CIC Allianz Insurance Limited v Tunks

DETERMINATION OF REVIEW PANEL
CITATION:	CIC Allianz Insurance Limited v Tunks [2023] NSWPICMP 82
CLAIMANT:	Kerry Leanne Tunks
INSURER:	CIC Allianz Insurance Limited
REVIEW Panel
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Gerald Chew
MEDICAL ASSESSOR:	Samson Roberts
DATE OF DECISION:	10 March 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Compensation Act 1999; the claimant suffered injury in a motor vehicle accident on 14 June 2016; dispute as to whether psychiatric counselling attendances on 18/4/19 and 24/1/19, 0-12 GP consultations for the next 0-10 years, 0-12 consultations with a psychiatrist for next 0-4 years, 0-12 consultations with a psychologist for next 0-4 years, one off pain management program, inpatient admission to a psychiatric unit for a period of 4-6 weeks and 0-30 tablets of anti-depressant medication per month for next 0-5 years was caused by the accident and was reasonable and necessary; section 58; Held – diagnosis of post-traumatic stress disorder and major depressive disorder caused by the accident; certificate of Medical Assessor Paisley revoked; Panel certified psychiatric counselling attendances with psychiatrist on 18 April 2019 and 24 January 2019, four GP consultations per year for the next two years for the psychological injuries, 12 consultations with a psychologist per year for the next two years, 12 consultations with a psychiatrist per year for the next two years and a therapeutic dose of anti-depressant medication per month for the next two years constituted evidence based treatment; treatment reasonable and necessary and caused by the accident; Panel unable to stipulate future dosage of anti-depressant medication; Panel certified admission as an inpatient into a psychiatric unit for a period of 4-6 weeks not reasonable and necessary in the circumstances; treatment dispute in relation to one-off pain management program for a three week period does not relate to the psychiatric injury.
DETERMINATIONS MADE:	Medical Assessment – Treatment Dispute Review Panel Certificate Issued under part 3.4 of the Motor Accident Compensation Act 1999 Following a review under s 63 as to whether treatment provided or to be provided to the claimant was or is reasonable and necessary under the circumstances and whether that treatment relates to the injury caused by the accident. 1. The Panel revokes the Certificate of Medical Assessor Shannon Paisley dated 18 October 2021. 2. The Panel certifies the following treatment is reasonable and necessary in the circumstances: (a) psychiatric counselling attendances with Dr Jayalath, psychiatrist on 18 April 2019 and 24 January 2019; (b) four GP consultations per year for the next two years for the psychological injuries; (c) 12 consultations with a psychologist per year for the next two years; (d) 12 consultations with a psychiatrist per year for the next two years, and (e) a therapeutic dose of antidepressant medication per month for the next two years. 3. The Panel certifies the following treatment relates to the injury caused by the motor accident: (a) psychiatric counselling attendances with Dr Jayalath, psychiatrist on 18 April 2019 and 24 January 2019; (b) four GP consultations per year for the next two years for the psychological injuries; (c) 12 consultations with a psychologist per year for the next two years; (d) 12 consultations with a psychiatrist per year for the next two years, and (e) a therapeutic dose of antidepressant medication per month for the next two years. 4. The Panel certifies the following treatment is not reasonable and necessary in the circumstances: · admission as an inpatient into a psychiatric unit for a period of four to six weeks. 5. The Panel certifies the following treatment does not relate to the injury caused by the accident: · admission as an inpatient into a psychiatric unit for a period of four to six weeks. 6. The Panel certifies that the following treatment and care dispute does not relate to the psychiatric injury: · whether a one-off pain management program for a three week period for the psychological injuries is causally related to the injury sustained in the subject accident.

REASONS FOR DECISION

BACKGROUND

Ms Kerry Leanne Tunks (the claimant) was injured in a motor vehicle accident on
14 June 2016 (the accident).
CIC Allianz Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the Motor Accident Compensation Act 1999 (the MAC Act).
A permanent impairment dispute in respect of the claimant’s psychiatric injuries was filed bearing matter number APP-10262032.
A treatment dispute in respect of both the claimant’s physical and psychological injuries was filed bearing matter number APP-10260926.
The permanent impairment dispute and those aspects of the treatment dispute relevant to the claimant’s psychological injuries were referred to Medical Assessor Paisley. Medical Assessor Paisley assessed both disputes together and issued one Certificate addressing both the permanent impairment dispute and the treatment dispute.

MEDICAL ASSESSMENT UNDER REVIEW

The Certificate of Medical Assessor Paisley was dated 18 October 2021.[1]
[1] AD3 p 31.
Medical Assessor Paisley was asked to assess a dispute as to permanent impairment under s 58(1)(d) of the MAC Act in respect of the following injuries:
· psychological – post-traumatic stress disorder, anxiety, depression.
Medical Assessor Paisley certified the following injuries caused by the motor accident gave rise to a whole person impairment (WPI) of 8%:
· psychological – post-traumatic stress disorder and major depressive disorder.
Medical Assessor Paisley concluded the onset of symptoms occurred after the accident with no evidence of any pre-existing or underlying psychiatric disorder. He considered the claimant’s intercurrent medical conditions in 2018 may have temporarily exacerbated her symptoms but were not contributing to her current impairment, particularly noting her breast cancer had been in remission for three years.
Medical Assessor Paisley was also asked to assess a treatment dispute under s 58 of the MAC Act in respect of disagreement between the claimant and the insurer about the following matters:
(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, and
(b) whether any such treatment relates to the injury caused by the motor accident.
The following treatment disputes were referred to Medical Assessor Paisley:
(a)    whether psychiatric counselling attendances with Dr Jayalath, psychiatrist, on 18 April 2019 and 24 January 2019 is causally related to the injury sustained in the subject accident;
(b)    whether psychiatric counselling attendances with Dr Jayalath, psychiatrist, on 18 April 2019 and 24 January 2019 is reasonable and necessary in relation to the injury sustained in the subject accident;
(c)    whether 0-12 general practitioner (GP) consultations per year for the next 0-10 years for the psychological injuries is causally related to the injury sustained in the subject accident;
(d)    whether 0-12 GP consultations per year for the next 0-10 years for the psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident;
(e)    whether a one-off pain management program for a three-week period for the psychological injuries is causally related to the injury sustained in the subject accident;
(f)    whether a one-off pain management program for a three-week period for the psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident;
(g)    whether 0-12 consultations with a psychologist per year for the next 0-4 years is causally related to the injury sustained in the subject accident;
(h)    whether 0-12 consultations with a psychologist per year for the next 0-4 years is reasonable and necessary in relation to the injury sustained in the subject accident;
(i)    whether 0-12 consultations with a psychiatrist per year for the next 0-4 years is causally related to the injury sustained in the subject accident;
(j)    whether 0-12 consultations with a psychiatrist per year for the next 0-4 years is reasonable and necessary in relation to the injury sustained in the subject accident;
(k)    whether admission as an inpatient into a psychiatric unit for a period of four to six weeks is causally related to the injury sustained in the subject accident;
(l)    whether admission as an inpatient into a psychiatric unit for a period of four to six weeks is reasonable and necessary in relation to the injury sustained in the subject accident;
(m)     whether 0-30 tablets of antidepressant medication per month for the next 0-5 years is causally related to the injury sustained in the subject accident, and
(n)    whether 0-30 tablets of antidepressant medication per month for the next 0-5 years is reasonable and necessary in relation to the injury sustained in the subject accident.
Medical Assessor Paisley reported Ms Tunks was seeing a psychologist Donna monthly, and a psychiatrist bi-monthly for the last two years. She was also prescribed the antidepressant Efexor-XR at a dose of 300mg in the morning and the sedative antipsychotic Seroquel at a dose of 50-100mg at night to assist with sleep and anxiety. He reported the treatments had helped a little.
Medical Assessor Paisley certified the following treatment related to the injury caused by the accident:
(a)    psychiatric counselling attendances with Dr Jayalath, psychiatrist on
18 April 2019 and 24 January 2019;
(b)    0-12 GP consultations per year for the next 0-10 years for the psychological injuries;
(c)    0-12 consultations with a psychologist per year for the next 0-4 years;
(d)    0-12 consultations with a psychiatrist per year for the next 0-4 years;
(e)    admission as an inpatient into a psychiatric unit for a period of four to six weeks, and
(f)    0-30 tablets of antidepressant medication per month for the next 0-5 years.

Medical Assessor Paisley certified the following treatment was reasonable and necessary in the circumstances noting they were appropriate, evidence based, likely to contribute to the stabilisation of her symptoms and prevent further deterioration:
(a)    psychiatric counselling attendances with Dr Jayalath, psychiatrist on 18 April 2019 and 24 January 2019;
(b)    0-12 GP consultations per year for the next 0-10 years for the psychological injuries;
(c)    0-12 consultations with a psychologist per year for the next 0-4 years;
(d)    0-12 consultations with a psychiatrist per year for the next 0-4 years, and
(e)    0-30 tablets of antidepressant medication per month for the next 0-5 years.
Given the chronic, treatment resistant nature of her conditions Medical Assessor Paisley concluded an in-patient hospital stay was unlikely to be of benefit. He certified the following treatment was not reasonable and necessary in the circumstances:
· admission as an inpatient into a psychiatric unit for a period of four to six weeks.
Medical Assessor Paisley certified the following treatment disputes do not relate to the claimant’s psychiatric injuries and therefore referred those disputes back to the Personal Injury Commission (Commission) for determination:
(a) whether a one-off pain management program for a three-week period for the psychological injuries is causally related to the injury sustained in the subject accident, and
(b) whether a one-off pain management program for a three-week period for the psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident.

REVIEW PROCEDURE

The insurer applied for a review of the Medical Assessment Certificate of Medical Assessor Paisley dated 18 October 2021 pursuant to s 63 the MAC Act limited to the treatment dispute only.
The Commission commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of part 2, division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under cl 14A(1)(a)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review which was completed before 1 March 2021.
The new review provisions provide that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Commission.
Clause 16.3.1 of the Medical Assessment Guidelines requires an application for review of an assessment by a single Medical Assessor in a treatment dispute to be lodged within 30 days after the date on which the certificate was sent to the parties.
An application for review of the medical assessment of Medical Assessor Paisley was lodged within the 30-day timeframe.
On 24 January 2022 the Delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Review Panel (the Panel).[2]
[2] Section 63(2B) of the MAC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[3]

IS THE REVIEW LIMITED TO THE TREATMENT DISPUTE?
[3] Rule 128 of the PIC Rules.

The Panel notes the insurer purports to limit the review application to the treatment dispute only.
The claimant submits the Commission has no jurisdiction to refer only part of a medical assessor’s certificate to a review panel by virtue of s 63(3A) of the MAC Act.
Section 63 of the MAC Act relates to the review of medical assessments by a review panel. Section 63(1) to (4) provides:
“(1)    A party to a medical dispute may apply to the President to refer a medical assessment under this Part by a single medical assessor to a review panel for review.
(2)     An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.
(2A) If a medical assessment under this Part (a combined certificate assessment) is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based.
(2B) The President is to arrange for any such application to be referred to a review panel, but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
(3)     The review panel is to be constituted by 3 persons chosen by the President as follows—
(a)2 medical assessors,
(b)       1 member of the Commission who is a member assigned to the             Motor Accidents Division of the Commission.
(3A) The review of a medical assessment is not limited to a review only of 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.
(3B) To avoid doubt, any medical re-examination of the claimant for the purposes of the review need not be conducted by all of the members of the panel if the members agree for it to be conducted by only some of the members.
(4)     The review panel may confirm the certificate of assessment of the single medical assessor or revoke that certificate and issue a new certificate as to the matters concerned.”

Decision of the President’s Delegate

The President’s Delegate Rachel Brittliff issued a determination that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.[4] She accepted the review application for referral to a Review Panel in relation to the treatment dispute only.
[4] AD3 p 9.
In her Statement of Reasons for Decision Ms Britliff states:
“7. The claimant submits that all matters relating to the WPI and treatment                 disputes should be referred to the Medical Review Panel. Section 63(1) of the Act states:
A party to a medical dispute may apply to the President to refer a medical assessment under this Part by a single medical assessor to       a review panel for review.
8. Section 57 of the Act defines a medical dispute as:
A disagreement or issue to which this Part applies.
9. Section 58(1) of the Act states:
This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters)—
(a)       whether the treatment provided or to be provided to the injured       person was or is reasonable and necessary in the    circumstances,
(b)       whether any such treatment relates to the injury caused by the       motor accident,
(c)       (Repealed)
(d)       whether the degree of permanent impairment of the injured             person as a result of the injury caused by the motor   accident is greater than 10%.
10. An assessment as to whether treatment provided or to be provided to the            injured person was or is reasonable and necessary in the circumstances is a separate dispute from whether the degree of permanent impairment of the      injured person, as a result of the injury caused by the motor accident is greater than 10%.
11. In this matter, the applicant has clearly stated that the medical disputes    referred for Review regard the issues as to whether treatment provided and          proposed is related to the injuries caused by the accident, and whether the          treatment is reasonable and necessary in the circumstances.
12. While I note that the claimant disputes Assessor Paisley’s assessment as to       her WPI, the application for a Medical Panel Review was lodged by the       insurer in this matter. The relevant disputes are only those raised in the      application made under section 63 of the Act.”
The Panel agrees there were two separate disputes assessed by Medical Assessor Paisley, albeit the subject of the one certificate, a dispute as to permanent impairment under s 58(1)(d) of the MAC Act and a dispute as to treatment under s 58(1)(a) of the MAC Act. The Panel notes there were two separate disputes lodged and whilst they were both referred to Medical Assessor Paisley and dealt with together, they remain discrete disputes. An application for review was only made in respect of the treatment dispute under s 58(1)(a) and in accordance with the determination of the President’s Delegate that is the only dispute for review by this Panel.

RELEVANT LEGAL AUTHORITY

Section 58 of the MAC Act stipulates the following:
“(1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as "medical assessment matters"):
(a)whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,
(b)whether any such treatment relates to the injury caused by the motor accident.”

In AAI Limited v Phillips[5] Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in
[5] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.
s 58(1) of the MAC Act.
Davies J found the motor accident need only be a material contribution to the need for treatment and he further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.

MATERIAL BEFORE THE PANEL

The Panel issued a Direction to the parties which required each party to file an indexed, paginated bundle of documents.
In response to this Direction the solicitor for the insurer filed a bundle of documents paginated from pages 1 to 2211 and filed in the portal as AD3. The solicitor for the claimant filed a bundle of documents paginated from pages 1 to 651 and filed in the portal as AD4.
The Panel has read and considered the medical records before it. The Panel has not referenced or summarised the entirety of the records, in particular, records relating to the claimant’s physical injuries unless they have some bearing on the review.
The claimant was 47 years of age at the date of accident and is currently 54 years of age.

Pre-accident records

Report of Natasha De Bellis, psychologist

On 3 October 2014 Dr Gunashinghe GP (general practitioner) recorded workplace bullying, noted Ms Tunks was distressed and complained she had not slept for two days, she had chest pains, dry mouth, palpitations and poor appetite.
In a report dated 3 November 2014, in the context of a workers compensation claim
Ms De Bellis reported the claimant’s symptoms were not of adequate frequency, duration and severity to warrant a clinical diagnosis as defined by the Diagnostic and Statistical Manual of Mental Disorders – fourth Edition (DSM – 4).
On 3 November 2014 Dr Gunasinghe reported Ms Tunks was coping well and her anxiety was better.

Post-accident records

The accident occurred on 14 June 2016.
On 15 June 2016 Ms Tunks attended Blacktown Hospital. The discharge summary states:
“Involved in MVA yesterday
she was driving 80-90 km/hr when a truck hit her on the right side of the car
Denies any LOC/head injury
…
Since the accident, she was complaining of some pain on her right leg
Radiates down to her foot
Associated with pins/needles sensation
Denies any weakness
Also complaining of generalised abdominal pain
…
Also complaining of pins and needs on her upper extremities
…
Some cervical tenderness on her neck
CT brain/CT neck/CT abdomen all normal, no fracture/bleed
Cervical collar removed”.[6]
[6] AD3 p 1087.
On 15 June 2016 Dr Gunashinghe reported the following history:
“on 14/6/16 had MVA 3.50 pm
while driving from Pendle Hill, client’s home to another client’s home had a MVA
driving at 80-90km, wearing a seatbelt a truck hit right rear of her car and spun sideway and car was pushed about 50m
pain along the right leg from the right buttock up to the calf
pain in both shoulder and along right arm
pain in neck
leg pain started nights, pain in the rest of the area today
no LOC
no dizzyness
visual disturbances+
headache+.”
Ms Tunks saw Dr Dowla, neurologist on 22 July 2016. He believed she was suffering from significant stiffness of the neck muscles, carpal tunnel syndrome and possibly spondylotic changes including discopathy in the lumbar spine.[7]
[7] AD3 p 1536.
Ms Tunks had a C5/6 cortisone injection on 31 January 2017, a right shoulder cortisone injection on 18 January 2017 and a L5/S1 epidural corticosteroid injection on 7 February 2017 under the care of Dr Nair neurosurgeon. On 4 April 2017 Dr Nair reported Ms Tunks had mechanical lower back pain with radiation into the right groin region. On 16 May 2017 Dr Nair referred to the claimant’s “significant and debilitating subaxial cervical pain as well as lower back pain”.[8] On 11 July 2017 Dr Nair noted an L5/S1 provocative discography and sought approval for an L5/S1 anterior lumbar interbody fusion.[9] The surgery was declined by Allianz Australia Workers Compensation (NSW) Limited (Allianz), the concurrent workers compensation insurer on 9 October 2017.
[8] AD3 p 88.
[9] AD3 p 1497.
On 3 April 2017 Dr Sherif Rizkallah reported severe pain and disability had returned following a cortisone injection.[10] He recommended a right shoulder endoscopic subacromial decompression. In a report dated 21 July 2017 he diagnosed impingement, bursitis and rotator cuff tendinopathy due to the accident on
[10] AD3 p 85.
[11] AD3 p 1553.
14 June 2016.[11]
Dr Sam Perla, occupational health physician assessed Ms Tunks for Allianz on
[12] AD3 p 1563.
15 June 2017. He concluded Ms Tunks had non-specific mechanical neck pain and thorocolumbar back pain. He also reported she presented with rotator cuff dysfunction of the right shoulder with evidence of bursitis and tendinopathy on the MRI scan.[12]
On 27 June 2017 Dr Gunasinghe recorded poor sleep, early morning wakening, low self-esteem and depressed mood.[13] Ms Tunks was referred to Shona Stewart of Mindworx Psychology.[14] On 5 October 2017 Dr Gunasinghe reported “feels low, sleep disturbed due to pain, has suicidal thoughts, no intention…”.[15]
[13] AD3 p 316.
[14] AD3 p 801.
[15] AD3 p 959.
On 21 February 2018 Dr Gronow, pain management specialist reported Ms Tunks’ mood was of one who was desperate and frustrated, with a feeling of hopelessness and episodes of increased pain.[16] He found no features of post-traumatic stress disorder but generalised anxiety in terms of travelling with emotional volatility and poor coping strategies. He recommended a multidisciplinary pain management program.
[16] AD3 p 1656.
On 23 March 2018 Ms Tunks had an elective abdominal hysterectomy.
On 10 May 2018 Dr Gunasinghe reported:
“call from Megha from Allianz
Kerry hung up saying that she wants to jump in front of a vehicle
Tried to ring Kerry, left a message
Kerry rang back – as the case worker informed her that psychotherapy is not approved she got upset and expressed suicidal thoughts
no suicidal intention, occasional thoughts …”[17]
[17] AD3 p 971.
On 11 May 2018 Dr Gunasinghe completed a Mental Health Treatment Plan for anxiety/depression and referred Ms Tunks to Donna Theeyatt for counselling.[18]
[18] AD3 p 866.
On 21 June 2018 Ms Tunk underwent lumpectomy and lymph node removal for right breast cancer.[19] She subsequently underwent radiotherapy.
[19] AD3 p 706.
On 6 September 2018 Ms Theeyatt reported Ms Tunks had attended six psychological sessions. She reported when last seen on 1 September 2018 Ms Tunks had reported strategies learnt helped her to cope with stressors and led to increased openness with her family regarding her thoughts and feelings. Ms Theeyat recommended Ms Tunks continue psychological sessions.[20]
[20] AD3 p 1517.
On 16 October 2018 Dr Gunasinghe referred Ms Tunks to Dr Jayalath psychiatrist with depression/anxiety “over last several months”. She reported Ms Tunks had had breast cancer and was awaiting radiotherapy and that she had been in the accident and had back pain.[21]
[21] AD3 p 910.
On 20 October 2018 Ms Theeyatt reported Ms Tunks had made a suicide attempt four weeks earlier, stepping onto the road.[22]
[22] AD3 p 1522.
On 23 October 2018 Dr Jayalath obtained the following history:
“She has not experienced flashbacks or nightmares of the accident until she was anaesthetised for a hysterectomy in March of 2018. Following the motor vehicle accident, she has been experiencing symptoms associated with hypervigilance. She has not driven a vehicle since then. She avoids travelling as much as possible. She gets dropped to work by a family member. She experiences heightened symptoms of anxiety when she gets into a car. She becomes hypervigilant about the cars approaching towards her. …
Unfortunately, her physical health has deteriorated from the beginning of this year. As mentioned above she has had a hysterectomy in March of 2018 and surgery for breast cancer in August this year. She is currently receiving chemotherapy.”[23]
[23] AD3 p 1647.
He further reported:
“For the past six months Ms Tunks has been experiencing symptoms of depression. She feels persistently low in her mood. She lacks energy and has poor concentration…She suffers from anhedonia and loss of motivation…She has lost libido…She has been experiencing thoughts of suicide. She said that they appear when she experiences pain over her neck and the back.”
Dr Jayalath concluded Ms Tunks was suffering from a severe episode of depression with suicidal ideation. He also found an underlying diagnosis of post-traumatic stress disorder following the accident. He noted she suffered from chronic pain and stated the pain symptoms are likely to be exacerbated by the mental health symptoms which he concluded were significantly affecting her functioning and quality of life.
On 24 October 2018 Ms Tunks was reviewed by Dr John Leaney, neuro-opthalmologist in relation to spots on her vision, like floating balls. He diagnosed significant blepharitis.[24]
[24] AD3 p 767.
Ms Tunks completed seven sessions of a pain management education treatment plan with Peak Psychology aimed to assist Ms Tunks in developing active strategies to manage her pain and mood symptoms. A final report dated 8 January 2019 reported a reduction in symptoms as measured by the Depression, Anxiety and Stress Subscale 21 (DASS 21) consistent with small improvements in mood and cessation of suicidal ideation, however, the scores on the depression and anxiety scales remained elevated.[25]
[25] AD3 p 1639.
On 24 January 2019 Dr Jayalath reported the post-traumatic stress disorder and secondary symptoms of depression remained resistant to medication although she no longer experienced thoughts of suicide.[26] Mr Jayalath increased the dose of Venlafaxine MR to 225mg and added Quetiepine 25mg. He reported she was provided with a session of supportive psychotherapy.
[26] AD3 p 1652.
Ms Tunks underwent right shoulder surgery, at her own expense, under the care of
[27] AD3 p 1609.
Dr Rizkallah on 28 February 2019, namely gleno-humeral arthroscopic labral debridement, debridement of sub-acromial bursa, acromioplasty, biceps tenotomy and RC repair.[27]
On 18 April 2019 Dr Jayalath reported Ms Tunks was receiving psychological treatment, but her post-traumatic stress disorder and secondary symptoms of depression remained resistant to medications.[28] He reported Ms Tunks was provided with a session of supportive psychotherapy.
[28] AD3 p 2134.
On 30 April 2019 Dr Nair reported Ms Tunks had recently been diagnosed with breast cancer and was struggling with depression. He reported Ms Tunks continued to struggle with both subaxial and cervical spine pain radiating to the right lower extremity and lower back pain.[29]
[29] AD3 p 1494.
Ms Tunks saw Dr Jane Standen, pain specialist, on 21 June 2019.[30] She reported
[30] AD3 p 2137.
Ms Tunks was seeing a psychiatrist on a second monthly basis and a psychologist on a monthly basis which were reported to be beneficial in terms of mood modification. Her impression, inter alia, was of major depressive disorder, features of post-traumatic stress disorder and maladaptive cognitive and behavioural response to persistent pain.
Dr Standen reviewed Ms Tunks on 2 October 2019.[31] She reported her mood was significantly lower and overall, her pain was poorly controlled with high pain associated disability. Dr Standen suggested she trial an antidepressant with better efficacy in pain management either Duloxetine or triclyclic antidepressant, for example nortriptyline. She also recommended she undertake the three week pain management program ADAPT.
[31] AD3 p 2140.
Ms Tunks underwent an anterior C5/6 discectomy and interbody fusion and bone graft procedure under the care of Dr Nair on 9 March 2020. This surgery was approved and paid for by the workers compensation insurer.[32] On 14 August 2020 Dr Nair reported the ongoing disabilities were principally due to the lumbar spine condition.
[32] AD4 p 648.
On 23 November 2020 Associate Professor Fearnside diagnosed injuries to the neck, low back, right shoulder and noted she had undergone considerable surgery including to her right shoulder, neck and left carpal tunnel.

Medico-legal reports
Dr Anthony Smith, orthopaedic surgeon

Dr Smith assessed Ms Tunks on 23 August 2017.[33] He concluded she had symptomatic lumbar degenerative disease and symptomatic cervical degenerative disease which may have been aggravated by the accident but would have settled after two or three weeks at the most. He concluded Ms Tunks was manufacturing physical signs and symptoms and was fit for any work suitable for a woman her age. He found Ms Tunks did not require shoulder surgery or an anterior lumbar interbody fusion.

Dr Michael Coroneos, neurosurgeon
[33] AD3 p 1983.

Dr Coroneos assessed Ms Tunks for the insurer and provided a report dated
4 October 2017.[34] Dr Coroneos found no evidence of significant neurosurgical spinal injury, noting the changes on imaging are “of minor non-neurocompressive cervical and lumbar spondylosis with a nuclear bone scan with SPECT being normal”. He concluded Ms Tunks had experienced a cervical and lumbar soft tissue strain caused by the accident which he considered would have resolved over a period of four weeks. He found no requirement for future treatment and no indication for surgery. In relation to the right shoulder, he noted a rotator cuff multi-site tendinopathy with degenerative changes, likely to have a poor outcome with surgery.

Dr Seamus Dalton, rehabilitation physician
[34] AD3 p 2001.

Dr Dalton assessed Ms Tunks for the insurer and provided a report dated
[35] AD3 p 2060.
5 January 2018.[35] Dr Dalton reported the claimant’s affect was emotional and at times she was tearful. He reported she displayed moderate pain behaviours during the assessment.
Dr Dalton opined that the insertional tendinopathy was not the result of trauma and was in many respects almost a normal finding. Dr Dalton found diffuse right periscapular pain which is largely muscular in nature with features of mild secondary impingement secondary to her abnormal posturing. He disagreed with Dr Rizkallah that surgery was warranted.
Dr Dalton found Ms Tunks suffered soft tissue injuries to her cervical spine and over time developed symptoms of mechanical low back pain. He thought it unlikely she had suffered an acute cervical or lumbar disc injury in the accident. Dr Dalton thought the clinical assessment was hampered by significant pain and illness behaviour which had developed over time. He found she had a degenerate L5/S1 disc and mild insertional rotator cuff tendinopathy, degenerative conditions consistent with her stated age.
Dr Dalton stated Ms Tunks presented as anxious, depressed, pain avoidant with significant psychological overlay. Dr Dalton found Ms Tunks presented with features of a chronic pain disorder and recommended formal psychological assessment or counselling noting her complaints were disproportionate to the physical injuries sustained in the accident.
Dr Dalton reviewed Ms Tunks and provided a report dated 28 September 2020. He noted she presented with less pain avoidant and illness behaviour. Even though her shoulder symptoms had improved Dr Dalton remained of the view the shoulder surgery performed by Dr Rizkallah was not reasonable and necessary because he did not consider she had developed rotator cuff pathology or any structural derangement as a result of injury sustained in the accident. He also expressed the view the C5/6 anterior decompression and fusion undergone by Ms Tunks was not reasonable and necessary and noted she still had marked guarding and restriction of all cervical spine movements. Dr Dalton also reiterated his view that the L5/S1 fusion proposed by
Dr Nair was not reasonable and necessary and did not arise from injury sustained in the accident. However, he noted that her cervicogenic headaches had benefited significantly from the occipital nerve injections administered by Dr Standen.
Dr Dalton diagnosed a Chronic Pain Disorder with co-morbid depression and insomnia. He considered Ms Tunks required psychological support with the involvement of a pain psychologist and probably a psychiatrist, in consultation with her pain medicine specialist.

Dr Skinner, psychiatrist

Dr Skinner assessed Ms Tunks for the insurer and provided a report dated
[36] AD3 p 2079.
16 August 2018.[36] Dr Skinner reported Ms Tunks was suffering from major depression characterised by depressed mood, loss of enjoyment in her usual activities, lack of motivation to undertake activities, social withdrawal, sleep disturbance and poor appetite. Dr Skinner noted Ms Tunks had been taking Fluoxetine but recommended referral for assessment to a pain clinic or a psychiatrist with an interest in the treatment of chronic pain.
Dr Skinner reviewed Ms Tunks on 10 September 2019 and provided a report dated
[37] AD3 p 2091.
17 October 2019.[37] Dr Skinner noted Ms Tunks continued to take antidepressants Efexor and mirtazapine. Ms Tunks saw a psychiatrist once in two months and a psychologist monthly. The psychiatrist assisted her with strategies to manage her moods.
Dr Skinner opined that the claimant’s depression was caused by the accident and her frustration with her continuing pain problems and physical limitations. It was also complicated by her hysterectomy, the diagnosis of breast cancer and the requirement for a course of radiotherapy.
Dr Skinner did not think a hospital admission was indicated, noting the lack of response to treatment to date did not suggest there would be an improvement with more intensive treatment.
Dr Skinner opined that treatment with a specialist psychiatrist and psychologist had not been effective and it was unlikely that similar treatment would produce any beneficial effect. She recommended future treatment be restricted to management by a pain specialist or pain clinic.
Dr Skinner provided a supplementary report dated 6 February 2022 where she concluded:
“I consider that Ms Tunks was distressed and suffered psychological problems as a result of pain and disability from the accident, and the hysterectomy and diagnosis and treatment for breast cancer have aggravated and prolonged her psychiatric disorder, major depression. Had it not been for these complications, Ms Tunks might have recovered or partially recovered from her major depressive illness.”[38]

Dr Teoh
[38] AD3 p 2103.

Dr Teoh was qualified by the workers compensation insurer and provided a report dated 22 June 2018.[39] He concluded the claimant’s presentation was not consistent with a DSM-5 psychiatric disorder but was consistent with an anxiety state, frustration, and emotional impulse, related to her chronic pain and physical disability.
[39] AD3 p 2107.
Dr Teoh did not consider the claimant required any psychological counselling or antidepressant medication but considered she might benefit from a multi-disciplinary team managing her chronic pain.

Dr Klug, psychiatrist

On 12 December 2018 Dr Klug diagnosed a chronic post-traumatic stress disorder, a chronic major depressive disorder and recurrent panic attacks.[40] Dr Klug recommended admission to an inpatient psychiatric unit for four to six weeks. On discharge he recommended treatment with a psychiatrist on a weekly to fortnightly basis for two to three months, on a fortnightly to monthly basis for three to six months and on a second to third monthly basis for six to twelve months. He also recommended treatment with a psychologist for 18 to 24 treatments over an extended period for cognitive behavioural therapy with the possibility of further top-up sessions. He recommended antidepressant medication.
[40] AD4 p 59.
Ms Tunks was reviewed by Dr Klug who provided a report dated 31 May 2021. He stated:
“In my opinion Ms Tunks suffers from a chronic post-traumatic stress disorder with dissociative features, a chronic major depressive disorder and recurrent panic attacks. These psychiatric conditions are in the context of multiple physical problems including chronic pain…”

Certificate of Medical Assessor Machart

Medical Assessor Machart issued a certificate dated 15 April 2018 in which he certified that the following treatments did not relate to the injuries caused by the accident and were not reasonable and necessary:
(a)    whether proposed endoscopic subacromial decompression of the right shoulder as proposed by Dr Sherif Rizkallah is causally related to the injury sustained in the subject accident;
(b)    whether proposed endoscopic subacromial decompression of the right shoulder as proposed by Dr Sherif Rizakallah is reasonable and necessary in relation to the injury sustained in the subject accident;
(c)    whether proposed LS/S 1 anterior interbody fusion as proposed by
Dr Anil Nair is causally related in the subject accident, and
(d)    whether proposed L5/S1 anterior interbody fusion as proposed by
[41] AD3 p 1962.
Dr Anil Nair is reasonable and necessary in relation to the injury sustained in the subject accident.[41]
Medical Assessor Machart concluded Ms Tunks was suffering lumbar, cervical and right shoulder pain but the severity of the pain was disproportionate to the degree of pathology. He concluded the injuries were non-structural and the lack of improvement was reflective of pain behaviour.

SUBMISSIONS
The insurer’s submissions

The insurer provided submissions dated 15 November 2021 in support of the application for review.
The insurer submits the treatment dispute requires two steps, first that the treatment is found to relate to the injuries caused by the accident and second, a consideration of whether the treatment is reasonable and necessary in the circumstances.
The insurer submits Medical Assessor Paisley failed to undertake the second step in that he simply adopted the range proposed and failed to specify the treatment required in the range.
The insurer also submits Medical Assessor Paisley failed to consider all relevant material and failed to provide sufficient reasons in support of his determination and failed to provide the insurer with procedural fairness.
The insurer provided submissions dated 11 May 2020 in respect of the substantive disputes.[42]
[42] AD3 p 44.
In relation to the treatment disputes the insurer notes that Dr Skinner found that the diagnosis of depression was complicated by the hysterectomy, the diagnosis of breast cancer and the need for radiotherapy. The insurer also notes that Dr Skinner considered treatment with a psychologist and psychiatrist had not been effective and future treatment was unlikely to be of benefit.
The insurer also notes that Dr Teoh was not satisfied the claimant had a DSM-5 psychiatric disorder but suffered from emotional distress secondary to chronic pain and physical disability. He did not consider the claimant required psychological counselling or antidepressant medication.
The insurer also submitted the opinion as to diagnosis of Dr Klug did not allow for the impact of the cancer diagnosis and subsequent treatment.

The claimant’s submissions

The claimant provided submissions dated 17 December 2021.[43]
[43] AD4 p 1.
The claimant concedes pre-accident she had some issues with bullying at work but was successfully treated enabling the claimant to function and cope successfully from late 2014, throughout 2015 and up to the date of accident.
The claimant submits all the treatments disputed by the insurer are reasonable and necessary and demonstrably related to the injuries sustained by the claimant in the accident.
The claimant provided further submissions which are undated but follow the C5/6 surgery undergone on 9 March 2020 noting it is submitted the claimant’s physical condition was not stable given that surgery.[44] The claimant notes at that time she was undergoing post-surgical counselling with a psychologist, she was attending ongoing psychiatric consultations and continued to rely on medications including Effexor SR 150mg and Seroquel 25mg, together with painkilling medication.

EXAMINATION

[44] AD4 p 26.

Who attended the assessment:

The assessment was undertaken by Medical Assessors Roberts and Chew on
16 February 2023. Ms Tunks was examined alone using Microsoft Teams. She participated in the assessment from her home.

Psychosocial history and pre-accident history

Ms Tunks is a 54-year-old woman. She and her husband have been married for
28 years. She has four children, a 36-year-old from a previous relationship and three children aged 29, 30 and 34 years from her relationship with her current husband. She lives with her husband, her 29-year-old son, his partner and their foster children in Jordan Springs. She is currently unemployed, her employment having been terminated in April 2022 in the context of limitations attributed to the accident.
Ms Tunks grew up in Petersham until she was 10 or 11 years of age when the family moved to Mount Druitt. She is the youngest of seven siblings. She recalled a good relationship with her siblings and her parents. Her father died 26 years ago and her mother died 23 years. Both died from cancer. Her oldest sister is deceased having died eleven years ago of sepsis associated with a diabetic ulcer.
Ms Tunks recalled school in positive terms. She had friends and she performed to a satisfactory academic standard. She spoke positively of her lifestyle as a child. She rode a bike and she rode a horse. While attending school, she worked in a milk bar. She later obtained employment in a nursing home. Her eldest daughter was born when she was 17 years of age. Following her birth, Ms Tunks obtained employment with Clancy’s as a deli manager. She continued in this role for three to four years.
Having separated from her abusive partner when her oldest daughter was 1 year old, she met her current partner. They moved to South Australia where Ms Tunks’ sister was living. They purchased a takeaway shop. Her husband obtained employment with Kimberly-Clark. They returned to Sydney because her husband’s parents were ageing. Ms Tunks again worked as a cleaner in private homes when her youngest child commenced school. She also cleaned the Lander Motor Group at night. She continued with this work for seven or eight years. She ceased cleaning for the car dealership when she became a grandmother but continued cleaning in private homes. She then undertook aged care work until April 2022.
In the past Ms Tunks underwent surgery on a toe because of recurrent dislocation. She underwent an open hysterectomy in 2017 for removal of noncancerous lesions. In
June 2018, she was diagnosed with breast cancer requiring a lumpectomy and excision of lymph nodes. She required radiotherapy but declined pharmacological treatment. She did not undergo any chemotherapy. She recovered well from the surgery but found the radiotherapy painful because she was required to lie inside a mould in a machine. She sustained burns from the radiotherapy which resolved. There has been no recurrence of the cancer.
Ms Tunks is a smoker of between 5 and 15 cigarettes per day. She does not drink alcohol nor did she report a history of illicit drug use.

History of the accident

Ms Tunks recalled that she was driving in the left lane when she heard “bang bang bang”. She found herself fighting with the steering wheel, struggling to maintain control of her vehicle. She explained that her car was hit on the rear right side by a truck which caused her car to turn in front of the truck, perpendicular to it facing the centre of the road such that she expected that she would be pushed into the concrete barrier on the right side. Ultimately, her car came to a standstill sideways in the breakdown lane on the left side of the road.

History of symptoms and treatment following the accident

Ms Tunks recalled that she was “a mess” following the accident. She was in tears. The truck driver had called an ambulance. Ms Tunks got out of the passenger door of the car. The police had arrived. They cancelled the ambulance. A police officer drove
Ms Tunks’ car around the corner off the main road and it was subsequently towed. Her husband picked her up from the accident scene and took her home. The following day she left home to see the client whom she was supposed to attend at the time of the accident. She used her son’s car to drive to work but instead of working she went to a doctor.
Ms Tunks recalled suffering pain in her buttock following the accident such that she was unable to put weight on her right leg. All she could do was hobble. She did not seek medical care on the night following the accident but the next day she was sore all over and after seeing her usual GP, she attended Blacktown Hospital. She underwent radiological investigations and for reasons that were unclear, she underwent a pregnancy test. Her daughter picked her up from the hospital in the early hours of the morning.
Ms Tunks subsequently went back to her GP because of severe pain. She was referred for physiotherapy and she was referred to Dr Nair to assess her neck and spine and to Dr Rizkallah to assess her shoulder. She has undergone surgery to her shoulder, neck, left wrist and right wrist. She explained that there was a period of twelve months when all the treatment was suspended by the workers compensation insurer following which she saw a pain management specialist and a psychiatrist. She has been unable to tolerate strong analgesia, compelling the preferential use of injections into her neck, back and shoulder and the use of radiofrequency treatment.
Ms Tunks stated that previously she was always a happy bubbly person. Previously, she was involved in motor racing. She was also involved with her grandchildren. She was very busy. Initially, she did not realise the severity of her condition. It was when she saw that she was not recovering and the treatments were not working that she became aware of the seriousness of her physical condition. She recalled that approximately six months after the accident she was suffering severe headaches arising from her neck. She became very teary and experienced suicidal thoughts. She was emotionally withdrawn. Her self-care deteriorated. She was showering less frequently and she was doing her hair less frequently.
Ms Tunks recalled that her GP told her almost immediately following the accident that she could not drive because her neck was stiff. She found this upsetting. She recalled asking herself how she would be able to do things and how she could get to appointments. She recalled that her limitations put pressure on her children. For example, it compelled her daughters to take her to and from work. She stated her dislike of being reliant on others.
Ms Tunks recalled that members of her family spoke to her GP about her condition. Specifically, her daughter found her wandering in the middle of the road. At the time, her headaches were so bad that she was feeling suicidal. It was around this time, six months after the accident, that she was referred to a psychiatrist, Dr Jayalath and a psychologist. She later had to change psychologists to see a WorkCover accredited clinician. Her psychologist gave her a technique to manage her anxiety when travelling by car. Her psychiatrist prescribed medication. Ms Tunks recalled that at the time she saw the psychologist, she was anxious about the prospect of a further motor accident and she would decline to get into a car on a rainy day. She recalled an occasion when she was so anxious when travelling in her son’s car that she got out of the vehicle thinking that she was having a heart attack.
Ms Tunks reported two suicide attempts, one in 2020 and one in 2021. The first incident that she referred to as a suicide attempt was that described above, namely when she was found walking in the middle of the road. The second was when she attempted to get out of her son’s car on the way to her daughter’s home. At the time, she did not want to live anymore.

History of subsequent accidents or incidents

Ms Tunks did not ascribe any psychiatric effect to the hysterectomy or the uterine growths for which she required the surgery. The masses in her uterus were causing urinary symptoms. Similarly, she did not attribute any adverse psychological effect to the breast cancer. At the time, she was hoping that the cancer would kill her because she was at her worst following the accident. She did not want treatment. It was her daughter, her husband and her GP who persuaded her to proceed.

Current symptoms

When asked regarding her current mental health, Ms Tunks reported that she has good and bad days and that these fluctuations are influenced by pain. Her husband and son still ring her through the day to check on her. She added that she is embarrassed that her son had to pick her up from the shower floor after her legs collapsed under her.
Ms Tunks stated that she only has two hours of solid sleep. If she experiences ringing in her head or a song plays in her mind and her mouth becomes very dry, she knows she will have a bad day. There are good days when she is not in tears and her pain is less severe. There is no ringing or a song playing in her head and her thoughts are not negative. On bad days she is in severe pain and is teary all day. She experiences suicidal thoughts and generally negative thoughts.
Ms Tunks reported feeling preoccupied by pain and her physical condition. She tries not to think of the accident but on a bad day she thinks about the accident. She thinks that it was not her fault and that it has wrecked her life. She attempts to avoid thinking about it. She becomes upset when she talks about it stating, “I’m living in a nightmare”.
Ms Tunks remains an anxious passenger. She is particularly anxious if she is in a vehicle in which the driver looks away from the road or does not have both hands on the wheel. She acknowledged that she is a backseat driver. She also feels anxious at home. She referred to a tendency to make a “mountain out of a molehill” and her husband and son believe that she overreacts to things. She has not been back to the scene of the accident stating that she has no need to go there.
On a good day, Ms Tunks goes for a walk. She enjoys her plants. She typically eats once a day because she has no appetite. On a bad day, her concentration is poor. Generally, her memory has declined. Overall, suicidality is less prominent than it was previously. She is less anxious than she was in the past and she is less depressed. She is not as socially withdrawn as she was previously. She will now answer the telephone and she will sometimes go out. She attributed improvement in her mental health to the treatment that has been provided, particularly, neck injections that have reduced her pain.

Current and proposed treatment

Ms Tunks has been prescribed her current dose of Efexor (venlafaxine) XR of 300mg per day for the past two years. She has been on this medication for a total of three to four years. She has been on other antidepressants but suffered side effects. She has been on CBD oil 0.75ml for nearly two years. She also takes Panadol. In addition, she utilises heat packs and topical preparations for pain. She has undergone neck, shoulder and lower back nerve blocks in addition to what she referred to as radiofrequency treatment for pain.
Ms Tunks continues to see a psychologist every one to two months and her psychiatrist every month to two months. She stated that her psychiatrist has expressed the opinion that she is improving.
Ms Tunks stated that her psychiatrist wants her to do treatment involving “electrodes”. No such treatment has been planned at this stage. Dr Jane Standen, who manages
Ms Tunks’ pain, has prescribed ketamine and CBD oil which is also expected to help her relax. Ms Tunks is currently looking for another psychologist since the departure of her most recent psychologist.

Mental state examination

As explained above, the assessment was undertaken using audio-visual technology. The quality of the connection was satisfactory. Ms Tunks presented as a neatly groomed woman wearing earrings. Her hands were manicured. She exhibited a flat affect and became teary during the interview. She described a pervasively depressed mood. Her speech was normal in terms of rate, tone and volume. She described intrusive thoughts of the accident which cause her to feel distressed. She is avoidant of discussions about the accident. She is an anxious passenger. No features of a psychotic nature were apparent.

Current functioning

As stated previously, Ms Tunks’ employment was terminated in April 2022 because she was not allowed to drive and her mobility was diminished. She was working three hours a day, two days a week following the accident if she could obtain a lift to work. Previously, her role was driving, personal care and home care and she was working
38 to 40 hours a week. She found it beneficial to go to work, even part time. The work that was assigned to her was not physically demanding and she was able to undertake the role.
Ms Tunks still relies on others for her travel. She does not use public transport, stating that she is not allowed to do so because of her suicidal tendencies.
In her free time, Ms Tunks tends to her plants. Her dogs keep her company. At home, she will fold the laundry. She can prepare vegetables but she has no strength to cook. She does some light dusting but cannot manage heavy housework.
Ms Tunks maintains her personal care and seeks to present herself well. There have been times when she has gone for a week without showering or doing her hair. During such periods she is indifferent and experiences suicidality. She requires physical assistance with aspects of her personal care. Her son’s friend paints her nails. A hairdresser comes to her home.
Ms Tunks watches television. She finds it hard to read because of her neck stiffness. Her husband takes her for coffee on weekends. Sometimes she declines to go with him. Friends may invite her but she reported that she lost some friends because she cannot get to social venues. Her older children come to visit. Sometimes she spends time at their homes. Her husband and family have been very supportive of her although she feels that she is a burden to them.

Comments on consistency

No inconsistencies were evident with respect to Ms Tunks’ account nor were there inconsistencies on mental state examination.

PANEL DETERMINATION

Diagnosis

The Panel made a diagnosis of post-traumatic stress disorder on the basis that
Ms Tunks had been involved in a serious motor vehicle accident from which she was fortuitous to escape with only the injuries described by her. She continues to suffer intrusion symptoms, anxiety, avoidance and hypervigilance when travelling in a motor vehicle. The Panel also diagnosed major depressive disorder on the basis that
Ms Tunks described a pervasively depressed mood, loss of enjoyment, poor sleep, poor appetite, diminished motivation and ongoing suicidal thoughts. The diagnoses were made in accordance with the criteria stipulated in DSM-5.
The Panel notes there is no dispute as to the certification of Medical Assessor Paisley as to permanent impairment and that the opinion of the Panel as to diagnosis is consistent with the diagnosis of Medical Assessor Paisley.

Causation

The Panel concluded that the diagnosed psychiatric conditions of post-traumatic stress disorder and major depressive disorder were caused by the motor accident. The Panel finds the subsequent health conditions, namely the hysterectomy and the diagnosis and treatment for breast cancer were not causative of the post-traumatic stress disorder or the major depressive disorder which were present prior to the onset of those subsequent health conditions and which were not described by Ms Tunks as being relevant to the causation of the diagnosed psychiatric conditions.

Whether treatment reasonable and necessary

The Panel finds the diagnosed conditions of post-traumatic stress disorder and major depressive disorder arising from the accident have caused a need for treatment.
When considering the question of whether treatment is reasonable and necessary the Panel also notes there has been some improvement in Ms Tunks’ mental health, in that suicidality is now less prominent, she is less anxious, less depressed and less socially withdrawn than previously.

GP consultations

The Panel considered that general practice consultations were required to prepare referrals to Ms Tunks’ psychiatrist and psychologist and that mental health treatment would be required for the next two years. These consultations would be expected to be required every three to six months for a psychologist and every year for the psychiatrist. The GP may also be required to provide prescriptions between psychiatric consultations. The Panel concluded four GP consultations per year were reasonable and necessary for the next two years.

Consultations with a psychiatrist

The Panel considered that treatment with a psychiatrist is reasonable and necessary. It represents evidenced based treatment which is likely to contribute to the stabilisation of Ms Tunks’ symptoms and prevent further deterioration.
The Panel concludes the psychiatric counselling attendances with Dr Jayalath, psychiatrist, on 18 April 2019 and 24 January 2019 were reasonable and necessary. The Panel notes on 24 January 2019 Dr Jayalath reviewed and varied the claimant’s antidepressant medication and provided supportive psychotherapy.
The Panel notes the ongoing use of antidepressant medication and considers ongoing consultations with a psychiatrist necessary to monitor not only the claimant’s condition but also to assess the therapeutic effect of her antidepressant medication.
The Panel also concluded that 12 consultations with a psychiatrist per year for the next two years was reasonable and necessary.

Consultations with a psychologist

The Panel considered that treatment with a psychologist was reasonable and necessary where it is evidenced based and likely to contribute to the stabilisation of
Ms Tunks’ symptoms, prevent further deterioration and assist her to manage her chronic pain.
The Panel concluded that 12 consultations with a psychologist per year for the next two years was reasonable and necessary.

Inpatient psychiatric admissions

The Panel did not consider that Ms Tunks’ psychiatric condition represented a diagnosis of a nature and severity as to warrant a period of hospitalisation.
The Panel concludes an inpatient admission is not reasonable and necessary treatment.

Antidepressant medication

The Panel is asked to determine whether 0-30 tablets of antidepressant medication for the next 0-5 years is reasonable and necessary.
The Panel is of the view Ms Tunks continues to require antidepressant medication considering her prior suicidal ideation, her pervasive depressed mood and having regard to her chronic pain condition.
The Panel considers the improvement in the claimant’s psychological condition can, in part, be attributed to the treatment strategies recommended and pursued by the claimant’s GP, her psychiatrist and her psychologist including antidepressant medication as prescribed.
The Panel was reluctant to stipulate the number of tablets of antidepressant medication required per month. It was considered inappropriate to pre-empt the specific antidepressant to be used in treatment. Antidepressants come in different tablet strengths. The number of tablets per month would vary depending on the medication prescribed and the dose prescribed. To stipulate 30 tablets is to potentially place a restriction on the dosage of medication to be prescribed and to potentially restrict the medication to one type only.
The Panel concludes Ms Tunks requires antidepressant medication for the next two years at a therapeutic dose as recommended by her treating psychiatrist.

One-off pain management program

The Panel is asked to determine whether a one-off pain management program for a three week period is reasonable and necessary for the diagnosed psychological injuries and if it is causally related to the injury sustained in the subject accident.
The Panel considered that comments on treatment proposed for the management of pain represented a non-psychiatric matter which is beyond the role of a psychiatric panel.

Is the treatment reasonable and necessary

The Panel concluded that the treatment considered reasonable and necessary for the diagnosed conditions, namely, post-traumatic stress disorder and major depressive, does relate to the injury caused by the motor accident where the Panel has concluded those conditions were caused by the motor accident.

CONCLUSION

The Panel certifies the following treatment is reasonable and necessary in the circumstances:
(a)    psychiatric counselling attendances with Dr Jayalath, psychiatrist on
18 April 2019 and 24 January 2019;
(b)    four GP consultations per year for the next two years for the psychological injuries;
(c)    12 consultations with a psychologist per year for the next two years;
(d)    12 consultations with a psychiatrist per year for the next two years, and
(e)    a therapeutic dose of antidepressant medication per month for the next two years.
The Panel certifies the following treatment relates to the injury caused by the motor accident:
(a)    psychiatric counselling attendances with Dr Jayalath, psychiatrist on
18 April 2019 and 24 January 2019;
(b)    four GP consultations per year for the next two years for the psychological injuries;
(c)    12 consultations with a psychologist per year for the next two years;
(d)    12 consultations with a psychiatrist per year for the next two years, and
(e)    a therapeutic dose of antidepressant medication per month for the next two years.
The Panel certifies the following treatment is not reasonable and necessary in the circumstances:
· admission as an inpatient into a psychiatric unit for a period of four to six weeks.
The Panel certifies the following treatment does not relate to the injury caused by the accident:
· admission as an inpatient into a psychiatric unit for a period of four to six weeks.
The Panel certifies that the following treatment and care dispute does not relate to the psychiatric injury:
· whether a one-off pain management program for a three week period for the psychological injuries is causally related to the injury sustained in the subject accident.

[2023] NSWPICMP 82

10 March 2023