Dandan v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Dandan v QBE Insurance (Australia) Limited [2022] NSWPICMP 350
CLAIMANT:	Ghna Dandan
INSURER:	QBE Insurance (Australia) Limited
REVIEW Panel:
Ray Plibersek
MEMBER
MEDICAL ASSESSOR	Dr Melissa Barrett
MEDICAL ASSESSOR	Dr Christopher Rikard-Bell
DATE OF DECISION:	6 September 2022
CATCHWORDS:	MOTOR ACCIDENTS – Claimant involved in two motor vehicle accidents four days apart; pre-existing psychiatric condition; psychiatric injury; Panel did not re-examine claimant; Panel’s clinical judgment was that a further medical re-examination was not necessary to assess and determine the issue of causality; claimant exhibiting self-harm at previous medical assessments; re-examination may have detrimental effect on the claimant’s mental health; decision in Sydney Trains v Batshon considered; Motor Accident Injuries Act 2017; first accident was significant and caused the claimant’s injury; second accident was minor and did not cause an ongoing injury or impairment; Held – claimant’s psychiatric condition and psychological injury were not caused by the second accident; second accident represented a less than negligible contributing factor to the causation of claimant’s current psychiatric presentation; the second accident was not causally related to the development of a psychiatric condition or psychological injury which appears to have resulted from the first accident and other stressors which pre-dated the second accident; in circumstances where the Panel’s assessment is that the injury was not caused by the second accident the Panel is not required to make an assessment of the claimant’s degree of impairment; decision in Jarvis v Allianz Australia Insurance Ltd followed and applied (McCallum JA at [48] to [51]).
DETERMINATIONS MADE:	1. The Review Panel revokes the certificate of Medical Assessor Wayne Mason dated 20 June 2021 and issues the following certificate. 2. The Panel determines that the following injuries were not caused by the second motor accident on 3 January 2018: psychiatric condition- psychological injury.

REASONS
Background

The Claimant, Ms Ghan Dandan was involved in two motor vehicle accidents on
30 December 2017 (the first accident) and on 3 January 2018 (the second accident).
The first accident occurred when the Claimant was driving her Toyota Echo. She was on her red Provisional licence. She says she was driving at about 40 km/hr when another car failed to give way at a give way sign and collided with her car. The police and ambulance attended and she was taken to Bankstown Hospital. She waited for five hours but left before being seen by a doctor. Her car was written off. The Claimant told her doctor she was distressed and worried about her nephew being in the car and her concern for injuries he could have suffered.[1]
[1] Claimant’s bundle AD 1 page 139.
The second accident occurred when she was driving a replacement vehicle provided by the insurer. She was stationary in a shopping centre in Bankstown waiting for a car park when another car collided with the front of her car.
The Claimant seeks a review of the Personal Injury Commission (the Commission) Certificate of Assessor Wayne Mason dated 20 June 2021 on the basis that there is cause to suspect the assessment is incorrect in a material respect.

The review process

The application for referral of the medical assessment of Medical Assessor Wayne Mason to a Review Panel (Panel) was made on 16 July 2021 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.[2]
[2] Sub-section 7.26(10) of the MAI Act.
On 9 August 2021, the delegate of the President referred the medical assessment to the Panel as she was 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.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[3] that a Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
[3] Sub-section 7.26(5A) of the MAI Act.
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.[4]
[4] Sub-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 Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
All Panel members have had no previous involvement with the Claimant or with this matter.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
The function of a Medical Review Panel is to form and give its own opinion on the medical question referred to it. The Panels function, as explained by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [46] and [56], is:
“The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise…[7]
[The Panel is not required to]… explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.”[8]
[7] [2013] HCA 43 at [46]. The Court was concerned with the legislation in Victoria but its comments are apposite to the NSW legislation.
[8] [2013] HCA 43 at [56].
On 3 August 2022 the Panel issued the following Direction to the parties (the Direction):
“On or before 10 August 2022, the parties are directed to advise the Commission in writing that they have received this Preliminary Review report and to confirm whether or not they agree to the Panel proceeding to determining the issues in dispute without a re-examination of the claimant for the reasons set out above.”
On 3 August 2022 the insurer wrote to the Commission stating that it “… agrees to the Panel proceeding to determine the issues in dispute without a re-examination of the claimant”.
On 16 August 2022 the Claimant’s solicitors wrote to the Commission and stated that they “… confirm receipt of the preliminary review report and request a re-examination of the Claimant prior to determination of the issues in dispute”.
The Panel considered the submissions of the parties on re-examination and decided not to re-examine the Claimant for the reasons set out below.

Should the Claimant be re-examined?

The Panel met on 27 July 2022 and reviewed and considered the medical and other evidence in the bundles of documents that had been filed by the parties. The Panel also considered whether it needed to re-examine the Claimant. At its meeting on
27 July 2022 the Panel reached a tentative view that a re-examination of the Claimant was not required because the Panel is able to form an opinion as to issues identified for review in the Claimant’s and Insurers solicitor’s submissions. The Panel determined that should the issue of causation be determined such that the subject accident was the cause of a psychiatric injury, then they would then reconsider the need to re-examine the Claimant.
The Panel wrote in its Direction dated 28 July 2022 that:
“The Panel met on 27 July 2022 and reviewed the bundles of documents that had been filed by the parties. The Panel also considered whether it needed to re-examine the claimant.
The Panel considers a re-examination of the claimant is not required because the Panel is able to form an opinion as to issues identified for review in the claimant’s and insurers solicitor’s submissions. These issues include: causation, calculation of the degree of whole person impairment under the Motor Accident Guidelines and the assessment by Assessor Mason of the degree of the claimant’s pre-existing psychiatric condition.”
The Panel’s Direction dated 28 July 2022 then requested the parties to confirm whether or not they agree to the Panel proceeding to determining the issues in dispute without a re-examination of the Claimant.
The Panel received a message from the Insurer on 3 August 2022 that it agreed to the Panel proceeding to determine the issues in dispute without a re-examination of the Claimant. The Panel also received a message from the Claimant’s solicitor on
16 August 2022 requesting a re-examination of the Claimant prior to a determination of the issues in dispute. Neither party gave any reasons or submissions in support of their responses.
The Panel considered the responses from both parties and decided not to re-examine the Claimant. The Panel noted that the Claimant presented differently to a number of treating doctors and Medical Assessors at more recent assessments conducted at a point when significant time had elapsed since the accident. Dr Ben Teoh noted the Claimant was cooperative and spontaneous without any inconsistencies. Assessor Jungfer found no inconsistences at the time of her examination. However, at subsequent assessments by Assessor Mason and Dr Doron Samuell, it was noted there were reported inconsistencies on presentation. At Assessor Mason’s assessment in 2021 she was noted to be reporting inability to answer basic demographic questions. Therefore, the Panel determined that the information in earlier assessments and contemporaneous records would be more reliable than information likely to be obtained at reassessment. Further, based on the clinical judgment of the medical members of the Panel, we were concerned that a further medical re-assessment could potentially increase distress in the Claimant, especially noting her reported mild self-harming behaviours during assessment with Assessor Mason, which could then lead to further inconsistencies in her presentation. The Panel’s judgment was that a further medical re-examination was not necessary to assess and determine the issue of causality. A re-examination also may have had a detrimental effect on the Claimant . Once the issue of causality was resolved, the Panel would then reconsider the need to reassess the claimant.
In reaching its decision to not re-examine the Claimant the Panel considered the decision by the Court of Appeal in Sydney Trains v Batshon [2021] NSWCA 143 (Batshon) where Leeming JA (with White JA and McCallum JA agreeing) stated at [41]:
“Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review “should generally include a re-examination of the claimant”, especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings: see cl 4(a)(i) and (ii) of the “Review Panel Practice Note 3/2005”, reproduced in Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127 at [36]. Importantly, the review “is not limited to a review only of that aspect of the assessment that is alleged to be incorrect,” but rather “is to be by way of a new assessment of all the matters with which the medical assessment is concerned”: Motor Accidents Compensation Act 1999 (NSW), s 63(3A); Motor Accident Injuries Act 2017 (NSW), s 7.26(6).”
The Panel has considered the decision in Batshon, all of the medical evidence, medical assessments, the parties’ responses and the possibility that a re-examination may distress the Claimant further. The Panel notes that the Claimant’s account of the first and second accidents became more inconsistent the further away in time she gave her history. The Panel was concerned that any re-examination could further distress her or result in self harming behaviours and also that the Claimant may give the Panel a confused history of the two accidents. In all the circumstances of this case the Panel affirms its decision not to re-examine the Claimant.

Statutory provisions and the Guidelines

Under sub-section 7.26(6) of the MAI Act, a review of a medical assessment is not limited to a review of only what is alleged to be incorrect. It is a new assessment of all the matters with which the medical assessment is concerned.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act[9].
[9] See section 3B(2) of the Civil Liability Act 2002.
The Motor Accidents Guidelines (the Guidelines) are made pursuant to section 10.2 of the MAI Act. Part 6 of the Guidelines contain the procedure for assessing permanent impairment including psychiatric impairment for the purposes of the MAI Act. Version 8.2 of the Guidelines commenced on 8 April 2022 and applies to motor accidents occurring on or after 1 December 2017.[10]
[10] Clause 6.3.
In respect of causation, the Guidelines relevantly provide:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination. This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In respect of the medical assessment for assessing psychiatric impairment, the Guidelines relevantly provide:
“6.35 Psychiatric impairment is assessed in accordance with 'Mental and behavioural disorders' within this part of the Motor Accident Guidelines.
6.203 The assessment of mental and behavioural disorders must be undertaken in accordance with the psychiatric impairment rating scale (PIRS) as set out in these Guidelines. Chapter 14 of the AMA4 Guides (pages 291-302) is to be used for background or reference only.
6.213 The impairment must be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic & Statistical Manual of Mental Disorders (DSM) or the current edition of the International Statistical Classification of Diseases & Related Health Problems (ICD). The impairment evaluation report must specify the diagnostic criteria on which the diagnosis is based.
6.217 The scale must be used by a properly trained medical assessor. The psychiatrist's clinical judgement is the most important tool in the application of the scale. The impairment rating must be consistent with a recognised psychiatric diagnosis and based on the psychiatrist's clinical experience.
6.218 In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.
6.219 Behavioural consequences of psychiatric disorders are assessed on six areas of function, each of which evaluates an area of functional impairment:
(a) self-care and personal hygiene (Table 6.11)
(b) social and recreational activities (Table 6.12)
(c) travel (Table 6.13)
(d) social functioning (relationships) (Table 6.14)
(e) concentration, persistence and pace (Table 6.15)
(f) adaptation (Table 6.16).”
Part 6 of the Guidelines have been developed for the purpose of assessing the degree of permanent impairment arising from the injury caused by a motor accident, in accordance with Division 7.5, section 7.21, and cl 2 of Schedule 2 of the MAI Act.
Part 6 is specified as applying only to the assessment of permanent impairment.[11]
[11] See clause 6.3 of the Guidelines.
Clauses 6.31 to 6.33 of the Guidelines provides some guidance as to how pre-existing impairments should be evaluated as follows:
“Pre-existing impairment
6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.
6.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.”
Clause 6.34 of the Guidelines provides guidance as to how subsequent injuries should be evaluated:
“Subsequent injuries
6.34 The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”
Having reviewed the relevant legislation, Guidelines and case law the Panel will now summarise the assessment of Assessor Mason and then review the medical reports and evidence before it.

MATERIAL BEFORE THE REVIEW PANEL

Assessment under review

Assessor Mason, having considered there to be a pre-existing psychiatric condition, did not calculate the degree of whole person impairment in accordance with the procedure outlined in cl 6.218 of the Guidelines[12].
[12] Claimant’s bundle AD 1 A1 page 11.
Assessor Mason also erred in his assessment of the degree of the pre-existing psychiatric condition, and in reaching that conclusion he misunderstood or overlooked critical material, such as the Certificate of Assessor Patricia Jungfer dated
[13] Claimant’s bundle AD 1 A1 page 11.
15 October 2018.[13]
The Certificate of Assessor Wayne Mason dated 20 June 2021 concluded there was a psychological injury with 0% whole person impairment. The history obtained indicated that Ms Dandan was residing with her sister in Chipping Norton and was a P-plate driver at the time. She would travel between Tamworth where her uncle resides and Chipping Norton where her sister resides. There was another sister who was caring for the mother who suffers from depression. Assessor Mason noted Ms Dandan was born in Australia and is the fourth of five children with three older sisters and one younger brother. Her father died at the age of 30 when Ms Dandan was aged 4. Her mother remarried her deceased husband’s brother when Ms Dandan was aged 7 and there is a son, aged 16, to the second marriage. Ms Dandan attended Wiley Park Primary and High school until Year 11 then completed a one year Certificate in Property Management at TAFE at age 17, however she did not obtain a Certificate in childcare due to the motor vehicle accident. It was noted there was a relationship with a man from Lebanon and Ms Dandan was engaged to him, however she left this relationship three months following the motor vehicle accident. Ms Dandan enjoyed going out with friends and Assessor Mason noted, “… she was hitting herself in the head” at this point of the interview as she was trying to remember. Ms Dandan did not seem to remember there was an assessment with Assessor Jungfer three years earlier. In May 2017 Ms Dandan was diagnosed with depression by the general practitioner (GP) and she was prescribed antidepressants, but she denied taking antidepressants. There was some casual work at the United Medical Centre practice for a number of years working part-time. The medication included Amitriptyline 50 mg, Panadeine Forte 6 tablets per day, Panadol Osteo 6 tablets per day, Celebrex after food, Belsomra 50 mg at night, Duromine and Lyrica on occasions.
Assessor Mason noted Ms Dandan was slow to respond in relation to questions about the motor vehicle accident reporting that someone had reversed and had hit her car. She said she thought the accident occurred at either Bankstown or Lakemba. She was alone and she was driving the vehicle waiting for someone. Ms Dandan acknowledged she had been offered a replacement vehicle by the insurer and that her brother had taken her to collect images at a radiology practice after the accident on 30 December 2017. Ms Dandan stated she could not walk at that time and did not want to go back to hospital as she was distressed about the previous accident. She acknowledged she saw Dr Saeed the day after the accident.
Under the history of the first motor vehicle accident, it was noted after the accident
Ms Dandan had a sore right shoulder as well as lower back pain. There was an MRI scan which revealed no bony injuries. Assessor Mason noted when he asked
Ms Dandan about the first motor vehicle accident, she responded very dramatically stating emergency services were in attendance and there was loss of consciousness then she woke up in hospital. In the first accident it was noted that her 4-year-old nephew was in the vehicle when there was a collision with another vehicle at a stop sign. She said she remembers her nephew’s head hit the back of the driver’s seat. She was rocking during the interview and worried that her nephew could have been killed. However, Ms Dandan claimed that the anxiety started after the second motor vehicle accident when she developed panic attacks. She was given medication by her GP for anxiety symptoms. It was noted the engagement with her fiancée ended three months after the accident and there was treatment with Amitriptyline 25 mg as well as referred to the psychologist, Mr Al Shamali. She attended a few sessions and discontinued treatment as she had lost hope.
Assessor Mason noted there was unusual behaviour during the interview and she sat very close to the video camera with only her lips in view. Her face was covered with her hands and she turned away from the camera. It was noted she was yawning and appeared intoxicated. She was constantly grimacing and possibly psychotic, although psychotic ideas were denied. She could not answer basic questions and there appeared to be feigned incompetence. She did not appear orientated in time, place or person. Assessor Mason noted the inconsistencies were a concern at interview.
Assessor Mason described the second motor vehicle accident as trivial and stated, “it is highly improbable that Ms Dandan’s psychological condition could have deteriorated so significantly as a consequence of the second trivial motor accident”.Assessor Mason additionally noted the Claimant had stated on 20 July 2018 that the accident of 3 January 2018 was a minor accident and that the previous accident of 30 December 2017 was much more significant where she was driving at 40 km/hr and was conveyed to Bankstown Hospital by ambulance and remained there for five hours. Assessor Mason put weight on the opinions of Dr Samuell and Dr Antoun as likely that the second accident was very minor and would not have caused a psychological injury. Assessor Mason noted a pre-existing panic disorder and believed there was misattribution to the second motor vehicle accident by the Claimant which was minor while stationary in a car park. She consulted Dr Saeed on 4 January 2018 who noted there were no physical injuries.
Assessor Mason stated in the context of the previous motor vehicle accident that the second accident was capable of causing exacerbation of adjustment disorder with depressed mood and exacerbation of panic disorder. Assessor Mason found a whole person impairment of 0% following the accident and whole person impairment of 0% in relation to pre-accident impairment.
In the whole person impairment after the second motor vehicle accident, Assessor Mason described two thirds of the impairment was due to the first motor vehicle accident. In fact, Assessor Mason assessed the current impairment as moderate for self-care and personal hygiene, moderate for social and recreational activities, mild for travel, moderate for social functioning, severe for concentration, persistence and pace and total impairment for adaptation. After the reduction of two thirds, the only domain that registered was adaptation which was mild.

Review Application- Claimant’s submissions

The Claimant’s submissions in support of the review application are dated
16 July 2021. The submissions can be briefly summarised as follows.
Assessor Mason did not calculate the degree of whole person impairment in accordance with the procedure outlined in cl 6.218 of the Guidelines.[14]
[14] Claimant’s bundle AD 1 A1 page 11.
Assessor Mason did not consider or he overlooked critical material being the Certificate of Assessor Patricia Jungfer dated 15 October 2018.[15]
[15] Claimant’s bundle AD 1 A1 page 11.
Assessor Mason did not properly calculate the Claimant’s impairment from both accidents. Clause 6.218 of the Guidelines requires that the overall pre-existing impairment (prior to the second accident on 3 January 2018) be assessed in accordance with the Guidelines. Assessor Mason was required to assess the Claimant's overall impairment - which, as above, would be 26% - and then separately assess in the same fashion her pre-existing impairment before 3 January 2018, and then deduct the latter from the former. Assessor Mason did not undertake this task. [16]
[16] Claimant’s bundle AD 1 A1 page 12.
Assessor Mason misunderstood the Certificate of Assessor Jungfer. Assessor Jungfer did not find a panic disorder in relation to the first accident, she found it in relation to the second accident, being the one we are concerned with now. Moreover, Assessor Jungfer clearly described a 'marked deterioration' following the second accident and opined that the time between the first and second accidents was far too brief for the first accident to be causative in terms of her present mental state.[17]
[17] Claimant’s bundle AD 1 A1 page 12.
Assessor Mason, in dealing with the opinion of Dr Teoh, suggested that he was unaware of the previous accident of 30 December 2017. Inappropriate weight was placed on the description of the former accident as having been 'more significant’ when this was clearly a reference to the circumstances of the accident itself and not its impact. There is no report of psychiatric symptoms in the clinical notes until after the second accident, on 11 January 2018.[18]
[18] Claimant’s bundle AD 1 A1 page 12.
Assessor Mason failed to conduct the assessment in accordance with cl 6.218, and erroneously determined that the pre-existing psychiatric condition was the greater contributor to the Claimant's current mental state.[19]

Insurer’s submissions in reply
[19] Claimant’s bundle AD 1 A1 page 12

The insurer’s submissions in reply are dated 9 August 2021. The submissions can be briefly summarised as follows.
The insurer submits that Assessor Mason has correctly interpreted the Guidelines.[20]
[20] Insurer’s bundle AD 2 page 4.
The Assessor wrote in his reasons that he considered the psychiatric impairment rating scale table and the Claimant’s current functioning for each category. Under each section, he states “Two thirds of that impairment should be attributed to the first motor accident”.[21]
[21] Insurer’s bundle AD 2 page 4.
The insurer acknowledges that an Assessor is required to assess current functioning and pre-existing functioning separately. Then, the Assessor is required to deduct pre-existing impairment (if any) from the Claimant’s current functioning. However, the Claimant’s presentation and the history she provided to Assessor Mason made his task impossible.
At the examination with Assessor Mason, the Claimant was unable to differentiate between the two accidents. It is not possible, nor could it be expected in the circumstances, for the Assessor to differentiate between the two accidents in order to provide separate Permanent Impairment rating if the Claimant herself cannot even do so.[22]
[22] Insurer’s bundle AD 2 page 4.
The Assessor relied on his clinical judgement and experience to assess the Claimant’s whole person impairment in circumstances which were difficult and unusual. The Assessor has clearly exposed his path of reasoning in relation to the apportionment and assessment of permanent impairment. See cl 6.217 of the Guidelines.
The Assessor has appropriately weighed up the objective evidence of both accidents, including the available medical evidence, the Claimant’s statement and his own assessment. As a result, he has apportioned the prior accident to account for two thirds of her current functioning and one third for the subject accident. The Assessor has the expertise and skill to determine these matters, and is entitled, as is his duty, to use the entire gamut of clinical skill and judgement when coming to his determination.
The Claimant’s presentation at the assessment with Assessor Mason was “markedly unusual”, and the history given by the Claimant’s had various inconsistencies.

Treating records, Assessment reports and Medico-legal reports

The certificate of capacity dated 29 January 2018 referred to the impact of the motor vehicle accident of 30 December 2017.
The Police report (E65927170) dated 7 March 2018 confirmed there was a motor vehicle accident on 30 December 2017.
The certificate of capacity dated 27 April 2018 referred to neck, back and shoulder injury and post-traumatic stress disorder (PTSD) from the accident of
30 December 2017.
The certificate of capacity dated 1 May 2019 in relation to the accident of
3 January 2018 noted pre-existing factors such as neck, shoulder and back injury and PTSD from the motor vehicle accident of 30 December 2017. Therefore, the certificate of capacity dated 1 May 2019 related to the previous accident of 30 December 2017.
The Statement of Claim dated 20 July 2018 at point 10, in relation to the accident of 30 December 2017 noted that the accident was very significant. Ms Dandan expressed that she was “extremely shocked”.On page 6, she described significant psychological symptoms affecting her sleep with bad dreams as well as other symptoms.
The Certificate of Assessor Patricia Jungfer, psychiatrist, dated 15 October 2018 was in relation to the accident of 30 December 2017 which occurred four days before the second accident of 3 January 2018. By way of background, Ms Dandan was reported as having a good experience at school despite the fact that her father died in 2002. She completed a Certificate in Property Management then commenced a Diploma of childcare which she ceased at the time of the motor vehicle accident. She was prescribed antidepressant medication in mid-2017 for depression for her engagement that had ended. Assessor Jungfer obtained the history that there were no previous accidents prior to 30 December 2017 and she was distressed and emotional before the accident due to the end of her engagement.[23]
[23] Claimant’s bundle AD 1 page 29.
Assessor Jungfer noted the motor vehicle accident occurred on 30 December 2017 when Ms Dandan was driving her Toyota Echo with P-plates. The police and ambulance attended and she was taken to Bankstown Hospital where she remained for five hours without being seen. Assessor Jungfer wrote after the first accident, “She described that following the accident she was hypervigilant, more aware when driving and experienced anxiety. She also described distress, recurrent intrusive thoughts about the fact that her nephew had been in the car and could have been seriously injured”. There was a referral to a psychologist which was not utilised. Assessor Jungfer noted a subsequent motor vehicle accident which was a very short time after the first accident and there was a marked decline in her emotional state after the second accident. At the time of the second accident, Ms Dandan was driving a replacement vehicle.
At interview, Assessor Jungfer noted symptoms including, “until about one month ago that she was experiencing flashbacks of the first accident. These appear to have ceased”.
The presentation was consistent even though she was emotional, tearful and was fluent. She could not recall the names of medication, but otherwise gave a reasonable history.
Assessor Jungfer diagnosed panic disorder, however, did not diagnose PTSD noting the accident of 30 December 2017 was the most significant, even though there was a subsequent accident on 3 January 2018, four days later. There was no previous psychiatric illness noted, although Assessor Jungfer noted earlier in the certificate there had been treatment with antidepressants, emotional issues and depression in mid-2017 in relation to the breakup of the relationship with her fiancée.
Assessor Jungfer indicated there was insufficient time for a psychiatric illness to develop, which requires two weeks. This appeared to be a technical opinion as judged by diagnostic systems although strictly DSM 5 says four weeks for panic disorder. Therefore, Assessor Jungfer concluded that the depression and panic disorder were not causally related to the motor vehicle accident of 30 December 2017 but were in fact was causally related to the motor vehicle accident of 3 January 2018 and that Ms Dandan went from subsyndromal state to an acute psychiatric condition and so cause should be attributed to the second accident.
The records of United Medical Centre by Dr Saeed noted PTSD on 9 July 2020. On 19 June 2020 there was weight loss and depressed mood noted. On 24 April 2020 it was noted she was feeling depression. Throughout 2020 there was ongoing depression and anxiety noted with regular consultations. Throughout 2019 there were regular consultations in relation to anxiety, depression and complaints of chronic pain. In addition, there were regular and consistent consultations throughout 2018.
On 1 January 2018 Dr Saeed noted there had been a motor vehicle accident two days prior on 30 December 2017 causing pain to the right shoulder and stiffness.
On 31 December 2017 Dr El Skafi noted the accident had occurred the day prior with her nephew Mohammed, aged 4, in the car.[24] The police and ambulance arrived and took her to Bankstown Hospital and she was experiencing pain at the level of 8/10. The diagnosis was whiplash, right rotator cuff and lower back pain. She also reported headaches and difficulty sleeping but no psychological injuries or impairments from that accident.[25]
[24] Claimant’s bundle AD 1 page 139.
[25] Claimant’s bundle AD 1 page 139.
On 18 May 2017 there was a decreased mood and prescription of Lovan, as well as needing counselling for depressive symptoms as noted by Dr El Skafi.[26]
[26] Claimant’s bundle AD 1 page 147.
On 4 January 2018, Dr El Skafi noted the day after the second accident, “… a car reversed into her car while parking at Centro Bankstown on 3.1.2018 around 2 pm. She was the driver of the car at the time with seat-belt on. Damage to the front of the car. No physical injury. Already have got neck and back and right shoulder pain from a previous injury on the 30.12.17, no changes in her symptoms after the second MVA”.There was pain in the spine and shoulders noted with whiplash and lower back pain from the first motor vehicle accident and the motor vehicle accident was the reason for contact.[27]
[27] Claimant’s bundle AD 1 page 136.
On 2 January 2018 there was a consultation in relation to the motor vehicle accident of 30 December 2017 for pain. On 31 December 2018 it was noted the accident had occurred on 30 December 2017 causing whiplash, rotator cuff injury and lower back pain. There was a previous consultation with Dr El Skafi prior to the accident on
9 December 2017.
On 11 January 2018, Dr Saeed noted, “feeling stressed and afraid of riding car since 1^st accident. had another accident following the first one aggravated the condition all together. Still feeling shocked and affecting her sleeping”.[28]
[28] Claimant’s bundle AD 1 page 135.
Further evidence of the significance of the first motor vehicle accident was noted in the report of Dr El Skafi dated 3 January 2018 stating the accident occurred when travelling at 40 km/hr. The police and ambulance attended and she was taken to Bankstown Hospital but could not remember a great deal about what had happened.
In a Certificate of Capacity dated 8 March 2018[29], Dr El Skafi noted his diagnosis of the accident related injuries as follows: “Neck pain/ back pain/ Right shoulder pain from previous MVA”. No mention was made of the second accident and no mention was made of any diagnosis of psychiatric injuries or impairment.
[29] Claimant’s bundle AD 1 page 424.
The notes of the GP made some weeks after the second accident suggest that the second motor vehicle accident was minor. It did not act as an exacerbation of the Claimant’s pre-existing physical or psychological symptoms or injuries from the first accident of 30 December 2017. Therefore, the GP notes confirm the first motor vehicle accident was the more significant accident and the effect of the second accident on the Claimant’s psychiatric condition was negligible.
There were further clinical notes of Dr Fayza Al Shamali which date in the period from 1 March to 17 May 2020. On two occasions there are notations that the Claimant is diagnosed with DASS21; extremely severe range depression, anxiety and stress disorder.

The photographs of the vehicles indicated minor scratches to the vehicles from the second accident.
The report of Dr Antoun dated 29 May 2019 noted the more significant motor vehicle accident was the first accident of 30 December 2017 and the second accident of
3 January 2018 was not significant and considered a “very low impact motor vehicle accident. I am surprised that any psychological injury could be related to such a minor incident”.
The records of St George Hospital noted on 17 November 2019, “brought to hospital. Suffering panic attacks in the car with her brother”.
The report of Dr Doron Samuell dated 29 January 2020 noted the history of the first accident causing some pain and she was taken to Bankstown Hospital. She later consulted the GP; however, it was claimed that the second motor vehicle was when “it got to me” as noted on page 7 of Dr Samuell’s report. On reviewing the GP notes,
Dr Samuell noted the concerns in relation to obesity and low self-esteem with weight issues suggesting there were pre-existing mood issues, as noted on page 10.
Dr Samuell obtained information to suggest the Claimant lost consciousness in the second motor vehicle accident which appeared to be inconsistent with the nature of the second accident. Therefore, the conclusion by Dr Samuell was that the second motor vehicle accident of 3 January 2018 could not have caused a psychological injury.
The report of Dr Ben Teoh dated 12 March 2020 noted the motor vehicle accident of 3 January 2018. At that time Dr Teoh noted minor injuries in relation to the previous accident of 30 December 2017. The report stated, “She had a previous motor vehicle accident on 30 December 2017, which had caused some minor injuries”.At interview, Ms Dandan was coherent and not thought disordered. Dr Teoh diagnosed chronic adjustment disorder with depression and stated there was no pre-existing psychiatric illness with a whole person impairment of 15%. This assessment did not seem consistent with the facts that the first accident was more significant.
The clinical notes of the treating psychologist, Dr Fayza Al Shamali. These are the contemporaneous clinical notes of eight sessions between 1 March 2019 and
17 May 2020. [30]At the initial assessment on 1 March 2019, the first accident was described, “Ms Ghna reported that; on 30 December 2017, she was driving her car and was wearing the seat built; the car hit another car that came from a side stress across her path. She was taken by ambulance to the Bankstown Hospital where initial assessment and treatment were given”. Physical and psychological symptoms arising from the accident were recorded. The psychologist did not record any entry of the second accident, neither at the initial assessment, nor in any of the other seven sessions. On 17 May 2020 the psychologist wrote, “She remembers how the accident ruined her life when her Rt knee got injured and needs to take injection or strong pain killers”, in regard to the first accident.

PANELS REASONS AND FINDINGS
[30] Claimant’s bundle AD 3 page 450 - 455.

When reviewing the information provided, it appears there was clear evidence that the first motor vehicle accident of 30 December 2017 was significant as the Claimant required hospital assessment and there had been significant ongoing symptoms requiring consultations with the GP over the days following the accident. The second motor vehicle accident of 3 January 2018 was of much lesser significance and impact with minor damage to a replacement vehicle whilst in a car park.
This matter raises significant issues in relation to the impact and the weighting of two motor vehicle accidents in close succession. Assessor Jungfer in her Certificate dated 15 October 2018 in relation to the accident of 30 December 2017 concluded that the Claimant was presenting with significant psychological symptoms and there was a diagnosis of adjustment disorder with depressed mood and panic disorder. Due to the fact that the panic attacks occurred approximately twice weekly and following the motor vehicle accident of 3 January 2018, Assessor Jungfer assessed that the psychiatric injuries were significant. Although there was some phobic avoidance behaviour following the accident of 30 December 2017, Assessor Jungfer reasoned that due to the time interval being too brief to form a psychiatric illness, that the first motor vehicle accident could not be considered causative for the psychiatric injuries. It was for these reasons that Assessor Jungfer concluded that the psychiatric condition was therefore causally related to the second motor vehicle accident of 3 January 2018. As noted in her Certificate, “For any psychiatric disorder to be present it needs to have been present for a minimum of two weeks or more to warrant it being a major or non-minor psychiatric illness. Therefore, the adjustment disorder with depressed moor and/or the panic disorder could not be caused by the accident of 30 December 2017 because the duration of symptoms was insufficient to allow a psychiatric diagnosis”.
It was the Panel’s view that even though there was a short time span, in terms of causation, a psychiatric disorder could occur within this short period of time if the event was significant. Therefore, the Panel disagreed with Assessor Jungfer’s reasoning that the short time span of four days between the first accident and the second accident would by necessity negate the first accident. It is clear from the material reviewed that the first motor vehicle accident was much more significant than the second accident. As such, it is the Panel’s view, in contrast to Assessor Jungfer’s reasoning, that in fact the first motor vehicle accident could be regarded as the significant cause for the psychiatric condition.
The Certificate of Assessor Mason dated 20 June 2021 concluded that there was a psychological injury. Assessor Mason provided a Certificate in relation to the second accident on 3 January 2018. Assessor Jungfer provided a Certificate in relation to the first accident of 30 December 2017. Assessor Mason concluded that “The initial motor on 30 December 2017 was by far the more serious”. The car park accident of
3 January 2018 was minor as indicated by the photographs included in the documentation.
Although the Claimant attributed all of her psychological symptoms to the second accident, Assessor Mason viewed the second motor vehicle accident as minor. Although he noted that she “… was in a vulnerable position at the time of the second motor accident”.It was Assessor Mason’s view that the first motor vehicle accident was causally related to the adjustment disorder with depressed mood and panic disorder and that the second motor vehicle accident of 3 January 2018 was casually related to an exacerbation of the adjustment disorder with depressed mood and exacerbation of panic disorder. Therefore, both Assessors Jungfer and Mason have provided reasons as to why they believe the separate motor vehicle accidents have differing contributions to the Claimant’s injuries and ongoing impairment.
In accordance with the decision in Wingfoot and Jarvis v Allianz Australia Insurance Ltd[31] (Jarvis) the Panel is required to do no more than to form its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. The Panel has come to a different conclusion from that reached by the Medical Assessor Mason on the issue of the second accident.
[31] [2022] NSWSC 161 McCallum JA at [32].
The Panels conclusion in this case is that considering the evidence in relation to the first and second accidents and taking into account multiple personal stressors experienced by the Claimant, the second accident represented a less than negligible contributing factor to the causation of her current psychiatric presentation. The second accident was not causally related to the development of a psychiatric condition or psychological injury which appears to have resulted from the first accident and other significant stressors in her life which pre-dated the second accident.
The Panel notes cls 6.6 and 6.7 concerning causation in the Guidelines. The Panel’s determination is that Claimant’s psychological injury and her associated impairment, was not caused or materially contributed to by the second motor accident.
The Panel has reached the conclusion that the second accident represented a less than negligible contributing factor to the causation of the Claimant’s current psychiatric presentation and it was not causally related to the development of a psychiatric condition or psychological injury. In circumstances where the Panel’s assessment is that the injury was not caused by the second accident the Panel is not required to make an assessment of the Claimant’s degree of impairment.[32] After referring to the Guidelines her Honour stated in Jarvis:
“In circumstances where the claimant falls at the first hurdle, there is no occasion to proceed to the second step and indeed it makes no sense to do so. If the alleged factor could not have caused or contributed to the worsening of the impairment, it must follow that it did not cause or contribute to the worsening of the impairment.”[33]
[32] Section 7.26(6) of the MAI Act. See 2022] NSWSC 161 McCallum JA at [48] to [51].
[33] [2022] NSWSC 161 McCallum JA at [51].
In the Panel’s view, the decision in Oakley [34] and its analyis about the categories of causation do not apply in this case. In Oakley the Chief Justice identified three categories where the issue of causation involves consideration of the effect or impact of a subsequent injury on the determination of the cause of an earlier injury. In the Panel’s view in this case is that the two the accidents are unrelated. The Panel’s view is that the Claimant’s psychological injury and her impairment is attributable to the first accident and her other life stressors. The second accident is not an aggravation to the first accident nor is the second accident the cause of the Claimant’s psychological injury and subsequent impairment. The Panel has considered the Oakley categories but, in our view, they don’t apply in the present case.
[34] See also Price v State of NSW (NSW Police Force) [2022] , NSWPICMP 264 .
In summary the Panel has concluded that the second accident did not cause or contribute to or worsen the Claimant’s psychological injury or her impairment for the following reasons.
First, in her Application for Personal Injury benefits dated 29 January 2018[35] for the second accident the Claimant wrote that the injuries she received were: “… low back was stirred up and became painful”.
[35] Claimant’s bundle AD 1 page 420.
Second, the evidence from the second accident scene is that it was minor. The other driver in the other car reported that she was reversing very slowly out of the car park and did not feel or hear the impact.[36]Photographs of the cars show minor scratches. In the Claimant’s own statement, dated 20 July 2018, she attributes her difficulties to the first accident. The Claimant says she was involved in a second accident that was minor.[37] She makes no reference to any injury or impairment attributable to the second accident.
[36] Claimant’s bundle AD 1 page 416.
[37] Insurer’s bundle AD 2 R 12 pages 98 - 104.
It was the Panel’s clinical judgement that an accident of the nature of the second (subject) accident is not a clinically plausible cause of a psychiatric disorder.
The Panel turned their mind to the question of whether the second accident could have caused an exacerbation of a psychiatric condition arising from the first accident. It was the Panel’s clinical opinion that the subject accident, a minor accident, could have caused a brief, time limited exacerbation of symptoms in a person with a pre-existing condition. However, it is the usual clinical progress that any exacerbation after minor accidents or near-misses, would only be a temporary exacerbation and would not cause an ongoing exacerbation. Therefore, any exacerbation arising from the second (subject) accident has resolved and is not contributing to the current psychiatric condition.
Third, the Claimant’s GP notes show that the Claimant first complained about one week after the second accident about any psychological symptoms. She initially reported back and shoulder pain but no psychological symptoms. Her complaints of psychological symptoms about the second accident were not recorded by her GP until one week after the second accident.
Fourth, the Claimant had eight sessions with a psychologist, Dr Fayza Al Shamali, between March 2019 and May 2020. In none of those eight sessions was there a note that the Claimant even mentioned the second accident.
Fifth, the Claimant’s GP notes show that the Claimant reported a prior history of depression and sleep impairment commencing in about May 2017 for which she was prescribed anti-depressants. The Claimant also told Assessor Jungfer that she was depressed, distressed and emotional before the accidents due to the end of her engagement.[38]
[38] Claimant’s bundle AD 1 page 29.
Sixth, the Panel notes the inconsistent histories recorded and the widely divergent conclusions contained in the medical evidence including the GP notes, the medico-legal reports from Dr Antoun, Dr Samuell, Dr Teoh and the assessments of Assessor Jungfer and Assessor Mason.
Seventh, the Panel notes that there are Centrelink records which indicate that the Claimant has been in receipt of a Carers Allowance and Carers Payment was able to care for her mother from 20 February 2017 until the most recent payment on
27 August 2020.[39]

CONCLUSIONS
[39] Claimant’s bundle AD 1 page 416.

In conclusion, the Panel revokes the Medical Assessment of Assessor Wayne Mason dated 20 June 2021 and determine that there is no diagnosable psychological injury attributable to the second motor vehicle accident on 3 January 2018.

[2022] NSWPICMP 350

6 September 2022