of post-traumatic stress disorder, and does not exhibit symptoms of that condition. The doctor diagnosed adjustment disorder with anxiety and depression and substance abuse disorder that was in remission. While she does not require psychiatric treatment, continuation of psychological treatment is reasonable over the following three months. Continuation of Fluoxetine should be over the following six months. In Dr Whetton’s opinion the claimant was fit for work and fit for full activities of daily living. The doctor assessed a 0% permanent impairment.
The report of Dr Mark Milic, clinical and forensic psychologist, dated 16 May 2023 relates to an incident which involved the claimant’s neighbour. Dr Milic noted that the claimant had been on thyroid medication, had been taking Cymbalta “for years”, and was consulting with Ms Tull. He noted that she had worked only intermittently since the accident and noted her distress following the breakup of a seven-year intense relationship, a subsequent two-year relationship with a man who was married, and the deaths of her grandmothers.
Dr Milic also documented the claimant’s fear of her neighbour and her distress when she was incarcerated, as well as her claim to have lost consciousness in her cell because of a thyroid problem for which she had to be taken to St Vincent’s Hospital. He noted that she had been taking thyroid medication over the preceding three weeks and that at the time of seeing him, she was living in Budgewoi where she felt much safer.
Dr Milic diagnosed persistent depressive disorder (dysthymia) with anxious distress which he considered to be a result of the accident, noting that it had “exhausted her coping capacity and she has struggled to return to work since then. The social functioning also deteriorated following the car accident and this was a causal factor in the incident”.

Dr McIntosh’s report

Dr McIntosh provided a collision and biomechanics report to the insurer dated 29 October 2021. His expertise is described as being in fields of biomechanics and ergonomics/human factors. He is not a medical doctor.
Dr McIntosh’s report contains photographs of both vehicles involved in the accident. The photographs clearly depict the damage to the vehicles. There is significant damage to the front left side of the claimant’s vehicle, and obvious damage to the driver’s side of the taxi at and about the driver’s door.
Dr McIntosh estimated that the travel speed of the claimant’s vehicle when it collided with the taxi was in the range of 25-35kmph. The driver and passenger airbags in her vehicle deployed. In his opinion, the magnitude of the forces experienced by the claimant in the accident would have been moderate in severity. The forces involved in the accident are likely to have caused soft tissue injury and/or soreness to one or more of the following body regions: the cervical spine, shoulders, upper limbs, anterior chest and abdomen/pelvis. The seatbelt and airbag would have applied forces across those areas. In Dr McIntosh’s opinion, the following are consistent with the forces involved in the accident:
(a)   the claimant’s presentation with neck and right shoulder pain on the day and evening of the accident;
(b)   right hand and thumb pain the day after the accident;
(c)   the claimant’s presentation with symptoms resolving rapidly by early April 2018, and
(d)   neck and shoulder pain with symptoms of a closed period of short duration.
In Dr McIntosh’s opinion, a fall down three stairs is a likely mechanism for causing neck, shoulder and upper limb pain and impairment.

Material from treatment providers

The Panel has considered the pre and post-accident records from treatment providers. The records from Macleay Street Medical Practice (Dr Smith’s practice) include reference to the following matters:
(a)   10 November 2009 – has been on Lexapro (an antidepressant) for five years for panic attacks, a dispute with a neighbour who abuses her, binge drinking and the “occasional spliff”, poor sleep, request for Xanax/Valium that was declined;
(b)   21 April 2011 – ran out of Lexapro three days ago, withdrawal symptoms;
(c)   30 November 2011 – ran out of medication three days ago, cannot find repeats, is on 40mg, warned a very high dose;
(d)   11 January 2012 – tried reducing to 30mg Lexapro, mood swings worse, anxiety increasing, rowing with best friend. Poor sleep, weepy, poor concentration. Take rest of week off to allow time for it to work;
(e)   8 May 2012 – confessed she uses an ex-boyfriend’s Clozapine when she can’t sleep only every now and again. Doesn’t like psychiatrists as they do not treat the whole person, probably needs to see a more empathic one to deal with anxiety issues and depression;
(f)    19 June 2013 – referral to Lesley Bainbridge, psychologist. Difficulty sleeping. Not able to switch mind off. Feels anxious and lonely;
(g)   17 September 2013 – referral to Dr Miller, psychiatrist. Taking boyfriend's Clozapine (an antipsychotic) for two years without anyone's knowledge until three months ago. She stopped it suddenly and developed a lot of anxiety and panic attacks. She was prescribed Olanzapine by a GP here and her symptoms improved however she ran out a week ago and has developed anxiety attacks again and is unable to work. Given a script for 10mg nocte. Has been on Lexapro for about seven years when she was in Adelaide for depression;
(h)   11 November 2013 – has been having more anxiety. Is able to work from home, can get out to walk dog and get grocery shopping. Worrying about her job, boss wants a letter clarifying that she is being treated for anxiety & depression. Has tried to go to client's site but has had panic attacks when there. Losing confidence. Not sleeping. No drinking or using. Smoking cigs.
(i)    21 November 2013 – has been finding it difficult to get out of bed, low mood. Mood improves as day goes on. On Cymbalta 30mg.
(j)    9 December 2013 – looks flat, not very responsive to questions at first, monosyllabic. Says slightly better. Getting out of bed, working from home 3 days week but this week will be going to see clients – feels anxious. Wants to sell up, quit job – not made formed plans. Nothing to go to – running away. Admits to using ice at weekend. Last marijuana Oct 31^st. Aware "come down", anxiety for 1-2 weeks later and not to use;
(k)   11 December 2013 – too sedated on 60mg Cymbalta. Thinks she was given 60mg rather than 30mg when started on it 11th Nov. Was still smoking marijuana until 31st Oct – ?was that contributing to anxiety?.
(l)    27 March 2014 – low affect. Quit her job last week, too stressed by it, overwhelmed. Boss shouting at her, saying not good enough. Feels lonely. Doesn’t think Cymbalta working. Not sleeping well – took Stilnox but too sedated next day so cut back. Says leave house once a day to take dog out. Difficulty getting to shops, using takeouts. Stopped exercising & looking after herself. Not had olanzapine for 4-5 weeks. Thoughts of self-harm again – would not because of dog. Reason for visit – depression with melancholic features;
(m)     20 January 2015 – altercation with boyfriend. Police involvement. Mental health team coming round. Catastrophising, and
(n)   21 January 2015 – has been assessed last night at home by the acute care team from St. Vincents. Police asked for assessment because she had expressed suicidal ideation. Worried outcome of AVO – job issues. They thought that she was drunk/under influence although she denied. MHP, psychologist.
On 19 June 2013, the claimant’s GP referred her to a psychologist on a mental health plan. In the referral letter, he noted that the previous March she had been involved in an important bank project getting up at 5.00am, working 12-hour days, and not eating. She had started to lose confidence and her boss perceiving a problem took her off the project saying he did not want her back until “old Rosalind” was back. Her work was reduced to four days a week with one day working at home and she was worried about potential redundancy. She was having trouble sleeping because she was unable to switch her mind off. She felt anxious and lonely saying that one friend had moved to New York, and another was not being supportive. She was not in a relationship. She was still on Lexapro and zopiclone (a sedative-hypnotic).

Dr Smith provided a certificate for Centrelink for two weeks. On 7 May 2014, Dr Smith filled in a Medical Attendant’s Statement for TAL super. He noted that the claimant had been on Lexapro for depression in 2004 and that in 2011 to 2012 she had work-related stress. He diagnosed the claimant with anxiety and depression noting that she had a low affect, was not sleeping, was finding it difficult to get the motivation to leave her home, had thoughts of self-harm, and was anxious about the future with poor sleep, poor concentration, difficulty making decisions, and decreased self-confidence. The doctor certified the claimant as unfit to work and noted her level of activity to be restricted to taking her dog out of the flat twice a day to quickly toilet it. She was able to get to the local shops but had stopped exercising. He expected her to be able to return to work in the next one to four months which she would have to do on reduced hours.
The records from Macleay Street Medical Practice also include a report from Dr Chan, clinical psychologist. The report records that the claimant had been seen on two occasions for psychological assessment in 2014. She presented with extremely severe levels of depressed mood and anxiety, and a severe level of stress, in the context of losing her job, financial stressors, and ongoing fear of being isolated and alone. She was seen on 21 May 2014. The claimant had found employment and was no longer able to attend sessions. There had been no contact since.
The handwritten notes of Dr Deepinder Miller dated 19 September 2013 were considered. Dr Miller recorded the claimant’s clozapine use, the emergence of “terrible panic attacks” with insomnia and excessive fatigue following cessation, and a past history of depression. The doctor noted that the claimant had been feeling very low over the past two years with more bad days than good coupled with initial and middle insomnia, and noted that three months earlier she had started seeing a psychologist, Lesley Bainbridge. The claimant reported that she had been on escitalopram for about eight years following a “breakdown”. She noted that she had begun drinking alcohol some 14 years previously, and bingeing once every three months though she had stopped doing so some six months previously. She used two to three cannabis cigarettes every weekend. She had used ecstasy in the past with last use some three or four years previously but had “used it episodically heavily”. She had snorted speed at the age of 18 years and at the age of 36 years had smoked ice. Dr Miller noted that the claimant looked sad, irritable, and teary and made a diagnosis of “dysthymia” as well as of a possible “Axis II disorder [personality disorder]”. Dr Miller increased her dose of escitalopram and prescribed olanzapine.
In a patient registration sheet dated 12 March 2018 with Myhealth Potts Point the claimant described herself as “self employed/heiress/recluse”.
The ambulance report relating to the accident dated 25 March 2018 records that the claimant refused treatment, investigation, and transport. She was noted to be possibly behaviourally disturbed and not compliant with questioning.
On 25 March 2018 the claimant was seen by the 13Sick National Home Doctor. She complained of right arm pain but was thought to be intoxicated with an unknown substance and had no signs of injury. She was noted to be aggressive and told to go to the Emergency Department with a note to the effect that she was not to be seen again by the National Home Doctor Service.
The Patient Health Summary of the Fountain Medical Practice Potts Point[1] was considered. A clinical note on 6 June 2018 by Dr James Robertson records that the claimant had telephoned and rebooked several times following the accident. A note describes her as “A recluse” stating that she would walk her dogs but otherwise just go out for supplies and come home. On the same day, an email from one of her neighbours was sent to the strata manager relating to conflict with the claimant stating, “I have enough evidence of her drug dealings deliveries and transactions with photos of drug dealers, packages and registered post serial numbers she gets so often for the police to conduct an investigation on this matter”. On 8 June 2018, she had a home visit from Dr Robertson who refers to the accident which reportedly shook her confidence. She was noted to have physiotherapy but otherwise no treatment. She was not on any medication but was smoking six cones of tetrahydrocannabinol (THC) daily.
[1] Printed on 22 August 2019.
A further home visit on 22 June 2018 described the claimant as emotionally labile, worried about the man in the flat below who had been sending flowers, described her as tearful and “apologising” and “fragmented”. There was no indication of thought disorder. She mentioned “a lost love that precipitated her decline”.
On 9 July 2018, the surgery received a call from a friend. The claimant apparently needed forms for both workers compensation and superannuation. The friend had also reported that the claimant was “in a manic state”. On 20 August 2018, she rang the practice crying hysterically having taken an overdose of Panadol and Xanax and was attended by ambulance with police assessment. She threatened to take her own life by “shooting up heroin”, had taken paracetamol and Xanax, but refused treatment.

It appears from the documentation that the St Vincent’s Hospital Acute Care Team became involved. A letter from Dr Haldane Begg, psychiatry registrar, gives a diagnosis of depression and “Cluster B Personality Vulnerabilities [a dramatic and erratic personality structure]”. There is a letter to Dr Robertson which speaks of the claimant’s physical limitations post-accident and her conflict with her neighbour.
On 2 June 2019, the claimant was taken by police and ambulance to St Vincent’s Hospital after she had told her boyfriend that she “had enough pills to kill an elephant & want to die”. She was subsequently discharged by St Vincent’s Hospital after review when she denied suicidal ideation or thoughts of self-harm. On 3 March 2020, Dr Robertson referred her to Dr Daud Saeed, psychiatrist, and was noted at that time to be weaning off escitalopram and starting on fluoxetine (an antidepressant).
A Fitness to Drive assessment by her psychologist, Ms Tull, dated 19 January 2020 provides a diagnosis of anxiety disorder and post-traumatic stress disorder and records that the claimant is not dependent on drugs or alcohol and that she is not on any medication that may affect driving.
Handwritten notes of Dr Saeed dated 24 March 2020 documented the claimant’s use of ice. In relation to trauma history, there is a reference to “betrayal in an emotional intimate relationship” between 2014 and 2016.
The discharge summary referral from St Vincent’s Hospital relates to an admission to Caritas Acute Mental Health Unit over 30 March 2020 to 2 April 2020 which documented use of CMA (crystal meth), cannabis, and Xanax. The claimant had presented with her aunt who was concerned about a deterioration in her mental state with disorganised behaviour. She was diagnosed as withdrawing from recent CMA use. She was discharged on fluoxetine 20mg daily and olanzapine 5mg BD with brief follow-up from the Acute Care Team.
A letter from Dr Saeed, dated 24 April 2020 records that the claimant had ceased olanzapine but admitted to regular cannabis and weekly CMA use for which she had “a range of rationalisations about reliance on these” and was noted to be “remaining pre-contemplative in relation to her dependency issues”.
A presentation to the St Vincent’s Hospital Emergency Department on 17/18 April 2023 was noted. An ambulance was called because of concerns by a family member that the claimant may have overdosed. She had significant swelling and redness to her lower limbs and was noted to be agitated. She stated that she had called her father to “scare” him because she felt he did not care about her. She was taken to hospital with police assistance but did not stay for assessment.
There was a “PACER” [a request for mental health assessment] request by police dated 30 April 2023 for the claimant who was in custody for breach of bail in an alleged assault on her neighbour. She was seen in custody and was noted to be tearful and labile but with no evidence of psychosis or significant mood disorder. She reported to have had one drink that day and denied substances, but it was suspected that she may have minimised this.
The Myhealth Potts Point records were considered. The claimant was noted to be on Cymbalta (duloxetine – an antidepressant) 90mg daily. There is a reference to the accident in which she is said to have “suffered head injury” with “Brain injury – diffuse axonal injuries suspected”. A letter from Dr Amanda Johnson dated 27 June 2023 requests access to financial support from her superannuation, listing diagnoses of chronic anxiety/depression, agoraphobia, and post-traumatic stress disorder. The claimant is said to have shown no improvement in her mental health over the time that Dr Johnson has known her with exacerbation of her mental health difficulties from social stressors. She is said to be unable to work, was facing financial hardship, and had been recently diagnosed with hyperthyroidism which was said to have exacerbated her mental health difficulties.
An entry in the Myhealth Potts Point records on 31 July 2021 notes a request for referral for an MRI of the brain as well as a prescription for fluoxetine with reference to the accident. The claimant was duly referred for an MRI which was apparently normal. She noted that an increase in her fluoxetine dose had “made her feel manic”. Her mood was noted to have recently worsened; she was feeling overwhelmed with the insurance, living off savings, and uncertainty of what might happen. She was noted to be “Able to do some fashion work” but had a limited income which was apparently supplemented through real estate. Her friend Neil who had also been in the accident was said to be supportive. She subsequently ceased fluoxetine and was started on Cymbalta. On 19 April 2022 she presented with a finger fracture. By this stage she had started on citalopram (an antidepressant). She was noted to have pressured speech, to be difficult to interrupt, and while “not as upset/low since starting citalopram” was highly anxious although she denied feeling elevated in mood. Subsequent entries (such as that on 27 June 2022) indicate that she was on Cymbalta but very anxious with panic attacks, that her sleep had improved, and she generated scores in the extremely severe range for depression and stress and severe range for anxiety on the depression, anxiety and stress scale (DASS) 21. On 25 July 2022 her mood was noted to be improved on an increased dose of Cymbalta (90mg daily).
The multiple certificates of capacity stating that she had no work capacity in the post-accident period were noted.

Reports and records of Ms Tull, the claimant’s treating psychologist, are in evidence. Ms Tull has been treating the claimant since 28 June 2018. She diagnosed post-traumatic stress disorder with mixed anxiety/depression and agoraphobia. In a report dated 24 July 2018 Ms Tull recorded that further assessment was required to determine whether there is a closed head neurological injury, and raised the possibility that the claimant has a mood disorder as a result. In her opinion, if the claimant continued to receive the required treatment for rehabilitation she will be able to gradually return to work.
The report from Ms Tull dated 3 November 2019 noted diagnoses of post-traumatic stress disorder, adjustment disorder with agoraphobia, and mixed anxiety depression. The report refers to “bouts of severe depression” because of which the claimant had “been suicidal in the past”. It was noted that she had great difficulty initially coming to sessions and that she had been suicidal and agoraphobic, not leaving her apartment for long periods of time because of which she had to bring her two dogs along to sessions. Her self-grooming, self-care, social interactions, and mental focus was said to be very poor. While she was noted to be developing a business idea online, she had erratic functioning and “no real capacity for work at this point”.
Ms Tull confirmed that the claimant had been attending psychological counselling on a regular weekly basis, and required ongoing counselling. In Ms Tull’s opinion, the claimant’s pain and physical injuries exacerbate her psychological condition, and hinder her psychological recovery. The claimant had become very socially isolated, and this had “amplified” her psychological condition. In Ms Tull’s opinion the agoraphobia “will be completely resolved as it is reaching that level at this point”. While her depression is resolving there were concerns about a relapse. She was not yet capable of returning to work, but with further progress she would be able to do some part-time duties in the next six months.
In a TAL “Attending Doctor’s Statement” dated 3 November 2019, Ms Tull recorded a diagnosis of post-traumatic stress disorder with mixed anxiety/depression and agoraphobia, and stated that the claimant was “too emotionally unstable to sustain work at this point”.
The report from Ms Tull dated 21 March 2021 reiterates diagnoses of post-traumatic stress disorder, mixed anxiety and depression, and substance abuse seen as being a consequence of her post-traumatic stress disorder in the form of self-medication which she had effectively curtailed over the preceding year. Her post-traumatic stress disorder was presented as a consequence of the accident but with exacerbation from life events such as a poor relationship with her main supporter, conflicts with property developers pressuring her to sell her apartment, and feelings of loss of identity since the accident which would send her spiralling into severe depression. She had responded, however, to approaches such as CBT (cognitive behaviour therapy) and DBT (dialectical behaviour therapy). Ms Tull considered that the claimant was unlikely to return to her premorbid state, struggled with daily routines, and became easily overwhelmed and disorganised. Her emotional state was seen as very labile and often “deregulated” (presumably dysregulated). She considered that the claimant’s psychological injury had a profound impact on her capacity to work in that “just attending a section with her doctor or myself evokes considerable anxiety and she is often exhausted just with the mere process of getting to the office” while “her capacity to stay on task in any assignment also creates considerable stress and she is erratic in her capacity to engage with any form of work” and hence “Her emotional instability would not loan [sic] her to being employed in any capacity at this stage”.
Reference is made to “life events” over the prior two years that had, in Ms Tull’s opinion, caused “relapses at times”. The claimant will not return to her level of pre-accident functioning. With further treatment she will improve her quality of life “to some extent”. In Ms Tull’s opinion, the claimant’s psychological injury had a profound impact on her capacity to work, and “[h]er emotional instability would not loan her to being employed in any capacity at this stage”. Ms Tull also addressed various matters arising from Dr Whetton’s report. She disagreed with a number of opinions expressed by the doctor, including in relation to diagnosis, the claimant’s functioning, and treatment.
There is a further report from Ms Tull dated 7 November 2022. In that report Ms Tull addressed the opinion of Dr Baron-Levi. She disagreed with his opinion that the claimant did not suffer from post-traumatic stress disorder. She also disagreed that the claimant was exaggerating her condition and malingering, and that the claimant’s condition was attributable to a pre-existing mental illness.
Correspondence from St Vincent’s Hospital Sydney dated 18 May 2023 referred to a probable diagnosis of Graves’ disease. It is recorded that the claimant had been seen at the hospital earlier that month and was found to have hypothyroidism.

Police and Local Court records

The Panel has considered the NSW Police and Local Court records. The records disclose pre- and post-accident interactions between the claimant and police. She was variously listed as a victim, witness, person named, or person of interest. Prior to the accident there were incidents on 22 June 2014 and 18 September 2015. On 19 January 2015 she was the subject of an AVO in relation to an individual with whom she had been in a relationship. In response to the relationship being ended the claimant became “enraged” resulting in her sending abusive texts and then attending her former partner’s home, knocking on his door, standing beneath the window, yelling out to him, and subsequently trying to force her way into his home. The claimant made subsequent contact with this person, and was then contacted by police who were concerned for her mental state and contacted the Mental Health Intervention Team at St Vincent’s Hospital as well as organising a welfare check. The police statements and records of interview in relation to the incident were considered. On 25 May 2015 she was convicted of using a carriage service (mobile phone) to harass and was given a good behaviour bond.
On 27 September 2016 the claimant was threatened while walking a dog. There was an incident on 7 February 2017 that involved allegations of assault. In February 2017 there were disputes about money. On 2 April 2017 she reported being verbally abused, that she had beer thrown on her, and was distressed. On 11 May 2017 the claimant reported receiving threatening messages. She was pulled over on 6 June 2017 and became agitated and erratic. There were further incidents on 13 June 2017 and 24 December 2017.
Following the accident there were issues with a neighbour in March 2018, an incident while she was walking her dogs on 10 May 2018, another incident walking her dogs in January 2019, a verbal argument with a neighbour on 6 February 2019, incidents in March and April 2019, August 2020, and April 2021. On 27 November 2021 she was stopped in a vehicle, and a breath test produced a positive detection to methamphetamines. She was arrested, and an oral fluid test gave a positive result. On 10 August 2022 there was an incident with a neighbour that resulted in the claimant being charged with assault occasioning actual bodily harm and common assault. The records allege that she had damaged her neighbour’s property and then assaulted him with a pair of scissors as well as spraying him with a fire extinguisher. There were further incidents in January, February, April, May, June, July, September and December 2023, and in April and May 2024.
A Court attendance notice and subsequent order under the Mental Health and Cognitive Impairment Forensic Provisions Act2020 dated 22 May 2023 was considered. The notice related to charges of being armed with intent to commit an indictable offence, common assault, assault occasioning actual bodily harm, and breach of AVO on 30 April 2023.
The St Vincent’s Hospital Emergency Department clinical records include a history of bipolar disorder and comments on the claimant’s rambling speech, and included a remark that she appeared intoxicated, while an interview with her friend Mr Stollznow by police suggests that the neighbour had also assaulted the claimant after she started cutting his pot plants in the common area in the front of the building.

Other evidence

An Application for personal injury benefits completed by the claimant on 25 June 2018 includes a description of the accident, and records that she suffered “numerous injuries”, including injuries to her neck, both shoulders, and right wrist. The injuries resulted in “continuous pain”. There is also a claim for damages dated 8 May 2020.
The Panel has considered the statement of Mr Finnis dated 6 November 2019. Mr Finnis was a passenger in the taxi that was involved in the accident. He described the accident, and said that the other driver (the claimant) “was in a bit of a state”, and appeared very shocked.
The claimant’s statement dated 31 January 2023 has been considered. In the statement the claimant provided her pre-accident history, including her work and educational history, addressed the circumstances of the accident, and described the impact the accident has had on her. The claimant admitted that she had “mental health issues before the accident” and states that “this is from the stress I felt at work”. She describes the deterioration in her post-accident functioning. In this regard, she stated that:
“After the accident, my mental health was different to the past in a really horrible way. I do not understand the machinations of the human mind, but I know that before the accident I was generally enjoying life. I worked, I had friends, I was able to enjoy things. While there were some low points [in] my life, it was mostly very good.”
She described her life after the accident as being very different; she does not go out socially or leave the house “very much at all”, she struggles to care for herself, and her “life is not normal and balanced”.
The claimant made a statutory declaration on 22 February 2019. Therein she describes being attacked by a neighbour on 6 February 2019, and the impact that the attack has had on her. She stated that the neighbour had “destroyed her quality of life”, that she is a “nervous wreck in her own home”, and says that the neighbour has “emotionally and financially crippled [her]”. She described being “completely worn down” and that she is afraid for her safety.
Mr Stollznow’s statement of 3 December 2019 records that he was a passenger in the vehicle being driven by the claimant at the time of the accident. He confirmed that after the impact the airbags deployed. He recalled the claimant being in shock after the accident, and that she was crying. He stated that since the accident the claimant has been “afflicted by a range of physical and mental health conditions”. He described her as having become a recluse, and states that she finds any public situation challenging without company. He found it “devastating to see a previous high achiever with a stellar work history still having major issues with simple day to day tasks.”
Mr Stollznow provided a statement dated 26 January 2021 in which he described his pre-and post-accident interactions with the claimant. He described her post accident mental health issues, and the assistance he has provided her. He states that he met the claimant in November 2017. He saw her twice weekly before the accident, would meet her for dinner, visit the beach, socialise with others. Mr Stollznow noted that the claimant worked as a contractor carrying out quality assurance (QA) of software code for leading Australian organisations. He goes on to describe the deterioration in her functioning, stating that she is now fearful, has frequent panic attacks, can be withdrawn or manic, is unable to focus on tasks or thoughts, is angry, lacks comprehension of others, and is unable to leave her dogs. She has mood swings including bouts of severe anger, is unable to keep track of simple things like medical appointments, is unable to develop meaningful social interactions, has frequent debilitating panic attacks, and disorganised thinking.
Mr Stollznow states that the claimant has had severe bouts of depression including inability to get out of bed, suicidal ideation, and inability to focus on tasks. Her anger would result in negative interactions with strangers when carrying out tasks outside the home and on the phone. He sees her as unable to function independently, noting that she has significant anxiety driving. She was often dishevelled and does not shop on a regular basis. She needs assistance remembering dates and times for medical appointments. She was highly anxious leaving the home and has relinquished what had been an active social life. The claimant was noted to have developed a website for E-commerce that, in Mr Stollznow’s opinion, should have taken a number of hours but took an inordinately long time. A further statement dated 20 January 2023 reiterates these difficulties.
In a statement dated 20 January 2023 Mr Stollznow described a number of symptoms exhibited by the claimant, including mood swings, stress and anxiety over minor issues, inability to focus, irregular sleeping patterns and “black and white thinking”. While she was able to drive “at times”, she was mostly too anxious to travel by herself. She went for long periods without good personal hygiene, and had “zero capacity to carry out paid employment”. He states that prior to the accident he did not observe any psychological issues. She was in continued employment. In the six months before the accident, the claimant was very active, socialised well, and had no obvious personal issues. Post-accident this changed completely. Mr Stollznow states that he is the only person with whom the claimant has regular contact.
In a statutory declaration made on 17 February 2019 Mr Stollznow addresses an incident he witnessed between the claimant and neighbour on 6 February 2019.

The claimant’s father has provided a statement dated 20 January 2022. He stated that prior to the accident the claimant did not complain of any psychological problems. She had an active social life, and regular employment. He noticed a “big change” after the accident; the claimant ceased making interstate visits to see her relatives in Adelaide and Tasmania. She has remained unemployed. He is “astonished at and worried about the changes [he has] observed in [his] daughter since her motor accident which appears to have impacted negatively on her in many respects.”

Photographs of the accident scene are in evidence and have been considered. There is a photograph depicting the vehicles where they came to rest after the collision, and the damage to the claimant’s vehicle. There is a photograph of the damage to the taxi. These photographs also appear in Dr McIntosh’s report.
The various emails relating to the prospective role at the Australian Taxation Office (ATO) have been considered, as has the correspondence from NSW Police dated 22 October 2019 responding to a complaint made by Mr Stollznow relating to the actions of police in attendance at the accident.

SUBMISSIONS

Insurer’s submissions

The insurer relies on written submissions dated 31 May 2024. The submissions record that the insurer seeks a determination to the effect that the claimant’s degree of psychiatric whole person impairment as a result of the accident is not greater than 10%. In the insurer’s submission, the claimant has recovered from any psychological injury caused by the accident and there is no assessable psychiatric impairment as a result of the accident.
The insurer argues that there is objective evidence of relevant and longstanding pre-existing psychological compromise. At [13] the insurer refers to specific entries in the clinical records that it argues support its submission. The insurer submits that these records demonstrate the significant extent of pre-existing psychological compromise together with non-accident-related ongoing stressors. The insurer submits the claimant’s current presentation is a manifestation of these pre-existing and unrelated issues, and the diagnoses made by Medical Assessor Mason all pre-dated the accident.
In the insurer’s submission the claimant failed to provide both Medical Assessor Mason and Dr Anderson with an accurate history with respect to her pre-accident history of psychological symptoms and treatment. It also submits that she denied any history of “problems with the law” to Medical Assessor Mason. The insurer argues the claimant’s subjective self-reporting ought not be accepted unless verified by independent objective evidence, and that medical opinion reliant on “misinformation” given by the claimant ought be afforded limited weight.
The insurer argues that the available post-accident medical evidence identifies significant non-accident-related stressors which are the primary, if not sole, cause of the claimant’s current complaints. In the insurer’s submission, the impairment deriving from these unrelated stressors ought be discounted from the assessment of the claimant’s degree of whole person impairment as required by the Guidelines.
The submissions record that the first post-accident mention of any psychological symptoms in the claimant’s treating medical records occurred on 6 June 2018, almost three months after the accident. The insurer submits the claimant’s psychological deterioration in June 2018 coincided with an escalation in the ongoing dispute with her neighbour. There is also reference to records referring to the claimant’s pre- and post-accident drug use.
The insurer refers to post-accident entries in treatment records that refer to a range of matters unrelated to the accident that it argues are causally relevant to the claimant’s mental health. In the insurer’s submission, there are multifaceted reasons for the claimant’s psychological complaints. In particular, she was substantially impacted by a dispute with her neighbour, her illicit drug use, her relationships with friends, boyfriends and her father, her uncle’s murder, and her criminal charges requiring her appearance in court. Further, she had been diagnosed with a thyroid condition, which, in the insurer’s submission, provides a further explanation for her reported symptoms.
The insurer argues that in circumstances where the accident was minor and features to a limited extent in the clinical records, there is little, if any, assessable impairment.
The insurer notes that in his original certificate, Medical Assessor Mason confirmed he could not elicit any trauma-related symptoms during his assessment despite taking a careful history and questioning the claimant directly about the presence of any such symptoms related to the accident. The insurer notes that the Medical Assessor indicated that the claimant only described depressive symptoms, and symptoms of a panic disorder and agoraphobia. In the insurer’s submission, this provides further evidence that the claimant’s psychological symptoms were not caused by, or related to, the accident, but rather, are a manifestation of her pre-existing and unrelated psychological stressors and Grave’s disease.
The insurer argues that the available medical records support the conclusion that the claimant, at most, suffered soft tissue injuries in the accident which have long since completely resolved. It argues that it is “noteworthy” that there is no objective pathology to explain the claimant’s assertions of physical injury. This, the insurer submits, is relevant in the context of the claimant’s argument that her psychological condition deteriorated as a result of her physical injuries.
In the insurer’s submission the claimant’s assertion, and Medical Assessor Mason’s conclusion, that her depressive symptoms and symptoms of both panic disorder and agoraphobia initially arose in the context of her pain and physical limitations resulting from the accident are “not justifiable”.
The insurer relies on Dr Baron-Levi’s opinion that the claimant’s presentation reflects a pre-existing psychological illness. The insurer also relies on the opinion of Dr McIntosh, biomechanical engineer, that the claimant’s complaints of neck and right shoulder pain on the day of the accident, and right hand and thumb pain the day after the accident, were consistent with the forces of the accident.
The insurer relies on Dr Sekel’s opinion that the claimant’s psychiatric presentation and entire history of psychiatric illness was likely related to an overactive thyroid disorder, and that her psychiatric symptoms would abate once she received a dose of a specialised radioactive treatment. The insurer also relies on Dr Sekel’s opinion that the claimant’s presentation was primarily, if not entirely, due to longstanding hyperthyroidism, coupled with potential chronic use of marijuana, and that the accident had not resulted in any ongoing physical injuries and had not impaired her past, present, or future earning capacity.
At [99]-[101] the insurer addresses matters relevant to the claimant’s credit and inconsistencies.
The insurer’s written submissions dated 6 August 2024 address the records from NSW Police and Sydney Local Court. From [3]-[75] the insurer refers to various matters recorded in the records.
The insurer submits the evidence is relevant given what it submits are the inaccurate and incomplete accounts provided by the claimant to medical practitioners. The insurer submits the claimant’s self-reporting should not be accepted unless verified by independent objective evidence.
In the insurer’s submission, the claimant’s denial to Medical Assessor Mason of any history of problems with the law is “patently inaccurate” given what is disclosed in the police and court records.

Claimant’s submissions

The claimant relies on written submissions dated 13 June 2024. With respect to the insurer’s submissions that address a pre-existing psychological condition, the claimant argues that the most recent incidence of pre-accident psychological history relied upon by the insurer dates back to July 2015. In her submission, there is no evidence of continuation of the psychological issues that she presented with at that time, and there is a period of almost three years preceding the accident in which there is no record of psychological diagnosis, injury, treatment, or impairment. Furthermore, she argues that the available evidence suggests she was not suffering from a psychological injury or impairment leading up to the accident. In this regard, the claimant relies on her evidence that she was working, living independently, and had an active social life.
To the extent that the insurer seeks to rely on records that post-date the accident as evidence of a condition that pre-dated the accident, the claimant says that the history in those records would be treated with caution and the contemporaneous notes, or lack thereof, preferred.
In the claimant’s submission, the evidence does not support a finding of a symptomatic psychological condition at the time of the accident, and does not support a deduction for pre-existing impairment under clause 6.31 of the Guidelines.
The claimant argues that the issues related to her neighbour are not the cause of her current condition given that up until the accident, despite the dispute, she was able to continue working and living a relatively normal life.
The claimant submits that the evidence establishes that her ability to function significantly deteriorated following the accident. She argues that if stressors other than the accident have contributed to her current condition, they fall within categories 1 or 2 of the three categories described in State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81-003; 10 MVR 57.
Given that she had functioned well for at least three years prior to the accident despite similar problems, the claimant argues that the evidence does not support a finding that her condition would have progressed to its present state if the accident had not occurred.
The claimant points to the opinions of Drs Bodel and Hyde Page in support of a submission that her accident-caused physical injuries have not resolved. She submits that her thyroid condition, diagnosed in 2023, cannot be considered to be the cause of her current psychological condition, which developed well before 2022.
In the claimant’s submission, Dr McIntosh’s report trespasses outside his field of expertise and into the field of medical expertise. His field of expertise extends to opining on whether the collision forces could have caused physical injuries. In her submission, it is not within Dr McIntosh’s expertise to express an opinion about whether she had made a sufficient recovery from the injuries that he accepts were causally related to the accident, so as to then render the subsequent fall a novus actus interveniens that would break the chain of causation with respect to the injuries sustained. The Panel accepts this submission.
In the claimant’s submission, Dr McIntosh’s report risks leading the Panel into error by failing to lawfully deal with causation principles. She argues that he provides no basis for his conclusion that the fall would have been more likely to cause the injuries, especially in light of the fact that the medical records he relies upon confirm that the neck and left shoulder problems pre-dated the fall. Further, she submits that it is for the Panel, not Dr McIntosh, to determine whether or not her physical injuries are caused by the accident, applying the test of causation set out in the guidelines.
The claimant’s submissions at [57]-[74] address matters said by the insurer to give rise to inconsistencies in her evidence, specifically relating to the ATO work opportunity, Methamphetamine use, her neighbour, and her physical injuries.
In the claimant’s submission she has an accident caused psychological injury that gives rise to an impairment that is greater than 10%.
The claimant’s written submissions dated 22 July 2024 record that the police records show that she was involved in a number of minor altercations that were reported to police during 2017.
She argues that all of the altercations appear to be unsupported by objective evidence to demonstrate the truth of the various versions given to police, and it is unclear whether she was responsible for any of the altercations that took place. She notes that none of those altercations resulted in any action being taken against her.
The claimant submits that there is nothing in the police records or Local Court records that would support a finding that she was suffering from a psychological condition or any psychological impairment between 2015 and the date of the accident. In her submission, it is notable that throughout this entire period she was working, living alone, and looking after herself. In her submission, there is no evidence to support a finding of a symptomatic psychological condition at the time of the accident or any deduction for pre-existing impairment.
Further, given that she continued to function well in her day-to-day life in the years preceding the accident, despite the various interactions with the Police, the claimant submits that the evidence does not support a finding that her condition would have progressed to its current state were it not for the motor accident.

The claimant also points to the opinion of Dr Milic that she:
“…showed resilience in progressing well in her education and career despite her parents’ divorce and the emotional distress from the deaths of her grandmothers. She continued to apply herself to her career despite relationship problems. Her car accident in 2018 exhausted her coping capacity and she has struggled to return to work since then. Her social functioning also deteriorated following the car accident”.
She argues that the documents from the NSW Police provide further support for a significant change in her functioning and mental health following the accident, noting that the only reference to mental health problems is in the post-accident period.
In further written submissions dated 20 August 2024, the claimant argues that there is nothing in the records that would support a finding she was suffering from a psychological condition or any psychological impairment between 2015 and the date of the accident. In her submission, the incidents referred to in the police and Local Court records in 2014 and 2015 are not evidence of any psychological condition between 2015 and the date of the accident, and the incident in 2023 was well after the accident. The claimant argues that minor altercations were not indicative of any problems with the law, and there is nothing that would support a finding that she was suffering a psychological condition.
The claimant argues that the events referred to in the insurer’s submissions at [35]-[75] all post-date the accident and, in her submission, are evidence of her worsening psychological state resulting from the accident.
In relation to the insurer’s contention that Dr Milic was provided with limited information, the claimant notes that the doctor was provided with her criminal record which she argues would have revealed the incidences of alleged past “trouble with the law” that the insurer is relying upon. In the claimant’s submission Dr Milic’s opinion is just one piece of evidence before the Panel, and it is for the Panel to decide what weight to give to the doctor’s report.

RE-EXAMINATION

The claimant was re-examined by Medical Assessors Roberts and Canaris by MS Teams on 29 October 2024.

Psychosocial history and pre-accident history

The claimant is a single woman who is supporting herself from the sale of one of her properties. She admitted a previous history of psychiatric illness but said “nothing’s ever affected me like this” and that she “considered [herself] resilient before”.

She said that she does not drink alcohol and has “occasionally smoked pot but nothing else”. She does not smoke tobacco. She admitted to using “harder drugs here and there” before the accident and “it became more of an issue” after this accident. She said:
“…you need to understand – I was alone – I felt forgotten – I was stupid enough to try something that this person gave me – I was elevated and it was like a kiss from heaven but coming down was terrible – my family came and did an intervention – they had me committed – they let me out the next day – it felt like a lifetime – I could hear the other patients howling – I stayed in embryo position… I was interviewed by a panel of psychiatrists, and they said I was good to go”.
The Medical Assessors raised with the claimant that she had a history of interactions with mental health services before the accident. She said she had no recall of consultations with Dr Miller. She did admit to having been on a low dose of Lexapro. She stoutly maintained that she had a good work history.
She was asked about her conflict with neighbours. She said she had been “at home and totally vulnerable with a freak downstairs… I didn’t cope with it well…”. She had called police and had him evicted.
She said she had not been “overly” involved in conflicts with the police. She spoke of a passionate involvement resulting in “a lover’s tiff with a man who supposedly was the love of my life” which culminated in an incident leading to police involvement “but I went back to work, and I was pretty happy with my life”.
She had been a solutions engineer and software consultant and was not happy at her last job where she had worked eight years – she resigned and then went contracting and at the time of the accident was looking to start with the ATO although she had not submitted her paperwork at the time of the accident. Her last job before the possibility of work with the ATO was in January 2018 with AKQA, a design and communications agency. She said she had completed the last three months of a year contract. Prior to that she had worked with the Department of Transport for about one year (2015/2016), and before that she had had a six-month contract with Ticketek preceded by a one-year contract with Channel 7. She said she had had full time contracts and that she did not take significant periods of time away from jobs.
The claimant was asked about a gap in her medical record in that there seemed to be no presentations between July 2015 and March 2018 when she registered with Myhealth Potts Point. She was asked whether she had perhaps been interstate. She denied this was the case saying that her doctor had retired “and we did try to get his notes”.
She said of her interactions with the police “the insurance has got my notes so wrong – yes there have been interactions – mostly I’ve called them [the police]”. She admitted to one interaction in which her neighbour called the police when she was having her bathroom renovated that involved a tradie drilling, which would have been in 2021.
She had no other claims history. She is hoping to access her super. She knew of no family history of psychiatric illness.
The claimant grew up in the Adelaide Hills where she continued to live until she was 31 years old. She has one younger sibling. Her parents are happily separated. Her father is an artist who now “repairs things” for a museum. Her mother “travels and enjoys her life”. She has an honours degree in IT. She went into Electronic Data Systems but also worked in restaurants and the like.
The claimant never married, but said she has been asked. She was in a relationship with a man that “didn’t work out… he was an arsehole – he didn’t treat me well… I took up with someone else… one of the things that went wrong was that he didn’t work, and I worked…”. After this she had been in a two-year relationship with a man she described as “the love of my life”. He “broke it off over something really small… he actually had a wife and kids in an apartment … I still went to work after that”. She has not had a relationship since then.

History of the accident

On the day in question, the claimant was driving with her friend Neil [Stollznow] and her dogs and a taxi pulled out and the airbags went off. She was worried about her dogs’ safety. She was “in a lot of pain” and said “all I could think of was the dogs”. Police and ambulance attended but she declined to go to hospital. She said that she was “very much in shock”. Her shoulder was hurting but she thought she would heal shortly.
The claimant said that she had a job lined up with the ATO but “I was unable to raise my right arm”. She was “examined that night by a doctor” and saw a doctor the next day. She went on to describe her difficulties with physical problems and with the taxi company.

History of symptoms and treatment following the motor accident

The claimant said she has since “recovered” physically but had put on a lot of weight. She feels “totally let down by the insurance companies… I’ve always contributed and worked… they won’t take my calls…”. She said, “It’s changed my life – I could be married with buns in the oven”. She has “no friends – I used to be in downtown Sydney gunning it on high end IT projects… I had two houses – I’ve had to sell one of them”.

She has been “lacrimosa – in Latin that means tearful – heartbroken – disillusioned – discouraged – devalued – forgotten…”. She experiences “a lot of sadness – some worry and fear – purposelessness – what could have been… I’ve been too weak to overcome this… the months went by, and I didn’t get better – this arm – several times I went to St Vincent’s – I had pain and pain and pain – at night I couldn’t sleep…”.
Her pain resolved “about a year ago” and she said she “get[s] a little reminder from time to time”.
She said she feels “pretty crap – I don’t go out – I get all my shopping delivered – I didn’t go out to events – I don’t do all the things I should be doing – I have deep concerns about what the future would bring…”.
She spends her time “hoping that things would change… do this – do that – pottering about the house – I don’t seem to be able to pay bills even though I have the money… it’s a list of things building up and building up…”. She could not explain why she could not pay bills saying, “I don’t know why – I’m not a psychiatrist”.
She has fortnightly sessions with Lynette Tull, psychologist, and finds her “hugely supportive and I trust her with my feelings… she understands what support is – it’s not telling people what they should be doing…”.
She is on Cymbalta 60mg daily prescribed by Dr Amanda Johnson, her GP.

Details of any relevant injuries or conditions sustained since the motor accident

Her life since the accident had been chaotic. She had had a fall down some stairs in April 2018 but as best as the Medical Assessors could tell she had not sustained any other subsequent injuries. There was a subsequent diagnosis of Graves’ disease last year, which gave rise to “really full-on physical symptoms – my feet blew up”. She is on carbimazole and propranolol. She said she may now be hypothyroid (“I just don’t do fat”) but wants to see what she termed a holistic practitioner.
Her ongoing conflicts with her neighbour were noted.

Current symptoms

Her currently reported symptoms comprise anxiety, depression, despondency, panic attacks, agoraphobia, insomnia, feelings of abandonment and isolation, and social withdrawal. It was also noted there were multiple occasions on which she was described as “manic”, agitated, angry, and aggressive. The substance use history was noted, as was her claim that she was now abstinent from alcohol and drugs.

Current and proposed treatment

She has fortnightly sessions with Ms Tull and is on Cymbalta 60mg daily prescribed by Dr Johnson.

Mental state examination

The claimant was interviewed via Microsoft Teams. The Medical Assessors were in their respective offices. A good audiovisual connection was established. She was at her place of residence on her own. The Medical Assessors saw her head and shoulders. She presented as a woman of appearance consistent with her stated age with long and very dishevelled dark hair. Her speech was slightly slurred. She provided the account documented above. Her narrative was chaotic, highly discursive, and disorganised. She was difficult to interrupt.
When asked to explain the source of some of her difficulties, the claimant responded on the lines of “I don’t know – I’m not a psychiatrist”. She appeared to be minimising pre-existing difficulties and blaming others for her difficulties.
There was some prickliness in her demeanour with a tendency at times to perceive herself as being accused or blamed for her difficulties. Her manner much of the time was very demonstrative and she was disinhibited. Her affect was labile and at times even fatuous. The Medical Assessors wondered whether she might have been mildly intoxicated. Despite her presenting demeanour and behaviours, the Medical Assessors noted that her account was essentially coherent and at least internally consistent.
Exercising their professional judgement and experience, the Medical Assessors were satisfied the claimant was not lacking capacity, particularly given the lack of any evidence of psychosis. Moreover, she did not appear to be cognitively impaired in that she had a good sequential recall for post-accident events and was able to give a biographical account of earlier life which was consistent in most aspects with the documentation on hand. The Medical Assessors did not find evidence that the omissions or minimisation of past difficulties was an effect of cognitive deficits or psychiatric compromise.

Current functioning

She said, “I would not be seen [before the accident] without my nails done – I’m not recognisable now”. She has dishes piled up in her sink. She does not cook and said “I have food rotting in my house now – I don’t know why…”. She had not had a shower for about a week. She does “not really” change her clothes. She buys fresh food with the intention of preparing but is too tired to do anything with it.
She no longer goes out socially and in the last three months has been out “nowhere”. She would not go out “for more than the time I need, and I don’t understand that – it’s not that I’m afraid – I haven’t been invited out for a birthday or a celebration for years”. She subsequently mentioned going to a beach – in fact, this was a deserted beach, and she went for her dogs.
She has been out to the local service station and can go to the butcher to get meat for the dogs. She is “OK” driving but on days when she is not feeling OK will not drive.
A friend, Neil, who was in the accident with her, “pops in to check”. He was a friend but not her partner and never had been. She has no partner and has not had a partner in recent times. Her mother lives in Adelaide and her father in Hobart. She remains in touch with her father “mostly” weekly to fortnightly and occasionally with her brother. She did not mention contact with her mother.
She presently lives in Budgewoi after her apartment in Darlinghurst was flooded – she is renting while repairs are completed and this paid for by an insurer.
Her concentration is “not great – it’s a problem – I lost my phone and my cards at the beach – I forget appointments – I don’t pay bills – I can’t explain it…”. She does watch TV and seems able to follow programs or at least “bits and pieces”. She has to rewind programs.
She has not been working, saying that her “head is a mess”. Since the potential ATO job, she had had “phone calls” but no work of any description. She was living off savings having sold a property.

Comments on consistency

The Medical Assessors noted the extent to which the claimant minimised pre-accident difficulties, and attempted to engage her in relation to her pre-accident history by drawing her attention to some of the material in the records. Her consistent contention was that records were wrong or in some cases that she did not remember material reported therein. For example, she had no recall of seeing Dr Miller, of using Clozapine, and minimised her drug use both prior to and subsequent to the accident. Her contention that she could not remember certain matters was at odds with her generally intact memory with respect to other matters.

Diagnosis and reasons

The Medical Assessors found the claimant’s presentation to be challenging. A diagnosis of post-traumatic stress disorder was considered. While the claimant was undoubtedly very distressed as a result of the accident, exercising their clinical judgement and experience the Medical Assessors were not satisfied the accident was a Criterion A event as described in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5-TR).

The history provided by the claimant and the documentation, when considered together, satisfy the Medical Assessors that the claimant has been highly distressed since the accident.
There is evidence of a significant substance use disorder both before and after the accident and the claimant’s presentation at interview suggested a mild level of intoxication. In many respects, she impressed as having a dramatic and erratic way of being (so-called Cluster B personality traits in DSM-5-TR) which had been present before the accident, while at the same time she described depressed mood and much sadness in its aftermath.
The Medical Assessors were satisfied on balance that the claimant had a substance use disorder prior to the accident which was not in remission despite her claims to the contrary. While this had been an ongoing presence in her life, given her ability to hold down work for much of the time prior to the accident, the Medical Assessors were satisfied that the substance abuse was made worse by the accident.
The claimant’s level of disturbance and apparent psychosocial deterioration over an extended period following the accident was too severe to warrant a diagnosis of adjustment disorder. The Medical Assessors were satisfied in this context that while there was evidence of prior psychiatric symptoms and dysfunction, her level of functioning in the period following the accident was distinctly worse. For example, despite the difficulties documented in the medical and police records, she had maintained reasonably steady employment prior to the accident. The Medical Assessors gave weight to her father’s statement and the statement of her friend Mr Stollznow, both of whom reported a significant change in the claimant’s level of functioning following the accident which was considerably greater than would be expected from an adjustment disorder.
There was evidence of a mood disorder. The claimant’s mood disturbance had, however, been far too chronic to warrant a diagnosis of major depressive disorder. Although there was evidence in the documentation of episodes of mood elevation described as mania, it was not clear whether such episodes may have been substance related or exacerbated. There were additional puzzling aspects to the claimant’s history such as the period during which she took her then partner’s Clozapine, as well as subsequent to the accident when she had been prescribed Olanzapine. Consequently, the Medical Assessors were not satisfied that there was a persistent depressive disorder (dysthymia), which would ordinarily be described as a depressive presentation in which depression had been present for over two years.

DSM-5-TR does, however, provide for situations which are diagnostically unclear with a category termed unspecified mood disorder. The DSM-5-TR description of this is as follows:
“This category applies to presentations in which symptoms characteristic of a mood disorder that cause clinically significant distress or impairment in social, occupational, or other important areas of functioning predominate but do not at the time of the evaluation meet the full criteria for any of the disorders in either the bipolar or the depressive disorders diagnostic classes and in which it is difficult to choose between unspecified bipolar and related disorder and unspecified depressive disorder (e.g., acute agitation).”
The Medical Assessors were satisfied that the claimant met the diagnostic criteria for an unspecified mood disorder that was present before the accident. The Medical Assessors were also satisfied that this condition was aggravated by the accident. In this regard, the Medical Assessors noted the claimant’s presentations before the accident between 2009 and 2015 in which she was variously described at different times as highly anxious, depressed, suicidal, having thoughts of self-harm, lonely, finding it difficult to get out of bed, having difficulty sleeping, feeling unable to shut down her mind, and observed to be teary with poor concentration or monosyllabic and flat.
The Medical Assessors also noted concurrent prescriptions for antidepressants and her substance use, noting that substance use is often comorbid with a mood disorder.
While there was a prominence of pain in her earlier presentations, the claimant reported when she was re-examined that this had completely resolved. It was also noted that she was diagnosed with a somatic symptom disorder by Medical Assessor Mason. However, given the apparent complete absence of pain symptoms at this assessment, the Medical Assessors were not satisfied that the claimant presented with a somatic symptom disorder, and determined that if this condition was previously present, it was now in complete remission.
Although there was evidence in the documentation suggestive of a dramatic and erratic way of being, and the Medical Assessors concluded that the claimant at the very least had prominent Cluster B personality traits, they were not satisfied that she had a personality disorder. For a personality disorder diagnosis to be made, maladaptive traits should be evident from at least late adolescence or early adult life. The evidence does not support a finding that her Cluster B personality traits were apparent in late adolescence and early adult life, bearing in mind her academic achievements. Moreover, the diagnosis of personality disorder in DSM-5-TR is not made out if there is evidence that the pattern can be explained as a manifestation or consequence of another mental disorder. Additionally, there was no evidence of developmental trauma in the history the claimant provided or in the documentation on hand. An adverse developmental experience is a typical precursor to Cluster B personality disorders. The Medical Assessors were of the view that these traits may have come into greater prominence with the exacerbation of the claimant’s substance and mood disorder as, in their clinical experience, is not infrequently the case.
The diagnosis of agoraphobia was considered, noting the presence of agoraphobic symptoms. It appeared to the Medical Assessors that the symptoms were better explained as a manifestation of her mood disorder and comorbid substance use. The Medical Assessors were not satisfied that a separate diagnosis of agoraphobia is warranted.

Causation and reasons

Both substance use disorders and mood disorders can have relapsing and remitting courses. It would appear that the claimant had a period of about one year free of presentations although she was not free of interactions with the police. The Medical Assessors consider it clinically unlikely either of these conditions had remitted or resolved prior to the accident, and are satisfied on balance that the claimant was suffering from both conditions when the accident occurred.
The Medical Assessors are satisfied there was a significant worsening of the claimant’s functioning in the immediate aftermath of the accident. In particular, she has not returned to work and her symptoms of anxiety and depression have become considerably more prominent. In this context, the Medical Assessors noted the claimant’s presentations between 2009 and 2015 to the Macleay Street practice with requests for medication, anxiety, depression, panic, and the like with specialist referrals in 2013 to Dr Miller and to psychologist Lesley Bainbridge. The most dramatic presentation seems to have been on 20 and 21 January 2015 when she was assessed by the Acute Care Team of St Vincent’s Hospital at the request of police. In the period following the accident (2018-2024) the Medical Assessors noted the presentations to health services with mental health issues including an intervention from the Acute Care Team on 9 July 2018 and a similar interaction on 20 August 2018. She had presentations to the accident and emergency department at St Vincent’s Hospital while suicidal. She had an admission over 17 to 18 April 2019 at St Vincent’s Hospital as well as a PACER intervention at the request of police on 30 April 2023. The Medical Assessors also considered each of the claimant’s interactions with the police, both before and after the accident.

Exercising their clinical experience and judgement, the Medical Assessors were satisfied that the mental health presentations and increase in interactions with the police in the post-accident period provided objective evidence of a substantial deterioration in the unspecified mood disorder.
The Medical Assessors considered the potential contribution to the mood disorder arising from the conflict with the claimant’s neighbour which did not appear to emanate entirely from her. Consideration was also given to the possible contribution of Graves’ disease.
In relation to Graves’ disease, the Medical Assessors noted that the claimant was treated with carbimazole and propranolol which are standard treatments in hyperthyroid states. While the claimant stated that she might be hypothyroid, the Medical Assessors did not observe any gross features suggestive of hyperthyroidism such as exophthalmos or tremor, and the claimant’s manner and demeanour were not suggestive of gross hypothyroidism.
In relation to the conflict with her neighbour, the Medical Assessors noted that this had been long-standing. They also noted that the claimant had relocated away from her former neighbour 18 months ago, indicating that any contribution from those difficulties had dissipated. The Medical Assessors were satisfied that the claimant’s psychological problems were a cause rather than a consequence of the conflict with her neighbour and, although thyroid function tests were not available, there was no evidence that the treated Graves’ Disease was contributing to the claimant’s psychiatric presentation.
The Medical Assessors considered the opinion of Dr Baron-Levi to the effect that the claimant was exaggerating her symptoms and that she was entirely fit to resume work. Dr Baron-Levi’s opinion about these matters was not, in the opinion of the Medical Assessors, consistent with their assessment of the totality of the evidence, including the claimant’s overall presentation. While the Medical Assessors acknowledged the possibility that the claimant may have sought to amplify her levels of distress, they noted repeated presentations in a wide range of settings, such as to general practitioners, in which there was no forensic advantage to present herself as unwell. The Medical Assessors also took note of the statements of Mr Stolzznow which document her difficulties undertaking what he considered to be relatively straightforward IT tasks.

Degree Of Permanent Impairment Psychiatric Impairment Rating Scale

Psychiatric diagnoses 1. Aggravation of unspecified mood disorder 2. Aggravation of substance use disorder

Psychiatric treatment description She consults with a psychologist and takes duloxetine.

Category Class Reason for Decision

1.        Self-Care and Personal Hygiene 3 She said, “I would not be seen [before the accident] without my nails done – I’m not recognisable now”. She has dishes piled up in her sink. She does not cook and said, “I have food rotting in my house now – I don’t know why…”. She had not had a shower for about a week. She does “not really” change her clothes. She buys fresh food with the intention of preparing it but is too tired to do anything with it.
It was clear from the history she provided that she could not prepare her own meals or maintain adequate hygiene. Her dishevelled appearance was consistent with this history. She has been having regular visits from her friend Mr Stolzznow who took it on himself to ensure that she was managing.
The Medical Assessors noted in this context Mr Stolzznow’s statement dated 26 January 2021 in which he said that he carried out most of her shopping and was visiting her daily and often twice daily.
Exercising their clinical judgement the Medical Assessors determined that the claimant has a moderate impairment.

2.        Social and Recreational Activities 3 She no longer goes out socially and in the last three months has been out “nowhere”. She said she would not go out “for more than the time I need, and I don’t understand that – it’s not that I’m afraid – I haven’t been invited out for a birthday or a celebration for years”. She mentioned going to a deserted beach for her dogs.
The Medical Assessors determined that the claimant has a moderate impairment.

3. Travel
2 She has been out to the local service station and can go to the butcher to get meat for the dogs. She is “OK” driving but on days when she is not feeling OK will not drive. She restricts herself to limited local journeys on her own. The Medical Assessors noted the statement of her friend Mr Stolzznow in which he comments on her inability to make any other than very brief local journeys by herself.

4.        Social Functioning
3 Mr Stolzznow “pops in to check” on the claimant. She has no partner and has not had a partner in recent times. Her mother lives in Adelaide and her father in Hobart. She remains in touch with her father “mostly” weekly to fortnightly and occasionally with her brother. She did not mention contact with her mother. The Medical Assessors noted in this context the statement of Mr Stolzznow, who comments on her isolation and her lack of social network. The severity of her symptoms and her presentation at interview would potentially undermine establishment of new relationships. Using clinical judgement, her impairment was considered moderate.

5.        Concentration, Persistence and Pace 3 She said that her concentration is “not great – it’s a problem – I lost my phone and my cards at the beach – I forget appointments – I don’t pay bills – I can’t explain it…”. She does watch TV and seems able to follow programs or at least “bits and pieces”. She has to rewind programs to rewatch what she has not followed.
Her presentation at the re-examination was discursive and disinhibited. Exercising clinical judgement she has a moderate impairment.

6. Adaptation
4 She has not been working saying that her “head is a mess”. The Medical Assessors determined the claimant was not employable on the open labour market in her current state as a result of her unspecified mood disorder and comorbid substance use disorder. The Medical Assessors particularly noted her disorganised and disinhibited presentation at the re-examination with lability of mood which would make open labour market employment impossible. She would similarly be too disorganised for self-employment. The claimant continued to care for her dogs, reflecting some residual adaptation. The Medical Assessors determined that she had a severe impairment.

List classes in ascending order: 2, 3, 3, 3, 3, 4

Median Class Value: 3

Aggregate Score: 18

% Whole Person Impairment: 22%

*%WPI ^{= Percentage Whole Person Impairment}

Psychiatric Impairment Rating Scale – Pre-existing impairment

The claimant’s contention that she had been a well-functioning woman up until the accident was considered. The Medical Assessors are, however, satisfied that she had a pre-existing unspecified mood disorder and substance abuse disorder.
The Medical Assessors are satisfied that there is objective evidence that supports a finding that there was a pre-existing symptomatic permanent impairment due to the pre-existing unspecified mood disorder and substance abuse disorder at the time of the accident. That evidence includes references in pre-accident documentation to difficulties at work, references to tempestuous and at times volatile relationships, and the claimant’s interactions with police. While the medical documentation after 2015 is silent on this score, the Medical Assessors noted her interactions with police throughout 2017.
The method set out in the Guidelines for “Mental and behavioural disorders” in cls 6.201–6.228 has been used to estimate the overall pre-existing impairment, as required by cl 6.218. The overall pre-existing impairment is estimated to be 6%, as recorded in the table below. In arriving at this estimate, the Medical Assessors have considered the totality of the documentary evidence, the information provided by the claimant when she was re-examined, and applied their clinical judgement and experience.

Psychiatric diagnoses 1. Unspecified mood disorder 2. Substance use disorder

Psychiatric treatment description Intermittent treatment with antidepressant and other psychotropic medication via a psychiatrist and her GP

Category Class Reason for Decision

1.        Self-Care and Personal Hygiene 2 The claimant reported that she looked after herself well. Periods in the documentation such as in 2014 indicate that her self-care may have been suboptimal. While evidence of suboptimal care was not apparent in later documentation prior to the accident, clinical experience and judgement supports a conclusion that problems in this category are likely to have been at least intermittently present given the ongoing substance use problem. Evidence of volatility was apparent through 2017 which suggested an active substance use disorder. Exercising clinical judgement the Medical Assessors were of the view that there was a mild impairment, consistent with class 2 in this category.

2.        Social and Recreational Activities 2 The Medical Assessors noted her difficulties getting out of the house in 2014 as described in the records of Dr Smith. The claimant portrayed herself in March 2018 as a “recluse” when she registered with Myhealth Potts Point shortly before the accident. This contrasted with the portrayal of her functioning in the statements of Mr Stollznow and her father. The Medical Assessors were satisfied that her functioning in this category was likely to have fluctuated over the years. Applying clinical judgement it was concluded that a mild impairment was indicated.

3.        Travel
1 There was no evidence of any impairment in relation to travel. There had been a period in 2014 when she had considerable difficulty leaving the house but as best as the Medical Assessors could tell, she was not impaired in this regard much of the time over the years preceding the accident. There was no deficit or at most a minor deficit.

4.        Social Functioning
3 She had a pattern of volatility in her relationships including exposure to violence as evidenced in the notes of the Macleay Street Practice in 2015 and her interactions with the police over the months preceding the accident in February, April, May, June, and December 2017. There was a moderate impairment.

5.        Concentration, Persistence and Pace 2 The Medical Assessors noted periods of documented impairment in concentration as referred to in the records of the Macleay Street Practice in 2014. Those records included references to poor sleep, poor concentration, difficulty making decisions, and decreased self-confidence. While possible that she may have recovered, the Medical Assessors were satisfied, particularly given her substance use history, that she would have had at least a mild impairment over the years preceding the accident.

6. Adaptation
2 The Medical Assessors noted intermittent periods of work impairment prior to the accident including departures from jobs because of reported work-related stress as evident in the records of the Macleay Street Practice on 22 November 2013, 9 December 2013, 19 June 2013, 27 March 2014, and 7 May 2014. She was certified as not well enough to work with subsequent recommendations of a gradual return to work. There was also a period when she worked from home. However, she seems to have returned to full-time employment. In view of ongoing evidence of substance use disorder and mood disorder, clinical judgement suggested at least a mild impairment over the years preceding the accident.

List classes in ascending order: 1, 2, 2, 2, 2, 3

Median Class Value: 2

Aggregate Score: 12

Pre-existing % Whole Person Impairment:  6%
*%WPI

Subsequent impairment

The Medical Assessors considered whether there was a subsequent impairment. In this regard, they noted the claimant’s ongoing difficulties with neighbours, including her involvement with police after she was charged in relation to an incident with a neighbour, and the emergence of her Graves’ disease. The Medical Assessors concluded, however, that her difficulties with her neighbour had ceased to be an issue following her move to Budgewoi, while the charges represented but one of many such interactions. The Medical Assessors also concluded that there was little evidence that her Graves’ disease substantially contributed to her psychiatric issues. Exercising their clinical judgement and experience, the Medical Assessors were satisfied that there was no subsequent impairment.

Apportionment – pre-existing/subsequent impairment

The total whole person impairment is 22%, 6% of which is attributable to pre-existing impairment. Therefore, the motor accident has caused 16% whole person impairment.

Effects of treatment

The Medical Assessors have not made any adjustment for treatment effects.

CONCLUSION – PERMANENT IMPAIRMENT

The degree of permanent impairment caused by the motor accident is 16%.

DETERMINATION

The claimant’s case is that she suffered psychological injury and consequential impairment as a result of the accident that is greater than 10%. The insurer’s primary submission is that the claimant has recovered from any psychological injury caused by the accident and there is no assessable psychiatric impairment as a result of the accident. The insurer’s submission in the alternative is that any impairment caused by the accident is not greater than 10%.

The claimant’s reliability

In the insurer’s submission, the claimant has provided incorrect information to medical practitioners such that her self-reporting ought not be accepted unless verified by independent objective evidence. The insurer’s submissions at [100] refer to evidence it relies on in this regard. The insurer argues that medical opinion reliant on “misinformation given by the claimant” should be afforded limited weight.
In arriving at its findings, the Panel has considered the totality of the evidence. That evidence includes the history provided by the claimant when she was examined by the medical members of the Panel, statements from the claimant’s father and Mr Stollznow, together with clinical records and reports from treatment providers, and records from the Local Court and NSW Police.

Did the claimant suffer from a pre-existing psychological condition?

The insurer argues that there is objective evidence of relevant and longstanding pre-existing psychological compromise, and that this pre-accident evidence ought be taken into account when determining the claimant’s whole person impairment.
The documentary evidence, that includes reports and descriptions of the claimant’s behaviour prior to the accident, together with the opinion of the medical members of the Panel, support a finding on the balance of probabilities that the claimant suffered from a pre-existing substance use disorder and unspecified mood disorder.
For the reasons given earlier by the medical members of the Panel, the Panel is satisfied that the DSM-5 TR diagnostic criteria for unspecified mood disorder and substance use disorder are met. The Panel finds that the claimant suffered from these conditions prior to the accident.

Was there a pre-existing psychological impairment?

The Panel is satisfied that there is objective evidence the claimant exhibited a persistent pattern of behaviour consistent with an unspecified mood disorder and substance use disorder up to the time of the accident and that there was a pre-existing impairment within the meaning of cl 6.31 of the Guidelines. The evidence that supports this finding is contained in the documents before the Panel to which reference has previously been made.
The Panel agrees with and adopts the specific findings of the medical members of the Panel with respect to pre-existing impairment, including the PIRS ratings they assigned.
The Panel finds that the pre-existing impairment arising from the unspecified mood disorder and substance use disorder is 6%. The pre-existing impairment has been deducted from the current impairment as required by cl 6.218 of the Guidelines.

Did the accident cause or contribute to a psychological condition that was more than negligible?

The Panel is satisfied that as a result of the accident the claimant aggravated the unspecified mood disorder and substance use disorder. Her mental health presentations and the increase in interactions with the police after the accident provide objective evidence of a substantial deterioration in each condition. Further, the Panel gives weight to the statements provided by Mr Stollznow (26 January 2021 and 20 January 2023) and the statement from the claimant’s father, that record a deterioration in her post-accident functioning.
The Panel is satisfied that the timing, nature and worsening in symptoms of the unspecified mood disorder and substance use disorder support a finding that the accident caused a material and permanent aggravation of these conditions.
The Panel finds that the accident was a necessary condition of the aggravation of the unspecified mood disorder and substance use disorder, and that, but for the accident the aggravation of these conditions would not have occurred.

Is there a permanent impairment as a result of the psychological injury caused by the accident?

The insurer argues that in circumstances where the accident was minor and features to a limited extent in the clinical records, there is little, if any, assessable impairment as a result of the accident.
The clinical judgement of the medical members of the Panel, both of whom are psychiatrists, is the most important tool in the application of the PIRS: cl 6.217 Guidelines. The Panel notes that the evaluation of impairment should only consider the impairment as it is at the time of the assessment: cl 6.21 Guidelines.
The Panel adopts the precise examination findings and conclusions of the medical members of the Panel based on their examination of the claimant, and their specific findings with respect to each PIRS category and permanent impairment. The Panel finds that the claimant has a permanent impairment of 22% as a result of the unspecified mood disorder and substance use disorder.
After deducting the pre-existing impairment of 6% from the current impairment, as required by cl 6.218 of the Guidelines, the Panel finds that the claimant has a 16% permanent impairment as a result of the psychological injuries caused by the accident. It follows that the degree of permanent impairment of the claimant as a result of the accident caused psychological injuries is greater than 10%.

Is there objective evidence of a subsequent and unrelated psychological injury or condition resulting in permanent impairment?

In addition to arguing that there was significant pre-existing psychological compromise, the insurer submits that there are non-accident-related ongoing stressors. The insurer argues that the claimant’s current presentation is a manifestation of these unrelated issues.
The insurer submits that the available post-accident medical evidence identifies significant non-accident-related stressors which are the primary, if not sole, cause of the claimant’s current complaints.
The Panel has found that the pre-existing unspecified mood disorder and substance use disorder were aggravated as a result of the accident, and that the claimant has a permanent impairment caused by the accident.
The Panel agrees with and adopts the reasons given by the medical members of the Panel for their conclusion that there was no subsequent impairment: cl 6.34 of the Guidelines.
The Panel is not satisfied there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment.

The certificate under review is revoked

The Panel’s findings with respect to the claimant’s accident caused psychological injuries and impairment differ from the findings made by Medical Assessor Mason. Accordingly, the Panel revokes the certificate of Medical Assessor Mason dated 4 April 2023 and issues a new certificate that reflects its findings.

Psychiatric diagnoses	1. Aggravation of unspecified mood disorder	2. Aggravation of substance use disorder
	Psychiatric treatment description	She consults with a psychologist and takes duloxetine.

Category	Class	Reason for Decision
1. Self-Care and Personal Hygiene	3	She said, “I would not be seen [before the accident] without my nails done – I’m not recognisable now”. She has dishes piled up in her sink. She does not cook and said, “I have food rotting in my house now – I don’t know why…”. She had not had a shower for about a week. She does “not really” change her clothes. She buys fresh food with the intention of preparing it but is too tired to do anything with it. It was clear from the history she provided that she could not prepare her own meals or maintain adequate hygiene. Her dishevelled appearance was consistent with this history. She has been having regular visits from her friend Mr Stolzznow who took it on himself to ensure that she was managing. The Medical Assessors noted in this context Mr Stolzznow’s statement dated 26 January 2021 in which he said that he carried out most of her shopping and was visiting her daily and often twice daily. Exercising their clinical judgement the Medical Assessors determined that the claimant has a moderate impairment.
2. Social and Recreational Activities	3	She no longer goes out socially and in the last three months has been out “nowhere”. She said she would not go out “for more than the time I need, and I don’t understand that – it’s not that I’m afraid – I haven’t been invited out for a birthday or a celebration for years”. She mentioned going to a deserted beach for her dogs. The Medical Assessors determined that the claimant has a moderate impairment.
3. Travel	2	She has been out to the local service station and can go to the butcher to get meat for the dogs. She is “OK” driving but on days when she is not feeling OK will not drive. She restricts herself to limited local journeys on her own. The Medical Assessors noted the statement of her friend Mr Stolzznow in which he comments on her inability to make any other than very brief local journeys by herself.
4. Social Functioning	3	Mr Stolzznow “pops in to check” on the claimant. She has no partner and has not had a partner in recent times. Her mother lives in Adelaide and her father in Hobart. She remains in touch with her father “mostly” weekly to fortnightly and occasionally with her brother. She did not mention contact with her mother. The Medical Assessors noted in this context the statement of Mr Stolzznow, who comments on her isolation and her lack of social network. The severity of her symptoms and her presentation at interview would potentially undermine establishment of new relationships. Using clinical judgement, her impairment was considered moderate.
5. Concentration, Persistence and Pace	3	She said that her concentration is “not great – it’s a problem – I lost my phone and my cards at the beach – I forget appointments – I don’t pay bills – I can’t explain it…”. She does watch TV and seems able to follow programs or at least “bits and pieces”. She has to rewind programs to rewatch what she has not followed. Her presentation at the re-examination was discursive and disinhibited. Exercising clinical judgement she has a moderate impairment.
6. Adaptation	4	She has not been working saying that her “head is a mess”. The Medical Assessors determined the claimant was not employable on the open labour market in her current state as a result of her unspecified mood disorder and comorbid substance use disorder. The Medical Assessors particularly noted her disorganised and disinhibited presentation at the re-examination with lability of mood which would make open labour market employment impossible. She would similarly be too disorganised for self-employment. The claimant continued to care for her dogs, reflecting some residual adaptation. The Medical Assessors determined that she had a severe impairment.
List classes in ascending order: 2, 3, 3, 3, 3, 4
Median Class Value: 3
Aggregate Score: 18
% Whole Person Impairment: 22%

Psychiatric diagnoses	1. Unspecified mood disorder	2. Substance use disorder
	Psychiatric treatment description	Intermittent treatment with antidepressant and other psychotropic medication via a psychiatrist and her GP

[2024] NSWPICMP 819

3 December 2024