Dyer v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 149
•13 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Dyer v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 149 |
| CLAIMANT: | Sheree Dyer |
| INSURER: | IAG Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Matthew Jones |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 13 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) Shen of 3 October 2024 who found the claimant had a 6% whole person impairment (WPI) assessment for psychiatric disability; application for review by claimant; claimant injured in an accident on 1 July 2018 when the driver of a car travelling in the opposite direction lost control and collided with the claimant who was a front seat passenger teaching her daughter how to drive a car; claimant diagnosed with somatic symptom disorder with predominant pain and post-traumatic stress disorder related to the accident and exacerbation of major depressive disorder with ongoing major depressive episode; issue of whether the claimant had a pre-existing psychiatric diagnosis of major depressive disorder and substance use disorder disparity of assessments between psychiatric specialists; claimant affected by functional neurological disorder but this not taken into account by the Panel as it was not a psychiatric diagnosis; Held – that claimant had persistent depressive disorder and WPI of 8%; certificate of MA Shen revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Shen. 2. The Panel finds that the following injuries caused by the accident on 1 July 2018 gave rise to a permanent impairment of 7% and when added to an allowance for treatment effect of 1% gives a total whole person impairment assessment of 8%: (a) Persistent Depressive Disorder. |
STATEMENT OF REASONS
INTRODUCTION
This is a review of the certificate and reasons of Medical Assessor Shen (the Medical Assessor) dated 3 October 2022 which has been sought by Sheree Dyer (the claimant).
The Medical Assessor found the following injuries caused by the motor accident gave rise to a permanent impairment of 6%:
(a) Somatic Symptom Disorder, with Predominant Pain;
(b) Post-Traumatic Stress Disorder related to the subject accident, and
(c) Exacerbation of Major Depressive Disorder, with ongoing Major Depressive Episode.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The accident
On 1 July 2018 the claimant was a front seat passenger supervising her daughter, in a driving lesson along Scenic Drive, Buff Point. The insured car was travelling in the opposite direction and lost control of his car, travelling onto the incorrect side of the road and into the path of the claimant and her daughter in a head on collision.
The insurer has wholly admitted liability in relation to the claim for damages pursuant to the Motor Accident Injuries Act 2017 (the Act).
Claimant’s submissions
The claimant relies on various grounds of appeal, with the second ground comprising two parts.
Ground 1 – the Medical Assessor is incorrect in a material respect as he concluded the substance use disorder was not caused by the accident.
The claimant says that the Medical Assessor found:
“Substance use disorder – with previous psychostimulant and prescription benzodiazepine and opioids, and current cannabis use. These are unrelated to the subject accident, as this was a pre-existing condition prior to the subject accident, and her overall tendency for substance use is the main contributing factor, and likely perpetuated by ongoing stress in the family, though there is some contribution due to the pain”.
The claimant relies on the Motor Accidents Guidelines; Permanent Impairment (Guidelines) which 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.”
The claimant says that in circumstances where the Medical Assessor found there is some contribution from the accident to the substance use disorder it is submitted that the conclusion that this is not causally related to the accident is incorrect. The claimant submits that the accident had a material contribution to the condition which is more than negligible. The claimant says that this is clear on the Medical Assessor’s own findings.
Following on from this, the claimant submits that the consequence is that the Medical Assessor is incorrect in a material respect.
Ground 2(a) – the Medical Assessor is incorrect in a material respect as the assessment in relation to the psychiatric impairment rating scale (PIRS) was not undertaken in accordance with the Guidelines.
The claimant submits that in addition, the Medical Assessor found a “Functional Neurological Disorder” (FND) which was not related to the accident. The claimant submits that despite this, the Medical Assessor did assess the effects of this when considering the categories of:
(a) Self Care and Personal Hygiene – finding urinary and faecal incontinence when assessing Class 1;
(b) Travel – finding that the claimant is limited by her fears of incontinence when assessing Class 2, and
(c) Concentration, Persistence and Pace – finding “Some difficulties of the currently impaired persistence and pace is related to her FND.” in assessing Class 3.
The claimant says that the assessment includes impairments said to arise from the functional neurological disorder, which the claimant says is outside of the specialty of the Medical Assessor.
The claimant says that the assessment does not delineate between the impairments said to arise from the injuries caused by the accident and those that are not causally related. The claimant submits that this offends paragraph 6.17 of the Guidelines as it is unclear whether the Medical Assessor is satisfied that the impairment is arising from an injury caused by the Accident.
Ground 2(b) – the claimant says that the Medical Assessor is incorrect in a material respect as the assessment in relation to the PIRS was not undertaken in accordance with the Guidelines.
The claimant refers to paragraph 6.18 of the Guidelines which provides:
“6.18 An assessment of the degree of permanent impairment involves three stages:
(a) a review and evaluation of all the available evidence including:
·medical evidence (doctors', hospitals' and other health practitioners' notes, records and reports) medical legal reports
·diagnostic findings
·other relevant evidence
(b) an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment
(c) the preparation of a certificate using the methods specified in these Guidelines that determines the percentage of permanent impairment, including the calculations and reasoning on which the determination is based (claimant’s emphasis). The applicable parts of these Guidelines and the AMA4 Guides should be referenced”.
The claimant submits that the Medical Assessor has failed to prepare his certificate in accordance with paragraph 6.18(c).
Regarding the assessment of the degree of impairment said to be attributable to the alleged pre-existing conditions, the claimant says that the Medical Assessor found Class 1 for pre-existing conditions for each of categories of Travel and Concentration, Persistence and Pace.
The claimant submits that the Medical Assessor however has not completed each column in relation to and entitled “Reasons for Decision”. The claimant submits that there is no reasoning – the Medical Assessor has not explained how the assessment conducted is causally related to the effects of the accident or otherwise.
The claimant submits that as a consequence, the Medical Assessor is incorrect in a material respect.
Ground 3 – the Medical Assessor is incorrect in a material respect as he erred in his assessment in relation to Social and Recreational Activities.
The claimant says that the Medical Assessor found Class 2 and in doing so relied upon the psychologist notes recording the claimant had gone fishing with her husband, walked daily and went bushwalking together and attending bingo with her husband. The claimant said that the Medical Assessor concluded “Hence, there is evidence she has been able to participate to some degree of active involvement in social activities outdoors.”
The claimant submits that the following is pertinent: the claimant plays bingo on her phone, there is no evidence she occasionally goes to social events and only that she undertakes outdoor activities (i.e. bushwalking) alone or with her family. The claimant says that the finding that the she engages in social activities outdoors is not supported on the evidence.
The claimant submits that the findings do not support a finding of Class 2 but clearly warrants a finding of Class 3. The claimant says that as a consequence, the Medical Assessor was incorrect in a material respect.
Ground 4 – the Medical Assessor has given too little weight to relevant evidence and as such his certificate is incorrect in a material respect.
The claimant submits that the Medical Assessor seemingly ignored the findings of Dr Prior and placed significant weight on the findings of Dr Rikard-Bell. The claimant submits that the Medical Assessor gave little, or no weight to the findings made by Dr Prior.
The claimant says that Dr Prior assessed the claimant in May 2022 and as such, his report was more recent than the assessment conducted by Dr Rikard-Bell. The claimant submits that the Medical Assessor has failed to consider, and has failed to acknowledge, the findings of Dr Prior.
The claimant says however, that in comparison, the Medical Assessor, in relation to each of the categories of Self Care and Personal Hygiene, Social and Recreational Activities, Travel, Concentration Persistence and Pace, being four of the six categories, refers to the findings of, and adopts, the findings made by Dr Rikard-Bell.
The claimant says that the findings made by the Medical Assessor make no mention of the findings of Dr Prior, who was qualified by the claimant, in each of the aforementioned four categories.
The claimant submits that the consequence is the Medical Assessor has either failed to consider relevant evidence, failed to give sufficient weight to relevant evidence or has given too much weight to evidence, particularly being the findings on assessment made by Dr Rikard-Bell, when considered in isolation. The claimant submits that the Medical Assessor then provided his certificate in circumstances where it was incorrect in a material respect.
Ground 5 – the certificate is incorrect in a material respect as the Medical Assessor erred in relation to a material fact.
The claimant says that the Medical Assessor identified that Dr Prior assessed the claimant and found 22% whole person impairment (WPI). The claimant says that the Medical Assessor records at paragraph 18, “Dr Michael Prior assessed her on 9 May 2022, and provided WPI 22%, but did not account for pre-existing impairment from her pre-existing conditions and various inconsistencies in her reporting of her daily functioning.” (Claimant’s emphasis added.)
The claimant says that Dr Prior did account for pre-existing conditions which is borne out in his assessment. The claimant says that Dr Prior found that each category of the PIRS however, warranted a Class 1 assessment.
The claimant says that the assertion made by the Medical Assessor that Dr Prior “did not account for pre-existing impairment” is incorrect in a material respect, as such an assertion is factually incorrect on any reading of the report of Dr Prior dated 9 May 2022.
The claimant says that the Medical Assessor found in his certificate:
(a) Paragraph 17:
“She passed an embedded performance validity test in the cognitive screen(RBANS Effort Index) and failed a performance validity test for psychiatric symptoms (M-FAST), with self-report inconsistent with observed behaviour, Endorsement of very extreme and uncommon symptoms, Endorsement of symptom combination that is unlikely and inconsistent, Endorsement of unusual course of illness inconsistent with most psychiatric disorders, Overly negative view of self not common in general population and readily influenced by suggestion, and suggestive of malingering.”
(b) Paragraph 19:
“She passed an embedded performance validity test in the cognitive screen (RBANS Effort Index) and failed a performance validity test for psychiatric symptoms (M-FAST), with self-report inconsistent with observed behaviour, Endorsement of very extreme and uncommon symptoms, Endorsement of symptom combination that is unlikely and inconsistent, Endorsement of unusual course of illness inconsistent with most psychiatric disorders, Overly negative view of self not common in general population and readily influenced by suggestion, and suggestive of malingering”.
The claimant says that despite the above the Medical Assessor found the following in relation to causation at paragraph 21:
“Somatic Symptom Disorder, with Predominant Pain as she has excessive preoccupation with pain disproportionate to the soft tissue injury. This is related to the subject accident, with some overlay of symptom exaggeration likely.
Post-Traumatic Stress Disorder related to the subject accident, as the themes of the symptoms are related to the accident and temporally related in terms of onset, with moderate symptom exaggeration likely.
Exacerbation of Major Depressive Disorder, with ongoing Major Depressive
Episode. This is partially related to the subject accident, insofar as there is secondary injury from the ongoing pain and preoccupation of pain, with a large overlay of distress from family dynamics and exaggerated response.
Post-Traumatic Stress Disorder related to childhood – this is unrelated to subject injury.
Functional Neurological Disorder –unlikely to be related to the subject accident, given the distal onset to the timing of the subject accident, with significant intercurrent stressors that likely contribute substantially more to this condition
Substance use disorder – with previous psychostimulant and prescription benzodiazepine and opioids, and current cannabis use. These are unrelated to the subject accident, as this was a pre-existing condition prior to the subject accident, and her overall tendency for substance use is the main contributing factor, and likely perpetuated by ongoing stress in the family, though there is some contribution due to the pain.”
Insurer’s submissions
The insurer has summarised the claimant’s grounds for review as follows:
(a) that the Medical Assessor erred in concluding the Substance Use Disorder was not caused by the motor accident;
(b) that the certificate of the Medical Assessor was incorrect in a material respect as the PIRS was not undertaken in accordance with the Guidelines;
(b) that the Medical Assessor erred in his assessment in relation to Social and Recreational Activities;
(c) that the Medical Assessor has given too little weight to relevant evidence, and
(d) that the Medical Assessor’s assessment is incorrect in a material respect.
Ground 1 – Medical Assessment Certificate is incorrect in a material respect as the Medical Assessor concluded the Substance Use Disorder was not caused by the accident
The insurer said that the claimant submitted that the Medical Assessor erred in his assessment by concluding the Substance Use Disorder was not caused by the subject accident.
The insurer says that the claimant submitted that the Medical Assessor found “that there is some contribution due to the pain” to the Substance Use Disorder and therefore his conclusion that the same is not causally related to the subject accident is incorrect.
In response, in terms of objective evidence, the insurer highlights:
(a) the Allied Health Recovery Request (AHRR) 1 completed by Ms Wojciechowski dated 16 August 2018 noted that the claimant had been “sexually assaulted from 6 to 11 years of age and has experienced long term anxiety as a result”.
(b) The clinical records of Coastal Health Medical Centre reveal that the claimant has consistently complained of ongoing pain in her lower back (coccygeal pain) as well as anxiety since 28 September 2015 and has been regularly taking Endone (for back pain) and Valium (for anxiety).
(c) On 28 March 2021, the claimant presented to Wyong Hospital Emergency Department with multiple episodes of limb shaking, double incontinence, sweating and headache, which reportedly occurred in the context of significant life stress. She was admitted to the neurology ward under Dr Schutz for further monitoring and investigations which revealed no abnormalities and were not the cause for her symptoms. It was noted that the claimant’s shaking episodes were likely a stress response consistent with Functional Neurological Disorder, which is equivalent of a psychosomatic cause for the claimant’s physical injuries.
(d) A joint medico-legal report of Dr O’Neill dated 15 October 2021 reported the claimant is reliant on narcotics for chronic low back/coccygeal pain. Dr O’Neill reported that the subject accident only caused minor soft tissue injuries and the claimant was expected to make a full physical recovery.
(e) A joint medico-legal report of Dr Rikard-Bell, Psychiatrist dated 21 March 2022 reported that the claimant had a pre-accident history of Generalised Anxiety Disorder and Substance Use Disorder with marijuana use.
The insurer says that on examination, the Medical Assessor obtained a history from the claimant that she had an issue with speed (opioids) at her 21st birthday and had been incarcerated for nine months. The insurer said that the Medical Assessor noted “I questioned why she didn’t mention this in her substance use history, but she said she didn’t think of it”.
The insurer submits that the claimant had a number of long standing and pre-existing psychological issues with substance use.
The insurer says that if it is alleged that the claimant’s current cannabis use is attributed to the pain, then the insurer submits that the pain is not due to accident related injuries. The insurer says that this is because Dr O’Neill reported that she only suffered minor soft tissue injuries from the subject accident and was expected to make a full physical recovery.
Ground 2(a) – PIRS was not undertaken in accordance with the Guidelines
The insurer says that the claimant asserted that the Medical Assessor erred in his findings that a Functional Neurological Disorder (FND) was not causally related to the subject accident despite assessing the claimant had effects of FND in the categories of Self Care and Personal Hygiene, Travel and Concentration, Persistence and Pace.
The insurer also noted that the claimant asserted that the Medical Assessor did not set out what impairments did or did not arise from the subject accident which the claimant said, offended paragraph 6.17 of the Guidelines.
The insurer submits that FND is not causally related to the subject accident. Dr Schutzt, neurologist from Wyong Hospital reported that the claimant’s episodes of limb shaking, sweating, headache and double incontinence occurred in the context of significant life stress. Dr Schutz noted that these shaking episodes were likely a stress response consistent with FND.
Additionally, the insurer says that Dr O’Neill confirmed that the claimant has pre-existing psychosomatic symptoms, which is equivalent to FND. The insurer submitted that while Dr O’Neill noted that the subject accident led to an aggravation of well-established anxiety with associated psychosomatic symptoms, he considered the claimant’s current psychosomatic illness would not have taken place were it not for the pre-existing chronic anxiety state.
The insurer submits that taking the above into consideration, the Medical Assessor’s PIRS assessment is not incorrect as the claimant’s alleged impairments are as a result of FND which is not causally related to the accident.
The insurer submits that at paragraph 21 of the Medical Assessor’s certificate, under the heading of “Causation and Reasons”, the Medical Assessor did provide his reasonings as to whether the impairment is arising from an accident related injury.
The insurer says that while it accepts that the claimant suffered an aggravation of the pre-existing anxiety with associated psychosomatic symptoms, her current symptomology would not have taken place were it not for the pre-existing chronic anxiety state and as such, her current symptoms and FND are wholly attributable to her pre-existing condition.
Ground 2(b) – PIRS was not undertaken in accordance with the Guidelines
The insurer does not dispute that the Medical Assessor did not complete the PIRS table for the assessment of the degree of impairment for pre-existing conditions. However, the insurer says that on page 5 of his certificate, the Medical Assessor documented his findings for each category of the PIRS regarding the claimant’s pre-existing impairment. The insurer noted that the Medical Assessor said:
“Just prior to the subject accident, her mood was good and she had no anxiety, and she had no issues with her sleep or concentration. She was independent with self-care and housekeeping and shopping. She was regularly socialising and having social outings with her family. She had no issues driving long distances. Her relationship with her husband was good, and with her children, with some tension with Kitayleah. She was not working at the time, and during the day she went to Bingo a lot, going out with her friends and fishing.”
From this, the insurer submits that the Medical Assessor had full consideration of the claimant’s self-reported history, clinical examination, medical evidence and his own examination and observation of the claimant when applying the PIRS and assessing the claimant’s alleged psychological injury.
The insurer submits that while the Medical Assessor did not complete the PIRS table for the assessment of the degree of impairment of pre-existing conditions, he did provide his reasons for decision in the body of his certificate (for example, at page 5). The insurer submits that failure to record his reasons in the table does not amount to material error.
Ground 3 – the Medical Assessor erred in his assessment in relation to Social and Recreational Activities
The insurer says that the claimant submitted that the Medical Assessor erred in his assessment of Class 2 for Social and Recreational Activities when it warrants a finding of Class 3. The insurer submits that the Medical Assessor had full consideration of the claimant’s self-reported history, clinical examination, medical evidence and his own examination and observation of the claimant when applying the PIRS and assessing the claimant’s alleged psychological injury.
Therefore, the insurer submits the assessment of Class 2 for Social and Recreational Activities is correct.
Ground 4 – the Medical Assessor has given too little weight to relevant evidence
The insurer says that the claimant submitted that the Medical Assessor gave little or no weight to the findings made by Dr Prior. Accordingly, the claimant submitted that the Medical Assessor’s certificate is incorrect in a material respect and is in error as he failed to give more weight to Dr Prior’s evidence.
The insurer submits there is no basis for the claimant’s claim that the Medical Assessor failed to consider, and failed to acknowledge, the findings of Dr Prior. The insurer refers to paragraph 18 of the certificate, headed, Summary of relevant documentation, The insurer says that the Medical Assessor notes the findings of both Dr Prior and Dr Rikard-Bell. The insurer says that it is clear that the Medical Assessor had read the report of Dr Prior and refers to it.
The insurer further says that, if the Medical Assessor gave more weight to Dr Rikard-Bell rather than Dr Prior, this is not a grounds for review. It is open to the Medical Assessor to prefer the findings of one doctor over another doctor. However, the insurer says that the Medical Assessor did not state he preferred the findings of Dr Rikard-Bell rather than Dr Prior. The insurer says that he conducted his own assessment.
The insurer said that it should be noted that the claimant had agreed to, and underwent, a joint medico-legal assessment by Dr Rikard-Bell and obtained a further report from Dr Prior to obtain a separate opinion to support an entitlement to damages for non-economic loss.
The insurer submits the certificate of the Medical Assessor issued with full consideration of medical evidence provided in the application and reply, including the report of Dr Prior.
Ground 5 – the Medical Assessor erred in relation to a material fact
The insurers says that the claimant submitted that the certificate of the Medical Assessor is incorrect in a material respect as the Medical Assessor had made a factual error that Dr Prior “did not account for pre-existing impairment”. The insurer says that this is correct. Dr Prior assessed the claimant with 0% WPI for her pre-existing psychiatric conditions and therefore made no deduction from the 22% WPI for the accident related psychiatric conditions. That is, the insurer says, Dr Prior did not account for pre-existing impairment.
The insurer further submits that despite the alleged error, it does not materially affect the outcome of the assessment. The insurer says that even if Dr Prior did find a pre-existing impairment and deducted this from the 22% WPI, it is not clear how this would have a material affect on the outcome of the Medical Assessor’s assessment.
In conclusion, based on the reasoning and above submissions, the insurer says that there is no error, material or otherwise, in the Medical Assessor’s certificate.
Medical evidence
The Medical Assessor provided his certificate dated 3 October 2022.
The Medical Assessor noted that there was pre-existing anxiety and lower back pain, and pre-existing stress from her daughter’s behavioural issues, and two other daughters with assault history, including a FACS (Department of Family Community Services) nvestigation. She was referred to her psychologist on 26 July 2018, with concerns initially regarding her daughter and her family, and her compulsory third party (CTP) claim. She was diagnosed with Generalised Anxiety Disorder (GAD) and Post Traumatic Stress Disorder She had another accident noted on 9 February 2019, while in a parked vehicle, with ongoing family distress.
The Medical Assessor noted that there was a pattern of positive impression management with minimisation of the degree of severity and symptomatology of her pre-existing condition, and of her tense relationship with her daughter; and a pattern of negative impression management with respect to the unvarying severe degree of psychiatric symptomatology ascribed to the subject accident, disproportionate to the plausible mechanism of injury, though not to such an extent that it would preclude her having genuine psychiatric symptoms or impairment.
The Medical Assessor said that her history was generally consistent with the medical records available to him.
The claimant passed an embedded performance validity test in the cognitive screen Repeatable Battery for Assessment of Neuropsychological Status (RBANS Effort Index) and failed a performance validity test for psychiatric symptoms Miller Forensic Assessment of Symptoms Test (M-FAST), with self-report inconsistent with observed behaviour, endorsement of very extreme and uncommon symptoms, endorsement of symptom combination that is unlikely and inconsistent, endorsement of unusual course of illness inconsistent with most psychiatric disorders, The claimant had an overly negative view of herself which the Medical Assessor said was not common in general population and readily influenced by suggestion, and suggestive of malingering.
The Medical Assessor diagnosed Somatic Symptom Disorder, with Predominant Pain as she had excessive preoccupation with pain disproportionate to the soft tissue injury. He also diagnosed post-traumatic stress disorder related to the accident. This was on the basis the claimant said she would worry and panic about “absolutely anything”, such as if the washing was on, or going outside to the letterbox or out the back. She would have recurrent memories of the accident, of the screeching and hitting and the cars, and recurring nightmares of the accident, and that she would die. She would avoid going out altogether or going into cars. She said that she was feeling unsafe and that things could not be trusted, and constantly feeling horror and shame about the accident, and she was less interested in going out, fishing and participating in family activities. Her relationship with her children remained good, and her relationship with her husband had been good. She said she has lost contact with friends as she did not go out to join then, and she is detached from them. She said she has diminished capacity to enjoy positive emotions, such as the recent birth of her grandchild. She was more easily “touchy”, more vigilant, with poor concentration, and her sleep has been disturbed.
The claimant was also diagnosed with Exacerbation of Major Depressive Disorder, with ongoing Major Depressive Episode, given her past pre-existing Major Depressive Episode, and current symptoms: She said she was depressed all the time, though she can feel happy but not for long. She has restless sleep and loses about 4 hours of sleep at night. She said her appetite had been intact and she eats when she is worried. Her energy had been low. She feels worthless. She denied any suicidal ideations.
The claimant also had a diagnosis of post-traumatic stress disorder related to childhood circumstances and unrelated to the subject injury, and not mentioned in the interview, but noted to have been referenced as a significant syndrome in the psychology notes.
Additionally, the claimant had a Functional Neurological Disorder – given the neurological symptoms with no organic explanation.
The claimant had a final diagnosis of Substance Use Disorder – with previous psychostimulant and prescription benzodiazepine and opioids, and current cannabis use.
Regarding causation, the Medical Assessor said:
(a) Somatic Symptom Disorder, with Predominant Pain as she has excessive preoccupation with pain disproportionate to the soft tissue injury. This is related to the subject accident, with some overlay of symptom exaggeration likely.
(b) Post-traumatic stress disorder related to the subject accident, as the themes of the symptoms are related to the accident and temporally related in terms of onset, with moderate symptom exaggeration likely.
(c) Exacerbation of Major Depressive Disorder, with ongoing Major Depressive Episode. This is partially related to the subject accident, insofar as there is secondary injury from the ongoing pain and preoccupation of pain, with a large overlay of distress from family dynamics and exaggerated response.
(d) Post-sraumatic stress disorder related to childhood – this is unrelated to subject injury.
(e) Functional Neurological Disorder –unlikely to be related to the subject accident, given the distal onset to the timing of the subject accident, with significant intercurrent stressors that likely contribute substantially more to this condition.
(f) Substance use disorder – with previous psychostimulant and prescription benzodiazepine and opioids, and current cannabis use. These are unrelated to the subject accident, as this was a pre-existing condition prior to the subject accident, and her overall tendency for substance use is the main contributing factor, and likely perpetuated by ongoing stress in the family, though there is some contribution due to the pain.
The Medical Assessor provided the following PIRS assessment;
Psychiatric diagnoses 1.Somatic Symptom Disorder with Predominant Pain 2. Post-Traumatic Stress Disorder 3. Major Depressive Disorder 4. Psychiatric treatment description Therapy, duloxetine
Category Class Reason for Decision 1. Self Care and Personal Hygiene 1 On assessment, she said she has some difficulties with self-care, dependent on her functional neurological symptoms (which is not related to the subject accident), and on average she is able to self-care 3-4 times a week when not affected by the FND. She has urinary and faecal incontinence as well. She requires help sometimes with self-care. Her husband does most of the cooking, as the kitchen nears a main road, and she doesn’t want to be triggered.
According to Dr Rikard-Bell’s report, she currently continued to be independent with house-keeping and caring for her children2. Social and Recreational Activities 2 On assessment, she is currently playing Bingo on her phone or helps her children with homework. She said she doesn’t go out to socialise.
According to Dr Rikard-Bell’s report, she continues to have social interactions.
According to the psychologist’s notes, she had gone fishing with her husband a few times, and walking daily, going bushwalking. She had attended bingo with her husband.
Hence, there is evidence she has been able to participate to some degree of active involvement in social activities outdoors.3. Travel 2 On assessment, she said she can go to the local shops, so long as it’s not far, and her husband has to be with her. She is also limited by her fears of her incontinence.
Dr Rikard-Bell’s report suggested that she continued to undertake short trips and her psychologist notes she had been able to drive daily with effort.4. Social Functioning 2 On assessment, she said her relationship with her husband and children are good, but she has lost a lot of friendships. 5. Concentration, Persistence and Pace 3 She has poor concentration, and cannot read a book as her mind wanders and she starts worrying. She said she is not much of a reader anyway. She can watch a movie, but she gets distracted after 20 minutes or so, or she might get triggered on TV. On cognitive testing (RBANS), she demonstrated extremely impaired rote-learning, and spontaneous recall
and prompted recall; and she had borderline impaired attentional capacity.
Some difficulties of the currently impaired persistence and pace is related to her FND.
She was able to sustain concentration for the duration of the assessment.
Dr Rikard-Bell’s report suggested noted that she had intact concentration with doing tasks and crosswords
Hence she is able to sustain some level of concentration, with effort.
6. Adaptation
3
She said she would struggle with coping with anything stressful now. While she was not employed, she had helped with driving the boats into the water, which she is no longer able to do. However, only a portion of this is attributable to the subject injury, with some due to the FND and distress related to complex family dynamics.
List classes in ascending order: 122233
Median Class Value: 2
Aggregate Score: 13
% Whole Person Impairment: 7 %
Regarding the claimant’s pre-existing psychiatric impairment and assessment of that, the Medical Assessor provided the following;
78. Psychiatric diagnoses
1.Major Depressive Disorder
2. PTSD
3. Substance use disorder 4. Psychiatric treatment description
Category Class Reason for Decision 1. Self Care and Personal Hygiene 1 2. Social and Recreational Activities 1 3. Travel 1 4. Social Functioning 2 There were existing tensions within her family, without any clear falling out. 5. Concentration, Persistence and Pace 1 Her estimated general cognitive ability was in the low average range, and unlikely to have been adversely affected prior. 6. Adaptation 2 There has been a low level of function and adaptability prior to the subject injury. List classes in ascending order: 111122 Median Class Value: 1 Aggregate Score: 8 Pre-existing % Whole Person Impairment: 1 %
Deducting 1% from the post-accident assessment of 7% gives a final total for WPI of 6%.
Treating psychologist Susan Wojciechowski, in an AHRR form dated 1 August 2018, mentions that on that date on the Depression Anxiety and Stress Scale [DASS 21] the claimant scored in the “mild” range for depression, in the “extremely severe” range for anxiety, and in the “severe” range for stress, and on the Post-Traumatic Stress Disorder Checklist [PCL-5] remarked “criteria satisfied”. The claimant had been seeing this psychologist since immediately after the accident.
The claimant’s general practitioner (GP) Dr Singh, in a clinical note dated 1 March 2017, approximately one year and five months prior to the accident, diagnosed “Anxiety Disorder -diazepam 5 mg 3 times a day”.
Medicolegal neurologist Dr O’Neill, in a joint report obtained by the parties dated 15 October 2021, said “chronic anxiety since at least 2015”.
Medico-legal psychiatrist Dr Rikard-Bell, in another joint report obtained by the parties and dated 21 March 2022, reported the claimant had been “treated for depression and anxiety in the past… began feeling anxious at age 11 when abused”.
Dr Prior, for the claimant, diagnosed;
(a) Pre-existing psychiatric diagnoses
(i)Persistent Depressive Disorder (dysthymic type) with associated generalised anxiety symptoms (of mild severity immediately prior to the motor vehicle accident), and
(ii)Marijuana Use Disorder.
(b) Motor vehicle accident related diagnoses
(i)Chronic Post-Traumatic Stress Disorder;
(ii)Persistent Depressive Disorder (major depressive type) with associated generalised anxiety and panic phenomena, and
(iii)Exacerbation of pre-existing Marijuana Use Disorder.
Regarding causation, Dr Prior said that;
“The cause of her chronic Post-Traumatic Stress Disorder was the traumatic nature of the motor vehicle accident itself.
The cause of her co-morbid Persistent Depressive Disorder (chronic major depressive type) with associated generalised anxiety and panic phenomena is that Persistent Depressive Disorder is a common complicating and co-morbid condition to associated Post-Traumatic Stress Disorder.
The cause of the exacerbation of her pre-existing Marijuana Use Disorder was the above two diagnoses of her chronic Post-Traumatic Stress Disorder and co-morbid Persistent Depressive Disorder (chronic major depressive type) with secondary generalised anxiety and panic phenomena.
Vulnerability factors to the development of her index psychiatric diagnoses related to the motor vehicle accident include her pre-existing psychiatric condition, her pre-existing Marijuana Use Disorder, a family history of psychiatric disorder in two first degree relatives, and of alcohol abuse in two first degree relatives, often a proxy for psychiatric disorder.
Ms Dyer did have some pre-existing mild depressive and anxiety symptoms, which in my opinion would constitute a diagnosis of Persistent Depressive Disorder (dysthymic type) and associated generalised anxiety symptoms (of mild severity) prior to the motor vehicle accident.
Her Post-Traumatic Stress Disorder is not due to an aggravation of a pre-existing condition.
Although Ms Dyer had mild pre-existing depressive and anxiety symptoms prior to the motor vehicle accident, they were not associated with impairment. Following the motor vehicle accident, she describes a significant worsening of her affective and anxiety symptoms, together with a change in the type of affective and anxiety symptoms she experienced as a result of the motor vehicle accident itself”.
Dr Prior provided a PIRS assessment as follows;
Psychiatric diagnoses
a) Chronic Post-Traumatic Stress Disorder
b) Co-morbid Persistent Depressive Disorder (chronic major depressive type) with associated generalised anxiety and panic phenomena
c) Exacerbation of pre-existing Marijuana Use Disorder
Psychiatric treatment description
Nil historic, recent or current treatment by a consultant psychiatrist.
Historic, recent and current treatment by a treating psychologist.
Historic, recent and current treatment with psychoactive medication.
Category
Class
Reason for Decision
1. Self-Care & Personal Hygiene
3
11-30%
When asked about her capacity to perform normal domestic chores and duties as she did prior to the accident, Ms Dyer stated “I can’t do as much because my mind wanders and I can’t concentrate and I have no motivation”. She reported that this is over and above those limitations to function produced by her tremulousness and severe shakes that she attributes to her Functional Neurological Disorder. She stated “For instance, I’ll put the washing on, but then forget to put the detergent in the machine; I leave cooking on the stove and it will burn sometimes”. She stated “My husband has to do most of it for me”.
In regard to nutritional intake, she reported that she only eats the evening meal, but then tends to binge eat if she wakes in distress during the night. She only showers on average every second day and no longer cleans her teeth. When asked why she only showers every second day and neglects her teeth, she reported that she is amotivated, saying “I just don’t bother”. She reported that she has been able to bond with her nine weeks old baby. She reported however that she chose not to breastfeed. When asked how the baby is fed, she stated “My husband baths the baby and does a lot of the bottle feeding and shares this with me”. She reported that her husband encourages her to wash and to eat. She stated “I rely on him far too much; I’ve really lost my independence”.
2. Social & Recreational Activities
3
11-30%
Ms Dyer reported that she has not been seeing her usual friends since the accident. When asked why, she stated “I don’t want to go out and I want to avoid talking to people”. She reported that if people ring she makes excuses for them not to visit. She reported that if people visit she does not answer the door. She reported that she becomes apprehensive at the thought of visitors or going out. She is currently involved in no hobbies, interests or pastimes. She attributes this to amotivation. She stated “Also, I get very anxious about leaving home”.
3. Travel
3
11-30%
She reported that she cannot leave home without a support person. She stated that she will occasionally drive, but needs her husband to be with her in the same vehicle. She stated “Nowadays I don’t go anywhere by myself”. She reported feeling apprehensive and anxious prior to leaving her home. She stated “I feel extremely anxious if I have to go out”.
4. Social Functioning 1
0-3%
None of her close interpersonal relationships are significantly estranged, conflicted or at risk of rupture. She described the relationship with her husband as “really good now”. She denied tension or fighting in this relationship. She reported that she has been able to bond to her nine week old baby, but feels upset that she cannot do more for the child. She described the relationship with her other children as “good”. She reported that she has not fallen out with family members to any extent. She reported that she maintains a relationship with one of her brothers who is in gaol. 5. Concentration, Persistence & Pace 3
11-30%
She described subjective cognitive difficulties. Her concentration span for reading is that she can only focus for a paragraph or slightly more before she needs to reread because her mind drifts. She reported that she is only able to focus on watching something on television for at most 15 minutes before her mind drifts. She reported that when driving in a vehicle she is easily distracted. She reported that she is forgetful. She reported that she has forgotten cooking on the stove, which has subsequently burnt, and forgotten to put detergent in the washing machine when trying to do the washing. She forgets to charge her phone and forgets conversations with family members. She reported that her husband and children remind her of things and she puts multiple reminders on her phone. She reported that she misplaces her medications, wallet and hairbrush regularly. It is her perception that she thinks “extra fast”. She finds it difficult to persevere and complete tasks due to losing motivation and getting distracted.
Category Class Reason for Decision 6. Adaptation 5
61-100%When asked about her capacity to perform normal domestic chores and duties as she did prior to the accident, Ms Dyer stated “I can’t do as much because my mind wanders and I can’t concentrate and I have no motivation”. She reported that this is over and above those limitations to function produced by her tremulousness and severe shakes that she attributes to her Functional Neurological Disorder. She stated “For instance, I’ll put the washing on, but then forget to put the detergent in the machine; I leave cooking on the stove and it will burn sometimes”. She stated “My husband has to do most of it for me”. In regard to nutritional intake, she reported that she only eats the evening meal, but then tends to binge eat if she wakes in distress during the night. She only showers on average every second day and no longer cleans her teeth. When asked why she only showers every second day and neglects her teeth, she reported that she is amotivated, saying “I just don’t bother”. She reported that she has been able to bond with her nine weeks old baby. She reported however that she chose not to breastfeed. When asked how the baby is fed, she stated “My husband baths the baby and does a lot of the bottle feeding and shares this with me”. She reported that her husband encourages her to wash and to eat. She stated “I rely on him far too much; I’ve really lost my independence”.
Ms Dyer has not been in the formal workforce since 2002. At the time of the motor vehicle accident, she reported that she was a mother and housewife.Since the motor vehicle accident, she has not returned to work in any capacity in the formal workforce or done voluntary work, educational or training courses, or job seeking. She still cares for her children and has a nine week old infant to care for.
When asked about her future work plans, she stated “I’d really love to go back to nursing at some stage”.
When asked what prevents her returning to the formal workforce currently, she stated “My anxiety and I can’t concentrate and my body shakes with my FND [Functional Neurological Disorder]”.
Due to the severity and chronicity of her index psychiatric diagnoses, she is not able to cope with or adapt to significant stressors in her domestic role and functioning and would not be able to cope with or adapt to normal stressors in the formal workforce.List classes in ascending order: 1 3 3 3 3 5 Median Class Value: 3 Aggregate Score: 1+3+3+3+3+5 = 18 % Whole Person Impairment: 22%
For pre-existing psychiatric impairment, Dr Prior assessed 0% WPI.
Dr Rikard-Bell provided a joint report for the parties. It was after this report was received that the claimant obtained a report from Dr Prior. Dr Rikard-Bell provided a PIRS estimate as follows;
Psychiatric Diagnoses
1. Post-Traumatic Stress Disorder
2. Pre-existing Generalised Anxiety Disorder, Substance Use Disorder (marijuana) & chronic Pain Disorder
Psychiatric Treatment
-Description
Psychological counselling
Category
Class
Reason for Decision
Self-Care & Personal Hygiene
1
Currently Ms Dyer is able to take care of herself and the children well, therefore there is no impairment of self-care and personal hygiene.
Social & Recreational Activities
3
In terms of socialisation, Ms Dyer said she does not go out now. She avoids travelling in the car; however, she also avoids interacting with people socially as she does not want people to ask her about the motor vehicle accident. Ms Dyer has lost interest in bingo and going fishing. Therefore, there is moderate impairment of social and recreational activities.
Travel
3
In terms of travel, Ms Dyer panics when in the car and she does not like to travel on her own. She cannot travel more than an extremely short trip. In general, her anxiety about travel appeared to be overwhelming and she needs to be accompanied. Therefore, there is moderate impairment of travel.
Social Functioning
2
In terms of social functioning, Ms Dyer has a good relationship with her husband and children. It was noted there had been some arguments and disagreements with Kitayleah and she is currently residing on a farm and seemed to avoid the family home. Therefore, there is mild impairment of social functioning.
Concentration, Persistence & Pace
1
In terms concentration, Ms Dyer stated she was able to complete crosswords and she enjoys doing tasks, making things, cooking and following recipes. Therefore, there is no impairment of concentration, persistence and pace.
Adaptation
1
In terms of adaptation, Ms Dyer was not working prior to the accident. She is still at home caring for children and performing well in this role. Therefore, there is no impairment of adaptation.
List classes in ascending order:
1
1
1
2
3
3
Median Class Value: 2
Aggregate Score: 11
Dr Rikard-Bell found a 5% WPI plus 1% adjustment for treatment affect as psychological counselling had been helpful.
For pre-existing WPI, Dr Rikard-Bell found 0% WPI.
Dr Prior commented on the disparity of assessment between his findings and those of the report obtained jointly for the parties from Dr Rikard-Bell. He said:
“For a comparison of my assessment of PIRS categories with my colleague Dr Rickard-Bell’s [sic], please compare my PIRS class categories with his. I obviously consider my class categorisations to be more accurate and more current, as I note that Dr Rickard-Bell [sic] made his determination back in March 2022. Dr Rickard-Bell (sic) and myself agree on the class categorisation for the domains of Social and Recreational Activities and for Travel, which we both rate at 3. Whereas Dr Rickard-Bell [sic] rates Ms Dyer is [sic] Class 1 for Self-Care and Personal Hygiene, I rate her in Class 3, for the reasons I give above. Whereas Dr Rickard-Bell [sic] rates her as being in Class 2 for Social Functioning, I rate her in Class 1, for the reasons given above. Whereas Dr Rickard-Bell [sic] rates Ms Dyer in the category of Concentration, Persistence and Pace as Class 1, I rate her in Class 3, for the reasons given above. Whereas Dr Rickard-Bell [sic] rates her in the domain of Adaption in Class 1, I rate her in Class 5, for the reasons given above.”
The claimant, in her statement of 25 May 2022 took issue with a number of points relied upon by Dr Rikard-Bell. She said:
“Dr Rikard-Bell states: ’Currently Ms Dyer is able to take care of herself and the children well, therefore there is no impairment of self-care and personal hygiene”. This is blatantly false and completely contradicts what I reported to Dr Rikard-Bell.’
Larry wakes up at 5:30am and gets kids ready for school and packs their lunches and drops them off etc. He lets me sleep as I have bad nights most nights due to my accident. I am usually still asleep by the time Larry gets home. He will put dinner on, do the washing, clean up etc so when the kids are due to be picked up everything is done and ready. They just need a shower and I try and help with homework.
Larry cleans me up and helps me when I have a fitting episode from FND as I urinate and poo myself as well as fit and can last for days at a time to the point I cannot do a thing. I was hospitalised for it. Sometimes one arm and one leg then it goes to the whole body where I end up so exhausted from the non-stop body jolt over 24-48 hours straight. It happens once to twice per week with the whole body and nearly daily with my arms or legs start to shake and move uncontrollably. I need help with dressing, hair, toilet, shower etc.
Dr Rikard-Bell states: ‘In terms of concentration, Ms Dyer stated she was able to complete crosswords and she enjoys doing tasks, making things, cooking and following recipes. Therefore, there is no impairment of concentration, persistence and pace”. Again, this is blatantly false and completely contradicts what I reported to Dr Rikard Bell.Since the accident, I suffer from cognitive difficulties. My concentration span for reading is almost completely diminished. I cannot read and follow a recipe at all now. I rarely cook anything. Sometimes I try and help Larry with the cooking, but Larry does almost all of the cooking. We have take away meals quite often now to give Larry a break as I can't do it. I can now only focus for a paragraph or so before my mind goes elsewhere, and I need to re-read. I am easily distracted now and cannot concentrate for long enough to complete a crossword (which is something I used to enjoy doing). I can watch tv for about 15 minutes or so before I lose focus and can no longer concentrate on what I am watching. If I try and continue to watch, I don't take it in and can't recall what I have been watching. My memory has been affected and I am now easily distracted and forgetful. For example, I have forgotten cooking on the stove (after lany has prompted me to watch it for him), which has subsequently burnt. I have forgotten to put detergent in the washing machine when trying to do some washing. I always forget to charge my phone. I rely heavily on my husband and kids to remind me to do lots of simple things each day. I frequently lose my medications, wallet and hairbrush or forget where I have put them. These are just some examples that highlight how wrong Dr Rikard-Bell's comments and opinion are.
Dr Rikard-Bell states: ·in terms of adaptation, Ms Dyer was not working prior to the accident. She is still at home caring for children and performing well in this role. Therefore, there is no impairment of adaptation•. It is true that I was not working in employment immediately prior to the car accident However, as much as it pains me to admit it, I do not perform well in my role of caring for my children. Since the car accident, I rely very heavily on Larry to do most things for the kids. Before the accident, I did everything for the kids and I did it all very well. Sadly, I can no longer do it all. Dr Rikard-Bell has again taken an incorrect view of my life and the facts on my capacity.
I was well and stable before the car accident. Now I live on antidepressants because of the car accident. I was off the anti-depressant Seroquel long before the car accident as I did not need them but now on anti-depressant tablet again Duloxetine 60mg daily for depression.”
The clinical notes of Coast Health Medical Centre, referred to by Dr Varsani and dated 27 October 2015 noted a history of Valium for anxiety and Endone for coccyx pain. On 18 November 2015 it was recorded that there was anxiety and coccygeal pain which was noted as continuing on 14 December 2015.
In 2016 it was noted there were prescriptions for Endone and Diazepam continuing throughout 2016 as ongoing maintenance in relation to pain and anxiety.
On 21 March 2018 it was noted there was distress regarding the death of a brother.
On 3 April 2018 there was an overdose noted leading to mental health team involvement.
An entry dated 20 July 2018 by Dr Crook noted in 2015 there was an Anxiety Disorder.
The consultations appeared to be weekly to monthly. The last consultation before the motor vehicle accident was on 28 June 2018 with Dr Varsani noting opiates for lower back pain. The next consultation was the day after the motor vehicle accident on 2 July 2018 with Dr Crook with a recording of, “more emotionally affected currently.”
The AHRR of Dr Crook dated 1 August 2018 indicated post-traumatic stress disorder and Generalised Anxiety Disorder in relation not the motor vehicle accident. Dr Crook noted nightmares, intrusive memories, flashbacks, hypervigilance, mistrust and fear, difficulty concentrating and loss of interest. On 9 August 2020 it was noted the claimant was sexually assaulted from the age of 6 to 11 years old by her mother’s partner. In this regard it is recorded that there was longstanding anxiety but no Personality Disorder. It was noted she is illiterate which complicates her situation for successful psychoeducation. It was recorded that the behaviour of her eldest daughter, who was the driver in the motor vehicle accident, has been a challenge.
It was noted, “Ms Dyer is afraid to leave her home due to (her daughter’s) malevolence and potential risk she poses to other family members.” It was also reported that there were care issues in relation to young children, as well as FACS investigating whether the claimant and her family could accommodate and care for foster children.
The claimant has provided statements of 8 February 2019 and 25 May 2022. In her later statement, she said;
“I self-medicate with a joint of marijuana at night to help me relax.
Prior to the accident I already had depression but ignored it a lot and stopped taking anti-depressants. Following the motor vehicle accident, my depression got a lot worse, and I had to start taking anti-depressants again.
Ongoing complaints/disabilities/impairments
I am constantly depressed, and I would say my depression is extremely severe. I find that my depression is worse in the evening.
I am not able to enjoy things or get any pleasure out of anything. It's hard to be interested in anything after the car accident.
I do not have any motivation. I find it hard to concentrate and my mind tends to wander. I can only watch something on TV for about 15 minutes before my mind wanders and I can't concentrate. I find it difficult to complete tasks due to losing motivation and getting distracted.
I do not have confidence and lack self-esteem. I don't like myself anymore.
I have feelings of guilt and sometimes think that I don't want to be here but I have not harmed myself and don't have plans to. I don't think my future will be very bright.
I only sleep about 4-5 hours per night and find it difficult to fall asleep because my mind is always overactive. I ruminate a lot about the car accident Once I fall asleep, I wake up about 3-4 times during the night, often from nightmares. I wake up sweating with a racing heart. I wake up between 4:30am and 5:00am. These nightmares involve scenes of the accident, cars in general and dying. I also dream about my kids getting hurt and/or dying in the car accident.
I constantly feel tired and my energy is decreased.
I constantly worry on a daily basis. I worry and stress about day-to-day things and what tomorrow will bring. I can't switch it off. I often catastrophise and think of worst case scenarios. My legs and arms start to shake and I sweat a lot
I have about three panic attacks a week which last a few minutes, sometimes longer. During these panic attacks I have an increased heart rate, I sweat and feel that l can't breathe. I feel overwhelming anxiety and my ears start ringing. These panic attacks occur both spontaneously and are triggered by hearing the sounds of cars screeching and seeing utes.
I have spontaneous and constant recollections of the accident which are very distressing and I start to feel anxious and panicky when this happens. Factors that trigger these recollections include seeing utes, driving past the accident site itself and seeing fluoro work clothes like what the tow truck drivers were wearing at the accident scene. News of motor vehicle accidents can also trigger these recollections.
Since the accident, I now have a constant fear of death.
I cannot leave home without a support person. I will occasionally drive locally but I need my husband to be with me.
I feel unsafe when travelling in the car and feel like I'm going to have another car accident. When I'm a passenger in the car l try to close my eyes so I can't see traffic or utes. l clench my fists tight and am on edge.
l am socially withdrawn and don't feel connected to people anymore. I used to have lots of friends and have not seen them since the accident. I don't want to go out and I avoid talking to people. If people ring me; I make excuses for them not to visit If people do visit, I don't answer the door.
Prior to the motor vehicle accident I participated in fishing competitions, played bingo and went to the beach. I no longer participate in any of these activities.
I previously smoked before the accident but ever since the accident I am now a chain-smoker.
At the time of the accident I was at a stay at home mum and had not worked since 2002. I was receiving the disability pension for a coccyx injury and also received childcare payments. Since the accident I have not returned to work in any capacity. I try to care for my children as best I can and have a newborn baby. However, I rely heavily on my husband - Larry for most things.
I can't do as much around the house anymore because my mind wanders and I have no motivation. For instance, I'll put the washing on but then forget to put the detergent in the machine. I leave cooking on the stove and it will sometimes bum. My husband, Larry does most of the chores now.
I only eat an evening meal but I will binge eat if I wake in distress during the night.”
The joint report of Dr O’Neil, neurologist, dated 15 October 2021, obtained for the parties, noted under relevant history that the claimant had treatment to eradicate hepatitis C. It was noted there was a motor vehicle accident in 2010 leading to a fractured coccyx which resulted in chronic pain. There was attendance at the pain clinic and she was taking four Endone per day as noted on 12 April 2018 which pre-dated the motor vehicle accident of 1 July 2018. She was also using Valium 5mg tablets. It was also noted that an older brother died from bowel cancer 22 December 2017.
On 7 February 2018 it was noted Ms Dyer was assaulted by a parent of a foster child, as noted in the GP entry. On 9 February 2018 it was noted there was counselling as recorded by the GP.
Dr O’Neill concluded that the motor vehicle accident caused minor soft tissue injuries and there was the expectation of a full physical recovery. However, there was an aggravation of well-established anxiety and psychosomatic symptoms including headaches, nausea, vomiting, sweating and sensory symptoms over her forelimbs.
The records of Wyong Hospital noted there was an investigation in 2021 where it was reported by Dr Schultz that he felt there was a functional neurological disorder plus psychosomatic symptoms.
AHRR report no 6 dated 22 October 2020. The claimant was reported as being illiterate and this was seen to be a barrier to successful treatment, particularly psycho education.
The claimant was recorded as being overwhelmed by the behaviour of her eldest daughter, who was the driver in the accident. This daughter had a number of behavioural issues and was no longer a welcome member of the claimant’s household. Her grandmother was willing to accommodate the daughter but had died in tragic circumstances. It was reported that the eldest daughter also presented to her mother with a range of personal issues.
The claimant was said to be afraid to leave her home due to her eldest daughter’s malevolence and the potential risk she posed to other family members.
It was also noted that two of the claimant’s daughters had been assaulted and sexually assaulted whilst at school. The police were involved. The claimant had been assisted to negotiate her daughters' ongoing attendance at school with school management.
It was also recorded that the claimant had been subject to physical assaults by her brother who was frequently incarcerated. This was said to cause her considerable distress.
There are care issues in relation to young children who are related to Ms Dyer and who are subject to FACS attention. FACS were investigating if the claimant and her family can accommodate and care for the children. This issue was distracting from treatment.
The claimant has experienced withdrawal from prescribed opioids and has been encouraged to discuss this with her treating GP and to seek referral to a pain management specialist/pain management clinic to assist her to deal with her back pain.
Medical examination
The claimant was examined on behalf of the Panel, jointly by Medical Assessor Jones and Medical Assessor Hong. Their report follows.
“Panel Review for Ms Sheree DYER
Ms Dyer was assessed via audio-visual link through the MS Teams platform, set-up by PIC. Ms Dyer was assessed alone. The Panel consisted of Dr Michael Hong, Psychiatrist, and Dr Matthew Jones, Psychiatrist.
The purpose and nature of the assessment was explained to Ms Dyer including its non-treatment and non-confidential nature. Ms Dyer consented to the assessment.
INTRODUCTION
Ms Dyer is a thirty-nine year-old woman living in San Remo on the Central Coast, where she has lived in the same Housing Commission house for approximately eighteen years. She lives there with her husband, Larry, who is not currently working and receives a Disability Support pension through Centrelink. They were married in 2010. They also live with two of Ms Dyer’s five children, aged two and eight. The two year-old is Mia-Rose and the eight year old is Jordaki, who was doing well in the local primary school. The next eldest child is Lationah, aged eighteen, who has left high school and studying nursing at TAFE. She also lives with San Remo with one of her sisters, Konisha.
The next eldest is Konisha, aged twenty, who is a home carer, working in the disability field. The eldest is Kitayleah aged twenty-one (who was the driver in the accident) and she lives at Elderslie in the Hunter Valley. She has a two year-old son, Ms Dyer’s only grandchild.
Ms Dyer reported that she will see her elder three children sometimes, however she does not go around to their places. Kitayleah will ring Ms Dyer from time-to-time. She lives on a farm.
Ms Dyer is not working and is receiving the Disability Support pension, which commenced in around 2010 because of a fractured coccyx. She described it now as ‘not too bad.’ Ms Dyer last worked in approximately 2002, until she had her first daughter. Prior to that she was an Assistant in Nursing, performing nursing duties at North Gosford Private Hospital and Woodport Nursing Home.
HISTORY OF THE MOTOR ACCIDENT
Ms Dyer confirmed the date of accident as 1 July 2018. She reported that she was taking her daughter for a driving lesson and they were travelling under the speed limit. Ms Dyer glanced over to look at the speedometer and when she looked back up there was a car in front of her. She reported she did not get time to do or say anything. (The dashcam video of the accident has been viewed by the Panel.) Ms Dyer was immediately emotional when talking about the accident and described that it was like her ‘life flashed before [her] eyes and was gone.’ She then stated that she feels ‘disconnected from it all.’
Ms Dyer stated that police and ambulance arrived at the accident, however the tow-truck driver was the first on the scene. Ms Dyer recounted that she thought her son was in the car, although he was not, and she had started ‘screaming for him.’ She said the car seat was in the car and broken but there was no child in it. They had just left home and she panicked that her son might have been in the car.
Ms Dyer was taken to Wyong Hospital by ambulance and was only there for a few hours.
HISTORY OF SYMPTOMS AND TREATMENT FOLLOWING THE ACCIDENT
With respect to physical injuries, Ms Dyer reported she had problems with her stomach including haematomas and she also had whiplash injuries and a fractured toe.
Ms Dyer reported that her physical injuries took many months to heal and that they are ‘“pretty well healed.’ She still has occasional trouble with her toe.
The Panel asked about Ms Dyer’s functional neurological disorder, mentioned in the documents. She commented that it was ‘constantly there.’ She reported that when she talks about the accident her legs and body start to shake and it is like a seizure and it can persist for one or two days. Her body gets very tired and she reported that her functional neurological disorder had ‘taken all [her] muscles.’ She also had had problems with faecal and urinary incontinence. She told the Panel she needs to wear nappies if she goes outside or in a car. She finds accidentally urinating or defecating herself very embarrassing. She told the Panel ‘apparently there is nothing you can do for FND.’
With respect to psychological treatment, Ms Dyer has seen a psychologist, Susan Wojciechowski. She has not seen her for the last couple of months as Susan has cancelled the last six appointments. Ms Dyer started seeing her not long after the accident, in the first few months. She estimated she had seen her over fifty times.
Ms Dyer has not seen a psychiatrist for treatment, stating that she does not have the funds upfront.
With respect to medications, Ms Dyer is prescribed duloxetine, an antidepressant, and she is taking 90mg a day. She reported that her dose had increased recently. She commented that she is no longer on blood pressure tablets.
Ms Dyer also reported that she has been prescribed medical cannabis. She has CBD oil at a dose of 3ml per day or when required and she also has THC flower, which she smokes, at a dose of 3g per day. The medical cannabis has been prescribed for approximately the last twelve months and she reported it ‘slows the legs down a lot when having seizures.’ She also reported it relaxes her muscles and helps her relax in general. She saw a specialist about this, Dr Chris Lloyd, at Mingara and she still sees Dr Lloyd every now and then. When asked why she was prescribed this, she reported it was for Post Traumatic Stress Disorder. She reported it helps her sleep and takes her mind off things and she is ‘not as agro.’
Ms Dyer no longer consumes any illicit marijuana. She does smoke approximately forty cigarettes a day. She reported she uses no other recreational substances and no alcohol. She reported she has never been a drinker, but drank once on her wedding night. The Panel asked about any history of opiate use and Ms Dyer responded that when she was younger she was dependent on them. She reported her doctor started her on them for her coccyx and she was taking them for over ten years. She reported they were not doing anything and she just felt she needed more. She said her opiate use was ‘years prior.’ She did comment that she had a toothache a few months before the assessment and used, in total, one packet of Panadeine Forte. We asked her about her teeth and she reported that she was not looking after herself well. She reported she had problems with her teeth for the last five years or so.
Ms Dyer reported that she used to be on Seroquel (quetiapine) and Valium (diazepam) and told the Panel that she stopped these before the accident. She reported that these were for anxiety.
The Panel asked Ms Dyer if she was experiencing any other problems from the accident and she said that she is ‘constantly in a dream’ and the accident is ‘just not leaving’ her. The Panel asked if she had Eye Movement Desensitisation Reprocessing therapy and she reported she had had a few sessions, however ‘just felt the same.’
The Panel specifically asked what psychological and emotional symptoms Ms Dyer experienced emanating from the motor vehicle accident and she reported that her whole life had changed. She commented that she had changed from a mother who does everything with her children to a mother who does nothing. She no longer rides bikes and no longer goes to their school. She finds herself embarrassed if she urinates when a car goes past. She does not like ‘noises.’ Where she lives in San Remo she lives on a main road and she is forever hearing sirens and accidents ‘all the way along.’ She said she cannot move as there is nowhere to go. She has thought about a Housing Commission transfer, however her house is beautiful and her neighbours are lovely and she has no problems with anyone around her.
PRE-MVA PSYCHIATRIC HISTORY
Ms Dyer reported that her general practitioner put her on quetiapine and diazepam because she was constantly upset and crying. She then said she ‘didn’t have much of a mental health problem, just a normal childhood.’ She had some incidents related to her brother which she said affected her ‘before, during and after the accident.’ She went on to say she had a pretty good life, however was constantly upset emotionally even though life was going all right. She said she only had her mother and did not have much family around. She then went on to say that with respect to her mental health problems she ‘grew out of it and had no problems.’ She firmly reiterated that she ‘was on nothing just before the accident.’ She estimated that she stopped the quetiapine and the diazepam about twelve to eighteen months before the accident. Ms Dyer described her mental health problems in her teenage years as ‘being young and stupid’ and that she ‘grew out of it.’ The Panel pointed out that her estimate of growing out of it as stated, twelve to eighteen months before the accident, was when she was thirty-three or thirty-four.
The Panel cross-checked a few details as Ms Dyer appeared to be vague and inconsistent in her history. She stated that she thought she stopped the diazepam two or three years before the assessment (the accident was over five and a half years ago). She then said she thought she stopped the quetiapine twelve to eighteen months before the accident and then thought it was just prior to the accident and then said she was not sure. We cross-checked about the Valium and she told the Panel she stopped it ‘well before the accident.’ We pointed out to Ms Dyer that a general practitioner record in April 2018 (three months before the accident) noted that she still had her anxiety disorder. She seemed very confused and unable to clarify the details and ultimately said, ‘I don’t know.’ She went on to say her ‘mind is constantly foggy mate’ and that she ‘can’t even think.’
Ms Dyer told the Panel that she first saw a clinician when she was younger. She saw a counsellor. She was molested as a child by her mother’s boyfriend at the age of nine or ten. There were a couple of incidents and she told her mother and saw a counsellor. The only other person she has seen for mental health problems is Susan, the psychologist, and only after the accident.
The Panel asked when the quetiapine commenced and she reported that it was for a few years before she was incarcerated. She went to gaol at the age of twenty-one and was continued on the quetiapine until her thirties. She reported that she was not sure what she was taking it for, but her doctor prescribed it. She believes she was told it would be so that she would not feel as worried and depressed. She reported she started on a low dose and the dose got up to 500mg (a high dose) which she found too much and she was drowsy all the time. From the timeline it appears that she was ‘worried and depressed’ for over ten years and when this was put to Ms Dyer she said that the quetiapine ‘stopped over five years ago.’
Ms Dyer reported she was diagnosed with Bipolar Affective Disorder when she was about eighteen years old. She is not aware of any psychiatric admissions that she has been involved in, but remembers that she used to not be able to sleep at night and she would have mood swings. She told the Panel that she was on diazepam from the age of eighteen until she was pregnant with Mia-Rose (about three years ago). When we pointed out that this again was inconsistent with what she previously said, she responded she ‘honestly can’t think.’
The Panel attempted to clarify some of these inconsistencies. In the six months prior to the motor vehicle accident her general practitioner referred her to a psychologist and the mental health team was involved and there was regular Valium being prescribed, 5mg twice a day. Ms Dyer again reiterated that she was ‘off the Valium before the accident.’ She then went on to say that after the accident her anxiety became worse. At one point Ms Dyer stated she was ‘so used to having the Valium, it was just the anxiety.’ Ms Dyer appeared to get confused about her own inconsistencies and ended up frustrated and said her ‘mind is really foggy.’
SITUATION PRIOR TO THE ACCIDENT
The Panel asked Ms Dyer about the six months prior to the accident. Ms Dyer was receiving the Disability Support pension and the Parenting payment and was living with Larry, with all four children. The Panel asked her how she spent her time and she reported that she was constantly out, would go to barbeques, would go fishing, out to bingo and go to school sports events.
With respect to other family members around, she had her mother, her brothers, a stepfather, cousins and other family members. She had previously looked after a niece and nephew of Larry who were under the care of DOCS about eight to ten years ago, for a year and a half. This was until the children were placed in foster care. They were State Wards. Ms Dyer reported her own children had never been in the care of DOCS.
Ms Dyer reported her younger brother had been in and out of gaol and was currently in custody for a long sentence. He had assaulted two of her children when they were seven and nine, over ten years ago. She said this was ‘not easy’ and said it was part of her life that she had to deal with. She said those issues affected her; ‘now, before and after’ (the accident). She reported her daughters are going through a legal compensation process at the moment. She said that they are mentally ‘not the best’ and ‘very emotional.’ She stated that she always backs her children.
Ms Dyer clarified that there was an Apprehended Violence Order (AVO) involving her younger brother, where he was the person in need of protection from her. Ms Dyer made a phone-call to him and threatened that she would ‘fucking kill him.’ The judge told her that her words were understandable but that she could not take the law into her own hands. That threat happened twelve months ago or less. Ms Dyer found out about the assaults a while back and that JIRT (the organisation tasked with investigating sexual assaults on young people) ‘put it in a vault.’ She reported that she had lived with her brother all of her life and ‘nothing surprises [her] with him.’ She said there were four or five other victims.
FORENSIC HISTORY
Ms Dyer had been incarcerated for nine months around 2007/2008 due to crimes to support her drug habit. She reported this was the only time she had been in gaol and she had no other charges of significance. She reported she had no history of work-related injury or worker’s compensation and no other major motor vehicle accidents. She did have a slip and fall in a carwash which led to compensation. This involved her fractured coccyx. This accident occurred in 2010 and she received $130,000 compensation payout for this around 2015.
MEDICAL HISTORY
Ms Dyer had hypertension diagnosed three years ago and she is now off the anti-hypertensive tablets. She said however her doctor is thinking about putting her back on them. She had gestational diabetes with her last pregnancy only but no other history of diabetes, head injury, epilepsy, thyroid disease or high cholesterol. Surgically, she has had two caesarean sections, her last two pregnancies. She reported she has medication allergies to Stemetil and Maxolon, where she gets anaphylaxis, which involved her going to the emergency department.MENTAL STATE EXAMINATION
Ms Dyer was a Caucasian female who appeared overweight and with poor dentition. She had dark blonde hair which was tied back. She wore earrings and rings and no overt make-up. She wore a black t-shirt. She exhibited overt shaking at times. She was polite, cooperative and attentive but appeared somewhat defensive and guarded at times, particularly when inconsistencies were being cross-checked. Her speech was normal and there was no evidence of thought disorder or delusional thought processes. She denied any thoughts of self-harm or thoughts of harm to others. When asked about her mood, she reported she was ‘confused’ and ‘not very happy.’ Her affect (expressed emotion) was distressed at times, teary at times and she was overtly emotionally demonstrative. It was hard to gain a clear and consistent history. She denied any perceptual abnormalities. Apart from the vagueness and inconsistency in her narrative, her cognition, insight and judgement appeared grossly intact in the context of the interview. Rapport was only fair but facilitated the assessment.
RECENT SYMPTOMS
Ms Dyer reported with respect to sleep, she is getting a fair bit of sleep and it is not that bad lately. She reported she does wake up with the sweats and her chest and body feels tight and then she has some CBD oil. With respect to her appetite, she reported she eats non-stop and she stress eats. This is when she is worried, panicky or nervous. She said if she does not eat food she will smoke. Her weight is approximately 118kg and she reported she has increased 10kg in the last five years (GP records indicate her weight was 116.3kg in February 2017, pre accident). Her height is 5’2”. She reported she does not have much energy during the day and she will nap every now and then. She described subjective memory problems in that she can forget things from five minutes ago and that her mind wanders off. She concentrated reasonably for the assessment. The persistent theme of being mentally foggy was noted during the assessment, as were the problems with clarifying certain details of the history.
RECENT FUNCTIONING
Ms Dyer reported that she has a number of pets including two King Charles Cavalier dogs (which unfortunately ate her chickens), a cockatoo, a cat and some goldfish. She reported that they help lower her anxiety and she spends most of her day with these animals and they are her ‘life.’
Ms Dyer reported she maintains a driver’s licence and is driving, but not far, for example to Coles supermarket. She pointed out that she never goes alone. She reported she does not catch public transport.
With respect to self-care and personal hygiene, Ms Dyer reported she only showers every couple of days because of her functional neurological disorder. She has trouble with certain things and her husband has to help her, for example shaving her legs, doing her hair and sometimes cleaning up her urination. Ms Dyer reported that she feels Larry does too much for her, for example her hair.
Ms Dyer reported she has tried cooking several times, however she has cut her fingers because of her functional neurological disorder. She reported when she is trying to chop vegetables her ‘mind wanders.’ Ms Dyer reported she is unable to cook because her arms shake and she has seizures. She said that since her functional neurological disorder was diagnosed, about three to four years ago, she has not ‘been able to do any of these things.’ With respect to house chores, she does a little bit of dusting but said that when she experienced the noise of the vacuum cleaner it makes her ‘go funny.’
The Panel asked Ms Dyer if she had any family members around and she said, ‘Not no more.’ Her mother passed away in 2020 and she was close with her. She has no relationship with her stepfather, the perpetrator of her childhood abuse, however he is geographically nearby. She reported she had another brother who died of cancer not long ago, just before her mother, and she was close with him. When the Panel asked her if the death of her brother and mother with whom she was close affected her, she responded that ‘the only thing in life we know is we’re going to die.’
Ms Dyer reported her psychologist encourages her to walk around the block. She only drives from home to Coles and she, when cross-checked, stated that she had never driven to the psychologist alone.
Ms Dyer reported she walks around the block by herself but goes nowhere else by herself. She said she is ‘too scared’ of ‘what’s going to happen next.’ She reported that her ‘anxiety goes through the roof.’
Ms Dyer stated that she cannot concentrate watching things and no longer does find-a-word and has not done so for several months or a year. She reported she does focus on her animals at home. She loves music and listens to it but does not like to watch television because of ‘traumatic things’ on TV. She reported her children will watch cartoons and they will be on in the background. She does not read and said she cannot concentrate to read and when she reads, ‘a couple of paragraphs’ and her ‘mind wanders off.’ (Ms Dyer’s ‘illiteracy’ is noted in the documents more than once.)
Ms Dyer reported she has a problem with ‘the utes.’ She said there were so many of them (similar to the vehicle involved in the accident). She commented that there was one directly across the road and when that car is at home she ‘won’t go out the front.’
PERSONAL AND DEVELOPMENTAL HISTORY
Ms Dyer was born in Redcliffe in Queensland and started her life there but grew-up mainly in Scone and she has been on the Central Coast since around the age of fourteen. Her parents separated when she was three and she had been with her mother and stepfather since then. She has two stepbrothers and all three children are to different fathers. She did have a relationship with her biological father for a while, but they lost contact. She reported the oldest son was her stepfather’s son to a different mother, she is the middle child and the youngest, Trent, and her are from the same mother.
Ms Dyer has no knowledge of any perinatal complications such as postnatal depression in her mother. She had no major illnesses as a youngster and reported she walked and talked at developmentally appropriate times and commenced her early schooling without incident. She went to primary school at Scone Primary School and commented that she was ‘house vice-captain.’ She had no specific learning disabilities and underwent no special education and required no teacher’s aide assistance. She described herself as ‘a typical kid.’ She reported her stepfather sexually interfered with her when she was in Year Four, however it did not interfere with her schooling. She told the Panel she came to the Central Coast at fourteen and attended The Entrance High School which she described as ‘good.’ She was there until Year Eight and then started to do an apprenticeship in hairdressing and she was there for twelve months and then she was let go. She then got into nursing as an AIN and started this at the age of sixteen. Her first job was for Woodport Nursing Home and she was there for about ten months. She fell pregnant at the age of sixteen or seventeen to her boyfriend, who left not long after the birth of her first child. She then met Larry who was a neighbour and has been with her since Kitayleah was six weeks old. She worked at Woodport Nursing Home and Gosford Private Hospital at the age of sixteen or seventeen then had her child, met Larry and has not worked since then.
Ms Dyer reported she would like to work with animals and they were always around the house when she was a youngster. The family owned a stud farm with thoroughbreds.
Ms Dyer reported that Larry was the father of her next four children and she had had no other major relationships.INCONSISTENCIES
The Panel found Ms Dyer’s narrative to be somewhat vague and confused and there were multiple uncertainties with respect to timeline and Ms Dyer commented that many times her mind was ‘foggy’ and she was not able to remember certain things. Ms Dyer gave a very impairment and disability-focused narrative and her functional neurological disorder appeared to be a prominent element of this.
Ms Dyer gave a history of essentially having no problems in her day-to-day functioning in the period leading up to the accident, including being independent with respect to her self-care, being an active and involved mother, being socially and recreationally active, being able to drive independently and having no problems with concentrating.
Ms Dyer’s history of benzodiazepine intake was unclear. From the general practitioner record it appears that in April 2018, she was still being prescribed 10mg a day and the general practitioner was ‘hoping to reduce’ at some stage in the future. Ms Dyer gave various answers with respect to when her benzodiazepine intake ceased, sometimes saying it ceased well before the accident and at other times saying it ceased when she was pregnant with her last child (approximately three years ago), therefore post-accident.
The Panel was unable to ascertain the true impact and symptomatology of her pre-existing problems related to anxiety and PTSD with various answers including that Ms Dyer had ‘grown out of it’ by the time of the accident (even though it appears she had been on an antipsychotic and benzodiazepine for over ten years), that her problems from childhood had been present ‘before, during and after’ the accident and there appeared to be a somewhat dismissing and minimising attitude towards pre-existing mental health problems.
The Panel clarified with Ms Dyer the mention of an overdose involving mental health team involvement as noted by Dr Rikard-Bell. She adamantly denied any attempt at self-harm and that this related to her mother (indeed the GP record reads this way in retrospect).
The Panel found of interest Ms Dyer’s cannabis usage. She stated that she was taking medical marijuana including 3mg a day of THC flower (this is a very high dose and would indicate the ingestion of 1 ounce of marijuana in ten days). This may have been an error on Ms Dyer’s part and perhaps she was prescribed 3g per week, still an ingestion of almost half a gram a day. Either level of ingestion would likely cause some interference with motivation, concentration and memory to some extent. The Panel put to Ms Dyer that perhaps her experience of cognitive fogginess and some of her more recent problems with concentration may be related to her regular cannabis ingestion. She rather quickly responded that she had been smoking marijuana all of her life and it made no difference and had never been a problem.
The Panel noted that also of significance was the prominence of Ms Dyer’s functional neurological disorder, due to the neurological and physical symptoms associated with the condition. It was prominent in Ms Dyer’s description of her level of impairment including interfering with her ability to cook, shower herself, and has a significant impact on her socially as she feared urinating and defecating in public. It clearly contributed to her restriction of activities including that she rarely went out alone. The Panel has excluded the presence of the functional neurological disorder in their assessment of PIRS. The relevant guidelines specifically exclude somatoform disorder in the assessment of PIRS.
SUMMARY OF RELEVANT PSYCHIATRIC DOCUMENTATION· Coastal Health Medical Centre records (as at 24/7/24), prior to the accident, reveal regular presentations to her GP for anxiety, pain and provision of scripts, multiple psychosocial stressors in the couple of years leading up to the accident, ongoing prescription of diazepam, Endone (an opiate) and Panadeine Forte (an opiate), multiple instances of lost, stolen or thrown out scripts, and presentations for coccyx and lower back pain interfering with day-to-day functioning. The subject accident is noted and increased anxiety resulting from it. There was a Mental Health Care Plan organised in early 2018 (pre-accident). There were multiple tooth extractions and dental issues in late 2017 and early 2018 (pre-accident). Ms Dyer’s recorded weight was 116.3kg on 28/2/2018 (pre accident).
· There is a Mental Health Care Plan dated 9/2/2018, for a diagnosis of mixed anxiety and depression, noting significant recent stressors. Also notes Ms Dyer’s brother passed away in December 2017. Also ATSI Medicare Health Assessment, presumably dated 28/2/2018, noting 1 gm of cannabis ingested per day.
· Referral dated 20/7/2018 for psychological assistance, symptoms of flashbacks and worsening anxiety were noted.
· IME report from Dr John O’Neill, neurologist, dated 15/10/2021. This gives a succinct summary of Ms Dyer’s psychological issues prior to the accident, and her difficulties with addictive medications. With respect to her earning capacity he notes ‘Mrs Dyer was unemployed well before the accident of 1 July 2018 and even at that stage she would have been incapable of entering the workforce due to her chronic anxiety state and reliance on narcotics for chronic low back/coccygeal pain’. There was no neurological impairment assessed due to the psychosomatic nature of her presentation.
· Psychiatric Report by Dr Chris Rikard-Bell dated 22/3/2022. This was a joint assessment. He opined there was pre-existing generalised anxiety disorder and substance use disorder (marijuana), and that the accident caused post traumatic stress disorder. The history provided by Ms Dyer to Dr Rikard-Bell was that she had ceased marijuana for many years until using it for pain since the accident. There appeared to be reasonable ability to concentrate and focus reported. Interestingly, Ms Dyer did not appear to mention her functional neurological disorder, despite its clear clinical significance in the year prior, and there was no evidence of it at mental state examination. He assessed a pre-existing WPI of 0%, and a WPI as a result of the accident as 6% including 1% treatment effect.
· Transcribed notes and hand-written notes from Susan Wojciechowski, psychologist. These note the multitude of unrelated family and psychosocial difficulties affecting Mr Dyer, after the accident. There is a note (possibly 25/7/2019) ‘Also on Valium (10mg/day) for many yrs’. Also on 10/9/2018: ‘Been on Valium for a number of years (10yrs). Provided for panic. Has panic if she doesn’t take Valium. Had panic for many years.’ There are a number of references to Ms Dyer driving again, sometimes daily, including to the psychologist. It is never stipulated that she is necessarily driving alone. These notes are a bit out of order, and there is variable functioning reported including high levels of anxiety regarding going out of the house, and other times when things seem to be better, including, daily driving, going for walks and fishing (with company).The functional neurological disorder is noted in 2021. There are family assaults mentioned including of Ms Dyer, by her brother, and also by her daughter.
· The applicant’s and respondent’s submissions are noted.
· Assessor Shen’s Certificate, dated 3/11/2022 is noted (the Certificate under review).
· Ms Dyer’s statements are noted, the latter is very detailed, and just post-dates Dr Prior’s psychiatric report.
· Psychiatric Report by Dr Michael Prior dated 9/5/2022. Dr Prior diagnosed pre-existing persistent depressive disorder, with generalised anxiety and a marijuana use disorder, and accident related chronic post traumatic stress disorder, persistent depressive disorder (with panic) and exacerbated marijuana use disorder. He assessed pre-existing impairment at 0% and WPI from the accident at 22% with no treatment effect.
SUMMARY
Ms Dyer presented with a very complicated clinical picture with significant pre-accident elements and complicated post-accident symptoms, reported impairments (and even life events such as assault by her brother, her daughter, an AVO being taken out against her, and the death of close family members, the development of functional neurological disorder and prescription of medical marijuana). Taking into account all factors, the Panel considered that the best diagnostic explanation for her current clinical status is that she satisfies diagnostic criteria under DSM-5TR for Persistent Depressive Disorder.PERSISTENT DEPRSSIVE DISORDER DIAGNOSTIC CRITERIA (DSM-5-TR):
Depressed mood for most of the day, for more days than not, as indicated by subjective account or observation by others, for at least 2 years.
Presence while depressed of 2 or more of the following:
·Poor appetite or overeating (satisfied)
·Insomnia or hypersomnia (not satisfied)
·Low energy or fatigue (satisfied)
·Low self-esteem (satisfied)
·Poor concentration or difficulty making decisions (satisfied)
·Feelings of hopelessness (satisfied)
During the 2-year period of the disturbance, the person has never been without symptoms from the above two criteria for more than 2 months at a time. (satisfied)
The disturbance is not better accounted for by MDD or MDD in partial remission. (satisfied)
There has never been a manic episode, a mixed episode, or a hypomanic episode and the criteria for cyclothymia have never been met. (satisfied)
The disturbance does not occur exclusively during the course of a chronic psychotic disorder. (satisfied)
The disturbance is not due to the direct physiological effects of a substance (e.g., a drug of abuse or a medication) or a general medical condition. (satisfied)
The symptoms cause clinically significant distress or impairment in important areas of functioning. (satisfied)
It is likely that there was some degree of pre-existing impairment and psychiatric diagnoses, including those noted by others such as longstanding Post Traumatic Stress Disorder related to childhood abuse and a degree of depression and anxiety longstanding, including a prescription of long-term benzodiazepines and antipsychotic mood stabilisers.
Ms Dyer’s report of her level of functioning in the period leading up to the accident is such that there is no significant impairment assessable, and that accurate assessment of pre-existing impairment would be somewhat speculative. Given the likely presence of significant mental health problems for many years prior to the motor vehicle accident and the likely prescription of moderately high doses of benzodiazepines up until the point of the accident, Ms Dyer’s reported narrative that she had no discernible impairments in her day-to-day functioning, is difficult to fully accept. Given the reported history, the available evidence and the assessments of others, the Panel has formed the opinion that although there was likely a pre-existing impairment, it is measurable as 0%.
With respect to the issue of cannabis use, although the Panel considered it highly likely that her current ingestion of THC is somewhat interfering with her levels of motivation, concentration, and general functioning, Ms Dyer was adamant that she had always smoked marijuana and that it had never made a difference to her functioning. Given the lack of evidence subjective and objective impact from her cannabis use, the Panel finds that although she has used cannabis throughout her adult life, if there was a cannabis use disorder it has been unaffected by the accident.
With respect to whether there was a benzodiazepine and/or opiate dependence, it is highly likely given that Ms Dyer had been taking regular moderate doses of benzodiazepines and opiates for several years at least, prior to the motor vehicle accident, and her doctor had suggested in the three months prior to the accident that there was hope that these could be reduced. The Panel finds that there may have been therapeutic benefit in the period leading up to the accident and is no longer a relevant factor and had therefore improved in the time since the accident.
The Panel noted that Ms Dyer’s symptoms had been protracted, showed little improvement and her level of functioning had plateaued. Her level of functioning is unlikely to change by any significant degree in the upcoming 12 months. Her injuries had stabilised, and she has a permanent psychiatric impairment.
Degree Of Permanent Impairment Psychiatric Impairment Rating Scale
1. The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
2. The PIRS category descriptors are for illustrative purposes only and clinical judgment is required to fairly assess WPI. This is particularly relevant in Ms Dyer’s case, given the complexity of her clinical history and presentation, the inconsistencies evident in her narrative and other pertinent external factors.
3. Her physical impairment and pain are not assessable in the PIRS.
Psychiatric diagnoses 1. Persistent Depressive Disorder 2. 3. 4. Psychiatric treatment description Daily antidepressant medication. Intermittent psychological therapy.
Category Class Reason for Decision 1. Self Care and Personal Hygiene 2 Mild Impairment.
Ms Dyer reported that her ability to shower and dress herself, cook in the kitchen, and contribute to domestic tasks was partly affected by her psychological injury. She was be able to shower and feed herself and manage her self-care without assistance, from a psychological perspective. Utilising clinical judgement, the Panel formed the opinion that, on psychiatric grounds alone, Ms Dyer could live independently.2. Social and Recreational Activities 3 Moderate impairment.
Ms Dyer gave no information to suggest that she was partaking of much in the way of social or recreational activities. Whilst her psychologist noted some activities, e.g. fishing, such activities are rare and generally with a support person.3. Travel
3 Moderate impairment.
Ms Dyer’s report of her travel capacity at the examination was that although she can sometimes drive very short distances, this is never unaccompanied. She can go out alone on foot, but only in the local area.4. Social Functioning
2 Mild impairment
Ms Dyer maintains a supportive relationship with her husband, and contact with her children. Her psychological capacity to look after her children has diminished since the accident, but she can look after them at an adequate level. There has been chronic extended family dysfunction, including subsequent to the accident, unrelated to Ms Dyer’s mental health.5. Concentration, Persistence and Pace 2 Mild impairment.
Ms Dyer was able to concentrate and attend to the Panel Assessment. There were multiple internal and external inconsistencies in Ms Dyer’s reported narrative that was not clinically related to her cognitive capacity. The Panel considered that part of Ms Dyer’s impairment with respect to overall concentration, persistence and pace was likely due to her regular ingestion of marijuana, although Ms Dyer was adamant in rejecting this idea.
Taking into account all factors, utilising clinical judgment, and noting the assessment is based on the presentation of the day, the Panel considered that Ms Dyer’s level of impairment in this category was consistent with a class 2 mild impairment.6. Adaptation
2 Mild impairment.
Ms Dyer was not employed prior to the accident and was receiving a DSP for her coccyx injury, which she told the Panel had improved considerably, although it is noted she
was still presenting to her GP related to this, to receive opiate pain relief. She was functioning as a mother looking after 4 children. She now has another infant child, however the 3 elder children have moved out, and this life role remains intact, although there has been a reduction in her overall efficiency. She maintains her role as a wife. She has not worked for 20 plus years due to child rearing responsibilities and her coccyx injury, and reported a brief work history prior to that. Given the significance of Ms Dyer’s longstanding mental health issues, her likely dependence on benzodiazepines, opiates and marijuana prior to the accident, (and marijuana since the accident) and the highly significant impact of her ongoing functional neurological disorder on her general adaptive capacity, the Panel formed the opinion that her level of impairment in this category was consistent with a class 2 mild impairment, that is, able to function in the same adaptive roles (for example, as mother and wife) but to a lesser degree, no more than 20 hours per week.List classes in ascending order: 2, 2, 2, 2, 3, 3 Median Class Value: 2 Aggregate Score: 14 % Whole Person Impairment: 7 %
*%WPI = Percentage Whole Person Impairment
APPORTIONMENT
Pre-existing impairment has been discussed above and assessed at 0%.
With respect to treatment effect, Ms Dyer reports little, in anything, in the way of clinical improvement from treatment. The Panel formed the opinion that the intermittent psychological therapy and the regular antidepressant medication is having some effect (for example, if it were removed there would likely be some increase in symptoms), but only a mild treatment effect, commensurate with a 1% adjustment of WPI.
Therefore, final Whole Person Impairment is 8%”
The Panel adopts the report of Medical Assessor Jones and Medical Assessor Hong.
Causation
The claimant at the time of the accident was teaching her eldest daughter to drive. With her in the car in the rear was another daughter. Suddenly, without warning, she was confronted by a utility, which was out of control, and on the incorrect side of the road, crossing the path of the car in which the claimant was travelling. A sudden head on impact occurred.
The Guidelines
The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides). It is in the same terms as Clause 6.6 of the Guidelines.The approach in cl 6.6 of the Guidelines requires a medical and a non-medical assessment. Concerning that issue, the Panel must determine causation by the application of legal notion of causation.
The authorities
In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5-6.7 of the Motor Accident Guidelines, being clauses 1.7-1.9 of the Permanent Impairment Guidelines.
Section 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.
120.Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."
There are two elements to address when assessing causation under s 5D(1):
"factual causation",[4] and
[4] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
"scope of liability".[5]
[5] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing "factual causation" and "scope of liability" involves making value judgments.[6]
[6] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”.
In the accident involving the claimant, her car was collided into head on. It was sudden, unexpected and with some degree of force as evidenced by the dashcam footage.
Campbell J in Owen v Motor Accidents Authority (NSW),[7] adopted Justice Johnson's approach in Ackling with a caution touching upon the CLA:
[7] [2012] 61 MVR 245; [2012] NSWSC 650.
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)) of the Civil Liability Act (the CLA)."[8]
[8] At [27].
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804, Justice Walton set aside the decision of a Medical Review Panel. The discussion in Kinchela concerning the correct principles to apply relating to causation are set out below:
“[38] The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW(2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox(2014) 67 MVR 150; [2014] NSWSC 888 (‘Bugat’); AAI Ltd t/as GIO v McGiffen(2016) 77 MVR 348; [2016] NSWCA 229 (‘McGiffen’). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation.
126. Associate Justice Harrison in Briggs v IAG Limited trading as NRMA Insurance [2020] NSWSC 1318, cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:
“In AAI Limited trading as GIO v McGiffen [2016] 77 MVR 348, the Court of Appeal held at [64] – [65]:
‘[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.’
[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
Subsequently, in a later and further decision in Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372, Wright J, regarding causation and the issues to be addressed, said:
“67 The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
68 As to whether the motor vehicle accident trauma was a cause of a ‘left posterolateral annular tear’ with “mild disc desiccation” shown on Mr Brigg’s MRI test results, the second review panel concluded that causation had not been established because:
(1) ‘[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period’, and Mr Briggs only had post-accident MRI results;
(2) ‘a delamination may not fall within the definition of a tear’; and
(3) ‘the defect may not be the source of his pain and disability’.
69 The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.
70 This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
“An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.”’
71 The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72 Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73 The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74 The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:
‘the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.’
75 This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76 In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77 In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgment’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question”.
Causation summary
The Panel must ask itself whether the accident contributed to the claimant’s psychiatric injuries as referred to it by the Personal Injury Commission.
The Panel is satisfied that the accident has had a more than negligible effect on the psychiatric injuries suffered by the claimant.
The insurer says that while it accepts that the claimant suffered an aggravation of pre-existing anxiety and associated psychosomatic symptoms, her current symptomatology would not have taken place were it not for her pre-existing chronic anxiety state and as such, her current symptoms and FND were wholly attributable to her pre-existing condition. The Panel does not agree with this. As a result of the accident, verified by dashcam footage, the claimant was vulnerable to, and has suffered, a new psychiatric diagnosis.
Dr O’Neill in his joint medico-legal report dated 15 October 2021 reported that the claimant is reliant on narcotics for chronic low back/coccygeal pain. Dr O’Neill reported that the accident only caused minor soft tissue injuries and the claimant was expected to make a full physical recovery.
Dr Schuzt, a neurologist from Wyong Hospital saw the claimant in 2021 and reported that the claimant had episodes of limb shaking, sweating, headaches and double incontinence occurring in the context of significant life stress. He commented that these shaking episodes were likely a stress response consistent with FND. The Panel is not qualified to comment on this neurological disability which is a matter for assessment by a neurologist and cannot be considered by a Panel undertaking psychiatric review.
In Scott v Ivy Contractors Pty Limited [2023] NSWSC 891, Schmidt J held that the taking into account by the Panel of the contribution of pain to the plaintiff’s psychiatric impairment was not a matter for the Panel to determine under the workers compensation statutory scheme. Similarly, under the scheme of the Act, consideration of a physical or neurological issue of FND is not appropriate for this Panel to consider and should be the subject of a separate physical or neurological assessment. With respect to pain, her Honour discussed the PIRS ratings and said;
“Those ratings are concerned with identifying the severity of the adverse consequences of an injury which has been suffered. In the case of psychological injury, conclusions about those consequences and the resulting impairment suffered must all be reached without consideration of any contribution which it is considered pain may or may not have made.”
The Medical Assessor diagnosed somatic symptom disorder, with predominant pain as she had excessive preoccupation with pain disproportionate to the soft tissue injury. He also diagnosed PTSD related to the accident. As can be seen from these reasons, the Panel does not agree with these diagnoses.
It is likely that there was some degree of pre-existing impairment and psychiatric diagnoses, including those noted by others such as longstanding post-traumatic stress disorder related to childhood abuse and a degree of depression and anxiety longstanding, including a prescription of long-term benzodiazepines and antipsychotic mood stabilisers.
It is the finding of the Panel that the claimant’s report of her level of functioning in the period leading up to the accident is such that there is no significant impairment assessable. As the Panel has said, an accurate assessment of pre-existing impairment would be speculative. Given the likely presence of significant mental health problems for many years prior to the motor vehicle accident and the likely prescription of moderately high doses of benzodiazepines up until the point of the accident, the claimant’s reported narrative that she had no discernible impairments in her day-to-day functioning, is difficult to fully accept. Given the reported history, the available evidence and the assessments of others, the Panel formed the opinion that although there was likely a pre-existing impairment, it is measurable as 0%.
The Panel is satisfied that the accident materially contributed to the diagnosis of Persistent Depressive Disorder and that the accident was a contributing cause to this diagnosis.
The nature and extent of the accident and the forces operative on her as a result of its circumstances of a sudden, life-threatening experience are such that the onset of a diagnosis of Persistent Depressive Disorder is a reasonable outcome on the balance of probabilities.
Conclusion
The Panel is satisfied that the claimant has suffered a Persistent Depressive Disorder as a result of being involved in the accident, when she was a front seat passenger in a car.
Determination
The Panel revokes the certificate of Medical Assessor Shen.
The Panel finds that the following injuries caused by the accident on 1 July 2018 gave rise to a permanent impairment of 7% and when added to an allowance for treatment effect of 1% gives a total WPI assessment of 8%;
(a) Persistent Depressive Disorder.
Clause 6.6 provides:
“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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“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.”
0
13
0