Clifford v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Clifford v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 545
CLAIMANT:	Stuart Clifford
INSURER:	NRMA
REVIEW PANEL
MEMBER:	Maurice Castagnet
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Melissa Barrett
DATE OF DECISION:	7 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; claimant suffered psychological injury as a result of the death of his wife in a motor accident; claimant witnessed the death at the scene of the accident; on re-examination the Review Panel assessed a higher whole person 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%; Held – Medical Assessment Certificate revoked; the post-traumatic stress disorder caused by the motor accident is not greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under ss 7.26 (7) and (9) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is 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%. Determination 1. The Review Panel revokes the certificate of Medical Assessor Alexey Sidorov dated 5 January 2023. 2. The Review Panel issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment that is NOT GREATER THAN 10% (9%): · post-traumatic stress disorder.

STATEMENT OF REASONS

BACKGROUND

The claimant, Stuart Clifford was involved in a motor accident on 17 August 2019. He and his wife were riding their bicycles on the roadway when a motor vehicle insured by NRMA, struck his wife’s bicycle. As a result of the impact, his wife died at the scene of the accident.
The claimant claims that because of the accident, he sustained psychological and psychiatric injury.
The insurer accepted liability to pay the claimant statutory benefits and damages under the Motor Accident Injuries Act 2017 (the MAI Act).
As part of his claim for damages, the claimant pursued damages for non-economic loss. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
The insurer did not concede that the claimant had suffered a whole person impairment (WPI) exceeding 10% for his injuries caused by the accident.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
The Commission referred the matter to Medical Assessor Alexey Sidorov for assessment.
On 5 January 2023, the Medical Assessor issued a certificate finding that the following injuries were caused by the accident:
•post-traumatic stress disorder, and
•persistent depressive disorder with anxiety distress.
The Medical Assessor certified that the injuries gave rise to a permanent impairment of 7%.

THE REVIEW APPLICATION

On 21 February 2023, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment of the Medical Assessor to a review panel for review.
The application was not made within 28 days of the original certificate being issued to the parties in conformity with s 7.26(10)(a) of the MAI Act. For reasons advanced by the claimant explaining the delay, the President granted the claimant an extension of time to file the application late, pursuant to s 7.26(10)(b).
The President referred the application to a review panel for review, being 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.[1]
[1] Section 7.26(5) of the MAI Act.

CONDUCT OF THE REVIEW

According 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 Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor John Baker, Medical Assessor Melissa Barrett and Member Maurice Castagnet (the Panel).
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 Medical Assessor.[2]
[2] 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. The panel may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the MAI Act.

RELEVANT LEGISLATION AND GUIDELINES

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).[5]
[5] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.1.
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 (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[6]
[6] Clause 6.2 of the Guidelines.
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.[7]
[7] See s 3B (2) of the CL Act.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“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.”
These observations were made in the context where the review panel was constituted by three Medical Assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel.
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of 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 Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[8]

MEDICAL ASSESSMENT UNDER REVIEW
[8] [2022] NSWSC 372 (Briggs (No 2)) at [73].

The Medical Assessor was of the opinion that the claimant’s post-traumatic stress disorder and comorbid persistent depressive disorder with anxious distress have developed subsequent to and have been caused by the accident, with no other identifiable causes for the symptoms. [9]
[9] Page 31 of the insurer’s bundle.
As previously indicated, the Medical Assessor assessed a WPI of 7% for these injuries. [10]
[10] Page 33 of the insurer’s bundle.

MATERIAL BEFORE THE PANEL

The claimant filed a paginated and indexed bundle of documents comprising 872 pages, and the insurer filed a paginated and indexed bundle of documents comprising 36 pages. The Panel considered all of this material.
The Panel also considered two supplementary bundles of documents from the claimant which were filed at the request of the Panel. The first bundle comprised of updated clinical notes of the general practitioner (GP) records of South Mudgee Surgery (118 pages) and the second bundle, the updated clinical records of clinical psychologist Ms Kerrie Noonan (16 pages).
Neither of the claimant’s supplementary bundles were paginated. This did not assist the Panel in identifying the precise page reference when referring to the evidence in these documents. In these reasons, the Panel has referenced the supplementary bundle itself when referring to any evidence from each supplementary bundle.

SUBMISSIONS

Insurer’s submissions

The insurer’s submissions may be summarised as follows:
(a)an issue to consider is whether the entirety of the claimant’s symptoms is related to the accident in circumstances where he did not report any psychological symptoms to his treating doctor until June 2020, some 10 months after the accident;
(b)the insurer contended that it was unclear whether complaints made against the claimant at work occurred before the accident or after the accident or both, what the nature of these complaints were, and whether they are related to the injuries sustained as a result of the accident, and
(c)the insurer submitted that when considering the evidence of psychiatrist, Dr Rikard-Bell and treating psychologist, Ms Noonan, an issue arises as to whether the claimant’s symptoms have reached maximum medical improvement. The insurer contended that if it is considered that the claimant’s condition is sufficiently stable to allow an assessment of WPI to proceed, the claimant’s current condition would not exceed the 10% WPI threshold.

Claimant’s submissions

The claimant noted that the Medical Assessor assessed a WPI of 7%. The claimant submitted that his assessment was based on an incorrect history of events. Had the Medical Assessor relied upon the correct history, the claimant submitted that a higher impairment assessment may have been possible, resulting in a WPI exceeding 10%.

SUMMARY OF THE EVIDENCE BEFORE THE PANEL

The evidence before the Panel relating to the matters under review, may conveniently be summarised as follows.

Pre-accident records

In evidence were the GP records of South Mudgee Surgery showing a medical history for the claimant from August 2008 to the date of the accident.
A review of these records did not reveal any pre-existing psychological conditions or treatment.

Post-accident records

The claimant’s personal injury claim form

In his claim form for personal injury benefits dated 1 April 2020, the claimant described his injuries from the motor accident as follows:
“Psychiatric and psychological injury.”[11]
[11] Page 10 of the claimant’s bundle.

GP records of South Mudgee Surgery

The GP records of this medical practice showed that the claimant attended many consultations following the accident. Some of the consultation notes, complaints and observations that referred to the accident and the claimant’s psychological symptoms may be summarised as follows:[12]
[12] Page 33 of the claimant’s bundle and various pages of the claimant’s first supplementary bundle (unpaginated).
(a)    3 June 2020 – feeling anxious, not sleeping; appetite down since two incidents at hospital this week, work, a few complaints; Soolan’s uncle died this week; ongoing grief of Soolan’s death; daughter Bronte has not been coping well; adjustment disorder.
(b)    21 August 2020 – still off work; sleeping is poor; anxiety persists.
(c)    2 September 2020 – mental health plan.
(d)    19 October 2020 – still very stressed; not sleeping for 18 months; still on leave, decided not to return; work situation makes him anxious; grieving; no suicidal ideation; anxiety/adjustment; discussed starting Setraline; not keen.
(e)    8 December 2020 – feeling better; wake at night; nights returning to work.
(f)    4 February 2021 – sleeps remain poor; naps during the day; wakes with nightmares; Soolan/mosaic of nightmares; seeing Kerrie Noonan, helpful; seeing psychiatrist at Orange.
(g)    29 April 2021 – DUI on Saturday; felt very anxious; has had a few panic attacks.
(h)    3 June 2021 – feeling much better; mood improving; in hindsight he wishes he started medication earlier; anxiety much improved; sleeping much better; no further panic attacks.
(i)    28 July 2021 – recent adventure race; mood has been better; sleeping better; brain, slowed down.
(j)    29 September 2021 – feeling down at present; lots of stresses; feeling isolated at present; no suicidal ideation; sleep remains poor, mosaic thoughts that don’t settle; suggest increase sertraline.
(k)    5 October 2021 – sentencing for the driver who killed Soolan in a few weeks; the last few weeks have been stressful; not sleeping; racing thoughts; appetite down; no weight loss; no suicidal ideation; riding with the bunch; long hours.
(l)    28 October 2021 – sleep remains disrupted; reasons for contact: adjustment disorder; plan – continue counselling; continue present medications; review in three months.
(m)     24 November 2021 – sleeping well; mood improving; in a new relationship, he notes delayed ejaculation which has been frustrating; his son has been unwell and seeing a psychiatrist.
(n)    25 January 2022 – mood improving; sleeping better; tried weaning sertraline but found his anxiety/sleep was worse; stresses; Bronte has been down.
(o)    20 April 2022 – not sleeping as well, with some early morning wakings, notes his heart rate is fast, settles with deep breathing; still seeing counsellor at Dubbo.
(p)    28 July 2022 – not sleeping as well; more anxious lately.
(q)    17 November 2022 – feels he’s more anxious; now on sertraline 125mg daily; ongoing anxiety; continues to see psychologist.
(r)    25 May 2023 – no change in mood; ongoing stress with children; medically retired from the hospital; remains irritable and poor sleep.
(s)    7 December 2023 – mood is fluctuating; sleep better at times.

Ms Kerrie Noonan, clinical psychologist

The clinical records of Ms Noonan, clinical psychologist of Macquarie Valley Health Collective showed that the claimant attended 30 therapy sessions in the period September 2020 to March 2024 which included grief counselling and therapy, using trauma focused cognitive behavioural strategies for distress tolerance/management and eye movement desensitisation and reprocessing (EMDR).[13]

Medicolegal evidence

[13] Page 26-31 of the claimant’s bundle and various pages from the claimant’s second supplementary bundle (unpaginated).

Dr Chris Rikard-Bell

Dr Rikard-Bell, psychiatrist, was qualified by the claimant. He conducted an assessment of the claimant via video-link due to COVID-19 restrictions. He provided a report dated

31 March 2021.
Dr Rikard-Bell made a diagnosis of post-traumatic stress disorder. He was of the opinion that this psychological injury was caused by the accident which resulted in the death of the claimant’s wife. Dr Rikard-Bell assessed a WPI of 16% arising from the injury.

Dr Abdul Virk

Dr Virk, psychiatrist, was qualified by the claimant’s employer after the accident to determine his fitness for work. Dr Virk provided a report on 21 October 2022.
Dr Virk diagnosed major depressive disorder with anxious distress and post-traumatic stress disorder.[14]
[14] Page 870 of the claimant’s bundle.

RE-EXAMINATION

On 11 June 2024, the claimant was re-examined by Medical Assessor Barrett and Medical Assessor Baker remotely. The claimant was located at his home in Two Mile Flat and unaccompanied.

Psychosocial history and pre-accident history

The claimant is a 52-year-old man who lives with his partner of 1½ years and their combined five children. He has two children of his own, a 22-year-old daughter, who is studying at ANU in Canberra, and an 18-year-old son, who is in Year 12 at Farrer Agricultural Boarding School. He lives on his 1200-acre property. He is supporting himself and his family on CTP claim payments.
The claimant was born in Sydney and reported normal birth and achievement of milestones. His father was in the fire brigade and the family relocated frequently when he was in primary school. He has a younger sister, who lives in Alice Springs, with whom he has a distant relationship.
Growing up his parents’ relationship was stable and they remained together. He denied any childhood trauma. He attended local primary schools and then St Andrews Cathedral School, a single sex private school. He performed an average academic standard. He expressed some dissatisfaction with his experience at high school describing bullying, “everybody copped everything” and that he regarded the experience as a, “waste of money”. He established some friendships in school but did not maintain contact with them after his early 20s.
After completing school he had a gap period for a few years. His mother enrolled him into nursing at university. He studied for one year and then left, as he did not enjoy it at the time. He returned again and then left and on his third attempt completed his nursing degree with a distinction average. He worked in intensive care unit and then moved to regional areas. His last job was as a nurse practitioner in the emergency department at Mudgee Hospital where he worked for about ten years.
He married his wife in 1997 when he was 26 years old. He described the marriage in positive terms. They had two children together who are healthy and well.
He has no history of motor accident or workers’ compensation claims. He had no pre-accident forensic history.
He is a non-smoker. His long-term pattern of alcohol use has been one to two standard drinks on weekdays and up to six standard drinks on Saturday nights. He has no other drug use history.
He has no known family psychiatric history.
He has a history of type I diabetes, first diagnosed in his teen. His last serious episode of hypoglycaemia occurred in his teens. He did not require resuscitation. He is diagnosed with diabetic retinopathy in his teens, which has apparently resolved. He has an implanted GCM and doses himself with insulin.
He reported a number of sporting injuries, broken bones, a few episodes of loss of consciousness and two concussions from football and rugby. He has gastro-oesophageal reflux disease and slightly elevated cholesterol.
He denied any relevant past psychiatric history. He never had any previous psychiatric treatment. He described himself premorbidly as confident in style.
In the period before the accident, he was living in the same home, on the same property, having lived there for about 20 years. His wife did the household chores and he did most of the outdoor maintenance. He would take his children to sport. Both children attended boarding school from Year 7 of high school. He and his wife were involved in the local community. They played tennis and were very involved in the local community. He was involved in bushfire brigade. He played in the local cricket team in summer. He played tennis weekly in summer and once a month in winter. They socialised after games. His wife competed in triathlons. They cycle together with the Mudgee cycling group.
He had no difficulty driving. He drove long distances to his children’s school.
He had contact with his best friend, who had been the best man at his wedding, weekly by phone, as the friend lived in Sydney. He had friends through the cricket team, through cycling and triathlon clubs, and had a good relationship with local farmers.

He was working in the emergency department as a nurse practitioner. He tended to work evening shifts, 1:00pm to 11:00pm four days a week. He rarely performed night shifts. He was involved in reading research papers in regard to his profession, daily. He had a good relationship with his emergency department staff colleagues but described the hospital bureaucracy as, “atrocious”. He had “plenty of issues” with them but, “no more than anyone else”. In combination, with his work as a nurse practitioner, he worked on his 1200-acre cattle property, three to four hours, four days a week. He stated this farm sometimes made a profit and sometimes did not.

History of the motor accident

The subject accident occurred on 17 August 2019. To avoid unnecessarily re-traumatising the claimant, and as there is no dispute about the circumstances of the accident, the panel avoided detailed exploration of the accident and instead confirmed what was known about the accident from the documentation. In summary, the claimant and his wife were cycling together. His wife was hit by a car. She was seriously injured and the claimant rendered life support to her, performing CPR for 40 minutes.
He stated the ambulance took over 40 minutes to attend. The claimant knew the ambulance officers who attended the scene from his work role. The distressing nature of the accident was further increased as the claimant states he made the decision that his wife was deceased.
The at-fault driver was from the local area but he did not know him.

History of symptoms and treatment following the motor accident

The claimant had two or three months off work after the accident. He stated, “The accident was atrocious” and, “legal proceeding was atrocious”. He reports the police dropped some charges on the prosecutor’s advice and the male driver received an 11-month custodial sentence.
In regard to his symptoms, he described nightmares, initially occurring every night, of the
at-fault driver screaming. His sleep was impacted, waking with nightmares. Initially he was sleeping only two to four hours a night.
In addition he had, “constant” thoughts, predominantly worrying about the impact upon his children and his financial situation.
He avoided social events, stating he did not go to the family’s Christmas for the first two or three years after the accident. He had, “become a bit of hermit” and did not like talking to people. He found it particularly difficult at social events when people asked him about the accident. He avoided cycling until March 2020, about seven months. When he resumed cycling, he felt uncomfortable in traffic and could no longer ride on his own, “head just goes crazy”. He finds this less problematic when he is riding in a group as he talks to people and he is able to be distracted.
His mood is depressed and irritable. He acknowledged he had a shorter fuse although he stated, “at work I was always very calm”. He reported poor appetite and having lost 20kg or 30kg over a period of six months. His pre-accident weight was 115 kg and lowest weight after the accident was 78kg in March 2023. He denied anhedonia and denied ever experiencing suicidal ideation, prevented by his sense of responsibility towards his family.
When he resumed work two or three months after the accident, there were two complaints made about his work. The first complaint related to his management of a 20-year-old man with a fractured pelvis after a motor vehicle accident. He states the complaint came from the referring hospital. There was an investigation into the complaint, the outcome of which was, “They said I made some mistakes”. He does not accept that he made any error in the care of the patient.
He accepted that he was, “probably” shorter in temper. After the first complaint, there were conditions placed on his employment which he regarded as, “ridiculous”. The second complaint related to an incident when the emergency department was relocating to a new hospital building. There was a long wait in the emergency department, and he organised for a patient who was waiting in the emergency department to see a GP in an hour, in the building next door. Apparently, this was the subject of a second complaint. As a result of the second complaint, he was placed on leave from work.
He maintains that the investigation into the complaints were unfair. He stated, “I still struggle with it”. His GP had certified him unfit for work. He states he had a psychiatric assessment. The outcome was that his employment at Western Area Health Services was medically terminated a year and a half ago. He was uncertain if there was any AHPRA notification made but he has not renewed his registration and has not worked as a nurse for over four years.
He denied escalating alcohol use after the accident. However, in 2021, when he attended a social event after the accident, he used up to 10 standard drinks, “to take the edge off”, due to his discomfort about people asking him about the accident. He was charged with a driving under the influence charge. He stated the charges were dropped on the basis of mental health defence.
Subsequently, he has used two standard drinks most weeks but continues to binge on alcohol, perhaps using 10 to 12 standard drinks up to once a month.
Considering the small community, his treating GP is also a personal friend of his. He had regular follow-up appointments with his GP, once a month, after the accident. His GP had suggested medication which the claimant declined, attributing this to being a, “stubborn male”.
His GP referred him to a psychologist who he saw within a few months of the accident. The sessions involved grief therapy and three or four sessions of EMDR. He reported the psychologist has suggested inpatient treatment, which he declined due to his responsibilities towards his children and his farm. He saw the psychologist regularly, once every two weeks. He ceased seeing the psychologist about a year ago.
After the driving under the influence charge, he attended his GP practice. He stated he was, “in quite a state” and does not recall how he got to the GP practice. The GP commenced sertraline 50 mg.

Current symptoms

Currently he believes he is, “as good as I’m going to get”. He denied features of pathological grief, able to access happy memories of his wife.
He continues to experience nightmares although these are now less frequent, two or three times a week. His sleep remains impacted, waking overnight, but he now attains about five hours sleep at night. His weight loss has plateaued in the last year. He remains more irritable, often directed at his son whom he regards as having a, “lazy attitude”. He has a shorter fuse and shouts and yells at his son. He denied physical violence towards his son, stating he had to intervene on one occasion when his son was in a dangerous position, pushing him out of the way to safety. He continues to report poor concentration, describing it as, “shocking”. When he starts to read he has, “ten thousand thoughts” and finds it difficult to focus. He cannot read more than a Facebook post. He is able to enjoy some events, and describes himself as having “better days”.
He remains concerned about the impact of the accident on his children’s wellbeing. His daughter had been competing as a triathlete and was on the path to become a professional triathlete but as a result of the accident, she has engaged in only one race since. His son’s behaviour has deteriorated. His son has had emotional and behavioural problems since the accident, becoming suspended from school and losing interest in school work.
He described ongoing stressors and frustrations in regard to the civil legal process, including his children’s claims.

Current and proposed treatment

He remains on the SSRI antidepressant sertraline, but has been on an increased dose of 200 mg daily since 2021, with side effects of abdominal pain.

CLINICAL EXAMINATION

Mental state examination

The claimant was assessed via video conference. On mental state examination, he was wearing a cap, glasses and was wearing casual clothing. He was of average grooming but had not made any particular effort with his appearance. He appeared emotional at times, and when the circumstance of the accident was raised he stepped away from the camera to contain his emotion. There were no psychomotor features. His speech was somewhat monotonous and frustrated in tone but normal in rate, volume and rhythm.
He described his mood as depressed and irritable. His affect was dysphoric and predominantly gruff and irritable, with no reactivity even with prompting.
He continues to experience re-experiencing symptoms of the accident including nightmares. He remains anxious when cycling. He feels a strong sense of “loneliness”. He stated, “I can live with it” but is concerned about the impact upon his children, “terrible for my kids”. He expressed a sense of shame that he has been impacted psychologically stating, “never thought I would be the sort of person to struggle with mental health”. There were no delusions. There was no formal thought disorder. There was no perceptual abnormality.
He denied any suicidal ideation and did not express any risk to others.
He appeared able to concentrate for the duration of the assessment but with being prompted with questions.
He has some insight into his condition, has trialled a few years of psychological treatment and remains compliant with the SSRI antidepressant sertraline since 2021.

Comments of consistency

Consistency of presentation

The claimant presented as an open and straightforward historian. There were no inconsistencies. The mental state examination findings were consistent with the reported symptoms and those expected in the diagnosis.

Determinations

Diagnosis and reasons

The Medical Assessors of the Panel considered the claimant has developed post-traumatic stress disorder, chronic. He fulfils DSM 5 Criteria A as he witnessed a motor accident, with a motor vehicle colliding with the bicycle his wife was riding, causing her serious injuries which led to her death at the scene.
He fulfils Criteria B symptoms, intrusion symptoms, noting recurrent distressing dreams, recalling the events immediately after the accident, of the at-fault driver screaming.
He fulfils Criteria C, avoidance of stimuli associated with the traumatic event, noting avoidance of external reminders, completely avoiding cycling for a period of about seven months and then continuing to cycling in restricted circumstances, and avoiding social events for over a year, to avoid distressing memories of the accident when people asked him about it.
He fulfils Criteria D symptoms, negative alterations in cognition and mood noting persistent fears of another accident when cycling, persistent negative emotional state of shame, in regard to the development of his psychiatric symptoms, and anger. He continues to experience diminished interests in activities, noting ongoing reduced social engagement.
He fulfils Criteria E, marked alterations in arousal and reactivity noting irritability and angry outbursts, difficulties with concentration and persisting sleep disturbance. The symptoms have caused him distress and impacted his functioning in social and occupational roles and his role as a father. His symptoms have persisted for more than a month, fulfilling duration criteria. Considering his symptoms have persisted for more than six months, he fulfils criteria for the chronic specifier.
The panel consider that the subject accident was the cause of post-traumatic stress disorder. The accident would fulfil Criteria A for post-traumatic stress disorder. The traumatic nature of the accident was further increased as the claimant used his professional skills to render life support to his injured wife.
There is no relevant past psychiatric history and he denied any previous traumatic events.
The claimant denied any significant risk factors for psychiatric illness, noting he denied any family psychiatric history or drug and alcohol history.
This diagnosis is in accordance with the diagnosis of the treating GP, psychologist and
Medical Assessor Sidorov’s primary psychiatric diagnosis. It was the opinion of the Medical Assessors of the Panel that the claimant’s affective symptoms were subsumed within DSM-5 Criteria D and E for post-traumatic stress disorder noting these criteria include persistent negative emotional state, decreased interest in activities, inability to experience positive emotions, irritability, problems with concentration and sleep disturbance.
The Medical Assessors of the Panel considered the possibility of subsequent injury. The Medical Assessors of the Panel note the claimant remains dissatisfied with the actions of his former employer. However, the Medical Assessors of the Panel considered that the reasons for termination of his employment were due to the impact of post-traumatic stress disorder symptoms upon his performance of his role, noting his stated irritability in interpersonal interactions and the expected impact of this condition.
The Medical Assessors of the Panel consider the claimant’s condition as stable and permanent. It has been more than four years since the subject accident. The claimant has been on an SSRI antidepressant for about three years. He had a period of regular psychological treatment, beginning within a few months of the accident and continuing up until about 2023. The Medical Assessors of the Panel considered the claimant has had an adequate trial of treatment and note that no further treatment plans were in place. Thus, the Medical Assessors of the Panel consider the claimant’s condition as stable and permanent.

Degree of permanent impairment Psychiatric Impairment Rating Scale

The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Guidelines.

Psychiatric diagnoses	1. Posttraumatic stress disorder.	2.
Psychiatric diagnoses	3.	4.
Psychiatric treatment description	SSRI antidepressant, sertraline, now 200 mg, psychological therapy.

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	2	The claimant engages in household chores, cleaning and doing the laundry. His house has, “always been tidy”, however he is less meticulous, tending to find expired items in his fridge and garbage piling up, and emptying the garbage less frequently. He continues to shower daily. He brushes his teeth daily. However, he now wears farm work clothes for a few days in a row, which is a change compared to his habits prior to the accident. He stated his partner is, “onto me” and will put his clothes in the wash if she has an opportunity. He reported he is, “sick of shaving”, compared to his pre-accident habit of being clean shaven. Noting the reduction in motivation and interest in self-care, the panel consider there is a Class 2 impairment. Considering he remains independent in self-care, and has been able to live independently, he would not meet Criteria for a Class 3 impairment.
2. Social and Recreational Activities	2	The claimant’s cycles about once a week in summer, which is about half the frequency of his pre-accident habits. He will occasionally play some cricket, when the team is, “short” players. He has played tennis only one since the accident. He will go out for a meal to the local pub once or twice a month. He has been on some holidays, a few camping trips with his children and skiing on a few occasions, to the family lodge. This represents a reduced frequency compared to prior to the accident when the family would go skiing a few times a year. He attends parent-teacher interviews at school, “makes effort” but has never been to his son’s school speech night. Noting the reduction in frequency of engagement in social activities, but that he still socialises regularly, cycling once a week, holidaying on a few occasions and going out for meals, this is consistent with a mild Class 2 impairment.
3. Travel	2	He is able to drive without difficulty locally. He has some difficulties driving longer distances, now driving the five-hour journey to the snow in segments due to his concerns about the impact of his fatigue on safe driving. He is anxious driving when he sees a cyclist and will, “slow down to nothing”. He now cycles only in groups, and not on his own. Considering the change in his pattern of cycling, and difficulties driving long distances, the panel consider this at best is most consistent with a mild Class 2 impairment.
4. Social Functioning	2	The claimant reported a “solid” relationship with his daughter. His relationship with his son is more troublesome, in part related to his reduced frustration tolerance, and in part in regard to his son’s emotional problems and challenging behaviours. His best friend has now retired to Mudgee, 35 km away. They talk once a week on the phone and will sometimes meets up for coffee. He remains withdrawn from talking to some friends, stating he does not want to talk with them. He has been in a relationship for the last year and half. His partner has been living in his home for about a year. He stated he had initially reached out to her to offer support after she had suffered her own loss, about a year after his wife’s accident, because he was involved in an informal social support group. He reported that he had forwarded her a letter that had been sent to him after his loss, with some advice. About three months later he checked up on her and they began texting back and forth. She moved in with him about a year ago. He stated their relationship is, “up and down” but there have been no periods of separation. His partner has three children of her own, two adult children who live in Orange and a 16-year-old son who is at boarding school in Bathurst. He reported he has satisfactory relationships with his partner’s children. Considering the capacity to maintain friendships, a good relationship with his daughter, and form and maintain a new relationship, but noting his increased irritability and the impact upon his response to his son’s challenging behaviours, and distance in some friendships, this is consistent with a mild impairment. The panel accept that the claimant’s social functioning was more significantly impaired in the past, but the panel is required to assess the claimant’s impairment as it is at the time of their assessment. The Panel assessed and considered in detail the level of impairment experienced by the claimant at the time of this assessment. The Panel found the most consistent assessment of functioning after he had reached maximum medical improvement was a mild Class 2 impairment.
5. Concentration, Persistence and Pace	3	The claimant reports that he finds it difficult to focus on reading more than Facebook posts, due to intrusive thoughts when he starts to read. This represents a substantial change from his pre-accident habit of reading academic research papers daily. As a result, he had to employ a person to oversee the farm. Noting the impairment in concentration has prevented him from performing complex tasks on the farm, and likely impacted his capacity to work in his pre-accident employment, this is consistent with a moderate impairment.
6. Adaptation	4	Having worked as a nurse practitioner in the emergency department at Mudgee Hospital for over ten years, without performance issues, the claimant’s work performance was subject to complaints within one month of returning to work. He was subsequently determined unfit for work by his GP and medically terminated by his employer. The panel accept that the impact of PTSD upon frustration tolerance in a role as a nurse practitioner which is highly emotionally demanding, has impacted his ability to perform his role and led to loss of his employment. After the accident he had to sell off cattle and he is only now rebuilding stock. Although the farm has some income, it is not meeting the costs. He has had to employ someone to assist him on the farm. He does still live independently, manage his own finances and is involved in a charity cycle ride, ten days a year. Considering his inability to work at all in his previous work role as a nurse practitioner, and inability to perform complex parts of his role in his previous work on the farm, the panel consider this is consistent with a Class 4 impairment.
List classes in ascending order: 2, 2, 2, 2, 3, 4
Median Class Value: 2
Aggregate Score: 15
% Whole Person Impairment: 7%

*%WPI ^{= Percentage Whole Person Impairment}

Effects of treatment

The Medical Assessors of the Panel accept that although the claimant continues to experience symptoms, impacting his functioning, there has been substantial improvement in his symptoms, such that he has returned to cycling, he has resumed some social activities, and been able to form a new relationship. The Medical Assessors of the Panel accept that this improvement has been contributed to by evidence-based treatment for post-traumatic stress disorder, the use of an SSRI antidepressant, which he continues, and previous psychological treatment. The Medical Assessors of the Panel therefore consider there is a moderate treatment effect, 2%.
He does not meet criteria for a 3% adjustment, which would require complete remission of symptoms, noting the persistence of his symptoms and of some impairment in functioning.

CONCLUSION – PERMANENT IMPAIRMENT

Degree of permanent impairment caused by the motor accident

7% plus 2% treatment effect = 9%.

FINDINGS

The Medical Assessors of the Panel conducted a new assessment of all the 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: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the conclusions and findings of the Medical Assessors of the Panel.
The Panel finds that the degree of permanent impairment of the claimant as a result of the injury caused by the motor accident is 9% and therefore not greater than 10%.

CONCLUSION

The Panel has reached different conclusions in their assessment for the injury to those of the single Medical Assessor, resulting a higher WPI.
Accordingly, the Panel revokes the certificate of the single Medical Assessor and issues a new certificate. The new certificate of the Panel is attached to these reasons.

[2024] NSWPICMP 545

7 August 2024