Diab v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 80
•11 February 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Diab v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 80 |
| CLAIMANT: | Samira Diab |
| INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Christopher Canaris |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 11 February 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; motor accident on 28 October 2021; rear end collision; assessment of permanent impairment for psychological injury; finding that motor accident caused psychological injury; referral to psychologist three months after accident; original Medical Assessor acted on incorrect history; complaints of chronic pain following motor accident; clauses 6.214 and 6.215 of the Guidelines require that the assessment of psychological injury does not include any allowance for “impairment due to physical injury” and “impairments due to somatoform disorder or pain”; claimant assessed by Medical Assessors; clinical judgment exercised in considering psychiatric impairment rating scale (PIRS) caused by psychological injury and making no allowance for impairment due to physical injury and pain; Held – claimant’s degree of permanent impairment assessed as less than 10%; Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel revokes the certificate dated 1 November 2023 and issues a new certificate determining that the degree of permanent impairment that has resulted from the psychological injury caused by the motor accident is assessed at 7% and is NOT GREATER THAN 10%: · persistent depressive disorder (dysthymia) with panic attacks and anxious distress. |
REASONS
BACKGROUND
Ms Samira Diab (the claimant) suffered injury on 28 October 2021 when the insured vehicle rear ended the claimant’s vehicle.
Insurance Australia Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Diab any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The present dispute is whether the claimant’s ‘degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%’. This constitutes a medical dispute within the meaning of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Samuell and dated 1 November 2023.[3] The Medical Assessor concluded that any psychological injury caused by the motor accident had resolved.
[3] Insurer’s bundle, p 8.
The details of that medical assessment certificate are set out later in these Reasons.
THE REVIEW
The application for referral of the medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties provided bundles of documents in accordance with the Panel’s Direction.
ASSESSMENT UNDER REVIEW
The Medical Assessor provided a medical assessment dated 1 November 2023 determining that the motor accident caused an adjustment disorder which had resolved. The relevant portion of the Medical Assessor’s reason for the assessment included:
“The claimant’s symptoms are disproportionate to the subject accident, that was mechanically minor. There is a substantial disconnect between the subject accident and the ongoing reported symptoms. …
Irrespective of whether the claimant is reliably reporting her symptoms or otherwise, they are not plausibly connected to the subject accident. …
It is possible that there was an Adjustment Disorder at some stage prior to the present assessment, however, for reasons stated above, the Adjustment Disorder can no longer be diagnosed.”
MATERIAL BEFORE THE REVIEW PANEL
The Panel requested and were provided with separate bundle of documents provided by the parties.
PRE-ACCIDENT RECORDS
The pre-accident clinical records of the general practitioner (GP) dated 6 January 2021 refer to recurrent dizziness, headaches and neck pain.[9] On 19 November 2020 the GP noted chronic neck pain.[10] An MRI scan at that time noted C5/6 and C6/7 nerve root compression.
[9] Claimant’s bundle, p 115.
[10] Claimant’s bundle, p 116
The report of Dr James Van Gelder dated 23 December 2020 noted a long history of neck symptoms which included benign positional vertigo (BPV). A prior neck manipulation had made the claimant cervical symptoms worse.[11]
POST MOTOR ACCIDENT
[11] Insurer’s bundle, p 201.
General practitioner and treating records
The claimant attended her GP on 2 November 2021 with reported neck and left shoulder pain.[12]
[12] Claimant’s bundle, p 112.
A certificate of capacity dated 2 November 2021 noted that the claimant had burning pain in the neck, left shoulder pain, felt dizzy and was unbalanced.[13]
[13] Insurer’s bundle, p 50.
On 5 November 2021 the GP noted that the claimant also reported back pain.[14]
[14] Claimant’s bundle, p 112.
An Allied Health Recovery Request dated 8 February 2022 provided a diagnosis of depression and post-traumatic stress disorder.[15] Further requests for psychological treatment by the GP repeated this diagnosis.[16]
[15] Claimant’s bundle, p 35.
[16] Claimant’s bundle, pp 42 - 64.
Ms Georgiadis, psychologist commenced treating the claimant on 8 February 2022[17] for post-traumatic stress disorder.
[17] Claimant’s bundle, p 8.
Qualified opinions
Dr Andrew McIntosh provided a report dated 6 October 2022.[18] He concluded that the motor accident was a “low severity rear end collision” of less than 10kmph which may have caused injury to the cervical spine.
[18] Insurer’s bundle, p 134.
Dr Stephen Rimmer, orthopaedic surgeon, was qualified by the insurer and provided a report dated 14 March 2023.[19] The doctor diagnosed the claimant with abnormal illness behaviour and resolved soft tissue injuries to the cervical spine, both shoulders, lumbar spine and right knee.
[19] Insurer’s bundle, p 280.
Dr Teoh was qualified by the insurer and provided a report dated 30 October 2022.[20] The doctor noted that the applicant reported chronic pain and physical disability and had been anxious about further accidents.
[20] Claimant’s bundle, p 10.
Dr Teoh opined that the applicant was suffering from anxiety/depressive symptoms caused by the accident in relation to a pre-existing condition of vertigo and her husband’s recent injury. The doctor diagnosed a chronic adjustment disorder with mixed anxious and depressed mood.
Dr Teoh assessed permanent impairment at 13%.
Statement
Ms Diab provided a statement dated 16 March 2023.[21] She stated that she was diagnosed with vertigo in 2000 but did not suffer any ongoing effects at the time of the motor accident. Ms Diab also stated that she suffered a “minor injury” to the cervical spine from treatment with a chiropractor in 2020. She said she fully recovered within nine months and before the motor vehicle accident.
[21] Claimant’s bundle, p 3.
Ms Diab stated that the motor accident caused physical injuries in the neck, bilateral shoulder, back, right knee and psychological conditions. Prior to the accident Ms Diab with an active social and recreational life, had a good relationship with her family and was completely independent.
Ms Diab stated that following the motor accident she suffers from constant pain in the neck and both shoulders, lower back and right knee. This means that she is unable to do simple tasks like dressing herself showering and is unable to walk for more than five minutes.
Ms Diab stated that she was not coping well mentally, suffers from panic attacks and wishes to be isolated. She said she is terrified of being involved in another accident, experiences bouts of intense sadness and has difficulty relaxing.
As a result of both physical and psychological injuries, Ms Diab said she experiences extremely disrupted sleep, and the constant pain and fatigue wears her down. She said that the effects the motor accident had a large impact on the relationship with her husband and children and she is constantly depressed and irritable.
Other Medical assessments
Medical Assessor Jones issued a medical assessment certificate dated 3 November 2022.[22] The Medical Assessor found that the motor accident caused a post-traumatic stress disorder which was not a minor injury for the purposes of the MAI Act.
[22] Insurer’s bundle, p 189.
Medical Assessor Gorman issued a medical assessment certificate dated
13 November 2022. The Medical Assessor found that the motor accident caused a soft tissue injury to the cervical spine which were minor injuries for the purposes of the MAI Act.[23][23] Insurer’s bundle, p 197.
Medical Assessor Gorman accepted that the referral to a neurologist was reasonable and necessary and related to the injury caused by the motor accident.[24] In this separate medical assessment certificate Medical Assessor Gorman found that the X-ray and MRI scan of the right knee was reasonable and necessary related to the injury caused by the motor accident.[25]
[24] Insurer’s bundle, p 206.
[25] Insurer’s bundle, p 214.
SUBMISSIONS
Claimant’s submissions undated[26]
[26] Claimant’s bundle, p 1.
These submissions sought a review of the assessment provided by Medical Assessor Cameron.
The claimant noted that the initial referral for psychological treatment occurred on
31 January 2022 and psychological treatment commenced on 8 February 2022. The psychologist detailed ongoing psychological symptoms in the clinical records.These matters are inconsistent with the history recorded by the Medical Assessor that there was a substantial delay of eight months in the need for psychological treatment.
Insurer’s submission dated 23 June 2023[27]
[27] Insurer’s bundle, p 19.
These submissions addressed the physical injuries alleged to have been caused by the motor accident.
Insurer’s submissions dated 13 December 2023[28]
[28] Insurer’s bundle, p 3.
These submissions were filed opposing the application to review the Medical Assessment.
The insurer submitted that the Medical Assessor provided a detailed rationale for causation and considered all the documentation before him and noted the many inconsistencies between the claimant’s account and the available medical information.
The insurer submitted that the claimant did not properly articulate what the Medical Assessor found and the findings that various symptomatology was not connected to the motor accident.
RE-EXAMINATION
The Panel determined that the claimant be re-examined by both Medical Assessors. The examination report is as follows:
“History before the accident
The claimant is a 54-year-old married woman who at the time of the accident was not in the paid workforce and had been on the disability support pension for several years.
She admitted that she had contended with anxiety when she had her BPV (benign positional vertigo) and was referred to the Bankstown Anxiety Clinic. She said, ‘They would just talk to me – they would explain things to me – we didn’t do any therapies – just talk’. She was not on any psychotropic medication.
She had been diagnosed with benign positional vertigo and had to leave work and get treated at a balance clinic approximately 16 or 17 years ago.
She ‘used to get the manoeuvre done’ which she underwent three times ‘to put the crystals back’. She last had a treatment ‘five years ago maybe’. She said she had been well from that point on until her accident.
She went onto the disability support pension in 2010 or 2011. Before that she has been a customer service officer and had been thinking of getting back to work as her son had finished year 12 ‘but obviously I couldn’t’ because of the accident ‘with my mental and physical health’.
She had been otherwise medically well. She admitted she had had a nerve impingement in her neck before the accident. She saw a chiropractor who ‘cracked it for me and after the fifth session it was very sore… I had to see a neurophysio…’. She saw a Dr Gelder but was told ‘there’s nothing wrong with you – you don't need surgery…’.
She does not drink alcohol. She does not smoke. She does not use drugs. She does not gamble.
She had no other claims history. She denied any history of problems with the law.
She knew of no family history of psychiatric illness.
She came to Australia from Lebanon when she was five years old. She has six sisters and five brothers of whom two have passed away. She is the youngest of her siblings. Her father died in 2000, and her mother died over 12 years ago.
Her father had a shoe shop in Marrickville. Her mother looked after the family home. She was ‘spoilt being the youngest’ and described a happy childhood. She completed year 10 and then did a receptionist course. Over the years, she has worked in accounts, customer service at a bank, and mainly as a customer service officer at the RTA where she was a supervisor. She stopped work ‘over 15 years ago’.
She married at the age of 19 years and has been married 36 years. Her children are aged 35, 32, 31, and 20 years old (a son studying at Macquarie University and working as an IT technician). Her daughters are all married, and she has six grandchildren. She had some time off work with her children but mostly worked full time.
Her husband is a dental technician presently working parttime after he lost his job during the pandemic. He has not got back to full-time work as ‘he’s been looking after me’.
In terms of pre-accident functioning, she used to go for long walks, out with her friends, dinners, and the like. She had no issues with cooking, cleaning, or housework. She said there had been no difficulties in her relationship with her husband ‘we used to go for holidays – for dinners – we’d socialise with friends’. She denied any difficulties in driving. Her energy levels and concentration were good ‘and I had a very good memory– I remembered phone numbers – watched movies – read a book…’.
The accident
She had an appointment with her ENT medical specialist in Burwood. She was waiting at the lights turning left. Another car ‘smashed into the back of us – it brought my body forward – I was confused – scared’.
Airbags did not deploy. She was feeling dizzy and had a headache. The doctor’s secretary and then the doctor came out and told her to report it to the police. The police told her to get an ambulance, but she did not do so because she was scared.
Symptoms since the accident
She saw her doctor the next day with pain in her back and both shoulders. The doctor wanted her to get scans. She had an MRI done.
The insurer has stopped paying for her treatment and she sees her physio and psychologist under Medicare although initially she had weekly sessions paid for by the insurer.
She is on Lexapro 20 mg daily and takes Circadin to help her sleep. She is also on Celebrex and Somac.
The Panel asked how she felt physically. She said, ‘I feel helpless – frustrated – I can’t do things around the house – I can't go for walks – I get pain – headaches – my knee’. She maintains that her neck is much worse since that accident. She does have exercises given by her exercise physiologist. She can walk for about 10 minutes at a time but has issues with dizziness and would walk around the house but not outside and has to have someone with her when she goes outside, in case she is dizzy or falls.
She cannot enjoy anything without feeling dizzy and described panic attacks in which she feels short of breath, experiences palpitations, and is shaky and sweaty.
She is ‘not at all well mentally’ saying, ‘I lost all my friends – I wasn’t motivated to go anywhere or see anyone – I still don't have the motivation to do anything or go out – I feel like my emotions are dead – I’m stressed… it’s affecting my life with my husband – my son – we always fight – I feel numb – I feel like I have no emotions anymore… I feel something bad is going to happen – I keep feeling that someone is going to smash into me – it’s that fear that something bad is going to happen’.
She gets about three or four hours sleep a night saying she has bad dreams sometimes about the accident and ‘then my heart starts pounding fast and I thought I was going to have a heart attack – I’m tense – I’m edgy – I just don't seem to relax’.
She said she felt all this ‘‘just straight after the accident – the doctor put me on the Lexapro 10 mg – I didn’t want to get out of bed – my girls would come and force me to get out of bed – they put me on Lexapro 20 – I’ve been taking that for over two years now…’.
The Panel put it to her that she did not see her psychologist till about three months after the accident. She said she had been feeling a lot of pain and feeling miserable ‘but I didn’t know what was going on’. She finally asked her doctor to assist with her mental health issues.
Subsequent accidents
The Panel asked her about the incident in which her husband had fallen off a ladder. She ‘‘was feeling tired and I was sleeping in my room, and I woke up to a loud bang… my husband was going up the roof… he was lying on the ground… I was numb – I couldn’t move – he was taken to hospital with a collapsed lung… he’s fine now…’’. She found it distressing seeing her husband ‘and I felt numb because I couldn’t think’. She does not believe the incident affects her now saying, ‘He’s fine – he’s back at work – he’s out’.
Mental state examination
The claimant was interviewed by Microsoft Teams. She was at her home in Greenacre. Dr Canaris and Dr Hong were in their respective offices. A good audiovisual connection was established. The claimant’s head and shoulders were visible. She presented as a woman of appearance consistent with her stated age. She appeared reasonably groomed as best as could be ascertained on camera. She provided the history documented above. Her narrative was coherent and consistent. Her account was very much dominated by her physical and psychological symptoms and her perception that the insurer had not supported her. Her demeanour was depleted and her affect restricted with an undertone of anxiety. She was noted to be able to maintain good focus over the course of the interview. There was no evidence of psychosis or cognitive impairment.
Current functioning
The Panel asked her how she spent her time. She replied, ‘I hardly go anywhere – I have three married daughters – they live close by – they come and cook for me’. She would cook only simple things such as pasta or sandwiches. They also clean her house as the insurer has stopped funding homecare. Her daughter and husband help her with bathing and dressing as she struggles physically with it. She would ‘sometimes forget to bathe – they get me out of bed and bathe me… I feel like I’m a burden to them’. She explained, ‘I don’t have the motivation to get out of bed – I just want to sleep – dressing – I need help because I have problems in my shoulders – tears in both shoulders…’.
She does not go out socially at all. She lacks the motivation to see anyone or go anywhere. Her husband would take her to the shops to get some groceries or for short drives, but she does not enjoy it ‘because I get an anxiety in the car – I get scared – we end up fighting and I’m snappy’.
She has not driven since the accident though she has had some ‘exposure therapy’ in which she sat in the driver’s seat ‘but the insurer cut the sessions’. She is an anxious passenger and ‘I still look back at the mirror – I still get trapped at times – I get trembly… especially on highways’. She does not catch public transport (‘I can’t’) saying, ‘I just can’t be around so many people – I get this fear if my heart starts beating fast… I don’t feel ready for that’. That said, the Panel also noted that she could occasionally go out on her own in a very limited way when not feeling dizzy.
She has lost contact with many of her friends. Her relationship with her husband is ‘not too good at the moment – I’m unable to show any feelings or emotions – he doesn't like it when I’m snappy – I push him away a lot of times’. At the same time, her daughters ‘are very patient with me…’.
Her concentration is ‘very bad’ and ‘I can’t seem to focus – I read a book, and I can’t understand anything – I watch a movie, and I can’t understand anything – I have to ask questions – my memory is terrible… I've taken my sleeping tablets twice once and I've slept all day – I have to make myself notes…’. She said she was worse in his regard ‘especially when my heart is beating fast’. She in fact doesn't read books because her neck gets sore but also because she can’t focus. Dizziness, vertigo and pain also affects her focus.
She restricts herself to ‘simple stuff’ around the house but blames this on her pain in her shoulders, her neck, her back and her right knee. She did admit, however, that motivation and reluctance to get out of bed also contributed while her irritability and poor noise tolerance were a problem particularly in relation to her grandchildren saying, ‘The problem is when they bring the grandchildren, and they run around and shout – I get snappy, and I can’t tolerate the noise’.
Comments on consistency
The Panel did not note any major inconsistency in her presentation.
Documentation
The Panel noted the claimant’s submissions to the review Panel and the insurer’s response.
The Panel noted the claimant’s statement.
The Panel noted the certificate of Assessor David Gorman dated 13 November 2022 determining that the claimant’s soft tissue injuries to her right shoulder and cervical spine were minor (threshold) injuries for the purposes of the Act. Assessor Gorman issued certificates relating to treatment and care (neurologist referral) and x-ray which he considered related to the accident and was reasonable and necessary.
The Panel considered sundry physical reports, and an ADL Review Report dated 16 May 2023 relating to physical injuries.
The Panel noted the complete record of Greenacre Medical as at 17 July 2024. There are numerous entries relating to her physical and psychological injuries. She is noted to be taking escitalopram (an antidepressant) 30 mg daily as well as melatonin, temazepam, Panadeine Forte, and nonsteroidal anti-inflammatory drugs. There are sundry referrals for mental health plans, references to certificates of capacity, and counselling of the patient with reflective listening.
The Panel noted an initial allied health recovery request from Breanna Georgiadis, psychologist, dated 2 March 2023 providing a diagnosis of depression and posttraumatic stress disorder. This listed symptoms comprising ‘lack of sleep, flashbacks/flash forwards, headaches, trouble with attention, fear, chronic pain, feeling miserable, feeling hopeless, lack of enjoyment, lack of appetite, social isolation, trouble dressing’. It noted a prior incident in January 2020 involving an incident with a chiropractor which had given rise to pain.
The Panel noted the report of Breanna Georgiadis, clinical psychology registrar, dated 13 May 2022 which cites a diagnosis of posttraumatic stress disorder and describes a pleasing response to treatment following trauma focused CBT and EMDR but with treatment left incomplete because the insurer declined to pay for further treatment. Subsequent allied health recovery requests provide a diagnosis of depression and posttraumatic stress disorder and there were several such requests.
The Panel noted the report of Dr Ben Teoh, IME psychiatrist, dated 30 October 2022. Dr Teoh noted a history of anxiety some eight years previously in the setting of vertigo for which she was not prescribed medication. He noted that she was distressed and worried about her husband who had fallen off a ladder two months previously. He noted that she had been treated with EMDR in counselling by psychologist. He noted her as worrying about the accident, feeling on edge, having difficulty relaxing, and noted that she could recall her son screaming at the time of the accident. Dr Teoh diagnosed chronic adjustment disorder with mixed anxious and depressed mood. He assessed her as having a pole person impairment of 13% with a 15% overall impairment and a 2% deduction for a pre-existing condition. He rated her as Class 1 for self-care and personal hygiene and Class 3 for all remaining categories. The Panel noted a subsequent report dated 29 December 2022 in response to comments from the claimant. Dr Teoh decline to make any change in his assessment.
The Panel noted the certificate of Assessor Matthew Jones dated 3 November 2022 which determined that the claimant had sustained posttraumatic stress disorder which was not a minor (threshold) injury for the purposes of the Act. Assessor Jones considered that the subject accident was consistent with Criterion A of the DSM-5-TR description of the diagnosis because at the time in question she had feared for her own safety and that of her daughter who was pregnant. He went on to list other symptoms which he considered satisfied the diagnostic criteria.
The Panel noted the certificate of Assessor Doron Samuell dated 1 November 2023. Assessor Samuell considered there were serious issues in consistency and determined that she may have had an adjustment disorder following the accident which had since resolved. The Panel noted the claimant’s submissions relating to an apparent error in the history obtained by Assessor Samuell in relation to the time at which the claimant first sought psychological treatment. It took note of the insurer’s response to the submissions.
The Panel noted the claimant’s application for personal injury benefits.
The Panel noted sundry certificates of capacity. There are multiple references to her physical symptoms. A certificate dated 2 November 2021 records physical symptoms while noting that the claimant felt ‘dizzy and unbalanced’ after the accident and later developed a persisting headache. 4 February 2022 notes that she had an appointment with a psychologist. There are further certificate which document that the claimant ‘Feels anxious and depressed since MVA (PTSD)’ and experiencing ‘Ongoing Anxiety and depression with night mares [sic] flash backs [sic] with difficulty in sleeping since the accident (PTSD)’ with a formal diagnosis of PTSD listed on later certificates. The Panel noted the length and detail of the information contained in many of these certificates.
The Panel noted insurer approvals for psychology sessions.
The Panel noted the Collision and Biomechanics Report of Dr Andrew McIntosh dated 28 October 2021 which included photographs of the vehicle. The accident was noted to be a low velocity collision with minor damage to the rear of the claimant’s vehicle. There is ongoing discussion of likely forces in the collision and likelihood of any contribution to the claimant’s injuries.
Diagnosis
The Panel considered a diagnosis of posttraumatic stress disorder but rejected it on the basis that the accident as described and as reported in the documentation did not conform to a Criterion A event as per the DSM-5-TR. The Panel noted the persistent quality of her distress and its chronicity and determined that she had a diagnosis of persistent depressive disorder (dysthymia) with panic attacks and anxious distress. In terms of DSM-5-TR criteria, the Panel noted evidence of depressed mood for most of the day for more days than not over several years beginning soon after the accident (Criterion A) with the presence of poor appetite, insomnia, low energy, and poor concentration (Criterion B) which have never been absent for any significant time (Criterion C). It was not clear whether she met criteria for major depressive disorder over any of this time, but this was not essential to the PDD diagnosis (Criterion D). There had never been a manic, hypomanic, or cyclothymic presentation (Criterion E) and there was no evidence of a schizoaffective disorder, schizophrenia, schizophrenia spectrum or other psychotic disorder (Criterion F). Her symptoms were not attributable to the physiological effects of a substance or to another medical condition (Criterion G) and caused her clinically significant distress and psychosocial impairment (Criterion H).
The anxious distress specifier captures posttraumatic symptoms which are also manifest in her panic attacks.
Causation
The claimant’s history and the documentation on hand confirms that her psychological symptoms came on very soon after the accident. Her symptoms moreover are specific to that event and driven significantly also by her physical symptoms and chronic pain. It follows from this that her persistent depressive disorder arises as a consequence of the subject motor vehicle accident.
The Panel considered the contribution of her husband’s fall from a ladder. It noted that while at the time it had caused her anxiety, her husband had apparently made a full recovery, and she did not feel any ongoing distress related to that event. The Panel considered that this did not contribute significantly.
The Panel noted the incident with the chiropractor prior to the accident but noted that this did not seem to be a cause of any ongoing concern particularly as the claimant reported that she was told at the time that there was nothing wrong with her. Again, the Panel considered that this did not contribute significantly.
The Panel also noted her history of anxiety occurring in the context of her benign positional vertigo diagnosis some years prior to the accident but noted that she had not needed any medication or psychological treatment as well as her contention that she was later entirely symptom-free. The Panel consequently concluded that her current symptoms were not an exacerbation of a pre-existing condition.
Permanency of impairment
Over three years had passed since the subject motor vehicle accident. She had been prescribed escitalopram (Lexapro) and had seen a psychologist. Her condition had consequently stabilised in that there was little probability that her level of impairment would change substantially or by more than 3% over the next year.
Psychiatric Impairment Rating Scale
In relation to self-care and personal hygiene, the Panel noted the following history:
The Panel asked her how she spent her time. She replied, ‘I hardly go anywhere – I have three married daughters – they live close by – they come and cook for me’. She would cook only simple things such as pasta or sandwiches. They also clean her house as the insurer has stopped funding homecare. Her daughter and husband help her with bathing and dressing. She would ‘sometimes forget to bathe – they get me out of bed and bathe me… I feel like I’m a burden to them’. She explained, ‘I don’t have the motivation to get out of bed – I just want to sleep – dressing – I need help because I have problems in my shoulders – tears in both shoulders…’.
While much of her impairment in this category arose from physical factors which are not assessable under the PIRS, the Panel noted that lack of motivation contributed to her difficulties in this area. It determined that this was consistent with Class 2 impairment.
In relation to social and recreational activities, the Panel obtained the following history:
She does not go out socially at all. She lacks the motivation to see anyone or go anywhere. Her husband would take her to the shops to get some groceries or for short drives, but she does not enjoy it ‘because I get anxiety in the car – I get scared – we end up fighting and I’m snappy’.
The Panel determined that this was consistent with Class 3 impairment.
In relation to travel, the Panel obtained the following history:
She has not driven since the accident though she has had some ‘exposure therapy’ in which she sat in the driver’s seat ‘but the insurer cut the sessions’. She is an anxious passenger and ‘I still look back at the mirror – I still get trapped at times – I get trembly… especially on highways’. She does not catch public transport (‘I can’t’) saying, ‘I just can’t be around so many people – I get this fear if my heart starts beating fast… I don’t feel ready for that’. That said, the Panel also noted that she could occasionally go out on her own in a very limited way when not feeling dizzy.
The Panel determined that this was consistent with Class 2 impairment.
In relation to social functioning, the Panel obtained the following history:
She has lost contact with many of friends. Her relationship with her husband is ‘not too good at the moment – I’m unable to show any feelings or emotions – he doesn't like it when I’m snappy – I push him away a lot of times’. At the same time, her daughters ‘are very patient with me… the problem is when they bring the grandchildren, and they run around and shout – I get snappy, and I can’t tolerate the noise’.
Overall, she has a reasonable relationship with her children and grandchildren.
The Panel determined that this was consistent with Class 2 impairment.
In relation to concentration, persistence, and pace, the Panel obtained the following history:
Her concentration is ‘very bad’ and ‘I can’t seem to focus – I read a book, and I can’t understand anything – I watch a movie, and I can’t understand anything – I have to ask questions – my memory is terrible… I've taken my sleeping tablets twice once and I've slept all day – I have to make myself notes…’. She said she was worse in his regard ‘especially when my heart is beating fast’. She in fact doesn't read books because her neck gets sore but also because she can’t focus.
The Panel noted, however, that she was able to maintain focus over the course of an interview lasting one hour and 15 minutes. She acknowledged this and explained she made an effort to focus during the assessment. The Panel also noted that some of her impairment in this category related to physical issues such as her neck getting sore and dizziness affecting her focus which are not assessable in the PIRS and determined that this was consistent with Class 2 impairment.
In relation to adaptation, the Panel noted that she was not in paid employment at the time of the accident and was on the disability support pension although apparently considering the possibility of going back into the workforce. Consequently, the Panel assessed her functioning in relation to her roles as a homemaker, spouse, and grandparent.
The Panel obtained the following history:
She restricts herself to ‘simple stuff’ around the house but blames this on her pain in her shoulders, her neck, her back and her right knee. She did admit, however, that motivation and reluctance to get out of bed also contributed while her irritability and poor noise tolerance were a problem particularly in relation to her grandchildren saying, ‘The problem is when they bring the grandchildren, and they run around and shout – I get snappy, and I can’t tolerate the noise’.
The Panel determined that most of her impairment in this regard emanated from physical issues, which are not assessable in the PIRS but also noted a contribution from lack of motivation and irritability. The Panel determined that this was consistent with Class 2 impairment, from a psychological perspective.
The Panel noted that her impairments in ascending order comprised 2, 2, 2, 2, 3, and 3 with a median value of 2 and an aggregate of 14 equating to a whole person impairment of 7%.
The Panel considered pre-existing impairment because of prior history but noted that she had provided the following history:
In terms of pre-accident functioning, she used to go for long walks, out with her friends, dinners, and the like. She had no issues with cooking, cleaning, or housework. She said there had been no difficulties in her relationship with her husband ‘with used to go for holidays – for dinners – we’d socialise with friends. She denied any difficulties in driving. Her energy levels and concentration were good ‘and I had a very good memory– I remembered phone numbers – watched movies – read a book…’.
The Panel further noted that she was on the disability support pension for a physical and not a psychological issue. It could not identify information in the documentation on hand to contradict this account. Consequently, the Panel determined that pre-existing impairment was 0%. The Panel similarly determined that subsequent events such as her husband’s fall from a ladder did not give rise to any impairment.
There was consequently no apportionment.
Treatment effects
There was no evidence to warrant an adjustment for treatment effects.
Final whole person impairment = 7%.”
The Panel noted Dr Ben Teoh’s assessment, which arrived at a significantly different WPI, and that report is more than 2 years old now. The Panel considered the history in that report to be outdated and that it did not reflect her current functioning.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[29]
[29] Section 7.26(6) of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[30] and Insurance Australia Ltd v Marsh.[31]
[30] [2021] NSWCA 287 at [40], [41] and [45].
[31] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the detailed examination findings made by both Medical Assessors with the additional further short observations.
Clauses 6.214 and 6.215 of the Guidelines note that the assessment of psychological injury does not include any allowance for “impairment due to physical injury” and “impairments due to somatoform disorders or pain”.
This case, like many others, is an example where the claimant’s underlying physical injuries and pain also affect the assessments for the various ppsychiatric impairment rating scale (PIRS) categories.
The claimant’s statement is part of the material which establishes that the ongoing pain condition is a matter which is preventing her from performing simple tasks such as dressing, showering and being unable to walk for more than five minutes. The claimant’s chronic pain has impacted her functioning generally and has been considered by the Medical Assessors in assessing the various PIRS.
The effects due to pain are not to be included in the assessment of the various PIRS. This generally explains the significant different between our and other assessments which have not considered and made a clinical judgement for the effects of pain impacting on the PIRS categories.
We are satisfied that the motor accident caused a psychiatric condition, diagnosed by the Medical Assessors as persistent depressive disorder (dysthymia) with panic attacks and anxious distress.
The history considered by the previous Medical Assessor that there was no early complaint is incorrect as there was a referral by the GP on 31 January 2022 and the psychological treatment commenced pursuant to an Allied Health Recovery Request on 8 February 2022. Any delay in the referral to a psychologist of three months after the motor accident is not unusual as the claimant was clearly affected by the physical injuries caused by the motor accident. It is not unusual for psychological symptoms to develop over time particularly if they are in response to ongoing physical symptoms.
CONCLUSIONS
The medical assessment certificate issued by Medical Assessor Samuell on the degree of permanent impairment that has resulted from the psychological injury caused by the motor accident is revoked. The new certificate is attached at the commencement of these Reasons.
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