Ekblad v Gordian Runoff Limited
[2023] NSWPICMP 383
•10 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ekblad v Gordian Runoff Limited [2023] NSWPICMP 383 |
| CLAIMANT: | Hans Ekblad |
INSURER: | Gordian RunOff Limited |
| REVIEW Panel | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Michael Hong |
MEDICAL ASSESSOR: | Glen Smith |
| DATE OF DECISION: | 10 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Dispute about whether the degree of permanent impairment of the claimant as a result of psychological injury caused by the accident is greater than 10%; Medical Assessment under review certified that the Major Depressive Disorder, caused by the accident, did not give rise to a permanent impairment greater than 10%; Held – the claimant’s Major Depressive Disorder, caused by the accident, gives rise to permanent impairment greater than 10%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Paul Friend dated 13 April 2022. 2. Certifies that the claimant’s major depressive disorder caused by the motor vehicle accident gives rise to a permanent impairment of greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Claim and dispute summary
Hans Ekblad (Mr Ekblad/the claimant) was injured in a motor vehicle accident on
4 November 2014.
Mr Ekblad was driving in the kerbside lane next to a bus in the right-hand lane.
Approaching the intersection, the bus failed to indicate that it was turning left and collided with Mr Ekblad’s vehicle, jamming it into the kerb.
Mr Ekblad phoned the police after he was able to exit his vehicle, but they did not arrive at the scene. He subsequently attended the Police Station to notify of the accident.
A medical dispute has arisen in connection with the claim, as to whether or not Mr Ekblad’s psychological injuries have led to a degree of whole person impairment (WPI) greater than 10% within the statutory definition.
Mr Ekblad referred that medical dispute to the Personal Injury Commission (the Commission) for determination in relation to whether or not his major depressive disorder resulted in a WPI of more than 10%.
On 13 April 2022, Medical Assessor Paul Friend determined the dispute, assessing the degree of WPI as 4%.
Mr Ekblad was dissatisfied with this result and lodged an application seeking a review. On
16 September 2022, a delegate of the President of the Commission determined that there was reasonable cause to suspect the decision was incorrect in a material respect, and the delegate of the President convened this Panel to conduct the Review.
The review
The Commission commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by Schedule 1, cl 3 of the Personal Injury Commission Act 2020 (PIC Act).
Under Schedule 1, cl 14A(1) of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the Motor Accidents Compensation Act 1999 (MAC Act).
Schedule 1, cl 14F of the PIC Act provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in Schedule 1, cl 14A(1) of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The Panel is to conduct the review in accordance with s 63 of the MAC Act. Section 63(3) provides that the review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 63(3A) of the MAC Act.
14.Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings: Rule 128.
Version 5 of the Medical Assessment Guidelines (Assessment Guidelines), effective from
12 February 2021, apply to this review as does version 1 of the Motor Accident Permanent Impairment Guidelines effective from 1 June 2018 (Impairment Guidelines).
Causation of injury is to be determined in accordance with cls 1.5 – 1.7 of the Impairment Guidelines.
On 30 May 2023 the Panel determined that an examination of the claimant was required.
The Panel has considered the documents and submissions relied on by the parties for the purposes of the Review.
LEGISLATIVE FRAMEWORK
No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%: s 131 of the MAC Act.
Section 132 of the MAC Act deals with the assessment of impairment. If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, the court may not award any such damages unless the degree of permanent impairment has been assessed by a Medical Assessor under Part 3.4 of the MAC Act.
The method of assessing the degree of impairment is dealt with in s 133, which is in the following terms:
“133 Method of assessing degree of impairment
(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.
(2) The assessment of the degree of permanent impairment is to be made in accordance with—
(a) Motor Accidents Medical Guidelines issued for that purpose, or
(b) if there are no such guidelines in force—the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.
(3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
Note—
See Part 3.1 for Motor Accidents Medical Guidelines”
Clause 1.3 of the Impairment Guidelines provide that they apply to the assessment of the degree of permanent impairment that has resulted from an injury between 5 October 1999 and 30 November 2017. The Impairment Guidelines state as follows with respect to causation of injury:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 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.
1.7 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.”
Clause 6 of the Impairment Guidelines states that psychiatric impairment is assessed in accordance with ‘Mental and behavioural disorders’ within the Guidelines.
Impairment caused by a mental and behavioural disorder is assessed in accordance with cls [1.201] – [1.228] of the Impairment Guidelines.
Mr Ekblad’s application for review was made under s 7.26 of the MAI Act. Pursuant to
s 7.26(5A) the Panel is to be constituted of a Member of the Commission and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original Medical Assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.
ASSESSMENT UNDER REVIEW
Medical Assessor Friend was asked to assess whether Mr Ekblad’s diagnoses of major depressive disorder and somatic symptom disorder contributed to WPI of greater than 10%.
Medical Assessor Friend did not assess the degree of WPI attributable to Mr Ekblad’s somatic symptom disorder because it is not a recognised psychiatric condition for the purposes of the MAC Act.
Mr Ekblad gave a history to Medical Assessor Friend, which is set out at [9]:
“Mr Ekblad felt ‘in complete shock’, was shaking and ‘fired up’, immediately following the motor accident.
He gradually developed pain in his neck, blurred vision and headache. He has difficulty concentrating and sleeping. He had back pain which radiated down his arms and legs. He felt that he could no longer accurately judge distances.
He had hoped that these symptoms would resolve, but when they did not, consulted his general practitioner on 1 December 2014.
He was prescribed Endep at one stage and various antidepressant medications including Efexor. He believes he was prescribed every type of antidepressant except Brintellix which is not subsidised by Medicare.
Mr Ekblad was initially prescribed tramadoI and Lyrica which was later this was changed to oxycodone and Valium supplemented with Panadol. He felt that aspirin was a better treatment than Panadol. He was also prescribed Baclofen.
He described being reliant on oxycodone for pain relief.
He was referred to Dr Lindy Schur, psychiatrist and psychotherapist. Dr Schur's report states that the first consultation was on 13 November 2018 and he had three consultations in total.
Dr Schur made a diagnosis of Depressive Disorder secondary to a medical condition.
The report states that the incapacity appears to be a result of the pain syndrome and subsequent mood disorder which are both secondary to the motor accident.”
Mr Ekblad gave a history of his current symptoms at [11]:
“…He feels mentally depleted, sad, tearful and fearful that his conditions will not improve. He is constantly trying to find ways to manage the pain. He feels that there is no way out and no quick fix…”
Clinical examination by Medical Assessor Friend
The Medical Assessor noted at [13]:
“…He feels sad or depressed and is tearful and fearful that he will not recover. He is embarrassed and ashamed that he cannot be the father he wanted to be for his children. He feels hopeless and a lesser person. He has very occasional nightmares of being physically and mentally crushed and stuck and incapable and also of floating or hovering which he describes as a relief…”
The Medical Assessor’s review of documentation
The Medical Assessor referred to the report of Dr Jeff Bertucen at [16], which stated that:
“…Mr Ekblad denied suffering pre-existing or underlying psychiatric conditions or significant competing stress at the time of the accident…”
The Medical Assessor reviewed consultation notes from Warringah Medical and Dental Centre from 10 November 2016 to 30 June 2016 which refer to Mr Ekblad:
“…being under further stress with his ex-partner and childcare for his daughter. Ongoing problems with his ex-wife worried about his daughter, as being part of the conflict between his ex-wife and himself. It states that he does not want to see a psychologist for fear this information will be used against him with his daughter and ex-partner…”
The Medical Assessor’s determination, diagnosis and reasons
The Medical Assessor determined at [17]:
“Considering all the information Mr Ekblad appears to have two conditions. He has a Major Depressive Disorder… Mr Ekblad also reaches criterion for a diagnosis of a Somatic Symptom Disorder.”
On the issue of whether or not Mr Ekblad’s psychiatric symptoms were present prior to the accident, the Medical Assessor considered at [18]:
“Mr Ekblad did not have any pre-existing psychiatric symptoms according to him although he was engaged in a difficult divorce which was described as acrimonious by himself and others. The Somatic Symptom Disorder with predominant pain has only developed since the motor accident…
The conditions of Major Depressive Disorder and Somatic Symptom Disorder with predominant pain arise from the injuries sustained in the motor accident.”
The Medical Assessor made the following assessments under the Psychiatric Impairment Rating Scale (PIRS):
(a) Self Care and Personal Hygiene – class 2;
(b) Social and Recreational Activities – class 1;
(c) Travel – class 2;
(d) Social Functioning – class 1;
(e) Concentration, Persistence and Pace – class 2, and
(f) Adaption – class 1.
The claimant’s WPI was accordingly assessed at 4%.
ISSUES FOR DETERMINATION
Claimant’s submissions of 30 May 2022
The claimant made submissions to the President’s delegate on 30 May 2022.
The Panel briefly summarises the submission by reference to the relevant paragraph numbers:
“[6]
(a) The Medical Assessor relied on the pain condition for evaluation of impairment rather than the depressive disorder.
(b) The Medical Assessor misinterpreted the classification of the Ratings in the PIRS Table”.
With respect to error, the claimant submits:
“[1.2]The Medical Assessor fell into error, by placing reliance on the “pain condition with respect to the Evaluation of impairment rather than the depressive disorder, specifically [his Evaluation did not] address (…) the effect of the Depressive disorder” on each of the PIRS ratings.
[1.3] – [1.4]The Medical Assessor misinterpreted the report of Dr Jeff Bertucen of 4 June 2018 because he stated in the determination section of his decision that Dr Bertucen “does not appear to make a psychiatric diagnosis”, however Dr Bertucen’s report of 4 June 2018 diagnoses “chronic adjustment disorder with depressed mood/ chronic pain syndrome”.
[1.8]The Medical Assessor focuses on the pain matters- not that the injuries have caused the pain and headaches and in turn the depressive condition.
[1.9]The Medical Assessor has made errors with respect to evaluation of permanent impairment ratings in some of the PIRS categories, that when combined, can change the ultimate finding of whole person impairment to at least 15%. The claimant alleges that in finding only 4% WPI, the Medical Assessor did not determine the matter in accordance with the medical guidelines and has fallen into error and is incorrect in a material respect.
[2] – [5]The Medical Assessor’s errors in evaluation of permanent impairment relate to the PIRS categories of Social and Recreational Activities, Social Functioning, Concentration, Persistence and Pace, and Adaptation.”
Submissions for the insurer of 6 July 2022
The Panel briefly summarises the submissions by reference to paragraph numbers:
“[2] – [3]The claimant has failed to identify any ‘material error’ within its meaning under s 63(2) of the MAC Act.
[3]The claimant’s submissions are ‘incomprehensible’ because they deal with the assessment in its entirety and do not identify specific material error.
[11] – [12]Medical Assessor Friend did not misinterpret Dr Bertucen’s report when stating it “does not appear to make a psychiatric diagnosis” because the Medical Assessor was referring to Dr Bertucen’s 2019 report, which, in fact, makes no diagnoses. Pursuant to Cl 1.23 of the Permanent Impairment Guidelines, ‘the evaluation should only consider the impairment as it is at the time of assessment.’
[16]The claimant’s submission that the Medical Assessor focused on the somatic symptoms of his disorder when evaluating impairment does not identify a specific error. Further, to suggest that Medical Assessor Friend should have taken into account the impact of the claimant’s pain in assessing impairment would have been in breach of clause 1.215 of the Guidelines, which state: ‘The PIRS must not be used to measure impairment due to somatoform disorders or pain.’
[18] - [44]No error has been/can be established in the Medical Assessor’s evaluation of permanent impairment, specifically the PIRS categories of Social and Recreational Activities, Social Functioning, Concentration, Persistence and Pace, and Adaptation”.
THE EVIDENCE BEFORE THE REVIEW PANEL
The Panel had all of the material which was available to Medical Assessor Friend and considered all such material.
Re-examination of the claimant
The Review was accepted as the delegate was satisfied that the Medical Assessor’s assessment was incorrect in a material particular. The Panel noted Medical Assessor Friend rated the claimant’s adaptation solely on his pain condition, rather than major depressive disorder that he had diagnosed. The Panel determined a re-examination was necessary.
Medical Assessors Michael Hong and Glen Smith, psychiatrists, jointly re-examined
Mr Ekblad on 19 July 2023 at 3:00 pm via Teams.
Mr Ekblad was at home on his own.
History
Psychosocial history and pre-accident history
Mr Ekblad was born in Sweden and first came to Australia in 1999 and has been living in Australia permanently since 2003. He grew up with his parents and has an older sister. There was no disruption in his childhood, and he had a normal developmental history. He is not aware of a family history of mental illness.
He does not have cardiac, thyroid or liver disease.
He does not have drug or alcohol problems.
He does not have a past psychiatric history.
He has not had other car accidents.
History of the motor accident
On 4 November 2014, Mr Ekblad was driving on his own and returning from the Children’s Hospital at Randwick and recalled he was on speaker phone with his wife. He was next to a bus, and he noted there was plenty of room. The bus in front did not use the indicator. He assumed the bus would turn right. He was in the left lane and approached the T-intersection. He said the bus then drove at full speed and turned left into him. Mr Ekblad tried to use the horn to alert the bus to stop the collision without success. His car was pushed to the side, and he said because of his engineering background and having worked in building cars in his 20’s, he was worried that the fuel tank would be damaged and catch fire because the impact was where the fuel tank was. His car was pushed another 5m into the kerb. Mr Ekblad said the bus then reversed again and his worry was that he would be trapped, and the car would catch fire and he couldn’t do anything. He has a patchy memory of the events that followed and remembered that somebody came to open his door, and a nurse came to help him. He said the bus then drove off. It was a relatively low-speed collision, and his airbag was not deployed. He drove to the police station to report the incident. His car was later written off.
He started having back and neck pain, and a few days later, he developed blurred vision. A few weeks later, he saw the general practitioner (GP) and explained that normally he was healthy and was not one to go to the doctor easily. By then, he had severe pain.
Eventually, he was diagnosed with occipital neuralgia. The constant headache had been the worst physical injury from the accident. Pain also affected his neck, most severe on the right-hand side. He had blurred vision and he had started wearing glasses as it helped.
He also reported that pain affected his back and travelled down the right leg. This was a minor discomfort.
History of symptoms and treatment following the motor accident
Mr Ekblad became more and more anxious and depressed, in the context of the shock of the accident, worries about being trapped and the car catching fire and subsequently having persistent pain. He recalled that a few months after the accident, his GP commented that he was depressed, and he didn’t believe it as he has never experienced anything like it before. Over time, he began to realise that depression was a big part of his life. He said that normally he was very high functioning and passionate about his work and he enjoyed socialising with friends and people from the Swedish community. However, now he could not work, he had lost his passion, and he could not get better from depression, despite having trialled a large number of psychotropics.
He had been having Botox injections from his neurologist, which improved the pain. However, he could only get Botox on PBS every three months and the effects wore off between doses. He takes oral analgesics, including opioids, and reported that he doesn’t exceed the recommended dose. He reported even when the pain is better controlled, he continues to suffer severe depression and anxiety and his psychiatric functioning does not change.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Ekblad reported that when his wife was pregnant with their twins, all screening tests were normal. One of the daughters was born healthy and the other daughter was born with Rubinstein-Taybi syndrome - she has an intellectual disability, she is non-verbal and needs to use a CPAP machine at night and has very poor mobility. She is legally blind and has had several eye surgeries. She has a NDIS package and needs constant care in the daytime.
Mr Ekblad and his wife look after their daughter at night with difficulty. He reported that he was shocked when he discovered one of his twins had a disability and now, they are doing the best they can. He said that she is a happy child and a positive person. Mr Ekblad said he tries to focus on the important things in life and not dwell on her disability. However, he also finds that he cannot relate to his daughter, because she screams and this triggers him, and often his wife had to take over the childcare activities.The Panel noted that his psychiatric disability was well-established and there have been no major changes after the twins were born.
Mr Ekblad was married between 2001 and 2012 and described an acrimonious separation. Things were better for a while, and he had 50% custody. However, he said after his twin daughters were born, his ex-wife seemed to become jealous and started creating difficulties with custody. She initiated further Family Court proceedings in mid-2022. He said by late 2022, he came to realise that he couldn't cope with the legal proceedings anymore and decided that for the sake of his twin daughters and also for his own mental health, he has to relinquish custody and has not seen his daughter since 2022.
Psychologically, he said that he tried to focus on the grand scheme and that he has not been any better or worse as a result of that decision.
Current symptoms
Mr Ekblad's anxiety symptoms are triggered by driving and trucks, loud noises, screaming and increased pain. He reported having a chronically depressed mood and an inability to enjoy things he would normally enjoy. He stated his concentration is “shocking” as he has difficulties remembering things that occurred day-to-day, and difficulties with reading and cognitive functioning generally. He reported having lost muscle and weight. He has no appetite, and his weight fluctuated without major changes recently. He feels anxious and has difficulties controlling his worrying thoughts. His sleep is poor as a result of pain during the night, and he has infrequent nightmares. He is easily irritated and said he would speak with a loud voice, generally directed at his family. He would then go to bed. He has disengaged from all social activities. He has not had suicidal ideation.
Current and proposed treatment
Mr Ekblad is currently taking:
· Brintellix 10 mg morning and night;
· Endone, 5 mg tablet, four tablets daily;
· Diazepam, 5 mg tablet, two tablets daily;
· Aspirin;
· Panadol, and
· Circadin 2 mg.
He previously took Endep, Venlafaxine, Cipramil, Moclobemide, Fluvoxamine, Valproate, Cymbalta and Agomelatine. He tried medicinal cannabis.
TMS (transcranial magnetic stimulation) was discussed but he could not afford it.
He consulted Dr Holford, pain specialist only briefly.
He consulted Dr Lindy Schur, psychiatrist for around five sessions, a couple of years ago.
He has not consulted a psychologist and has not had a psychiatric admission.
There are no proposed treatments.
Clinical Examination
Mental State examination[BG1]
The assessment took 90 minutes.
Mr Ekblad was casually attired in a dark turtleneck. He wore glasses and had a light beard. He was talkative and over-inclusive, but he was not difficult to interrupt. At times he circled back to an earlier discussion and had to be re-directed. Mr Ekblad engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was consistently restricted in his affect range and reactivity. He spoke spontaneously and fluently.
Current functioning
Mr Ekblad is 50 years old and lives with his wife, and their twin daughters, 4 ½.
He has two stepsons. His daughter, aged 12, is living with an ex-partner.
The pain becomes more severe leading up to the next dose of Botox. He said sometimes the pain is so severe, he has to stay in bed for the day. His depression, anxiety, chronic pain and inability to do things he would normally do, have affected his relationship with his wife. They have been together for about 10 years, and he said that there have been ups and downs. They have discussed separation. They have never formally separated but several times, he stated she walked out for a few hours because she could not tolerate when he goes through a period of severe depression.
He said he has no connection with his disabled daughter.
Normally, he had been very active. He had enjoyed windsurfing and had travelled around the World to windsurf. He also liked to swim, either indoors or in the ocean, and played tennis with his friends. He regularly had catch-ups with his friends and people from the Swedish community. However, he said all these activities had stopped.
People used to invite him but then he would tell them he couldn't go, and cancelled because of headache, and he said that after enough times, people knew not to invite him, and they didn’t understand what he had gone through. Now, he has no contact with any of his friends.
His family are overseas. He went back to Sweden in January 2023 because his father had a stroke. It was a very long trip, approximately 30 hours, and he said that he took a lot of medication but even then, he was in a lot of pain and discomfort. He stayed for less than three weeks.
Mr Ekblad has a very different lifestyle since the accident. He does not eat meals with his family. He has no appetite and sometimes eats at 8 or 9pm and he eats too much junk food. He doesn’t cook.
He sometimes switches on the robot cleaner but cannot do any household chores due to his physical injuries and pain. He reported that in the past, he was a hands-on person and he purchased and knocked down a house in 2009, and essentially rebuilt the house himself. He did the design and carpentry work. Now, he cannot do even basic handyman jobs.
Mr Ekblad said sometimes he tries to do the gardening but knows he has to take extra analgesics and the next day he often has to stay in bed.
He stated the thought of picking up tools to do some work is “like I am climbing a mountain” and he cannot bring himself to commence anything.
He said he tries to attend to the children, take the daughter to different activities and do the best he can. He cannot physically pick them up.
Employment history
Mr Ekblad completed an Innovation Design degree and did one year of national service, and participated in military services, in the intelligence section. He then completed two Master's degrees; one in industrial design at UNSW and later on a scholarship, he did another Master's degree in Design at UNSW in 2001.
Mr Ekblad had worked for different companies. He operated a business called Viking Design and did contract work for large companies. Normally, he performed exhibition design, and said he had a reputation in 3D brand architecture. He would create products to showcase the company, and this was all computer-based work, such as free modelling, animation, and retail design to improve the company's stores.
After the accident, he tried to go back to work but said that he had problems with his vision and also, he could not focus on computer work, and he no longer had the creativity and ability to do the work. He has never been on a Disability Support Pension and has been receiving a Carer's payment from Centrelink.[BG2]
Review of Documentation
Summary of relevant documentation
The claimant’s statement noted the circumstances of the motor vehicle accident. He injured his neck and back, and the pain has subsequently spread down his arms and legs. He was a self-employed sole trader in his company Viking Design. He is a qualified innovation engineer. His first marriage broke down, in February 2012 and he decided to become a fulltime employee for six months with the Van Der Berg design team. He resigned after six months. He tried to restart Viking Design but there were family law issues which commenced in the Family Court in 2013. He noted difficulties with employment and contribution to household chores. Dr Holford stated that in his opinion whiplash injury was multifactorial and the pain had a significant impact on sleep, mood, activity levels and ability to return to work which is consistent with reactive depression to chronic pain. He discussed his physical treatment with many specialists.
Dr Jeff Bertucen, IME psychiatrist, reported on 4 June 2018 that there was no past psychiatric history. Mr Ekblad stated that, in retrospect, he began to experience low mood, pessimism for the future, anhedonia, and social withdrawal from mid-2015. This was largely a result of the failure of numerous treatments, a perception of being on a ‘merry-go-round’ of different medical specialists and constant wrangles with the insurer regarding treatments. He was unable to think creatively which is important in his work as a designer. There had been discord in the relationship with his wife and her sons, and several periods of near separation. In the last 12-18 months, he had tried to re-invent his business by rebranding and starting a website but was consistently impacted by the effects of pain and the stupefying effects of opioid medication which rendered him completely unable to concentrate. He was incapable of returning to his pre-injury employment due to impaired attention, concentration and memory, loss of confidence and ability to think creatively and to be productive. Dr Bertucen diagnosed chronic adjustment disorder with depressed mood/chronic pain syndrome and noted that these diagnoses had not stabilised.
Dr Bertucen, in a further report of 18 June 2019, noted that Mr Ekblad attended Dr Puhl for Botox injections about every three months. He reported that Mr Ekblad had some relief from his symptoms. Mr Ekblad was referred to Dr Lindy Schur and trialled on Moclobemide but experienced side effects including agitation, restlessness, and sleep disturbance. He was excited after the birth of his twins but one of the twins suffered physical disabilities associated with Rubinstein-Taybi Syndrome. His daughter had to undergo a procedure to alleviate glaucoma and to correct epiglottis functioning and it was highly likely she would have intelligence in the range of IQ 35-50. The report details that chronic pain, alleged surveillance by the insurance company by car and drone, and Mr Ekblad’s daughter’s health issues have brought him to the brink of psychological decompensation. He has argued with his wife and has had markedly reduced libido. He reports being isolated from the Swedish community. He has had regular contact with his parents in Sweden. He has been advised that his daughter has a 40% chance of death by the age of six years. Dr Bertucen assessed Mr Ekblad's WPI at 15%.
Dr Lindy Schur, treating psychiatrist, noted that when first assessed, Mr Ekblad reported ongoing chronic pain associated with depression, specifically, head and neck pain for which no medication was effective. He had low mood due to his pain, did not enjoy activities and had insomnia, fatigue, poor appetite, poor focus, and memory, and was preoccupied with his pain. He did not misuse substances or alcohol. Dr Schur’s diagnosis was depressive disorder, secondary to the medical condition. Mr Ekblad stated that all medications prescribed for mood had caused side effects and he previously ceased them, including a low dose of an antidepressant prescribed by Dr Schur. Dr Schur considered that Mr Ekblad’s incapacity was the result of the pain syndrome and subsequent mood disorder, both of which were secondary to the accident.
Dr Paul Teychenné’s report, dated 5 December 2018, described Mr Ekblad's physical symptoms and examination. His further report, dated 27 April 2019, stated that on examination, Mr Ekblad has classic findings of an incomplete cervical cord lesion with upper motor neurone weakness in the limbs.
Dr Teychenné’s further report, dated 27 April 2019, assigned a WPI of 37% for the injuries to the cervicothoracic spine, lumbosacral spine, urinary incontinence and bowel urgency, and incontinence.
Dr Stephen R Buckley, rehabilitation physician, reported on 9 July 2018 and diagnosed a non-specific neck, thoracic and lumbar spine spinal pain, complicated by headache, and associated with significant psychological components to his complaints. The report stated that Dr Buckley, having considered all the information and including the opinion of Dr Holford, would agree that his diagnosis was chronic pain syndrome. It was difficult to identify physical injuries sustained in a low-speed accident of the type described by Mr Ekblad. He left his vehicle thinking he was uninjured, and it was some weeks before he saw his local doctor in relation to the injury. Dr Buckley’s further report, dated 9 July 2018, assessed WPI at 10%.
Dr Puhl, neurologist, reported on 23 June 2017. Mr Ekblad had been trialled on Lyrica, Amitriptyline, Cymbalta, Cipramil, Mobic and Tramadol and non-steroidal anti-inflammatories which he could either not tolerate or were unhelpful.
Dr Puhl, in a further report on 30 November 2017, stated that Mr Ekblad has a chronic persistent pain syndrome which, in the past, had partially responded to medical intervention. Dr Puhl confirmed that Mr Ekblad’s physical injuries and pain developed following the motor accident in 2014.
Dr Puhl, on 20 December 2017, reported that Mr Ekblad had chronic head and neck and lower back pain. He had a reasonable response to Botox injections three months ago.
Dr Raymond Schwartz, neurologist, reported on 5 May 2017, and advised that Mr Ekblad's anxiety, stress and perhaps post-traumatic stress disorder was significantly undermining his wellbeing and recommended psychological/psychiatric treatment.
The Commission’s certificate by Medical Assessor Ian Cameron, dated 12 November 2021, concluded Mr Ekblad’s physical injury gave rise to a WPI of 0%.
Dr Paul Spira, neurologist, in a report dated 21 February 2019, stated that Mr Ekblad was involved in a moderate motor accident, in which there was no direct impact injury. Dr Spira diagnosed a diffuse pain syndrome, and his physical examination was replete with non-organic features and noted various inconsistencies. Dr Spira considered that Mr Ekblad sustained minor soft tissue injuries in the accident and should have made a complete recovery in a matter of days or weeks.
Dr Robert D Lewin, forensic psychiatrist, reported on 18 February 2019. The report details that Mr Ekblad married in 2009, had a daughter, but separated in 2012. He stated the initial breakdown was acrimonious and the degree of conflict had not diminished. He initiated a legal process in 2013, when he found the mother of his daughter changed the rules of their agreed parenting plan without consulting him. He felt that he was at the mercy of his former wife. Dr Lewin concluded that Mr Ekblad had worry and mild depressive symptoms, but not of panic disorder or post-traumatic stress disorder, although, he may have had some features of those. Dr Lewin made a diagnosis of persistent depressive disorder or a chronic adjustment disorder.
The GP records from the Warringah Medical Centre:
· 1 December 2014, he was involved in a motor accident when he was driving and was squashed by a bus which was turning left, and the driver did not see him in the left lane.
· 15 January 2015, discussed it could be anxiety affecting his vision and he agreed it is possible this is having some effect.
· 18 June 2015 states there was a long discussion and problems with headaches and his neck. There was some depression and frustration with the whiplash injury and some personal troubles, protracted court matters and separation.
· GP mental health plan with a referral to Leanne Carter. He was prescribed Cipramil 20 mg and Valium 5 mg half a tablet twice daily.
· 7 April 2016 states he has pain over the neck after dental work which was extensive. He is not sleeping well. Valium but to be used sparingly. He was prescribed Endep 25 mg tablets.
· 19 June 2018, he met a psychiatrist, an independent assessor, who suggested trying Aurorix. It states this is worth a try as no antidepressant had been previously helpful. He was prescribed moclobemide 150 mg tablets.
· 31 January 2019 states twins were born, one a lot smaller than the other with some concerns about her general health and waiting on DNA test. It states the headaches are worse with the stress of the babies and their birth. Efexor is not helpful, and he is ceasing it. He continues to take Endone 1.5 daily and occasionally Valium.
· 12 March 2019 states that one twin may have Rubinstein-Taybi syndrome which is a genetic condition causing intellectual and physical disability. Headaches are very bad.
· 21 May 2019 he is now facing bigger problems with one twin appearing to have a lot of disability and has not grown well. Very stressful for him and his wife with little family support. He was prescribed Luvox 50 mg one tablet at night.
· 18 June 2019 he is under a lot of pressure with disabled twins.
· 7 November 2019 states his headaches are worse again and he has taken more Endone than he was advised. Also, prescription of sodium valproate 200 mg for one week and then one twice daily.
Dr Jennifer Wines’ report, dated 17 January 2018, stated that Mr Ekblad had a GP mental health plan completed on the day of examination. He was going through a difficult time dealing with the shared care of his daughter. Mr Ekblad and his ex-wife still had a lot of conflict between them, which caused everyone a lot of distress. He felt frustrated with his ex-partner.
Dr Lewis Holford, a pain specialist, reported on 3 May 2016, and noted that Mr Ekblad stated that he had neck pain, headaches and paraspinal thoracic pain and low back pain arising from a background of a motor accident. Dr Holford reported that Mr Ekblad’s pain was multifactorial and that he suspected there was a significant component of occipital neuralgia present, which was responsible for his right upper cervical pain and headache.
A Discharge Summary by Northern Beaches Hospital on 20 October 2019. Mr Ekblad [BG3] presented with a headache and had a history with occipital neuralgia. He had a persistent headache which was becoming worse on the left. He had a Ropivacaine occipital nerve block with good effect.
The Effective Rehab Functional Assessment Report of 25 April 2018 noted that Mr Ekblad was totally off work. He was on PRN Endone and took various antidepressant medications. His psychological symptoms were noted, and his antidepressant medication was reported to be ineffective. He could do light household chores, meal preparation and shopping, and self-care. He could do cleaning or lawn mowing. His BMI was normal.
Comment
In terms of WPI assessment, the Medical Assessor’s and Dr Jeff Bertucen's ratings were quite different. Medical Assessor Friend rated social and recreational activities as 1 and attributed his impairment to pain and noise sensitivity. The Panel noted, even when his pain was better controlled with Botox, he remained anxious and depressed, and avoided social activities. From a psychological perspective, this was consistent with 3.
Medical Assessor Friend rated Social Functioning as 1, wrote he had a good relationship with his wife, elder daughter and non-disabled twin daughter, and difficulties with the disabled daughter due to her loudness which exacerbated his pain. The Panel noted his noise sensitivity was a factor and was not assessable in the PIRS. He also described being irritable, he spoke with a loud voice when angry, and this affected the marital relationship and separation has been discussed. He struggled with childcare activities even with the non-disabled daughter, due to poor stress tolerance and motivation problems. Overall, this was consistent with 2.
Medical Assessor Friend rated Concentration, Persistence, and Pace as 2 and noted pain affects his concentration and memory. The Panel noted even when pain was better controlled, he continued to experience major concentration and memory problems, and could not perform intellectually demanding tasks, including his normal creative work or read books, and rated 3.
In terms of Adaptation, Medical Assessor Friend only considered Mr Ekblad's pain. The Panel noted he described significant anxiety and depressive symptoms, and whilst his physical injuries and pain were a significant barrier, his psychological symptoms also produced significant impairment. The Panel rated 3.
Consistency
The examiners did not identify any inconsistency.
Determinations
Diagnosis and reasons
Mr Ekblad had no prior psychiatric disorder and described being physically active, and enjoying creative and intellectually challenging work, he also enjoyed being hands-on and related well with his peers and people from the same community. He described after a relatively minor accident, he experienced major fear and developed chronic, severe pain, which responds to nerve modulation treatment, but the pain is not adequately controlled.
In the context of the shock from the accident and subsequent chronic pain, Mr Ekblad developed chronic depressive symptoms and had not improved to a significant degree. The Panel noted that even when the pain improved following each Botox injection, his depression and anxiety remained severe, and he had maintained a similar level of psychiatric impairment for several years now and his psychological injury was stabilised. The Panel had diagnosed a chronic major depressive disorder (with a somatic symptom disorder which is not included in rating this impairment).
Causation and reasons
Mr Ekblad developed chronic anxiety and depressive symptoms, with onset several months after the subject accident, and his psychological injury was first detected by his GP. He had experienced further life stressors, including a custody dispute, and having a disabled child with normal pre-natal screening. The Panel noted his psychological injury was well-established and had not changed significantly as a result of those life stressors, and concluded the subject accident is a major cause of his psychological injury.
Degree of permanent impairment Psychiatric Impairment Rating Scale
| Category | Class | Reason for Decision |
| 1. Self Care and Personal Hygiene | 2 | Mr Ekblad does not eat regularly and does not have a good diet and has too much junk food. He does not eat with his family as he has no appetite, and has to force himself to eat, but he eats at irregular times. His wife complains he does not shower regularly. |
| 2. Social and Recreational Activities | 3 | He used to enjoy sporting activities and socializing with his family and friends. He has no social recreational activities now. His friends repeatedly invited him to social gatherings, and he declined partly due to his anxieties. Even when having less headache, he described significant anxieties. |
| 3. Travel | 2 | Mr Ekblad is anxious on the road and avoids busses and certain road situations. |
| 4. Social Functioning | 2 | Mr Ekblad's relationship with his wife had deteriorated as they could not do things they used to do, and they had discussed separation but had not separated. He has been irritable and raised his voice at his family. He does not have contact with any of his friends now. He struggles to care for his healthy daughter, and his wife often takes over with their disabled daughter, due to his anxiety symptoms and noise sensitivity. |
| 5. Concentration, Persistence and Pace | 3 | Mr Ekblad described having poor concentration and cannot focus on creative work or computer work or do handyman tasks. Even when pain is relatively controlled, his concentration remains poor. |
| 6. Adaptation | 3 | Mr Ekblad has not worked after the accident and his physical injuries and pain is a significant part of his work impairment, which is not assessable. He performs some age-appropriate life roles with difficulties. From a psychological perspective, he has moderate impairment, due to reduced stress tolerance and motivation problems. |
| List classes in ascending order: 222333 | ||
| Median Class Value: 3 | ||
| Aggregate Score: 15 | ||
| % Whole Person Impairment: 15 % | ||
*%WPI = Percentage Whole Person Impairment
Psychiatric Impairment Rating Scale - Pre-existing/subsequent impairment
Nil.
Apportionment
Nil.
Effects of Treatment
Nil - Psychological/psychiatric treatment has not been effective.
Final % Permanent Impairment
A Current % permanent impairment 15%
B Pre-existing % permanent impairment 0%
C Adjustment % for effects of treatment 0%
A+B+C = 15% WPI
FINDINGS OF THE PANEL
The Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2022] NSWCA 31.
The Panel adopts the precise examination findings and conclusions of Medical Assessors Hong and Smith, based on the examination of the claimant and specific findings pertaining to diagnosis, causation, and the assessment of the claimant’s WPI.
Based on the chronology of the claimant’s symptoms, it is the Panel’s opinion that the accident had a more than negligible impact on his mental state. The Panel finds that the accident caused psychiatric impairment, specifically, chronic major depressive disorder.
The Panel’s conclusion
The Panel finds that the following injuries caused by the motor accident give rise to a permanent impairment which is greater than 10%:
· major depressive disorder.
He also developed a somatic symptom disorder with predominant pain, which was caused by the accident.
For these reasons the Panel concludes that the medical assessment certificate of Medical Assessor Paul Friend dated 13 April 2022 is revoked and a new certificate should be issued. The new certificate appears at the commencement of these Reasons.
[BG1]Can you remove bracket ? I tried but cant
[BG2]Remove ]
[BG3]CHECK reported?
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