CIE v AAI Limited t/as GIO
[2025] NSWPICMP 799
•17 October 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | CIE v AAI Limited t/as GIO [2025] NSWPICMP 799 |
| CLAIMANT: | CIE |
| INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Matthew Jones |
| MEDICAL ASSESSOR: | Himanshu Singh |
| DATE OF DECISION: | 17 October 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; motor accident; assessment of whole person impairment for psychiatric impairment; claimant presented with significant pre-existing psychiatric conditions, chronic pain, and history of drug and alcohol abuses; claimant’s history to Medical Assessors of pre-exiting condition inconsistent with records; chronic history of drug and alcohol abuse; criminal history; Review Panel did not accept claimant’s account unless corroborated; acceptance of aggravation dependent upon acceptance of claimant; Whisprun Pty Ltd v Dixon applied; chronic history of pre-accident physical symptoms; post-accident criminal behaviour; delay on seeking treatment post-accident; Review Panel not satisfied that motor accident caused an aggravation of pre-existing psychiatric condition; no assessment of permanent impairment required; Held – original assessment revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment 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% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel revokes the certificate dated 17 September 2024 and issues a new certificate determining that the motor accident did not cause or aggravate a psychiatric condition. |
REASONS
BACKGROUND
[CIE] (the claimant) suffered injury in a motor accident on 13 November 2020. The claimant was standing on his driveway when he attempted to remove the keys of the insured vehicle which was parked across his driveway.[1]
[1] Insured bundle, p 27.
AAI Limited t/as GIO (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to [CIE] any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The present dispute is whether the claimant’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, fourth edition (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Canaris and dated 17 September 2024. The Medical Assessor concluded that the motor accident caused a persistent depressive disorder and somatic symptom disorder with pain and assessed the degree of permanent impairment at 10%.
The details of that medical assessment certificate are set out later in these Reasons.
THE REVIEW
The application for referral of the medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
ASSESSMENT UNDER REVIEW
[8] Section 7.26(6) of the MAI Act.
The Medical Assessor issued a medical assessment certificate determining that the motor accident caused a persistent depressive disorder (dysthymia) and somatic disorder with predominant pain. There was a finding that the conditions of substance use disorder and antisocial personality traits were pre-existing.
The Medical Assessor concluded that the motor accident caused mild impairment (class 2) in self-care and personal hygiene, travel and concentration, persistence and pace and moderate impairment (class 3) in the categories of social and recreational activities, social functioning, and adaptation.
The Medical Assessor diagnosed a pre-existing impairment of 5% due to moderate impairment for social functioning and mild impairment for concentration, persistence and pace and adaptation.
MATERIAL BEFORE THE REVIEW PANEL
The parties provided respective bundle of documents.
The insurer provided updated records from the claimant’s general practitioner (GP). As this is a new hearing of all matters and the documentation had been served some months prior to the review undercurrent taken by the Medical Review Panel, the documents are admitted.
The material is relevant to the current assessment and had been previously served on the claimant who failed to identify any prejudice from the admission of this material.
PRE-ACCIDENT RECORDS
Various pre-accident certificates noted no capacity for work due to obesity and musculoskeletal pain.[9]
[9] Claimant’s bundle, p 262, p 274, p 280, p 285 and p 288.
In April 2017 Dr Nouh noted multiple medical problems including bilateral hip pain, bilateral achilles tendon pain in the lower back and cervical spine pain.[10] The claimant presented to hospital at that time with left hip pain radiating to the back.[11]
[10] Insurer’s bundle, p 33.
[11] Insurer’s bundle, p 327.
Mr John McDonald, psychologist, provided a report dated 23 February 2017. He noted a long history of depression and anxiety emanating from a dysfunctional upbringing and some complex legal issues. Assessment results indicated severe depression and possible delusional thinking patterns.[12]
[12] Insurer’s bundle, p 35.
Dr Vogl, cardiologist, provided a report dated 29 March 2017 noting substance use started at age 14. The heart was normal on auscultation and rhythm.[13]
[13] Claimant’s bundle, p 262.
On 2 September 2018 the claimant presented to hospital following an alleged assault driving home caused by falling onto the ground and injuring both knees.[14]
[14] Insurer’s bundle, p 304.
On 21 November 2018 the GP noted the claimant wished to see a psychologist with “symptoms of depression for many months” related to his and daughter’s health issues which was causing a relationship with strain with his wife.[15]
[15] Claimant’s bundle, p 200.
In February 2019 the claimant presented to hospital with right hip and lower back pain.[16]
[16] Insurer’s bundle, pp 288- 296.
In February 2019 the GP noted that the claimant had “aches and pains in many places”, had “issues in his family” and “suffers with low mood”.[17]
[17] Claimant’s bundle, p 198.
In March 2019 the GP noted symptoms of depression for many months caused by many factors such as the claimant’s and daughter’s health issues causing strain in the relationship with his wife. The doctor queried whether the claimant had some kind of personality disorder.[18] A referral was then made for the claimant to see Dr Lal.[19]
[18] Insurer’s bundle, p 422.
[19] Claimant’s bundle, p 146.
The claimant initially consulted Dr Sharat Lal, psychiatrist, on 29 May 2019.[20] The doctor noted that the claimant described anger and dysphoria and described himself as being hard, arrogant and aggressive to his wife and children. The claimant describes suicidal ideation and a long history of involvement with illicit drugs both consuming and selling.
[20] Claimant’s bundle, p 142.
Dr Lal noted the claimant’s position was complicated by alcohol abuse and drinks half a bottle of scotch at night and has done so for the last two years. This quantity had been increasing. The claimant reported using intravenous amphetamines and cocaine from the age of 14 until the age of 30. Childhood included an abusive father. The doctor recommended antidepressants to assist the anger and dysphoria, but the claimant was unsure about trying medications.
Dr Lal provided a further report dated 12 June 2019 noting recent domestic violence and expressions of anger including wishing to kill somebody and then himself. The doctor noted a possible delusional diagnosis concerning the claimant’s thoughts about police.[21]
[21] Insurer’s bundle, p 36.
Dr Lal considered scheduling the claimant but proceeded with trying to build a therapeutic alliance.
On 26 August 2019 Dr Lal noted the claimant wished to try Abilify depot and arranged one injection.[22] On 6 September 2019 the claimant indicated to Dr Lal that he wished to try a low dose of Abilify rather than the depot.
[22] Insurer’s bundle, p 37.
On 28 August 2019 the GP certified the claimant unfit for work due to “mood problems; though disorder”.[23]
[23] Claimant’s bundle, p 321.
In July 2020 the claimant was the driver of the vehicle rear-ended while turning into his driveway. He presented to hospital on 18 July 2020 with lower back and abdominal pain and unable to void.[24]
[24] Insurer’s bundle, p 274.
The pre-accident medication history does not show prescription of anti-depressants/anti-psychotic medications.[25]
[25] Insurer’s bundle, p 82.
Pre-accident criminal history
We do not intend to summarise the significant allegations made about the claimant. The allegations are briefly summarised noting that we have otherwise referred to the history in the insurer’s submissions.
The claimant had regular convictions of criminal conduct concerning driving offences and assaults in the 1980s and 1990’s.[26] In September 2018 there were recorded convictions for refusing to submit to a breath analysis, resisting police and refusing to produce a licence.[27]
POST MOTOR ACCIDENT
[26] Insurer’s bundle, pp 86 – 92.
[27] Insurer’s bundle, p 95.
Treating records
The ambulance record dated 13 November 2020 noted:[28]
“CT 51YO M assaulted on driveway. O/A PT sitting on driveway surrounded by family. PT states he was having a verbal altercation with someone who was in their car, the other person then took off and spun the tires on the pt’s L foot and their side mirror click the Pt’s L bicep. Pt complaining of L bicep pain and numbness in his left foot.”
[28] Insurer’s bundle, p 701.
A similar version with more detail was provided to the police at that time.[29]
[29] Claimant’s bundle, p 28.
The ambulance record dated 15 November 2020 referred to “an altercation with a man in his car 2/7 ago, and the man ran over pts left foot which threw him to the ground”. The claimant stated he had left foot pain, left arm and chest pain post-accident.[30]
[30] Insurer’s bundle, p 691.
The hospital discharge following the motor accident noted the claimant was hit by car at slow speed three days ago and the claimant was unsure of the mechanism. History included depression, obesity and heart damage from intravenous drug use. [31] Alcohol use was half a bottle of spirits daily (bourbon).[32]
[31] Insurer’s bundle, p 680.
[32] Insurer’s bundle, p 684.
A claim form dated 17 November 2020 referred to the motor accident when he was “run over by another vehicle” causing injuries to the left arm and shoulder, left foot, left rib, right hip, lumbar spine and psychological.[33]
[33] Insurer’s bundle, p 22.
On 9 December 2020 the GP recorded that the claimant was “stressed from the lack of justice with problems at home with his wife”.[34]
[34] Insurer’s bundle, p 432.
On 16 January 2021 the GP recorded that the claimant was depressed and had restarted drinking alcohol more than before.[35]
[35] Insurer’s bundle, p 433.
A rehabilitation services report dated 29 April 2021[36] recorded that the claimant was active around the home prior to the motor accident such as performing house maintenance tasks, painting, lawn mowing, building a carport and his wife would complete all house cleaning activities, cooking and laundry.
[36] Claimant’s bundle, p 349.
It was noted that the claimant’s appetite had decreased, and he had no difficult with feeding and travelled down to the local shops to order food. Alcohol was consumed nightly for lumbar pain relief.
Associate Professor Vogl provided a report dated 17 June 2021 noting last attendance was in 2018.[37] The doctor noted a history of substance abuse since age 14 damaging the heart, no gainful employment for the past two years because of bad back, sleep apnoea and bad knees.
[37] Insurer’s bundle, p 592.
On review the doctor noted that the claimant had stopped drinking alcohol about two months previously but before that had been drinking up to half a bottle of spirits per day. The claimant had reported being electrocuted about three months previously and concerned about possible heart damage. Examination noted that the claimant appeared well and had no troublesome cardiac symptoms. The claimant reported that the pituitary cyst had increased in size and he was seeking a referral to another neurosurgeon.
Ongoing certificates of incapacity issued by the GP refer to “pain, weakness” as the symptoms for incapacity.[38]
[38] Insurer’s bundle, p 753.
Mr Muhamad Ziedni, treating psychologist, provided a report dated 15 May 2023[39] noting the claimant was initially seen on 10 September 2022. It was noted that the claimant had not been in employment for some nine years.
[39] Claimant’s bundle, p 100.
Mr Ziedni diagnosed a post-traumatic stress disorder, major depressive disorder with anxious distress and somatic symptom disorder with predominant pain. The somatic symptom disorder is manifested by multiple sites of pain or perceived pain in the body due to his traumatic injuries with an elevated level of anxiety about his pain and its consequences.
On 21 October 2024 Dr Ho, orthopaedic surgeon, noted a chronic history of problems in the left knee, left hip and low back with weight issues at 130 kg.[40]
[40] Insurer’s bundle, p 824.
Qualified opinions
Associate Professor Courtenay was qualified by the insurer and provided a report dated
3 May 2024.[41] The doctor diagnosed a rupture of the left biceps tendon with persisting problems with the forearm in the cutaneous nerve distribution and hypersensitivity and restricted movement of the left foot and ankle. There were also ongoing problems with the lower back.[41] Insurer’s bundle, p 22.
Dr Courtenay provided an earlier report dated 24 June 2022[42] diagnosing a soft tissue injury to the left foot and acute distal end of left biceps avulsion with residual scarring with full range of elbow movement.
[42] Claimant’s bundle, p 47.
Dr Brian Potter, psychiatrist, was qualified by the insurer and provided a report dated
26 February 2024.[43] The doctor noted a complex, confused and at times difficult to follow history concerning the motor accident.[43] Claimant’s bundle, p 71.
Dr Potter opined:[44]
“Reflecting the manner in which he presented for the assessment and the collective background history provided, it is reasonable cynically to accept that he is a troubled individual most likely within a personality disturbance and that this dominates any motor vehicle accident and injury.
It is not possible from this assessment to be able to offer an informed psychiatric diagnosis with, however, an unlikely psychiatric diagnosis with injury due to the confused and rather bizarrely described motor vehicle accident.”
[44] Claimant’s bundle, p 80.
Dr Frank Chow, psychiatrist, was qualified by the claimant and provided a report dated
27 October 2023.[45] The doctor obtained a history that the claimant was living in a granny flat by himself, with his wife and four children living in the main house within the same property.[45] Claimant’s bundle, p 36.
Dr Chow recorded a history that the claimant cannot walk much and sometimes use crutches or a walking stick and struggles with self-care.
The doctor noted the claimant had suffered chronic depression over the years and had seen a psychologist and psychiatrist and had been prescribed antidepressants. The claimant had been on Centrelink but was doing a certificate III in warehousing and was looking for work at the time of the motor accident.
Dr Chow opined that the motor accident aggravated the claimant’s underlying psychological condition of a persistent depressive disorder and alcohol use disorder. The doctor assessed moderate (class 3) impairments of social and recreational activities, social functioning and concentration, persistence and pace. Dr Chow assessed the claimant as a class 5 for adaptation.
In respect of pre-existing impairment, Dr Chow assessed mild impairments (class 2), for social functioning and concentration, persistence and pace and moderate impairment (class 3) for adaptation.
Dr Alan Home was qualified by the insurer and provided a report dated 16 February 2024.[46] The doctor diagnosed an avulsion of the distal end of the left biceps resulting in mild weakness and a soft tissue injury of the left foot with a good recovery and mild restriction of hindfoot eversion.
[46] Claimant’s bundle, p 57.
Post-accident criminal history
In January 2021 the claimant was stopped for random breath testing and produced a Tasmanian driver’s license. Inquiries revealed that the claimant had not completed the requirements of the court orders from 2019 when his license was disqualified for seven months. This resulted in further disqualification to March 2024.[47] The charge of driving whilst disqualified was dismissed.[48]
[47] Insurer’s bundle, p 114.
[48] Insurer’s bundle, p 97.
The claimant was convicted of common assault for an offence committed in June 2021 and received a 12-month community correction order.[49]
[49] Insurer’s bundle, p 97.
In January 2023 the claimant reported to police that he was tailgated by another driver.[50]
[50] Insurer’s bundle, p 112.
In June 2023 there were allegations by the victim of the 2021 assault of “continued taunting” which the police did not believe amounted to a criminal offence.[51] The claimant denied any wrongful behaviour.
[51] Insurer’s bundle, p 111.
SUBMISSIONS
Claimant’s submissions dated 17 April 2024[52]
[52] Claimant’s bundle, p 1.
The claimant submitted that the motor accident on 13 November 2020 caused physical injuries as well as an aggravation of a pre-existing psychological condition.
The claimant submitted that various medical practitioners obtained a concise and clear history provided by the claimant including the description of the accident referring to
Dr Courtenay, Dr Home, Dr Chow and Muhamad Ziedni.The claimant noted that whilst Dr Potter was unable to elicit a clear description of the incident from the claimant and the doctor’s opinion was that the claimant was inconsistent and unreliable, it was submitted that this was not the case and that when examined by different doctors the claimant’s history was consistent and rational.
The claimant submitted that it was sufficient for the purposes of establishing injury that there was an aggravation of a recognised psychiatric illness referring to Harris v Commissioner for Social Housing.[53]
[53] [2013] ACTSC 186.
The claimant referred to the clinical records of various GPs which confirmed that he was suffering from repetitive bouts of depression and anxiety as well as drug and alcohol use disorders. In 2019 Dr Lal, psychiatrist, noted a long-standing history of drug and alcohol abuse and suggested that the claimant should be trialled on antipsychotic medication.
The claimant referred to the opinion of the treating psychologist Mr Ziedni in a report dated 15 May 2023 which diagnosed a major depressive disorder with anxious distress, post-traumatic stress disorder and somatic symptom disorder with predominant pain.
The claimant referred to the opinion of Dr Chow dated 27 October 2023 which noted that the claimant suffered chronic depression over the years and had consulted a psychologist and psychiatrist and had been prescribed antidepressants. Despite the ongoing symptoms, it was noted that the claimant managed to complete a certificate III in warehousing and was looking for work prior to the motor accident.
The claimant submitted that he suffered from an aggravation of a recognised psychiatric illness caused by the motor accident and noted that his functional capacities prior to the accident included assisting his ex-wife with the care of his disabled daughter, holding short-term employments and performing independent self-care.
The claimant noted that his post-morbid functional capacity had decreased as described by Dr Chow and submitted that he should be assessed at 17% whole person impairment.
Claimant’s submissions dated 15 October 2024[54]
[54] Claimant’s bundle, p 11.
These submissions were filed seeking leave to review the medical assessment.
The claimant submitted that the assessment for concentration, persistence and pace was based on inadequate reasons and inconsistent with and contradictory to the diagnosis of a persistent depressive disorder.
The claimant submitted that the attribution to pain should be considered in accordance with page 297 of AMA 4. He otherwise noted that Mr Ziedni in a report dated 15 May 2023 concluded that the claimant suffered somatic symptoms disorder which indicated the claimant’s excessive focus on pain was consequential to psychological injury.
The claimant submitted that any car renovations was undertaken prior to the motor accident and the history recorded by Dr Home was a mistake. The correct version of the history was recorded by Dr Courtenay, Dr Chow and Mr Ziedni.
The claimant submitted that the conclusion that the claimant had a pre-existing mild impairment for concentration, persistence and pace based on heavy drinking habits was incorrect.
Insurer’s submission dated 9 May 2024[55]
[55] Insurer’s bundle, p 3.
The insured noted the following issues were in dispute:
(a)degree of impairment;
(b)causation;
(c)exacerbation;
(d)apportionment, and
(e)subsequent intervening event.
The insurer relied on the opinion of Dr Brian Potter, psychiatrist, noting that both he and
Dr Alan Home had difficulty obtaining a clear history from the claimant. Dr Potter provided a cautious account of the examination and expressed an opinion that the claimant’s presentation was most likely related to a personality disturbance which was not causally related to the motor accident.The insurer submitted that in light of the complex history discussed involving suicidal and homicidal threats to himself and his family and the delay in seeking treatment some two years after the accident, the motor accident did not cause or contribute to the claimant’s mental illness.
The insurer noted that the claimant had obtained a prescription for Carbamazepine on
12 June 2019. There are histories of excessive drinking prior to the motor accident such as that provided to Dr Sharat Lal on 29 May 2019.In relation to the category of self-care and personal hygiene the insurer noted:
· history recorded by Dr Alan Home on 16 February 2024 that the claimant performed various household tasks and shopped for odds and ends, and
· history recorded by Dr Potter on 26 February 2024 that the claimant never left his house without a son or daughter due to his arthritis and hygiene was affected due to pain.
In relation to the category of social and recreational activities the insurer noted:
· Dr Chow ordered a history that the claimant does not engage in hobbies or activities nor see friends and had lost friendships;
· Dr Home reported that the claimant had not resumed his pre-accident hobby of fishing but Ms Emily Lord (exercise physiologist) in a report dated
21 February 2022 indicated that the claimant had been fishing with his children a couple of times per week, and· Dr Potter recorded that the claimant spends his days at home watching television and gardening but also nominated fishing, camping, motorbike riding and swimming is activities of interest.
In relation to the category of travel the insurer noted:
· Dr Chow assessed a class 2 impairment noting the claimant limited driving and would only attend the local shopping centre and would occasionally take his children to and from school;
· Ms Lord (21 February 2022) indicated that the claimant’s driving tolerance was two hours, the claimant had travelled to North Queensland in 2021, and the claimant had driven down to Melbourne and back to visit friends;
· the claimant reported to Dr Potter that he continued to drive and describe physical rather than psychological considerations as a limitation, and
· there were pre-existing history of road rage incidents and submitted there was no impairment to travel.
In relation to the category of social functioning the insurer noted:
· Dr Chow assessed a moderate impairment on the basis that the claimant no longer sees friends, was separated from his wife and his relationship with these children was more distant, and
· Dr Lal in a pre-accident report recorded that the claimant and his wife were in the process of separating prior to the accident and there was a lengthy history of domestic disputes and physical violence.
In relation to the category of concentration, persistence and pace the insurer noted:
· a Centrelink employment services assessment dated 22 June 2020 noted the claimant’s long-standing pre-existing psychological condition and that the claimant’s memory and concentration impacted his condition, and
· Dr Potter reported that the memory and concentration was bad at times however the claimant appeared to attribute this to his pituitary cyst and confirmed he was able to follow storylines and record television programs.
In relation to the category of adaptation the insurer noted:
· NSW Police records show that the claimant had been buying and selling cars between 1 May 2005 to 12 October 2021, and
· Dr Home recorded in a report dated 16 February 2024 that since the accident the claimant continue to undertake some casual work in purchasing and reselling goods by auctions and had also performed car renovations.
In relation to pre-accident conduct the insurer referred to the New South Wales Police records which do not necessarily mean the claimant was convicted with an offence and that he was charged with the offence. It however noted:
· motor accidents in August 1996, January 1997, February 1999 and March 2000;
· malicious damage and threats against police on 12 April 2003;
· reports pertaining to possible possession of firearms, domestic disputes and resisting arrest;
· drink driving offence in July 2004;
· various charges for assault placing a child at risk in December 2004 domestic disputes in 2005 to August 2006;
· the police was shot at five times in March 2008;
· motor vehicle accident on 27 October 2008;
· reports of domestic or family violence in August 2009;
· road rage incident in October 2009;
· an AVO was issued on behalf of the claimant’s aunt against the claimant in March 2012 although assault charges were not pursued;
· in September 2012 the claimant was involved with an incident with another driver but assault charges were not pursued by the police;
· in July 2013 the police records show the claimant was charged with various offences relating to salt malicious damage against his brother;
· various certificates from Royale Medical Centre covering the period July 2013 to June 2016 certify the claimant as unfit for employment on the basis of various physical and psychological conditions;
· in December 2014 the claimant presented to Macarthur Square medical and dental for severe depression having seen a psychologist or psychiatrist some weeks earlier;
· in November 2015 Associate Professor Vogl noted a significant history of unspecified substance abuse causing heart damage. The claimant had been off work for two years;
· a consultation at Complex Health Medical Centre on 25 October 2016 noted various health conditions including morbid obesity and that the claimant had not been working for a long time due to aches and pains;
· police records in January 2017 note that the claimant was involved in further road rage incident;
· on 2 September 2018 the claimant was charged for speeding, refusing to produce a drivers licence and refusing to undergo a breath test;
· in October 2018 the claimant attended MacArthur Square medical and dental with discussion in relation to taking antidepressant medication;
· a report by Mr John McDonald (psychologist) dated 23 February 2017 but received on 6 March 2019 by Dr Sharma noted psychological treatment in relation to depression and anxiety attributed to the claimant’s dysfunctional upbringing and complex legal issues. A mood assessment from the Black Dog Institute indicated the claimant presented with severe depression, possible delusional thinking patterns, severe generalised anxiety disorder and post-traumatic stress disorder;
· on 28 March 2019 Dr Sharma (Complex Health Medical Centre) referred the claimant to Dr Sharat Lal (psychiatrist). Dr Sharma noted the claimant presented with symptoms of depression for many months pertaining to health issues and relationship strain and queried whether the claimant had a personality disorder;
· Dr Lal provided a report dated 29 May 2019 which recorded a long history of involvement in consuming and selling illicit drugs and working for the police. A subsequent attendance in June 2019 was noted by Dr Lal as quite difficult with the claimant angry and having reported his wife the previous day and had suicidal for thoughts and wanting to kill somebody and then kill himself. The claimant was trialled with Tegretol so the doctor would have preferred filing an antipsychotic which would have been helpful for diagnostic purposes;
· on 17 June 2019 Dr Lal recorded that the claimant had been drinking just over one bottle per night. The doctor raised trialling an antipsychotic which the claimant refused. The claimant cancelled the following appointment;
· police records in August 2019 noted a domestic violence complaint;
· on 26 August 2019 Dr Lal prescribed a one-off injection of Abilify. On
6 September 2019 Dr Lal prescribed a lower dose of Abilify (10mg) and noted the claimant was ambivalent about medication and treatment in general and there appeared to be ongoing anger issues particularly at home with his partner;· in August 2019 a certificate provided by Dr Sharma diagnosed the claimant with possible psychotic illness certifying the claimant unfit for work;
· in November 2019 claimant was involved in a prior motor vehicle accident;
· in March 2020 the claimant reported an incident to New South Wales Police describing graphic threats made against himself and his daughter;
· a Centrelink employment services assessment report dated 22 June 2020 detailed long-standing pre-existing psychological history commencing in 2005 including mood problems, thought disorder, depression, stress disorder as well as possible psychotic illness. Antidepressant medication and psychiatric treatment had ceased, and
· an ambulance report dated 18 July 2020 referred to a rear end collision with the claimant injured, driving himself home but subsequently developing generalised lower abdominal pain and right sided back pain.
The claimant’s post-accident psychiatric and social history included:
· attendance at Wollongong Hospital on 13 November 2020 which noted ETOH of half a bottle of spirits every two to three days;
· on 20 January 2021 the claimant was stopped by police and responded aggressively;
· New South Wales Police records confirm the claimant was charged with assault arising from an incident in a car park on 3 June 2021;
· in June 2021 Associate Professor Vogl recorded a history that the claimant had ceased drinking alcohol, was electrocuted three months prior which may result in heart damage, and the pituitary cyst may have increased in size, and
· 2023 police records show altercations with other persons on two separate occasions.
Insurer’s submissions dated 1 November 2024[56]
[56] Insurer’s bundle, p 731.
These submissions opposed leave to review the medical assessment referring to cl 6.215 of the psychiatric impairment rating scale (PIRS) used to measure impairment due to somatoform disorders or pain and cl 6.217 that “the psychiatrist clinical judgement was the most important tool in the application of the scale”.
The insurer submitted that the complaints in relation to areas of the certificate was simply a manifestation of the claimant’s disagreement with the Medical Assessor’s clinical findings.
The insurer referred to the detailed findings within the certificate that the chronic pain appeared to dominate the claimant’s life and contributed to the considerable impairment and submitted that the difficulties with concentration, persistence and pace were mainly attributable to pain.
The insurer submitted that the Medical Assessor’s assessment of psychiatric impairment of adaptation to matters which arose from the persistent depressive disorder and excluded the effects of the somatic pain disorder.
The insurer noted that there was no obligation on the Medical Assessor to expressly refer and comment on every report particularly when some of the complaints of non-referral related to opinion on orthopaedic injuries.
Insurer’s submissions dated 29 May 2025[57]
[57] Insurer’s bundle, p 751.
The insurer attached updated records from the claimant’s attendances with his GP which were not available at the time of the original medical assessment.
RE-EXAMINATION
The Panel determined that the claimant be re-examined by both Medical Assessors. The examination report is as follows.
SUMMARY OF PERTINENT DOCUMENTS CONSIDERED
Of particular relevance were the following documents:
Independent medical examination report by Dr Frank Chow dated 27 October 2023. Diagnosis is persistent depressive disorder and alcohol use disorder. [CIE] has not worked since his 30s. He had some limited capacity prior to the accident, but the accident has aggravated his psychiatric injury, and he is not totally unfit for work. As a result of the psychiatric injury from the accident, [CIE] is totally unfit for work. He has reached maximum medical improvement. The final whole person impairment is 17%. There is 5% reduction for pre-existing impairment. Dr Chow considers the accident on 13 November 2020 has aggravated [CIE]'s underlying psychological condition.
Psychiatric report by Dr Brian Potter, consultant psychiatrist, dated 26 February 2024. Dr Potter writes [CIE]'s history and presentation is not that of an ordinary motor vehicle accident with injury reflecting the manner in which he presented for the assessment and the collective background history provided, it is reasonable clinically to accept that he is a troubled individual most likely within a personality disturbance and that this dominates any motor vehicle accident and injury. It is not possible from this assessment to be able to offer an informed psychiatric diagnosis with, however, an unlikely psychiatric diagnosis with injury due to the confused and rather bizarrely described motor vehicle accident, psychiatric diagnosis withheld.
The psychometric assessment report by Muhamad Ziedni, clinical psychologist, dated 15 May 2023, with diagnoses of post-traumatic stress disorder, major depressive disorder with anxious distress and somatic symptom disorder with predominant pain.
Noted various letters by Dr. Sharat Lal, consultant psychiatrist, South Coast Private Hospital in various dates May 2019 to June 2019 and July 2019. Dr Lal writes: I feel [CIE] describes long-standing issues of dysphoria and anger in the context of a prejudicial childhood and difficult experience as an adolescent and young adult. I feel he should continue psychological therapy with Mr John McDonald. I feel antidepressants may be helpful for his anger and dysphoria. [CIE] is very unsure about taking medications. He asked me what I would suggest. I have suggested an SSRI. He has taken a list of SSRIs and said he would read up on these. I have also asked [CIE] to try and stick to red wine and drink not more than half a bottle a day. He did not wish to see a drug and alcohol counsellor. [CIE] described a long history of illicit drugs, both consuming and selling. When I spoke to [CIE]'s wife Lisa with his permission, she said that he had told her about his involvement with selling drugs and police quite early in their relationship and that she thought that what [CIE] was describing had happened to him. [CIE] said that the police had been involved with selling drugs and that he had worked for them. He said police involvement in selling illicit drugs was disclosed in the Wood Royal Commission. He said he drinks half a bottle of scotch at night and has done so far for the last two years. He said this quantity has been increasing. He says on some nights he drinks red wine instead and can drink perhaps a bottle. [CIE] said he started using intravenous amphetamines and then cocaine from the age of 14 until the age of 30. [CIE] said his father was verbally and physically abusive to his mother and to [CIE] but to none of the other siblings. [CIE] said his father beat me up a lot. Current psychotropic medication, Tegretol CR 600 mg nocte. I note John McDonald's concern regarding a possible psychotic illness, however, I do not think this can be diagnosed with certainty at this time. I do not feel a presentation warrants an attempt at an involuntary treatment.
Note dated 20 March 2019 by Dr Mukesh Sharma, [CIE] was accompanied by a daughter referred to a psychiatrist. Symptoms of depression for many months. This is to do with many factors in his life, including his own health issues and health issues with his daughter, which cause a strain in relationship with his wife. [CIE] has had problems with his mood in the past too. Seen a psychologist, John McDonald who believes that [CIE] might have delusional thinking, GAD and PTSD. I wonder if he might also have some kind of personality disorder. I would appreciate your assessment before we decide on medications or further treatment options.
Notes dated 29 March 2017 at Southern Central Cardiology. Use of substances started at about age 14. Heart said to be damaged by substance use in about 2002. Another cardiologist stated that the heart was badly damaged when he reviewed the patient at Auburn a few years ago. Sleep apnoea. No use of substances for the past 10 years. Not gainfully employed for the past two years because of bad back, sleep apnoea and bad knees. Recent bariatric surgery. Negative CT coronary angiogram. 2015. Normal left ventricular systolic function 2015.
Note by Dr Fred Nouh, orthopaedic surgeon dated 19 April 2017: [CIE] presenting with multiple medical problems including bilateral hip pain, bilateral Achilles tendon pain due to non-insertional tendinosis, as well as lower back pain and cervical spine pain. He describes mainly left hip discomfort along the back of the hip joint more towards the sacroiliac joint, especially with certain moments of the hip. He is still able to walk long distance before the pain stops him. He has no groin or trochanteric pain. His left side is worse.
Noted in the insurer submissions are the various New South Wales police records stating history of multiple issues with the police. He was charged with several counts of malicious damage, threat against police and resisting arrest. Arrested during an RBT after returning a blood alcohol reading of 0.075 mg of alcohol. While in custody, he made threats to other persons caught drink driving. Trialled with three counts of actual offence against other person and placing a child at risk. Order placed against him for the safety of his mother-in-law. After a disagreement with his father-in-law, the plaintiff had demanded that mother-in-law also leave the residence although she did not wish to leave after having expressed concern with respect to plaintiff's ability to care for his other three children. In light of these concerns, being expressed, the plaintiff referred to his mother-in-law as SL*T. This prompted the plaintiff run down the driveway, grabbing his mother-in-law by both arms and throwing her to the ground on her right side. The plaintiff then placed his right foot on the left side of his mother-in-law's face and twisted his foot.
Note dated 12 June 2019 by Dr Sharat Lal, consultant psychiatrist. [CIE] said he had been very angry recently and had actually hit Lisa yesterday. This caused him to have suicidal thoughts last night. [CIE] expressed a lot of anger towards the world in general and towards police in particular. [CIE] said he was feeling so angry he could easily go out and kill somebody and then himself, however, on further exploring these thoughts, he admitted that he had the same thoughts for a long time. Note dated 26 August 2019. Interestingly, [CIE] said that his friend is on Abilify and that [CIE] wished to try it. While of course, Abilify is an antipsychotic, it has also been shown to be helpful in depression. Given [CIE]'s distress and his somewhat paranoid way of thinking, I feel it is worth trying Abilify given this is the only thing [CIE] is willing to try.
Notes by John McDonald, psychologist dated 23 February 2017. [CIE] reported a long history of depression and anxiety emanating from a dysfunctional upbringing and some complex legal issues. He reported always having a certain level of depression and anxiety, but now the combination was proving quite challenging. He had a number of psychological issues that needed to be addressed; however, his main concern at this point is dealing with his situation. He was referred on to Black Dog Institute to complete an online mood assessment program. Results indicated that he has serious depression and possible delusional thinking patterns, severe GAD and PTSD.
Medical assessment, permanent impairment (psychological certificate by Personal Injury Commission) by Medical Assessor Christopher Canaris. The following injuries caused by the motor accident give rise to a permanent impairment of 10% and is not greater than 10%. Persistent depressive disorder (dysthymia), somatic symptom disorder with predominant pain.The assessment
The assessment was attended by [CIE], over a Microsoft Teams meeting, who was located at his solicitor's office. He attended the appointment on his own. The appointment was attended by Medical Assessors Matthew Jones and Himanshu Singh, who were located at their respective offices and joined the appointment over the Teams meeting.
HISTORY
Psychosocial history and pre-accident history
[CIE] stated that he was born and grew up in Granville near Parramatta. He has an older sister who is 12 months older than him, and they were both born on the same day of the year. He stated that his parents were together and there were seven children in total. When asked about his childhood, he stated that like any childhood they were looked after and well fed. They were provided all the essentials and had good parents. He left school in Year 8 as he wanted to get out and make money. He first worked at a fruit shop earning $6.50 an hour. He stated that school was hard. There was bullying due to racism. When asked about the reason for this, he said, “who knows, maybe due to different colour most dark people get bullied”. He denied any mental health issues in his childhood. He denied any trauma or abuse during childhood. He stated that he lived with his family and had a normal life.
After the fruit shop job, he later worked in a soldering job where he was soldering chips to the motherboards of computers, and he worked there for around six months. He then worked as a brickies labourer and had worked in landscaping. He joined the Army Reserve some time in 2020 or 2021, but he left it in the same year. He stated, “they reactivated my file 10 years later when I applied but by that time I had lost interest.” He also did a course in panel beating.
[CIE] stated that he had his first relationship somewhere in the 1990s when he was in his early 20s. He does not remember the exact year, but he was in a relationship for a few years, and she died, after he left her, due to chronic pancreatitis. He has a son from that relationship who is around 35 years old now. His first partner's name was Vicky. He then had some short-lasting relationships but nothing serious. He saw some women after he separated from Vicky but was not in a long-term relationship. A few years later, he met his current wife, Lisa. They got together and have been together for the last 24 years. They were married around eight to nine years ago. They have four children. The oldest one is a daughter Isabella, who is 23 and has special needs. Then he has his son James, who is 20, and a daughter Sarah, who is 16, and Jacqueline, who is around 12 to 13 years old.
When asked about his history, [CIE] stated that he might have had some issues, but he cannot recall. He stated, ‘I don't remember. I can't recall. I'm deteriorating. I can't remember about my past.’ When asked about his relationship with Vicky, he stated, ‘With Vicky it was normal. We just lost interest in each other and separated. We again came back together but separated again. There was no abuse or domestic violence in the relationship.’
When asked about his relationship with his current wife Lisa he stated, ‘It's a different relationship. I think we are bonded. I think I have become a burden for her in the recent years. Lisa has her own issues. I do not do anything for Lisa. She has to look after the oldest daughter. I was helping in picking up and dropping off children from school and doing some shopping, that is why I have never worked full time due to these family responsibilities’.
When asked about any previous psychiatric history before the accident, [CIE] stated that he cannot remember. It might have been before or after the accident or around the accident. He stated, he remembers that he saw a psychologist John and also saw a psychiatrist and had two visits with him, but he was not comfortable with him. He again stated he cannot remember whether it was before, after the accident or around the time of the accident, that he had contact with these clinicians.
When asked about his medical history, he initially stated, ‘no’, but then later he added that there were issues with his heart when he was young. He stated, “They gave me one year to live but I have been taking Coenzyme Q for the last 10 to 15 years and that has helped me.”
When we asked about any forensic history, he stated, ‘I have been in trouble with the law in the past. I have been charged.’ He said, ‘You get pulled over. They harass you. The law was different in old days. They pick the wrong person. I don't remember being in trouble as a child, though he spoke about an event when he was 17 years old. ‘I was in the paddock. My dad had a restaurant in Parramatta at that time and used to grow some stuff for the restaurant. The cop went past and called my father and asked if he was growing marijuana.’ He stated that the police called his father a ‘wog’, and that irritated him, but he did not do anything, and he learned to live with it. He still remembers that very clearly. He stated that some people are not treated fairly. He said he was still a happy kid.
[CIE] stated that he was in jail once for a traffic offence for around six months.
He does not remember much about it, but he was driving while disqualified. He was also hit with charges of assault of police but that were not proved, and the charges were later dropped. He stated, ‘I have never assaulted anyone.’
On being asked about drug and alcohol history, [CIE] initially denied any history of drug and alcohol use or smoking before the accident. On being questioned about the history of alcohol use before the accident, as mentioned in the documents, [CIE] continued to say that he was only using alcohol recreationally, which is not consistent with the documented history. He disagreed that he had ever used drugs before the accident. On being again asked about the documents which state that he was using illicit substances and was also selling them, he denied it, multiple times, whilst being prompted, particularly regarding the contents of his history reported to Dr Lal. He became very irritable when presented with these details, stating that he never said that to Dr Lal, that he is not sure why Dr Lal wrote that down, that he felt he was being interrogated, being made out to look like a liar, and that his compensation situation was being damaged, despite 5 years of work. Ultimately, he conceded that he may have used drugs recreationally.
Prior to the accident, [CIE] stated that he was doing his Certificate 3 in warehousing before the accident, which he completed. He was doing renovations on his house. He could not do the certificate in forklifting due to his injuries. He had his business, known as Roadrunner Autos, where he worked on and off. He could not fully expand that business due to the family duties. He did some part-time job there in buying and selling cars. He had to look after the family. He was receiving a Centrelink benefit for the two children who he was looking after. He said the course he was studying was two days a week. He finished the course and got his certificate 3 a month or two later after the accident. He was looking at job options, but he could not return to work due to the accident.
Upon being clarified about his allowance, [CIE] became quite irritated when discussing the allowance he was receiving. Initially, he said he was receiving a single-parent pension but when the Panel questioned that how could he get a single-parent allowance when he and his partner were living together, he then made a phone call to his wife during the assessment and checked and said that it was a parenting payment that he was receiving at that time.
[CIE] stated that he was intending to work, but he could not work due to the accident and the injuries resulting from it.
History of the motor accident
[CIE] on being asked about the accident stated he does not like thinking about it. He stated that it was on a Friday on 13th in 2020 in November or December, or could have been October or November, but was not sure of the month. He stated it is possible that he was seeing someone clinically around the time of the accident, maybe John, but he does not remember. He enjoyed speaking to him. Speaking to him was better than speaking to his wife and he was not sure whether this was before or after the accident. Then he said it was after the accident.
[CIE] stated at that time of the accident, they had purchased a house, and he was doing some carpentry work on the house. His wife was the carer for his eldest daughter, and he had to pick up and drop off his other two daughters from school. This was around the corner from the house. He stated, ‘We don't like catching the bus or walking as there are a lot of hooligans in the area.’ He turned left at the roundabout, which is 100 metres from his house, and it was clear, and within a few seconds, he heard the sound of the engine revving. His daughter said, ‘Dad there is someone behind you.’ He saw the headlight going left to right and was worried. The car was approaching his driveway. He applied the brakes, and the other car accelerated and came around and got in front of him. The other car ended up in front of him, in the driveway. He could not get into his house, so he had to reverse and find a spot to park. The girls called their mother. He walked out and had an altercation with the other driver. The other driver was ‘sweating and probably was intoxicated on something’, and they ended up in a confrontation. [CIE] told the other driver that it was his driveway. [CIE] stated that he finds it hard to remember everything. ‘There is more, and it is in the (Police) report’. The other driver said, ‘I know where you live now. I will burn your place.’ [CIE] stated that he tried to reach him in his car and was wrestling to get his key, however he just accelerated his car, and his arm was caught in the window. He remembered the loud sound of the engine and a numbness came to him. He stated that the tyre of the car felt like a molten rubber and ran over his feet. He sustained injuries to his hand and was in intense pain. He dropped to the ground and people ran to him. He was lying on the kerb, people came to see him, then the ambulance arrived, and the police came later.
[CIE] stated that the other driver reckoned that he was driving too slowly. The other driver left the scene and someone chased him. He was trying to cover his car with a tarpaulin, and someone saw him and took a photo. He was, as per [CIE], tailgating other drivers earlier as well, and others had made a complaint about him.
[CIE] stated that his arm was dangling and felt like a jelly and had a throbbing pain from his knee down. He does not remember much. The ambulance took him to a hospital. He became agitated, frustrated and ‘really angry’ at the hospital when he saw someone, ‘probably a junkie’, who was semi-assaulting a nurse and was ‘having a go at the nurse’. [CIE] stated that he could not tolerate the sound and the noise, and he limped out of the hospital. He does not remember what happened, but he probably went out the front gate and does not remember if he caught a taxi back home, but he ended up in his home. He thought he would be okay. He woke up around 12am or 1am in the night and was screaming in pain. His wife rang the ambulance which came and took him back to the hospital. He had an operation few days later. He does not remember the exact time of this. He was told that he had sustained a tear of his biceps tendon. The surgery for his biceps tear did not work well and he has been told to have another operation.
History of symptoms and treatment following the motor accident
[CIE] stated that he continued to feel very sore and was in pain. He started to be often angry. He stated, ‘It stays in my head, I need justice. I was charged and when I went to the court the judge was laughing. She said: ‘I have never seen anything like this’. All these things go in my head, and the case was thrown out of the court.’
[CIE] added that when he hears an engine rev, he gets shaky, and it wakes him up. With respect to the accident, he can hear the crunch of metal and remembers molten rubber on his foot. He stated, ‘You never think how it is going to affect you. You don't know what is going to happen.’
[CIE] stated that he started to be always angry. He would often get into his own world and would be distracted when talking to his wife. He does not listen. He would lie on a couch a lot and watch videos and then drift off. He may sleep for an hour or two and then wake up on his own or to the sound of an engine. He would often be too mentally exhausted to walk to the toilet, or he is too exhausted to even ‘go and take a piss’. He would feel the tingling in his arm and pain and numbness in his hip.
[CIE] stated that he started to drink a lot to help him sleep. He stated he never had issues with alcohol, but he started to drink around 9-9:30 in the night and would drink so much that he would become numb and would get to sleep. He may drink half a bottle of Scotch whisky every night and that has been the case for the last four years. He may still not sleep more than 3 to 4 hours. He has not slept more than 3 to 4 hours on any given day since the accident. He also started to smoke. He may smoke around 2 packs of cigarettes in a day. On some days he may have red wine. He stated that the alcohol has not gone very well, and he has started to get an allergy. His doctors believe that he is developing alcohol poisoning and tobacco poisoning. He showed his fingers and the redness on them, and he also moved his T-shirt up to show a dressing on his abdomen and stated that he had developed an infection and an abscess. He has been on antibiotics, but it is not healing. He stated, ‘I am traumatised. I take Coenzyme 10 as it helps with my skin and my mental state.’
On being asked about the treatment, [CIE] stated he does not remember, but they gave him something, but he does not want to take it. ‘I don't want to take it as it does not help and has side effects.’
[CIE] was not sure which health professionals he saw for his treatment. He stated he possibly saw a psychiatrist, but then he was not sure about it. He also stated that he had surgery for his biceps tear, but it did not work well, and he has been told to have another operation.
Details of any relevant injuries or conditions sustained since the motor accident
[CIE] denied any injuries or conditions sustained since the accident.
Current symptoms
[CIE] currently lives in a granny flat and his family lives in the adjoining house. He stated that after the accident he needed to be on his own and things were not working well, so he moved out. He was not coping with the family in the main house. He was frustrated easily, often fighting and often having arguments. The arguments among his children and the loud noise were getting to him and he could not tolerate them.
[CIE] stated that he tried to move back into the main house, but his family would not have him back. His wife is now focused on his daughter who is also a special needs child.
[CIE] stated that he has not worked since the accident. He was assessed by Centrelink and GIO and was told that he ‘is a liability’. He stated he is also not in the right state of mind to work. He has been on the Disability Support Pension, and this was started a year ago. He stated, ‘the insurance gave me nothing, they did not accept the liability. They offered rehab and paid for a while, which stopped later on. They had someone coming around for physiotherapy and she finished, the last thing I heard. I need operation for the permanent damage in the left arm, in my biceps.’
He showed the scar and the point where the tendon needs to be attached. He said that there is a hollow area where the tendon is not present and needs to be attached to the bone. He also stated that there are issues with his hip and his legs.
Current and proposed treatment
[CIE] currently is not receiving any regular psychological or psychiatric treatment.
CLINICAL EXAMINATION
Mental state examination
[CIE] was seen over a video conference through Microsoft Teams. He was at his solicitor's office. He had neat, short hair and a salt and pepper goatee type beard. He was calm and cooperative to begin with. He became a bit irritable when the Panel members questioned him about the inconsistencies in the history given by him, with reference to the documents. He was often getting sidetracked when answering the questions being asked. He gave a clear account of certain parts of the history but for certain others, his responses were mostly, ‘I don't know, and I don't remember.’ He described his mood as low and reported he had not much interest and motivation to do things. His speech was spontaneous, normal in rate, tone and volume. He expressed the desire that he wants surgery for his arm. He wants treatment and wants his biceps and legs to get better. His effect was restricted. He did not report any self-harm or suicidal thoughts, intents or plans. There were no thoughts, intents or plans of harming others. There was no formal thought disorder. He did not display any delusional pattern of thinking and there were no perceptual abnormalities. He did not report any grandiose ideas or racy thoughts. There was no cognitive dysfunction. He was preoccupied with the lack of justice for his claim. He got upset at one point and stated that with today's assessment, he is probably not going to get his claim resolved any time and it has been dragging for the last five years. He appeared to have limited insight into his ongoing issues. Rapport was variable, ranging from superficially good, to irritable and antagonistic, especially when inconsistencies were brought to his attention.
Current functioning
[CIE] stated that he goes to sleep around 9.30pm or 1.30am, somewhere in between, mostly around 10.30-11pm when he drinks heavily and knocks himself out. He does not get more than 3-4 hours of sleep. He is awake before the sunrise. He has constant pain in his knee and hip. He stated that, ‘They assumed I had gout, but I don't have gout. I was also given lubricant in the joint which did not work.’ He stated, ‘I am not going to a specialist anymore. I move around in pain. I struggle to go to the bathroom. I am in pain and exhausted. I can't get out of the bed at times. I keep a bottle on the side to pee. Sometimes I am hungry, and I am not bothered to cook anything and have lost 11 kilos in the last year, and I don't have appetite.’
[CIE] stated that he was worried about the abscess on his stomach. He does not function very well. It is an effort to shower and dry himself. Though he showers daily and is exhausted by the time he finishes the shower, he may then lie on the couch or watch the news and may sleep for 15-20 minutes. He then feels refreshed but then again, he gets exhausted and lies down again on the couch and throws a blanket on his face and puts cotton bud in his ears so that he does not hear any noise.
[CIE] stated he has his washing machine in the granny flat. He may do small loads of washing once a week. If it is a big load, then his wife will come and help and hang it out. She cooks and brings food for him. His wife will do things for him. He does not go anywhere apart from once a fortnight he will go to Aldi's to get his groceries and other supplies.
Mr. Raffoul stated that he used to be into taekwondo, but he has not had trained since the accident due to his hand injury. He has done some gardening but the way he has to hold the bucket is a different way. He gets in the garden for 5-10 minutes, maybe once a week, or he may sit in the sunlight in his underpants for 10-15 minutes to get some sun. He does not go anywhere. He belongs to a big family, but he does not go to weddings or any family functions. His wife or his children may go but he prefers to stay home. He is trying to work out a lifestyle for himself, but it is getting worst. He finds it hard to put his shoes and socks on. He stated, ‘I am not social, I don't want to hear anyone or see anyone.’
[CIE] stated that he drives but he plans to sell his car as it is too high for him from the ground and it jolts his body, and it is not convenient for him. He had the same car before the accident. He does not go anywhere. He will only drive to Aldi. He has not travelled on his own or with his family and has not been on any holidays or vacations.
[CIE] stated that he does not fight or have arguments with his wife, although he feels ashamed and embarrassed. She is bit more resilient now. Before this she was snappy, but she is much better now. He is often butting heads with his oldest daughter and may have arguments with his son, but then his ‘body does not work’.
[CIE] stated that he would never finish a movie and gets too lethargic. It is an effort to focus and to listen to words. He often needs to rewind it and watch it again.
[CIE] stated, ‘I don't think I will ever work again. I think sometime, somehow to help my children, to set up a business for them but I am unable to. I may sell some toys in the garage. I sold one motorbike, and it was through word of mouth. I have to sell a few other things. I may sell it on Gumtree or through Facebook.’.
Comments on consistency
[CIE]'s presentation was highly inconsistent with the information that he provided, and the information noted in the documents. There is a documented history of heavy alcohol consumption and drug use and selling drugs before the accident. When Mr. Raffoul was asked to comment on this, he said, ‘I never sold drugs in my life. I don't recall. I have done drug use recreationally, may have used drugs at a young age, but I was not dependent, and I never sold drugs. I don't want to talk about my past.’
When asked about his childhood issues and that he had mentioned difficulties in his childhood to previous psychiatrists and psychologists, he stated, ‘I don't want to talk about my past when asked about it, and I want to move forward.’ He stated, ‘I feel I am being interrogated. I feel you are putting words in my mouth,’ and got quite upset and irritable about it. The Medical Assessors reassured [CIE] that we were trying to help him in his claims process, and it was important that we were able to establish the past history, including his childhood history, as well and give him the opportunity to address any inconsistencies or discrepancies.
There was no resolution of the obvious inconsistencies between [CIE]’s reported history and the documents, including the history of mental health problems, and seeing a psychologist and psychiatrist (not long) prior to the accident, the substantial history of alcohol use, and the significant drug use history. [CIE] either denied the information in the documents, stated he could not remember, or refused to answer questions.
His ability to recall elements of his history was vastly variable, not clinically consistent with a psychiatric illness, or cognitive deficit.
Overall, the Panel considered [CIE]’s reported narrative was sufficiently inconsistent such that it was difficult to consider his overall report as reliable.
DETERMINATIONS
Diagnosis and reasons
The Panel members noted that there was inconsistency and unreliability in the history given by [CIE] and that mentioned in the documents. There is a strong, poor police record, which [CIE] does not agree with, apart from the offence of driving when disqualified. He minimised the intensity of other offences, stating that the police used to manhandle in those days. The history becomes complicated when he has not been forthcoming with the information about his alcohol consumption and drug use before the accident, which again makes him an unreliable historian.
The Panel members noted that when they tried to clarify the history and the information, especially the issues with the police, the past psychiatric history, and the past drug and alcohol history, [CIE] became quite irritable, and the Panel members were unfortunately not able to resolve the inconsistencies. [CIE] was minimising the impact of the marital discord he has had with his current partner and attributed all his relationship issues and his mental health issues to the accident. The Panel members found it difficult to follow the narrative of [CIE], with him often getting sidetracked with the information that he provided. He was usually giving very accurate and elaborate details of events and incidents following the accident; however, he was not forthcoming with other relevant information, and his responses were, ‘I don't know, and I don't remember’, with most questions asked about relevant history or issues that he had before the accident.
The Panel members are of the opinion that [CIE] had significant mental health and drug and alcohol issues before the motor accident. He had significant issues with the law, with various police records, having jail time in the past, long term use of alcohol (up to the time of the accident) and illicit substances in the past. He also had difficulties in relationships with his current and previous partner. He appears to be having issues with his personality and an underlying antisocial personality structure that mostly predominates any mental health issues.
Causation and reasons
For the above-mentioned reason, the Panel members are unable to form an opinion that the accident has caused any psychological/psychiatric injury. The Panel members are of the opinion that [CIE] would have continued to suffer from his underlying psychiatric issues and drug and alcohol issues following the motor accident but not causally related to the motor accident.
The Panel members are of the opinion that with the current presentation, and the inconsistency and unreliability, and we cannot make a definitive psychiatric diagnosis caused by the accident. Hence, in the absence of a psychiatric diagnosis, the Medical Assessors are unable to comment on a permanent impairment due to any psychiatric injury.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[58] and Insurance Australia Ltd v Marsh.[59]
[58] [2021] NSWCA 287 at [40], [41] and [45].
[59] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the detailed examination findings made by both Medical Assessors with the additional further observations. We have met following the provision of the joint examination report. The following represents the findings of the Panel. These findings are to be read as supplementary and in addition to the examination report.
The claimant phrased his case based on an aggravation of a pre-existing psychiatric condition. We accept, consistent with standard common law principles, that this would be an injury within the meaning of the MAI Act.
The Medical Assessors in their examination report have identified a series of answers which, as a Panel, we do not accept. We summarise these as follows.
First, the claimant denied any pre-existing psychiatric history and then reframed this to one of being unsure. There are extensive histories recorded by Dr Lal and Mr McDonald of pre-accident psychological symptoms. We prefer the detailed accounts in contemporaneous records where the claimant was obviously receiving psychological treatment despite the claimant’s denials.
Secondly, the claimant, denied any pre-accident drug and alcohol issues. Again, the treating records of Dr Lal, which we prefer, are in marked contrast to the claimant’s account to the Medical Assessors.
Thirdly, the claimant denied the history recorded by Dr Lal that he sold drugs prior to the accident.
We accept that some of the police records relate to charges which were not proven. The insurer listed all charges and did not assist in limiting the material to what had been proved. The claimant admitted portions of the charges. We have not based the adverse finding of the claimant’s credit on the various police records because there was some admission of prior criminal misconduct. The post-accident criminal conduct has been summarised earlier in these reasons.
We also have not based our adverse credit conclusion on Dr Home’s history of post-accident work. That history is an outlier and previously denied by the claimant. It is plausible that this aspect of the history recorded by Dr Home is incorrect.
As the Medical Assessors noted in their report:
“There was no resolution of the obvious inconsistencies between [CIE]’s reported history and the documents, including the history of mental health problems, and seeing a psychologist and psychiatrist (not long) prior to the accident, the substantial history of alcohol use, and the significant drug use history. [CIE] either denied the information in the documents, stated he could not remember, or refused to answer questions.”
In the absence of corroborative independent evidence, we do not accept the claimant’s account. We believe there was no proper attempt by the claimant to provide a candid account of his pre-accident situation so that the Panel could properly examine any change in his pre-accident symptoms with his post-accident condition.
We have provided a summary in these reasons of the histories recorded by various treating doctors and other health professionals prior to the motor accident. We prefer those contemporaneous accounts to the version provided by the claimant to the Medical Assessors in the recent examination.
We note that there were accounts of the motor accident provided to the police and ambulance driver. We accept that the claimant suffered a physical injury in unusual circumstances involving a not uncommon threat of violence. The contemporaneous account and hospital treatment support the finding that the claimant was injured in a motor vehicle accident and suffering from at least a rupture of the left biceps tendon and soft-tissue foot injury. That conclusion is consistent with the acceptance of physical injury of an ongoing mild nature by Dr Home.
However, the claimant is required to show that the motor accident and its consequences aggravated the chronic psychiatric condition in circumstances where his version of psychiatric complaints of increased symptomatology is not accepted.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[60] In Raina v CIC Allianz Insurance Ltd[61] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[60] See s 3B(2) of the CL Act.
[61] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
The insurer referred to the claimant’s absence in seeking psychological treatment post-accident and the complex pre-accident history. There are also post-accident issues with proven criminal conduct which bear no relationship to the motor accident. The stressful family situation also continued in circumstances where those issues pre-existed the motor accident.
These unrelated issues are other potential causes for any post-accident increase in psychiatric symptoms.
The extent if any to which the chronic pre-existing psychiatric condition was aggravated by the accident is unclear. The histories recorded by Dr Lal in 2019 show significant psychiatric symptoms and chronic alcohol abuse. Other material we have referred to show chronic pre-accident physical symptoms where the claimant had not been unemployed for many years.
The claimant relied on several medical reports which support his case of an aggravation of his psychiatric condition. Those reports depend upon an acceptance of history provided by the claimant that there was a deterioration in his psychiatric condition caused by the motor accident.
The High Court in Whisprun Pty Ltd v Dixon[62] held that if a medical opinion was premised on an acceptance of history and complaints which were rejected, then the medical opinion had no weight. This principle was discussed by Gleeson JA in Boateng v Dharamdas[63] when his Honour stated:
“The medical opinions were premised on an acceptance of the appellant’s account of his history and complaints. Such an opinion would only be as acceptable as the history on which it was based.”
[62] (2003) 77ALJR 1598 at 1609 [60] per Gleeson CJ, McHugh and Gummow JJ
[63] [2016] NSWCA 183 at [148] (Leeming JA and Davies J agreeing).
The Panel has explained why he have not accepted the claimant’s account. An assessment of the cause of or aggravation of a psychiatric condition is largely dependent on an acceptance of the person’s history. The history provided by the claimant to the Medical Assessors left the Panel in the position that we doubted the claimant’s version unless it was independently corroborated. Given that we do not accept the claimant’s account of pre and post-accident symptomatology, we give the reports relied upon by the claimant no weight.
Given the chronicity of both physical and psychiatric issues and extensive alcohol abuse and unrelated post-accident events, we are not satisfied, on the balance of probabilities, that the motor accident caused an aggravation of a pre-existing psychiatric condition. In these circumstances, there is no need to undertake an assessment of permanent impairment.[64]
[64] Jarvis v Allianz Australia Insurance Ltd [2022] NSWSC 161.
CONCLUSION
The certificate issued by Medical Assessor Canaris dated 17 September 2024 is revoked. The new certificate is attached at the commencement of these Reasons.
DE-IDENTIFICATION
No application has been made that the reasons be de-identified. We have added this note at the conclusion of our reasons so that the Commission take immediate steps to bring this to the attention of the claimant’s representatives.
These reasons contain sensitive personal information. We believe it is prudent to strongly recommend that this matter be de-identified.
Having weighed the matters referred to in rule 132(4) of the Personal Injury Commission Rules 2021 including the safety, health and wellbeing of the claimant, and whether the public interest in giving the direction significantly outweighs the public interest in open justice, we are satisfied that the decision should be de-identified before it is published.
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