Gill v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Gill v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 348
CLAIMANT:	Jeffrey Wayne Gill
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Surabhi Verma
DATE OF DECISION:	20 May 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC) under section 7.26 of whole person impairment (WPI) assessment of 17%; claimant serving police officer; off duty accident taking children to school; one child knocked unconscious and claimant physically injured; rear end collision; claimant developed psychological symptoms including revisiting pre-accident events during course of police and RFS career; in March 2022 claimant sustained further injury during course of light duties work; issue of causation; Held – accident caused post-traumatic stress disorder (PTSD); incident at work aggravated that PTSD; no evidence of pre-existing symptomatic mental health issues; current impairment 19% caused by motor accident; MAC revoked; cases cited; State Government Insurance Commission v Oakley, Slade v Insurance Australia Limited t/as NRMA, and GIO General Limited v Smith & Ors Insurance Australia Limited t/as NRMA Insurance v Smith & Ors followed re causation of impairment; Jarvis v Allianz Insurance Limited distinguished re causation of injury.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Nagesh dated 16 October 2023. 2. Certifies that the claimant’s degree of permanent impairment resulting from the psychological injury caused by the motor accident is greater than 10%. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Jeffrey Gill was involved in a motor accident on 9 August 2018. He was the driver of the family car with his two children as passengers. Mr Gill had stopped at traffic lights (behind another car) but the car behind Mr Gill’s did not stop, a front to rear-end collision occurred and Mr Gill’s car was pushed into the vehicle in front.
Mr Gill says he sustained physical injuries and developed a psychological or psychiatric injury after the accident (related to his children’s involvement in the accident). Mr Gill made a claim for statutory benefits and then a claim for damages against NRMA, the third-party insurer of the vehicle that rear ended his car and caused his accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and on 26 November 2021, the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
A degree of complexity arises in the assessment of WPI because the claimant was, at the time of the accident, a serving NSW police officer and in March 2022 after returning to duties, the claimant was exposed to a traumatic incident at work.
On 21 August 2023 Medical Assessor Nagesh issued a certificate[1] certifying that the claimant had a posttraumatic stress disorder and a WPI of 17%. A replacement certificate was issued by the Medical Assessor on 16 October 2023 following a determination that his certificate was incomplete. The replacement certificate also certified the claimant had a posttraumatic stress disorder and a WPI of 17%.
[1] In proceedings number M10470849/21.
The insurer was disappointed with that outcome and lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 9 February 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review. On 5 December 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.

LEGISLATIVE FRAMEWORK

General

Mr Gill’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed in accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[2] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[2] The current maximum as of October 2024 is $654,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and a Medical Assessor determines the dispute.[3]
[3] See s 4.12 of the MAI Act.

Dispute Resolution

Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Nagesh, further medical assessments and the review of medical assessments by this Panel[4].
[4] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges for the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.263A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

Permanent impairment assessment

Psychiatric impairment rating scale

Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[5] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[5] Section 7.21. The current version of the Guidelines is Version 9.3.
The Guidelines include a section entitled “Mental and behavioural disorders” and require the assessment to be undertaking in accordance with the psychiatric impairment rating scale (PIRS). The Guidelines also say that the mental and behavioural chapter of the AMA 4 Guides (chapter 13) are to be used as “background or reference only”[6].
[6] Clause 6.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with either the current edition of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD)[7].
[7] Clause 6.213 of the Guidelines.
The PIRS provides in clause 6.219 for six areas of function:
1.219.1    self-care and personal hygiene;
1.219.2    social and recreational activities;
1.219.3    travel;
1.219.4    social functioning (relationships);
1.219.5    concentration persistence and pace, and
1.219.6    adaptation.
The PIRS then provides at 6.220 for five classes with a descriptor for each which are “illustrative rather than literal criteria” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury”.
The impairment may be adjusted for treatment[8] that is treatment such as medication being taken to treat the psychiatric condition.
[8] See clauses 6.222 – 6.223 of the guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage[9].
[9] See clauses 6.225 – 6.228 and table 17.

Pre-existing and subsequent psychiatric impairments

The Guidelines provide, both in the mental and behavioural part of the Guidelines and in the general provisions[10], for the consideration of any psychiatric condition present before the accident in question as follows[11]:
“In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”
[10] Clauses 6.31 and 6.218 of the Guidelines.
[11] Clause 6.218 of the Guidelines.
There is no provision in the mental and behavioural part of the Guidelines for the consideration of subsequent events or impairments. Clause 6.34 in the general provisions of the Guidelines which therefore apply to both physical and psychological injuries provides for subsequent conditions and impairments as follows:
“If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”
There have been several cases relevant to the interpretation of these provisions which have been referred to by the parties and which will be dealt with in detail in these reasons. They are as follows:
(a)    State Government Insurance Commission v Oakley[12] (Oakley);
(b)    Slade v Insurance Australia Ltd t/as NRMA[13] (Slade), and
(c)    GIO General Limited v Smith & Ors Insurance Australia Ltd t/as NRMA Insurance v Smith & Ors[14] (Smith).
[12] (1990) 10 MVR 570.
[13] [2020] NSWSC 1031.
[14] [2011] NSWSC 802.

ASSESSMENT UNDER REVIEW

Medical Assessor Nagesh examined the claimant on 2 May 2023. The Medical Assessor confirms at [2][15] of his reasons that he was asked to assess a posttraumatic stress disorder.
[15] The numbers in square brackets are a reference to the section number in the Medical Assessor’s reasons.
The Medical Assessor notes at [3] and [4] that the parties rely on reports from Dr Bertucen (claimant) and Dr Samuell (insurer).
The Medical Assessor records at [8] the following history:
(a)    the claimant is 50, married with two children;
(b)    before the accident he had worked as a police officer for 19 years;
(c)    the claimant denied any previous mental illness and no problems with activities of daily living, socialising or recreation and travel, and
(d)    the claimant had a previous medical history including weight reduction surgery, a brain aneurysm and varicose veins.
At [9] the Medical Assessor records a high-speed rear end collision with the claimant’s children being in the car and the claimant’s son having lost consciousness. No airbags deployed. The claimant said he had a right knee injury, bruises on his right arm and neck and some cracked teeth. He had a full thickness tear of tissues in his left shoulder, went to the dentist and had physiotherapy.
The claimant is reported at [10] to have been in shock and in pain and had nightmares and flashbacks and was anxious. He says he was referred to a psychologist, Ms Gadea and a psychiatrist, Dr Modem and he was prescribed medication. He returned to work but could not continue as his symptoms fluctuated and were exacerbated.
The claimant reported to Medical Assessor Nagesh an incident at work when he saw on a closed-circuit television screen (CCTV) a person committing suicide and since then had not been able to work at all. Medical Assessor Nagesh said:
“This incident exacerbated his PTSD symptoms however it did not affect his impairment as his level of functional impairment has not changed since the motor vehicle accident.”
The Medical Assessor documents at [12] the claimant’s current symptoms and at [13] his current treatment.
At [16] Medical Assessor Nagesh diagnosed a posttraumatic stress disorder explaining how the claimant meets the criteria in DSM-5-TR. He finds at [19] that this disorder was caused by the accident.
At [21] the Medical Assessor found the impairment stable and assessed the six functional areas at 2, 2, 3, 3, 3 and 3 which gives a median class score of 3, an aggregate of 16 and a WPI of 17%. He made no deduction on the basis the claimant had “no pre-existing or subsequent impairment” and added nothing for the effect of treatment noting “the claimant’s symptoms have not improved with the treatment received so far.”

ISSUES FOR DETERMINATION

Insurer’s submissions[16]

[16] The numbers in square brackets are a reference to the paragraph number in the submissions.

The insurer’s application revolves around “late documents” it had submitted in the original proceedings and the Medical Assessor’s alleged failure to engage with them in his reasons.
The Medical Assessor had not been provided with the “late documents” which included GP notes and a report from the insurer’s expert, Dr Vickery (at that time an authorised health practitioner or AHP). The late documents also included details of the traumatic experience at work where the claimant saw someone take their own life (which had occurred after the original medical assessment application had been lodged). The Medical Assessor was asked to revisit the matter, which he did, recognising the late documents had been provided to him but apparently not amending, updating or altering his decision in any way [3.1].
The insurer submitted therefore that the Medical Assessor has not “properly considered” the late documents or engaged with them and his decision therefore was infected with error.
The insurer also submitted the Medical Assessor failed to consider all relevant issues including the subsequent event at work [3.2] and failed to provide adequate reasoning as to causation of the current impairment [3.3].

Claimant’s submissions

The claimant notes at [2.4] that his primary argument is the materiality of the alleged error (which is a matter relevant to the President’s delegate’s decision and not this Panel). The claimant says that the insurer’s submissions state that by not considering the additional documents, the Medical Assessor would have scored the claimant a class 2 for adaptation and not a class 3 which would not have materially altered the assessment as the claimant would have remained with a WPI greater than 10%.
The claimant says if adaptation was class 2, the claimant’s six functional scores would have been 2, 2, 2, 3, 3, 3 and that the median of those is 2.5 which is uplifted to 3 and which produced an aggregate score of 15 in accordance with the guidelines which would have no impact on the overall outcome.
The claimant also submitted at [3] that the Medical Assessor does not have to refer to all the documents lodged, is not required to adjudicate between competing experts and opinion and that the Medical Assessor is entitled to form his own opinion.

Procedural history

On 12 December 2024 the Panel issued directions to the parties. The Panel sought confirmation from the insurer that the Panel had all of the insurer’s documents relevant to the dispute and sought a bundle of documents from the claimant.
The Panel met on 5 March 2025 and reported to the parties on 10 March 2025. The Panel noted that:
(a) the late documents relied on in the original medical assessment proceedings included details of the claimant’s traumatic experience at work in March 2022 where the claimant saw (on screen) someone take his own life [5];
(b) the claimant has made a workers compensation claim in relation to that incident (EML is the insurer) and has retained a different law firm (Don Cameron and Associates) and both the claimant and the workers compensation insurer have retained experts in that claim (Dr George and Dr Lim respectively) [6];
(c) medico-legal reports have been provided in the motor accident claim by both the claimant (Dr Bertucen) and the CTP insurer (Dr Samuell and Dr Vickery) [7].
The Panel asked the parties whether they agreed that both the motor accident and the work-related accident caused a psychiatric injury which resulted in an impairment.
The Panel referred to cl 6.34 of the Guidelines and the cases of Oakley and Slade. The Panel noted that at the time the claimant’s original application for medical assessment was referred to the Commission, the incident at work had not occurred and the Panel would be assisted by submissions on causation from the parties. The Panel issued directions to that effect and requested updated medical records.

Insurer’s response

The insurer provided additional submissions on 24 March 2025. The insurer says:
(a)    the insurer agrees the claimant sustained a psychiatric injury in the motor accident but that it has not resulted in a current impairment of greater than 10% [2.1];
(b)    the insurer says the claimant sustained a psychiatric injury in the workplace accident resulting in an impairment [2.2];
(c)    the insurer also says the claimant’s “cumulative trauma experienced … over the course of his policing career” has caused or contributed to the psychiatric injury manifesting after the work injury in March 2022 [2.2];
(d)    no further medico-legal reports have been obtained by it [3.1a];
(e)    updated material had been requested [3.1b], and
(f)    the claimant is currently receiving workers compensation weekly payments and treatment paid for by the workers compensation insurer [3.1c].
The insurer has provided lengthy very detailed submissions on causation at [4].
The insurer submits at [4.6] there is objective evidence of a pre-existing psychological condition in that the claimant’s PBS claims history records the claimant was supplied with Amitriptyline (and antidepressant) on four occasions the last been 11 weeks and 3 days before the accident.
The insurer also submits at [4.6] the involvement of the workplace incident in the triggering of previous memories and incidents and says the claimant’s work before the motor accident is also a factor relevant to the pre-existing condition:
(a)    Ms Galea, psychologist referred to the car accident as the “trigger event” and that he has been recalling past traumatic events from his police career. The insurer refers to a document detailing 61 traumatic memories;
(b)    there are traumatic events before the claimant joined the police force noted in Ms Gadea’s records including a road fatality when he was with the Rural Fire Service early on in his career;
(c)    Ms Gadea has suggested on 11 October 2018 that the claimant had “likely undiagnosed posttraumatic stress disorder comorbid from policing work”;
(d)    the NSW Police material refers to a meeting on 28 May 2019 where the claimant indicated he was considering making a workers compensation claim;
(e)    Dr Modem wrote on 19 June 2019 that the claimant had co-morbid anxiety on a background of ongoing psychological stressors which the insurer says are workplace trauma experiences;
(f)    Mr Malik’s initial certificate of capacity for his workers compensation claim made on 4 April 2022 he said that the claimant recalled from 2004 and his first day of work deaths of persons in front of him, some pretty violent including a shooting and a cot death. Dr Malik had also noted the car accident, and that the claimant’s psychologist and psychiatrist had decided to treat his work-related issues “under one topic”;
(g)    Ms Gadea said on 30 May 2022 that as a result of the work-related incident, “he has been flooded with memories of policing jobs”, and
(h)    the claimant said in an email to NSW Police that “the trigger event was 5 March 2022 but my episode that started it all occurred on 1 April 2022, and I went to my GP on 2 April 2022”.

The insurer refers to the report of Dr Lim to EML on 22 June 2022 and the history that after the accident the claimant had recovered, had weaned himself off his medication and had returned to restricted duties and was progressing well until the March 2022 incident.
The insurer refers to Dr Modem’s report dated 23 September 2022 in which she diagnosed a Major Depressive Disorder and posttraumatic stress disorder as a direct consequent of repeated exposure to incidents over the years.
The insurer refers to a report from Dr George dated 22 February 2023 for the claimant in the workers compensation claim who has a history from the claimant that he was “coping to a degree” after the car accident until the March 2022 event which resulted in nightmares and flashbacks to other incidents and other deaths. Dr George diagnosed chronic posttraumatic stress disorder and persistent depressive disorder and that these developed due to March 2022 event. Dr George thought there was no pre-existing condition (that includes the motor accident) that had been aggravated by the March 2022 incident. Dr George assessed 22% WPI from the work incident.
The insurer refers to a 19 June 2023 report from Ms Gadea who recorded the date of the claimant’s injury as 30 April 2004 (the first day at work as a police officer) saying “the motor vehicle accident had opened the comorbid PTSD symptoms from his policing work.” Treatment improved the claimant’s condition, but significant symptoms remained requiring ongoing treatment. She noted at the first session in April 2022 that the claimant was experiencing 20 psychological symptoms. She expressed the view that due to the multiple traumatic events now brought to the forefront by the work incident, the claimant would never be able to return to policing.
The insurer submits:
(a)    that, “there is clear evidence that the Claimant was already vulnerable prior to the Motor Accident”. The insurer says at that “had it not been for the motor accident, the injury that occurred after the March 2022 Work Incident would have occurred anyway” [4.6(a)xv]
(b)    Oakley categories (2) and (3) require the claimant to be in normal health at the time of the motor accident and he was not [4.6(b)];
(c)    the motor accident symptoms had largely abated when the work incident occurred [4.7];
(d)    the workers compensation insurer has not sought to recover any sums paid from the CTP insurer, which the Panel takes as a submission that the workers compensation insurer accepts causation of the claimant’s inability to work [4.8].
The insurer refers at [4.9] to the test of causation in the Guidelines and says the claimant’s current posttraumatic stress disorder would have occurred but for the car accident and at [4.10] relies on the case of Jarvis v Allianz Insurance Limited [2022] NSWCA 232. The insurer says the motor accident is a less than negligible contributing factor.
The insurer relies at [4.14] on Smith and says the work-related injury is an unrelated injury or condition within the meaning of cl 6.34 and that the review panel must undertake two impairment calculations – one of the degree of impairment from the work incident and the other form the car accident and that the Panel cannot make an overall assessment and the “two assessments then sit side by side.”

Claimant’s response

The claimant uploaded additional submissions on 17 April 2025 and said:
(a)    the claimant sustained a psychiatric injury causing impairment in the motor accident [2.2];
(b)    the claimant sustained a work injury causing impairment but that this impairment is attributable to the motor accident [2.3] and that the work injury would not have occurred had the claimant not been injured in the motor accident [2.4];
(c)    the claimant relies on the clinical notes of his GP practice and psychologist that as at 24 February 2022 (nine days before his workplace injury) the claimant was receiving treatment for his posttraumatic stress disorder [2.5] – [2.7];
(d)    the claimant was taking antidepressants before the workplace injury [2.9];
(e)    the claimant had never been cleared to return to full policing duties before the workplace injury [2.10], and
(f)    the motor accident compromised the claimant’s ability to tolerate stressful situations such as the workplace incident. The claimant says that but for the accident he would still be working impairment free [2.11].
The claimant says there are no further or updated medico-legal records in his motor accident claim or in his workers compensation claim. The workers compensation claim is said to be open as the claimant is being paid his treatment and wages, but no workplace injury damages claim has been made. The claimant says he has not been assessed by the Commission and there are no pending proceedings in the Commission related to the work incident.

REVIEW OF THE EVIDENCE

Preliminary observations

The claimant provided an initial bundle of 68 pages on 19 February 2025, additional submissions on 17 April 2025 but no further documents.
The insurer provided a bundle of 1,124 pages of documents on 14 January 2025. On

24 March 2025 the insurer lodged an additional 107 pages including submissions in response to the Panel’s directions and on 14 April 2025 a further 68 pages of updated GP notes.
The Panel notes the claimant identified both physical and psychiatric injuries as a result of the accident. Both parties have provided documents relevant to the physical injuries as well as the claimant’s psychological condition. While all of the documents have been considered, only those documents relevant to the issues in dispute have been considered in detail and are dealt with in this part of these reasons.

Claim form and claim documents

The claimant’s claim form was dated 13 August 2018[17]. He provides a history of the accident which is consistent with the histories recorded elsewhere. He provides a detailed list of his injuries as follows:
[17] Page 41 of the claimant’s bundle.
(a)    swollen and very sore bruised left knee;
(b)    small bruise to my right calf
(c)    large bruise to my upper right arm;
(d)    soreness to abdomen;
(e)    very sore neck and shoulder
(f)    difficulty moving the left shoulder;
(g)    bruise to chin, forehead and crown of head;
(h)    cracked upper crown and lower molar teeth (right);
(i)    soreness in lower back, and
(j)    psychologically I’m having flashbacks and very emotional with frequent crying episodes.
The claimant provided a statement dated 24 April 2020[18]. He provides an account of his pre-accident medical conditions including an asymptomatic brain aneurism [6], heart arrythmia [7], bulging disc in the lower back [8], degenerative upper back pain [9] and gastric sleeve surgery [10].
[18] Page 34 of the claimant’s bundle. The numbers in square brackets are a reference to the paragraph numbers of the statement.
Mr Gill provided a history of the accident, his concern over his son (whose seatbelt had come undone and who was unconscious) and their transport to hospital. His other son appeared uninjured but required comforting.
At the time of his statement (nearly five years ago) the claimant was taking Panadeine Forte for his pain [32], Fluoxetine, antidepressant and Temazepam, sleeping tablet [33]. He details his treatment providers including Ms Gadea, psychologist and Dr Modem, psychiatrist [35].
After listing his injuries [36] which included “severe posttraumatic stress disorder he listed his disabilities [37] which, relevantly to this review include:
(a)    hypervigilance when driving or as a passenger;
(b)    depressed mood;
(c)    panic attacks;
(d)    stress;
(e)    bouts of crying, disrupted sleep;
(f)    nightmares;
(g)    fatigue;
(h)    flashbacks of the accident and rumination on accident;
(i)    decreased confidence and self-esteem.
Mr Gill then sets out the impact of the accident on his life and employment. He refers to being isolated [48] and alienated from his co-workers [49]. He says at [50] he has the added stress and anxiety of financial matters as his wife was stood down during Covid.
He says that before the accident he was planning to start a driving school. He says he was social before the accident but is not anymore and his relationship with his wife has deteriorated.
At [59] he says, “I am unable to properly sleep as I often have nightmares about my accident and other accidents I have witnessed in the course of my work.” He says he checks on his children regularly.
Mr Gill says at [61] he is drinking more than usual and at [62] that he avoids driving and in particular avoids where the accident occurred.

Treating medical records and reports

The insurer has provided a bundle of documents including the claimant’s pharmaceutical prescriptions[19] which show that before the accident:
[19] Page 50 of the insurer’s 24 March 2025 bundle.
(a)
Amitriptyline was prescribed by a Dr Lai of Wetherill Shopping Centre on

4 October 2016;
(b)
Amitriptyline was prescribed by Dr Mock of Wetherill Shopping Centre on

19 December 2016 and 25 May 2017, and
(c)    Amitriptyline was prescribed by Dr Dave of My Family Health Medical Centre on 21 May 2018.
No pre-accident GP records have been provided.
The first allied health recovery request (AHRR) was completed by Mariel Gadea on

11 October 2018 requesting five sessions. The diagnosis was of a posttraumatic stress disorder. In her detailed synopsis of the claimant’s current signs and symptoms she records the accident occurred near the Forrest Lawn Cemetery. She has a consistent history of the claimant’s fear his son had died and a long list of symptoms. She did suggest, “likely undiagnosed PTSD comorbid from policing work.” She notes he has flashbacks and intrusive memories of the accident and other memories from his policing work including a cot death, a shooting (in front of him) and his first autopsy.
Ms Gadea has provided a lengthy report to the case manager at the claimant’s workers compensation insurer (EML) dated 9 June 2023[20]. In it she says:
[20] Page 419 of the insurer’s bundle.
(a)    she first saw the claimant on 17 September 2018 distressed, with memory flashbacks, poor sleep, anxious thinking about his child. She has a consistent history of the accident;
(b)    the claimant’s flashbacks included the radio calls to ambulance and past calls, his son, intrusive memories of the accident and his policing jobs;
(c)    the claimant reported night terrors of the accident, insomnia and poor sleep with checking on his boys;
(d)    panic attacks, anxiety, fatigue and being tired;
(e)    constant ruminating, hypervigilance, restless and alert;
(f)    difficulty concentrating
(g)    she had diagnosed a posttraumatic stress disorder (severe) and major depressive disorder [11] and [12];
(h)    after treatment, his symptoms had reduced although on 28 November 2019 it was still of clinical concern, but he was moving towards remission [13];
(i)    she considered his policing posttraumatic symptoms were still significant warranting further treatment and noted 61 separate intrusive and traumatic events [14];
(j)    she discussed with him, “at length … the effects of returning to work and the potential for future exacerbation …” [15];
(k)    the claimant returned to work and initially reports feeling heightened anxiety, but he wanted to continue work [16];
(l)    the claimant reported that as a result of witnessing the suicide, “he has been flooded with memories of the following policing jobs” and he returned to counselling [23];
(m)     the claimant’s symptoms were assessed using a variety of tests which she then explains as supporting the diagnosis of posttraumatic stress disorder in the severe range;
(n)    she considered his mental health state due to the suicide he witnessed as permanent [66], he could not return to work with the police for fear of exacerbating his problems [67] and he has no capacity for work [68] and [69], and
(o)    he was struggling with self-care and leaving his home, his wife had to prompt him to shower and change and he was drinking excessively. His symptoms were said to be chronic. She supported his medical discharge from the police force.

Dr Ingram

Dr Ingram, psychiatrist has provided treatment to the claimant[21]. At page 439 of the insurer’s bundle is a handwritten note which the insurer says is dated 10 April 2017. It is very difficult to decipher this note but there is reference to the challenge of Cognitive Behavioural Therapy, moving house and weird dreams noted at the bottom of page 439. On page 440 there is a reference to cross over dreams, every night and escitalopram 10 mg was prescribed. In the light of the various reports of Dr Ingram and his statement that there were no previous episodes of mental health and having studied the date on the handwritten notes it would appear this is actually a note from 10 April 2019.
[21] Page 429 of the insurer’s bundle.
Dr Ingram has provided several reports to Dr Al Abdullah the claimant’s GP. In his first report of 22 January 2019, he says:
(a)    the claimant was “extremely tearful and distressed” when describing the accident;
(b)    next day he had significant emotional symptoms, became hypervigilant and started sleeping with his children and after therapy checking in on them;
(c)    he had flashbacks when attending a funeral near the accident scene;
(d)    he had nightmares but did not recall what they were about;
(e)    he developed intrusive memories and flashbacks from the motor accident;
(f)    he has started experiencing intrusive memories from previous experiences of trauma during his time in the police force and before including motor accidents and a cot death;
(g)    he was sleeping poorly, avoiding driving;
(h)    his concentration had improved but “he still feels like he is in a cloud”;
(i)    the claimant had lost a lot of weight since the accident having bariatric surgery in November 2018;
(j)    he reported panic attacks;
(k)    Mr Gill reported taking an antidepressant which he could not remember for a month and a half, but it made him feel worse, so he stopped taking it. He was taking Temazepam, but it was making him feel groggy, and
(l)    the claimant denied any significant mental health symptoms or emotional symptoms associated with work before the accident.
Dr Ingram diagnosed posttraumatic stress disorder following the accident with his main concern being his children. “In addition, he has noted the onset of some other re-experiencing symptoms related to his previous police work which were not present before the accident.” He thought CBT might be helpful, discussed mindfulness, exercise, diet and medication.
On 8 February 2019 the claimant attended again, he had forgotten to take his medication and was complaining of the same symptoms. Dr Ingram recommended a regular routine of exercise and hobbies.
On 26 February 2019 the clamant was more anxious and concerned about returning to work. There were increasing posttraumatic symptoms related to his police work and he gave an example of a report in the media of an assault triggering memories of an assault on him. He recounted an incident when driving there was a police operation and Mr Gill’s anxiety increased resulting in him asking his wife to drive. He was still sleeping with his youngest son and checking on his older son. There is reference to Escitalopram and the importance of routine, diet and exercise.
On 19 March 2019 the claimant reported “he wasn’t feeling too bad” but was feeling anxious a lot and was “visibly anxious and tremulous” during the appointment.
The claimant had lost the script for Escitalopram but was seeing the psychologist. He had done some eye movement desensitization and reprocessing (EMDR) regarding a bullying incident. Mr Gill reported continuing posttraumatic stress disorder symptoms, was still sleeping with his children, but sleeping quite well. He was apprehensive about returning to work and stressed with building a house and possibly moving in April.

Dr Modem

Dr Modem first reported to Dr Al Abdullah on 19 June 2019[22]. The claimant gave him a history of the car accident and was “extremely distressed and teary.” Dr Modem has a history of nightmares, intrusive thoughts, ruminating and recounting other traumatic incidents from his career. The claimant was experiencing hypervigilance, flashbacks and startle response and major anxiety while driving.
[22] Dr Modem’s reports are found at pages 495 – 576 of the insurer’s bundle.
The claimant recounted symptoms of depression but denied any phobic of obsessive-compulsive symptoms. The claimant reported no previous contact with mental health professionals apart from evaluation before he joined the police force.
The claimant reported thoughts of suicide but no plans or intent.
Dr Modem diagnosed posttraumatic stress disorder and moderate depressive episode. He recommended Fluoxetine at 10 mg increased to 20 mgs if the claimant was tolerating it. He recommended CBT and noted the claimant was using EMDR with the help of his psychologist.
Dr Modem also recommended regular aerobic exercise (30 minutes 4 – 5 times a week), practice sleep hygiene and to seek help from NDIS for his son.
On 24 July 2019 the claimant was physically worse having fallen downstairs but mentally he was improved with nightmares continuing but flashbacks and daytime reliving of the incident reduced. The diagnosis remained as posttraumatic stress disorder but there is no mention of a depressive disorder. The fluoxetine was increased to 20 mgs and the previous recommendations repeated.
On 28 August 2019 the claimant reported being bored at home and wanting to go back to work. There was continued improvement. Posttraumatic stress disorder and major depressive disorder were mentioned. He recommended increasing the Fluoxetine to 30 mgs and ongoing psychological support.
On 25 September 2019 Dr Modem records:
“Jeffrey stated that he has been feeling much better since the last review. He reported global improvements in mood, sleep and appetite. He is also finding pleasure and enjoyment in activities. Bar one flashback he reported no other symptoms of PTSD in the past couple of weeks. However, he continues to check on his son at night. He is looking forward to returning to work and believes that he is ready to return sooner than later.”
Dr Modem recommended the Fluoxetine be increased to 40 mgs.
In a report dated 13 November 2019, the claimant had reported some increased stress associated with his claim and after hearing about a car accident on the radio however his mood and appetite were improved. He was looking forward to going to work and recommended continuing with the Fluoxetine and adding Temazepam.
In a report dated 28 July 2021 the claimant was stressed with financial matters, reported being supported at work, his sleep had improved with Melatonin and while he was still checking on his children it was not as often. He had not had a nightmare in two to three weeks and had no other symptoms of posttraumatic stress disorder other than anxiety while driving in the local area.

Medico-legal reports

Claimant’s reports – motor accident

In respect of the claimant’s physical injuries, Mr Gill relies on a report from Dr Gehr, orthopaedic surgeon who assessed impairment at 24% being 15% for the neck and 10% for the left shoulder.
The claimant also relies on a report from Dr Bertucen, psychiatrist dated 14 July 2020. He has a history of the claimant looking in his rear-view mirror and seeing the vehicle approaching at high speed (70 – 80 kms per hour). The claimant had yelled out to his children and after getting out of the car checked on his children. One child was fine but the older one’s seat had apparently dislodged and while he spoke to the claimant, the claimant’s son then lost consciousness before regaining consciousness and vomiting.
Both the claimant and his son were taken to hospital but discharged later the same day.
The claimant confirmed the recovery or improvement of some of his physical injuries but that he has ongoing left shoulder and neck pain.
The claimant denied any pre-existing psychiatric conditions or competing psychosocial stressors. Dr Bertucen notes the claimant was referred to a psychologist within several months of the accident and sees Dr Modem and is prescribed medication.

Dr Bertucen diagnosed a posttraumatic stress disorder and chronic opioid use disorder “substantially caused” by the accident. He assessed the claimant’s WPI at 15% adding 1% for the effect of treatment.

Claimant’s reports - workers compensation

Dr George, psychiatrist provided a report dated 22 February 2023 to Don Cameron & Associates. He has a history of the claimant’s police service commencing in 2003 and a transfer after 14 years in General Duties to the Film and Television Unit and a year after that to Police Transport Command. A week after that, the claimant had the car accident that is the subject of the proceedings. Dr George records:
“His elder son was rendered unconscious for a few minutes and at the time, Mr Gill believed he could have died. However, he recovered relatively quickly. He said that this provided symptoms for him related not only to the accident but also, to previous trauma, to which he had been exposed. He said that he returned to work after 12 months off work and then, worked for further 12 months, before leaving work around April 2022 and he has not returned.”
When asked about the reasons for leaving work the claimant apparently said he was coping “to a degree” after the car accident until he was monitoring television screens and witnessed the suicide of a man who jumped in front of a train. This incident was said to be the source of recurrent nightmares and flashbacks, he suffered from disturbed sleep and started having flashbacks and nightmares about other accidents. He could recall the first death he had witnessed as a police officer and after that “it was like playing a video of recurrent images”
He reported that after this, his mood deteriorated he became more frustrated and found it difficult to relate to his family. He reported a panic attack when he turned 50 and he binge drank and was taken to Campbelltown Hospital and scheduled.
Dr George diagnosed a posttraumatic stress disorder and a persistent depressive disorder all of which he seems to attribute to watching the suicide.
In answer to a question about “pre-existing disease or condition which has been aggravated”, Dr George said it did not apply. He assessed the claimant’s impairment as:
(a)    self-care  class 3
(b)    social and recreational  class 3
(c)    travelling  class 2
(d)    social functioning  class 2
(e)    concentration persistence and pace         class 3
(f)    employability  no capacity (class 5)

Insurer’s reports

The insurer relies on reports from Dr Smith, orthopaedic surgeon dated 5 February 2021. He diagnosed an aggravation of previously symptomatic cervical spine disease, knee osteoarthritis and multiple soft tissue and dental injuries. He considered the injuries were minor and there was no assessable impairment.
The insurer relies on reports from Dr Samuel[23]. The first report is dated 2 December 2019. The claimant had not, at that time, returned to work due to “psychological difficulty” which involved intrusive thoughts, disturbed thoughts but he was getting better and planning to return to work in the new year.
[23] Pages 53,65 and 76 of the insurer’s bundle.
He reported co-sleeping with his children “for comfort”, decreasing bad dreams two to three times a week. His mood was generally good. His concentration was normal, and he had no suicidal thoughts.
Physically the claimant was well but had fallen down some stairs a few months ago. He gave a consistent history of the accident.
Dr Samuel diagnosed a posttraumatic stress disorder which was improving, and he thought the claimant could return to part time duties and full duties early in 2020. Dr Samuel declined to assess WPI.
Dr Samuel saw the claimant again on 11 April 2021. Mr Gill had returned to work and was expecting to return to full time hours within a few months of the interview. He reported continued sleep and social difficulties. The claimant was taking Fluoxetine and said he was drinking more than (one to two whiskeys at night). His wife had been stood down from Qantas due to the pandemic. He reported little contact with friends.
Dr Samuell diagnosed the posttraumatic stress disorder in partial remission and was of the view there was no impairment.
In a further report dated 2 June 2021, Dr Samuell expressed the view that the claimant should be re-assessed for the purposes of WPI in 12 months.
Dr Vickery provided a report to the insurer on 23 September 2022.[24] He has a history of the claimant’s mother having motor neurone disease and his father having dementia. The claimant told him about the event at work and that in April 2022 he saw a young man take his life and it brought back intrusive thoughts.
[24] Page 98 of the insurer’s bundle.
Dr Vickery has a history the accident and the claimant having weekly counselling sessions with Ms Gadea and his return to work on restricted duties from early 2019. He also notes the claimant had seen Dr Modem because of trouble sleeping and “there has been a reduction in flashbacks and reliving the accident.”
Dr Vickery expressed the view there was “no apparent material contribution” by the motor accident to the claimant’s posttraumatic stress disorder and thought any posttraumatic stress disorder from the accident had resolved.

Insurer - Workers compensation

Dr Lim, psychiatrist provided a report to EML dated 22 June 2022 following an examination on 9 June 2022.
The claimant said that on 5 March 2022 during Mardi Gras, he was monitoring video feeds and saw a man jump in front of a train. He began to get intrusive memories and flashbacks about previous traumatic experiences dating back to when he began in 2004. He reported significantly disturbed sleep with vivid dreams and nightmares of these past experiences. His anxiety increased, he became hypervigilant, his alcohol use escalated.
On the day he left work on 1 April 2022, he had a breakdown and has been unable to work since.
Dr Lim recounts some of the claimant’s past traumatic experiences and took a history of the car accident. Dr Lim notes the claimant reported the treatment he had at that time was effective and he returned to restricted duties full time and was progressing well until the incident at work. He as now back on medication and seeing his treatment providers. The claimant denied past psychiatric history.
Dr Lim diagnosed a posttraumatic stress disorder which he attributed to the claimant’s work with the police and says, “there were no other traumatic events that could account for the development of his psychological injury.”

Other assessments

On 1 May 2023, Medical Assessor Wijetunga issued a certificate in relation to the claimant’s physical injuries (cervical spine and left shoulder) certifying he had a WPI of 8% (5% for the neck injury and 3% for a left shoulder injury).
The claimant gave a history of his injured knee improving and he had no current left knee pain. His injured tooth was repaired. The claimant had conceded having a previous lower back injury and said this was not aggravated by the accident and had not interfered with his ability to work. His most concerning symptoms were his neck pain and restriction of movement and pain in his left shoulder.

RE-EXAMINATION FINDINGS – MEDICAL ASSESSORS BAKER AND VERMA

The claimant was present for a re-examination on 29 April 2025 using MS Teams. There was excellent internet connectivity throughout the one-and-a-half-hour appointment.
The claimant was living with his new partner aged 38 years, in her home with her mother aged 74 years and her son from a previous relationship aged 15 years. He had commenced this new relationship about a year before this re-examination. The claimant was assessed alone.
The claimant provided a clear history of the motor accident on 9 August 2018 and the work incident on 5 March 2022.

Psychosocial history and pre-accident history

The claimant said he was the third child of five children (two brothers and two sisters). His father died in 2024 from dementia aged 82 years. He experienced normal grief in relation to his father’s death and this has resolved. His mother is living in supported accommodation and is aged 76 years. He said his mother suffers from motor neurone disease. He communicates with her by text messaging as she struggles to speak.
The claimant was educated to Year 10 in Taree. He commenced employment with a discount department store as a shop assistant. He worked in this role until about 22 years of age. He then found employment with another discount department store in Taree as the store manager. He married his first wife. This relationship dissolved about five years later when he was about 27 years of age. There were no children from this union.
The claimant married his second wife about 17 years ago and she is now about 50 years old. They had two children who are now 12 and 8 years. The claimant said before the motor accident, his eldest child had been diagnosed with Neurofibromatosis type 1 (NF1) a rare genetic condition as well as Level 3 autism spectrum disorder. He said that his son received NDIS funding support before the 9 August 2018 motor accident.
At the time of the re-examination the claimant said he cares for his children 50% of the time. He would have the children for one week and then the children would return to their mother for the next week. The claimant said he left his marriage about 18 months before meeting his current partner (that is about two to three years ago).
The claimant said he and his current partner are planning to marry.
The claimant said that before commencing his training for the NSW Police Force, he had worked in security roles. He said that he first attended Goulburn Police Academy in April 2004. He commenced working as a probationary constable at Manly Police Station in 2005. Whilst there he worked in the NSW Police Film and Television Unit. He had performed roles in television programs such as The Force and RBT. The claimant said his most senior role in the police was as an acting sergeant. He said he last worked on 1 April 2022.
The claimant was asked in detail about his past medical history. He provided the following details:
(a)    in December 2016 he was working as a Police Officer. He said he was apprehending a man who was intoxicated and refused to leave a public bus. Whilst physically assisting the man off the bus, the claimant injured his back. He said he could not remember whether he had lodged a hurt on duty claim. He attended his GP and was referred for physiotherapy. He said he had pain in his lower back and that his sleep was poor. His GP prescribed Amitriptyline four times between 19 December 2016 until 25 May 2017. The claimant thought he did not have time off work for this back injury and his career progressed in his primary substantive role. He said he continued to experience episodic sciatic pain from his lower back injury. He said this pain occasionally radiated down his leg;
(b)    he said he also suffered from a shoulder injury and would experience pain from this condition on occasions;
(c)    he has a brain aneurysm, which is asymptomatic and does not cause him any concern either physically or from a mental health perspective;
(d)    he has been diagnosed with varicose veins and that he had thrombosis from this condition, and
(e)    he had gastric sleeve surgery, prior to the motor accident and he had lost weight however since the motor accident most of the weight had been regained due to his inactivity.
The claimant was asked whether he had he suffered from any psychiatric or psychological injury prior to the 9 August 2018 motor accident, and he said he had not. He denied any depression or anxiety after the back injury at work. He said he had not suffered from any childhood trauma, abuse or neglect.
Mr Gill said he would rarely play poker machines. He had no allergies, and he did not smoke tobacco or other substances. He said after the 2018 motor accident he had increased his consumption of whiskey. He said he would drink at least two shots of whisky each night to try and induce sleep. He said that his consumption increased, and the mother of his children requested he stop drinking. He said he was not referred to alcoholics anonymous and he was never medically treated for his increased alcohol use, but he reduced his alcohol use. He started drinking more after the 2022 incident. He said that his current partner has supported him in stopping drinking completely. In our clinical judgment this cessation of drinking means that the claimant does not meet DSM-5-TR criteria for F10.10 alcohol use disorder.

History of motor accident

The claimant said he was driving down Camden Valley Way in Leppington. He was the driver and both of his children where in the car. The three of them were travelling to take the eldest child to school. Both his children were in child restraints. The claimant said that their car had just passed the old cemetery, and the speed limit was 80kph.
The claimant said he stopped his car and was current in line waiting for the traffic light to change. He said that he had two cars in front. He said he was looking in his rear-view mirror when he saw a car approaching too fast. He said he saw the car crash into the rear of his vehicle, and he felt his car being pushed forward into the car in front. The claimant said he hit his head on the steering wheel or its airbag.
The claimant said that he opened his door. He was “dazed” but was not knocked out. He immediately went to check on his eldest son who had been partially dislodged from his restraint and who appeared to be unconscious. The claimant thought his son may have been dead and at this stage of the re-examination became very distressed, agitated and tearful. The claimant required time to compose himself and was encouraged to use his relaxation techniques to settle his distress. After the break, the claimant said that he still gets very distressed and agitated when remembering this motor accident. He said he attempts to avoid thinking about the motor accident and the thought that his son could have died.
The claimant said that the experience of seeing his son unresponsive was terrifying for him. He said that he next remembered seeing or noticing his son was leaning forward and was dislodged from his usual sitting position. The claimant was unable to get access to his son by the side door because of the damage. He returned to the inside of the car to get access to his son between the front passenger seat and driver’s seat. His son then moved and vomited. The claimant said he was panicking, as he thought his “son was dying or dead!”
The claimant said that he next saw his younger child being held and comforted by a stranger.
The police and ambulance attended the scene of the motor accident. The claimant did not know who had notified emergency services, but it was not him. The ambulance took the claimant’s eldest child in an ambulance alone. The claimant and his second child were taken to the same hospital in a second ambulance. The claimant was distressed by this.
The claimant said his then wife’s parents attended the scene of the motor accident as it was not too far from their home.
Both ambulances arrived at Westmead Children’s Hospital for assessment and treatment. The claimant called the mother of his children who left work and came to the hospital to support her children.
The claimant was transferred to Westmead Public Hospital Emergency for assessment of his injuries sustained in the motor accident. He was diagnosed with the following injuries:
(a)    a full-thickness tear of his left shoulder;
(b)    right knee injury;
(c)    bruises on his right arm and neck, and
(d)    and injuries to his teeth.
The claimant was discharged from the adult hospital to attend his children who were also both discharged. They all travelled home together.

History of symptoms and treatment following motor accident

The claimant said that he experienced pain form his physical injuries. He attended his local medical practitioner and was referred to a physiotherapist. Mr Gill said he was also provided with medication to assist with his pain. He was not referred for surgical treatment. The injuries to his teeth were treated by a dentist.
The claimant said that soon after the accident he suffered from poor sleep, panic attacks and nightmares involving the “death of his son.” He said that he began to worry constantly about the health of his children. He said he commenced sleeping close to his children and checking on his children to ensure that they were breathing before he tried to sleep.
The claimant avoided driving his car as he feared having more car crashes. He said he was easily distressed by thoughts about the accident, and he would avoid thinking about the motor accident as much as possible. He stopped taking his children to the park for play. He said that he would often startle from sleep.
Mr Gill was startled during the re-examination due to a sudden loud noise from outside of his home. He left the assessment to shut the window as his concentration was impaired and he told us he was experiencing intrusive distressing thoughts of the motor accident at the time.
The claimant said that he would sleep for brief periods of about two hours. He would watch over his children sleeping. He was unable to return to work as a NSW Police Officer and remained off work for an extended period of time. He would avoid watching television as he would become distressed should he seen content on television about motor accidents or police events.
The claimant said he was referred by his general practitioner to attend a psychologist. Ms Gadea provided him with trauma focused cognitive behaviour therapy (CGT) and eye movement desensitisation and reprocessing (EMDR) therapy. Mr Gill said his symptoms improved however they failed to resolve.
The claimant said he was referred by his general practitioner to attend a psychiatrist, Dr Modem. He was treated with a selective serotonin reuptake inhibitor (SSRI) Fluoxetine which was changed to Escitalopram, a first line treatment for posttraumatic stress disorder however his symptoms failed to remit. The claimant was also prescribed Olanzapine as an augmentation therapy focused on reducing his distress and improving his sleep. He was also prescribed Zopiclone 7.5mg, changed to Melatonin 2mg to assist with sleep and he would also use Diazepam 5mg when he suffered from severe anxious distress.
Both Ms Gadea and Dr Modem have provided, in our clinical experience, evidence based psychological treatment.
The insurer’s rehabilitation consultant (IPAR) attended a medical case conference with the claimant’s treating general on 23 December 2019. The general practitioner stated that the claimant’s posttraumatic stress disorder symptoms from the motor accident remained “very apparent” and that the claimant’s treating psychiatrist had increased the claimant’s pharmacotherapy in relation to his lack of resolution of psychiatric symptoms.
Mr Gill told us he returned to work on 13 January 2020 on restricted duties. He said he returned to work in a “non-operational role” as part of a graded return to work plan. He was deployed to work in an office located in Central Railway station. He travelled to and from his work by train. He commenced work in this restricted capacity during February 2020 commencing work for five hours one day per week.
The claimant said he was never provided with his appointments on his return to work as a NSW Police Officer and his gun was never returned to him. He had not been given permission to carry a weapon on his graded return to work. He also said that, in accordance with NSW Police Force protocols, he was logged out of his appointment’s locker and not given access to his various appointments such as handcuffs, mace spray, a baton, a police two-way radio and other necessary equipment for him to be fully operational as he was still symptomatic from the disorder caused by the motor accident.

History of symptoms before and after the work incident

Mr Gill said that before the 5 March 2022 incident, he acknowledged he had improved but said he still had symptoms from his posttraumatic stress disorder from the motor accident. The claimant said he had increased his weight as he was unable to manage his diet as well as he had after his partial gastrectomy in 2017. He said after returning to work he had poor sleep with increased insomnia and increased anxious distress. We note he spoke about his increased workplace anxiety with his general practitioner on 6 July 2020. He had increased his alcohol consumption as he was unable to initiate sleep and had difficulty remaining asleep. He said that his relationship with his wife was strained at this time. He repeated that he had not been permitted access to his gun and other equipment as he was unfit to work as a NSW Police Officer on the streets. He said he was working in a much “lesser role” and he was working under supervision. He said he was not permitted to work without the supervision of another more senior and appropriately qualified NSW Police Officer.

The claimant said that he was working four days per week before the 5 March 2022 incident, and he had not returned to full-time hours.
The claimant said on 5 March 2022 he had been offered some extra hours as a “one off”. He said he was asked to work as a NSW Police Officer supervising a team of civilians who were monitoring the Sydney city CCTV system for the Mardi Gras event. He had taken the train and walked a short distance to where the monitoring centre operated. He said that the night’s work was settled until he was asked by one of the civilian workers to assess a man who was on a train platform. The man was seen on the CCTV to be agitated. The claimant notified police (Surry Hills) to attend the railway station.
Before the police arrived, the man the civilian and the claimant were monitoring on the CCTV left the platform and stepped onto the tracks directly into the path of a moving train. The claimant saw on the screen the man been pulled under the train.
The claimant said he did not witness this incident in real time. The civilian who was watching it, had called him over to show the man’s behaviour and the incident was not therefore “live”. Mr Gill said after the incident he finished his shift and went home.
The claimant said he did not see the body of the man afterwards. He said he did not see the NSW Police Officers assisting emergency services to retrieve the deceased’s body. The claimant said he was not requested to write a formal NSW Police report of his observations. He said he was not called to the coronial enquiry into the death of the man. He had no further involvement in the matter and continued to work his restricted duties with difficulty for a few weeks.
The claimant said that he thought about the motor accident immediately after he saw the man die and he thought how his eldest son was also a vulnerable person and how he could have died in the motor accident.
Mr Gill said his posttraumatic stress disorder symptoms worsened after that. He described them as follows:
(a)    increased insomnia with poor sleep due to difficulty going to sleep and remaining asleep;
(b)    increased frequency of nightmares involving police events as well as the motor accident;
(c)    increased consumption of alcohol with repeated presentation to emergency department for acute care whilst intoxicated;
(d)    increased verbal conflict with the mother of his children resulting in divorce;
(e)    increased distressing thoughts and memories about his police work as well as the motor accident;
(f)    inability to continue his rehabilitation;
(g)    inability to avoid thinking about the trauma in his life;
(h)    increased negative cognitions and angry outbursts towards the mother of his children;
(i)    increased intrusive reliving of the motor accident and the suicide the claimant viewed on the CCTV.
Before the March 2022 incident the claimant’s functioning was improving. He still had significant tension in his social functioning. He reported that he was sleeping outside of the bedroom with the mother of his children sleeping in her own room alone. He reported that he was anxious and avoided driving except in his local and familiar area. He was not able to return to his role as a police officer. He required supervision to work in his rehabilitation role before the March 2022 event.
While Mr Gill acknowledged the event of 5 March 2022 he said in his view while it caused some agitation and distress it did not cause new symptoms just a worsening of his existing symptoms which culminated in the breakdown on 1 April 2022.

Current treatment

The claimant reported that he had been treated by his general practitioner, clinical psychologist and psychiatrist. Before the incident on 5 March 2022, he had not been admitted to psychiatric hospital any hospital treatment he had was provided as an outpatient. The claimant had never ceased treatment for his posttraumatic stress disorder prior to the

5 March 2022 incident.
The claimant has been treated with pharmacotherapy and psychological therapy, including relaxation therapy, mindfulness, trauma focused cognitive behavioural therapy and eye movement desensitising and repossessing.
The claimant said he had not been admitted to an inpatient psychiatric unit after the 5 March 2022 incident. The claimant said his family intervened as his relationship with the mother of his children failed. The claimant returned to live closer to his family and stabilise his condition, in the Taree region.
Whilst living closer to the family, Mr Gill met his current partner (he met her online). His current partner is a registered nurse, and she assisted the claimant in becoming alcohol-free since living with him. The claimant said that his current partner allowed him to re-locate to her home. The claimant was assisted with his travel via his family members. He reported that she was supportive and caring with the couple planning marriage.
The claimant’s current medication included Fluoxetine 60mg daily and Olanzapine 5mg for episodic agitation.

Mental state examination at the re-examination

The claimant presented as a dishevelled unshaven, his hair was ungroomed and unwashed. He was overweight. The claimant appeared to startle during the assessment. He stood spontaneously to close a window from where the unexpected noise that had agitated him had originated. He wore a “Red Hot Chillies” T-shirt which appeared to be unwashed and flannel pyjama pants. The claimant was asked why he had not showered. He said he was too low in his energy and had not expected to be standing during the re-examination.
The claimant became very agitated and distressed when talking about his son. He repeated often he felt that his son could have died in the motor accident. In contrast the claimant was not overwhelmed by emotions whilst reporting the CCTV event. He said that he had tried to avoid thinking about the danger to his son in the motor accident but the man committing suicide reinforced his view that the world was inherently unsafe.
The claimant had a dysphoric mood with negative cognitions including outburst of anger and not trusting others. He stated he had become disappointed that the police had not provided him more support and that his career was over.
The claimant was orientated in time place and person. He required time to settle his overwhelming emotions during the course of the re-examination. The claimant said his emotions were distressing and intrusive with the claimant reporting no control over stopping the distressing memories and reliving experiences as he had in relation to his police duties for many years.
The claimant did not report any delusional ideas. He did not report and psychotic symptoms. The claimant did not report any suicidal plans at the time of this re-examination.

Comments on consistency

Mr Gill was co-operative throughout the assessment. He gave fulsome responses to our questions and did not appear to be exaggerating his state.
His presentation was, in our view, consistent with the presentation to other examiners, medical assessors and to his treating practitioners.

CONSIDERATION OF THE ISSUES – THE PANEL

Diagnosis

The Panel notes at the outset that both parties agree that the motor accident caused a psychiatric or psychological injury. The Medical Assessors say that in their clinical experience the mechanics of the motor accident and the involvement of the claimant’s children, one of whom was a vulnerable child could have caused a psychiatric or psychological injury and affirms the parties’ view that a psychiatric or psychological injury was in fact caused by the accident.
Medical Assessors Baker and Verma say that it is their clinical judgment that in accordance with DSM-5-TR the claimant sustained a posttraumatic stress disorder as a result of the motor accident. The Medical Assessors’ findings for each of the criteria for that condition are addressed in the following paragraphs.

Criterion A – the nature of the event

The claimant was involved in a serious motor accident involving a sudden rear-end collision. In addition, the claimant’s son’s seat was dislodged, he appeared unconscious for a time before rousing and vomiting. Mr Gill was aware that his eldest son suffered from a medical condition and was a “vulnerable child” before the motor accident. In the motor accident the claimant’s first response was to check on his eldest son “who he thought was dying” because of the motor accident. The claimant was not aware of his youngest son’s condition until he found his two-year-old been comforted by a stranger. In our clinical practice we have experienced that the addition of injury to a “vulnerable child” is commonly part of the onset of posttraumatic stress disorder.

Criterion B – presence of intrusive symptoms

The claimant reports experiencing frequent intrusive, distressing and unwanted memories of his son’s unresponsive condition at the scene of the motor accident. He experiences frequent day-time unwanted reliving experiences (flashbacks) of his son’s condition at the scene of the motor accident. His fear as to his son possibly dying was further increased by him being isolated from his son in a different ambulance whilst his son was transferred to hospital alone and in another ambulance.

Criterion C - persistent avoidance of associated stimuli

The claimant’s primary method of managing his overwhelming emotions is by making efforts to avoid thinking about the trauma of the motor accident and the images he has of his unresponsive son. One of these efforts was that Mr Gill commenced avoiding and restricting his capacity to drive and travel long distances from his home.

Criterion D – negative alteration in associated cognition and mood

Mr Gill’s negative thoughts or feelings began and worsened after the trauma. He reports overly negative thoughts with a persistent emotional state of anger with decreased interest in his primary relationship with the mother of her children. The claimant stated he was sleeping in a separate bedroom after the motor accident and before the 2022 incident.

Criterion E – marked alteration in associated arousal and reactivity

The claimant reported increased irritability, angry outbursts and marked distress directed towards the mother of his children he has an exaggerated startle response. Mr Gill reports poor sleep due to his psychological or psychiatric symptoms. He had difficulty commencing sleep and remaining asleep. His sleep is easily disrupted due to him startling from sleep.

Criterion F - duration of disturbance

The claimant has suffered from this disturbance for more than one month’s duration, as evidenced by the date of onset of this injury on 9 August 2018.

Criterion G – clinically significant distress in functioning

The claimant’s disorder has caused clinically significant distress in his occupational and social functioning. While he returned to work, before the work incident, he had never returned to his full pre-accident duties because of his psychological symptoms. As a result of his fear for his children, Mr Gill slept in the same room as his children. This increased tension in his relationship with the mother of his children and the eventual demise of that relationship.

Criterion H – relationship to physiological effects of a substance or other condition

The posttraumatic stress disorder is not attributable to the physiological effects of a substance. This claimant did not drink hazardous amounts of alcohol prior to the onset of this psychological injury and while he may have developed an unhealthy relationship with alcohol at times after the accident, at the time of the re-examination he was abstinent.
The claimant sustained physical injuries in the accident. While these continue to affect him, they are not the cause of his nightmares and sleep disturbances or his deterioration in occupational functioning.

Differential diagnoses

The claimant has been diagnosed with conditions other than posttraumatic stress disorder by examiners. While these conditions may have present at times in the seven years since the car accident, none are currently evident.
It is our clinical judgment that the claimant did not suffer from any depressive disorder. We agree that negative and dysphoric moods are part of a posttraumatic stress disorder. We note that Mr Gill was able to reduce and cease alcohol consumption which resulted in the resolution of his symptoms of depressed mood. This is in keeping with the clinical presentations where alcohol intoxication and acute care such as admission to emergency department was appropriate, transient and self-limiting.
For these reasons the claimant does not and has not suffered from persistent depressive disorder or major depressive disorder because of his motor accident injury.

CAUSATION – THE PANEL

Preliminary comments

The Panel notes that the four medico-legal experts have offered opinions on causation of the claimant’s psychological symptoms. Dr Bertucen identified the motor accident as a substantial contributing factor. Dr George, Dr Vickery and Dr Lim were of the view the work injury was responsible.
Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[25] said at [63] that “The assessor is not resolving a dispute between experts but forming his or her expert opinion.” Other cases have held that a Review Panel is not required to choose between competing medical opinions and that the Panel is required to form its own opinion.[26]
[25] [2022] NSWSC 1079.
[26] See for example Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [4]-[41] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21] and [64].
The Panel has not undertaken the exercise of trying to determine what documents each of the experts had been provided with at the time they have provided their opinions. The Panel has been provided with documentation which is relevant and has enabled us to arrive at our own opinion of causation informed by the legislation and the case law.
The Panel notes that the insurer has submitted that the workers compensation insurer is paying the claimant his workers compensation benefits and is not seeking to recover them from the motor accident insurer. What the workers compensation decides is presumably based on the evidence presented to it. It is a different insurer, and the claimant is represented by different firm of solicitors and different legislation is being applied. The workers compensation insurer’s decision to pay the claimant workers compensation benefits is not determinative of the matters the Panel has to resolve.

Was there a pre-existing psychiatric or psychological condition?

The insurer has raised an argument that the claimant had a pre-existing psychological or psychiatric condition. There were two main reasons given. Firstly, the claimant had been prescribed anti-depressants (amitriptyline) before the accident and secondly because of his pre-motor accident experiences as a police officer.
Mr Gill accepted he had been prescribed medication after his back injury in 2017 and said this was because he could not sleep due to the pain. Whilst amitriptyline is a known antidepressant medication, Medical Assessors Baker and Verma say that in their clinical experience it is also commonly prescribed for poor sleep associated with pain.
The claimant agreed he had experienced multiple traumatic events in his career before the motor accident. The Panel has no doubt that many (if not all) of the events the claimant has recounted from his past police work would fit criterion A of the DSM-5-TR diagnostic criteria set out above. However, the Panel notes that criterion F requires there to be a finding that symptoms lasted for more than one month and criterion G requires a finding that there was “clinically significant distress” or impairment in occupational or social functioning. There is no evidence before the Panel that any of the pre-motor accident traumatic events witnessed or experienced by Mr Gill had resulted in psychological treatment, time off work, an alteration of duties or impairment in functioning. As criteria F and G cannot be satisfied on the evidence, the diagnosis of a pre-accident psychological injury is not capable of been made.
The Panel is not therefore satisfied that there is objective evidence of a symptomatic pre-existing disorder, condition or impairment.

Had the posttraumatic stress disorder recovered or remitted by 5 March 2022?

The documentary evidence provided, and the claimant’s own history given to the Medical Assessors is that the severity of Mr Gill’s symptoms had reduced in the period of time between his car accident and the work incident.
The Medical Assessors say that in their clinical judgment, Mr Gill was never symptom free and did not enter full remission of all his posttraumatic stress disorder symptoms at the time of the work incident. The Medical Assessors note that the claimant appears to have been compliant with his rehabilitation program, but it had not been completed prior to the 2022 incident, he was having psychological counselling from Ms Galea in the months before the accident and while Mr Gill has returned to a form of work, he had not returned to work in his primary substantive role (or his pre-accident hours) because of his mental state. The Medical Assessors also note that Mr Gill was experiencing marital stress between the two events.
The insurer says that the motor accident symptoms had “largely abated” at the time of the work incident. The Panel is of the view that the claimant’s symptoms may have reduced, and his condition had improved, but the Panel is not satisfied that that the claimant had fully recovered from his motor accident caused disorder at the time of the work incident or that his symptoms had fully remitted.

What injury was caused by the work-related incident?

Both the claimant and the insurer also agree that the work-related incident caused a psychiatric injury.
The Medical Assessors note that DSM-5-TR provides a tool for the diagnosis and categorisation of psychiatric illnesses. It does not provide a method for apportionment or causation of injury.
Absent the complete recovery or remissions of symptoms for a period of time, the Medical Assessors note that a diagnosis of posttraumatic stress disorder does not accommodate the possibility of two independent and discrete episodes of the same condition as might occur with a physical illness. In simple terms a person cannot suffer a posttraumatic stress disorder and then another posttraumatic stress disorder on top of the first one. A person develops a posttraumatic disorder and that disorder continues or remits. The Medical Assessors note that trauma accumulation (multiple criterion A events) is, in their experience, clinically common in those who have been diagnosed with a posttraumatic stress disorder.
The claimant’s posttraumatic stress disorder caused by the motor accident has continued after the work incident. Mr Gill met the criteria after the motor accident for the disorder until the time of the work incident and continues to meet the criteria after the work incident.
The insurer submitted that the work incident was an event that was unrelated to the motor accident. The Panel agrees. It occurred three and a half years later, and it occurred while the claimant was at work, not in a motor vehicle and involved a different criterion A triggering event. But it is the clinical judgment of the Medical Assessors that Mr Gill’s motor accident and his work incident are both contributing to his current presentation and that the incident on 5 March 2022 caused a worsening of the claimant’s posttraumatic symptoms.
The Medical Assessors are of the view that it is appropriate to categorise the increased symptoms which occurred after the 5 March 2022 incident as an aggravation (further) injury of the original injury caused by the motor accident.

ASSESSMENT OF PERMANENT IMPAIRMENT

Do clauses 6.31 and 6.218 apply?

While the claimant may have started, after the motor accident, re-experiencing traumatic events that occurred before the motor accident, this re-experiencing (including flashbacks and nightmares) was caused by the motor accident.

The Panel has earlier found that there is no evidence of the claimant having been diagnosed with a psychiatric disorder or of him having a diagnosable condition. There is no evidence of any symptomatic pre-existing impairment and therefore cls 6.31 and 6.218 do not apply.

Does clause 6.34 apply?

As was noted above, there is no specific clause in the mental and behavioural part of the Guidelines dealing with subsequent injuries and conditions. In the general part of the Guidelines there is a clause which applies to all assessments of impairment, those relating to physical injuries and those relating to psychiatric injuries. Clause 6.34 says:
“If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”
In the Smith case, the predecessor of this clause[27] was considered in the case of a person who had sustained two motor accidents, six months apart. Justice Hoeben said at [49]:
“I have concluded that the correct interpretation of the second sentence in Guideline 1.36 is that the words ‘unrelated injury or condition’ refer to the event causing the subsequent injury, not the medical description of the subsequent injury.”
[27] Clause 1.36 of the Guidelines which applied to claims made under the Motor Accidents Compensation Act 1999 and which is in identical terms.
The insurer has relied on Smith and says that the work incident was an unrelated event. The Panel agrees. In this case, while the event that caused the aggravation injury was unrelated, Mr Gill’s work injury is related to the disorder caused by the motor accident. The Panel is of the view that there is objective evidence that this unrelated event and the related (aggravation) injury caused by it has also resulted in permanent impairment.
This therefore would suggest that in accordance with cl 6.34, the Panel is required to undertake an assessment of:
(a) the value of the impairment caused by the motor accident, and
(b) the value of the impairment caused by the work incident.

How are the values of impairment to be dealt with?

Had Mr Gill’s original posttraumatic stress disorder been caused by a work incident and aggravated by a motor accident, the calculation of impairment caused by the motor accident would have required the application of cl 6.31. The estimated impairment caused by the work incident would have been assessed and deducted from the current assessed impairment to arrive at an impairment caused by the accident.
However, cl 6.34 does not provide any similar guidance about what to do with the two assessments it requires. It does not say whether the values are to be added or subtracted. How the clause is to be applied was considered in the Slade case which in turn applied principles from the Oakley Case. Justice Wright said at [104] in Slade that:
“The principles in Oakley establish, relevantly for present purposes, in effect that:
(a)Where the further injury or impairment results from a subsequent incident [such as Mr Gill’s work incident], which would not have occurred had the claimant not been in the condition caused by the earlier motor accident, the added damage [impairment] should be treated as caused by the earlier motor accident. In this situation, [now cl 6.34] is not engaged because the “injury or condition” is not “unrelated”.
(b)Where the further injury or impairment results from a subsequent incident [the work incident], which would have occurred even if the claimant had not been in the condition caused by the earlier motor accident, but impairment is sustained or is greater because of aggravation of the earlier injury, the additional impairment resulting from the aggravated injury should be treated as caused by the earlier motor accident.
(c)Where the further injury or impairment results from a subsequent incident, which would have occurred even if the claimant had not been in the condition caused by the earlier motor accident, but the impairment sustained includes no element of aggravation of the earlier injury, the subsequent incident and further impairment should be regarded as causally independent of the earlier motor accident.”
The insurer says the second and third Oakley/Slade categories require the claimant to be in normal health at the time of the accident and he was not. The Panel rejects the insurer’s argument that these two categories do not apply. The Panel notes that the words from Oakley are “had been in normal health” however the words in Slade are different and clarify what needs to be considered which is - a claimant’s likely condition had they not been injured. Oakley was a Western Australian case concerning a 1987 work related injury whereas Slade concerns a New South Wales motor accident under the previous compensation scheme (with the same clause of different Guidelines in dispute). The Panel must therefore consider which of the three categories identified in Slade (based on Oakley) apply.
The Oakley/Slade category three cannot apply to Mr Gill’s circumstances because it cannot be said that “the impairment sustained includes no element of aggravation of the earlier injury”. The claimant’s injury sustained after the work incident is an aggravation injury, which worsened the claimant’s existing and unremitted posttraumatic stress disorder symptoms.
The insurer says that but for the motor accident, the injury that occurred after the work incident would have occurred in any event primarily because of the claimant’s previous work history and his long-term exposure to traumatic events. The insurer relies on the case of Jarvis v Allianz Insurance Limited[28] to support this argument.
[28] [2022] NSWCA 232.
That case involved a racing car driver who had been involved in many accidents over the course of his driving career and who had multiple other stressors in his life. The matter concerned a similar pattern of symptoms to Mr Gill’s – the claimant had been asymptomatic before his motor accident – he first experienced symptoms after the motor accident – the symptoms were referrable in part to the motor accident but had triggered symptoms (nightmares and flashbacks) referable to his other accidents. The Panel in Jarvis had found the claimant’s minor accident was a less than negligible contributing factor to the claimant’s current presentation and not causally related to the development of the claimant’s posttraumatic stress disorder. The Court of Appeal did not interfere with the primary judge’s decision dismissing the application for judicial review of that Panel decision.
The Review Panel in Jarvis were found correct in their handling of Mr Jarvis’s injury and condition but their diagnosis and views on causation do not bind this Panel which is required to consider Mr Gill - his circumstances, his accident and his injury. The Panel notes that the accident in Jarvis was described as minor and did not satisfy criterion A. The accident in Mr Gill’s case was not minor and does satisfy criterion A.
Medical Assessors Baker and Verma say that in their clinical experience, many people in the general community are exposed to many and various typed of trauma from the effects of warfare, interpersonal trauma and first responder trauma and remain resilient, never developing symptoms of psychiatric or psychological disturbance. The claimant has documented to his treatment providers 61 individual traumatic events that he has relived (flashbacks and nightmares) as a result of his disorder. This demonstrates to the Panel that the claimant was, before his motor accident, a resilient individual and had the car accident not occurred, the work-related incident would have likely been yet another traumatic event in the claimant’s career (like the previous 61). The Medical Assessors are also of the view that the particular circumstances of the event (not witnessed live or in real time) would have, on its own, been unlikely to cause any injury, or any significant injury.
On this basis the claimant’s aggravation injury would fall into the first category of Oakley/Slade and all his impairment is taken to have been caused by the motor accident.
If the Panel is wrong as to the claimant’s circumstances falling within the first category of Oakley/Slade, the Panel is of the view that the claimant’s circumstances would fall within the second. If the further (aggravation) injury resulting from the work incident would have occurred had Mr Gill not been injured in the motor accident “but impairment is sustained or is greater”, the additional impairment resulting from the aggravated injury should be treated as caused by the earlier motor accident.
In either category 1 or 2 cases, the first in time accident is taken to have caused the whole of the impairment and there is no issue of apportionment.

PIRS Assessment

Introductory comments

Clause 6.34 requires the Panel to conduct two assessments – an assessment of the claimant’s impairment caused by the motor accident and an assessment of the claimant’s impairment caused by the work incident.
Noting the Oakley/Slade categories that the Panel considers apply (categories 1 or 2), all of the claimant’s current impairment is related to the motor accident and a totally separate assessment would appear to be unnecessary. The Panel has assessed the claimant’s current impairment but has noted the estimate of the motor accident impairment before the work incident on the basis that this is the likely current impairment had the claimant had the unrelated event (the work incident) and developed an unrelated disorder.

Self-care and personal hygiene

It is the clinical judgment of the Medical Assessors having considered the whole of the evidence that Mr Gill has a class 3 moderate impairment which is described in the Guidelines as.
“Cannot live independently without regular support. Needs prompting to shower daily and wear clean clothes. Cannot prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.”
The claimant has not lived independently since the date of the motor accident and now lives with his current partner who provides significant support. He was dishevelled and unkempt looking at the re-examination. Mr Gill says he showers infrequently and only after he has been prompted by his current partner. She tells him that he smells of body odour and that he needs to shower. When he is told to shower, he shaves. Mr Gill said he wore unclean clothes repeatedly and would make few changes of clothing. He relies on his partner to cook his meals, organise his nutrition and control his alcohol.
At the time of the work incident, the claimant was going to work, dressing in uniform and maintaining self-care and his own personal hygiene. However, he required his then wife to help him with his diet and weight which was a minor matter. Had the work incident not occurred, the Medical Assessors are of the opinion that Mr Gill would have had a class 1 impairment as stated in the Guidelines: “No deficit, or minor deficit attributable to normal variation in the general population.

Social and recreational activities

It is the clinical judgment of the Medical Assessors that the claimant should be assessed as a class 3 “moderate” impairment because he does not socialise outside of the home with any person other than his children and his current partner (and her family with whom he lives). The Guidelines give this guidance for a moderate impairment “Rarely goes to social events, and mostly when prompted by family or close friend. Unable to go out without a support person. Not actively involved, remains quiet and withdrawn.”
Mr Gill said that he has stopped taking his children to activities that last longer than about twenty minutes. He does not attend his children’s school events or sporting activities. The claimant says he could take his children to the park which requires a 20 minute walk and he supervises their play.
The claimant said he does not socialise outside of the family home with either his extended family or his current partner. He has no hobbies or recreational activities. He will go out but rarely and only with his partner. He left the relationship with the mother of his children about 18 months before the re-assessment and commenced the relationship with his current partner about 14 months ago. He met his current partner online whilst using an online chat function. His extended family drove him to his partner’s home where he has stayed. He said that the divorce and property settlement had finalised.
At the time of the work incident, the claimant was more involved with his own children. He was living with his wife although the relationship was strained. The claimant was still co-sleeping and very concerned about the ongoing safety of his children. Had the work incident not occurred, the Medical Assessors are of the opinion that Mr Gill would have had a class 2 mild impairment “Able to occasionally go out to social events without needing a support person, but does not become actively involved; for example, in dancing, cheering favourite team.”

Travel

It is the clinical judgment of the Medical Assessors that the claimant has a class 2 mild impairment as he is “able to travel without a support person, but only in a familiar area such as local shops or visiting a neighbour.”
The claimant reported that he can drive and does drive for short distances away from his home to drop the children off at school or their usual activities. He said he can travel to his local shops, and he could travel to access his children. All of these activities are routine, and the routes taken and the process were familiar to him.
At the time of the work incident, the claimant was able to drive and while he still had symptoms of hypervigilance, he was able to get to work and travel with his family. Had the work incident not occurred, the Medical Assessors are of the opinion that Mr Gill would have had a class 1 impairment on the basis of this minor deficit.

Social functioning

It is the clinical judgment of the Medical Assessors that Mr Gill has a class 2 impairment because “existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
The claimant said that his social functioning had improved since he formed a new relationship with his current partner. He said she was supportive and encouraged him to increase his daily functioning. The claimant reported that he would still have verbal angry outbursts towards his former spouse. The claimant had separated from her. The claimant said he had been collected by his extended family members and returned to live closer to his family of origin. He said that the final separation happened about 18 months before the re-examination. The claimant had commenced a new relationship online with his current partner about 14 months ago. While there is tension in the new relationship, the couple were planning to marry. The claimant remained in routine contact with his children sharing custody with his partner on a week on – week off basis and has remained in contact with his extended family.
At the time of the work incident, the claimant was in conflict with his then wife and was having stress with work relationships. He was however engaging with his children and his family. Had the work incident not occurred, the Medical Assessors are of the opinion that Mr Gill would have had a class 2 impairment.

Concentration, persistence and pace

It is the clinical judgment of the Medical Assessors that the claimant has a class 2 mild impairment which the Guidelines describe as:
“Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for up to 30 minutes, for example, then feels fatigued or develops headache.”
The claimant was reliant on his current partner to assist him with managing the documentation and typing of documents. He had made some errors since the onset of this injury whilst participating in his rehabilitation. He was however able to plan and organise himself for his children’s weekly stays and with the exception of the interruption due to a noise outside the window, the claimant was able to concentrate and persist with the one-and-a-half-hour re-examination. He was able to use online chat functions to talk with his current partner whilst they were familiarized with each other. He was able to watch television however he restricted his watching of free to air television as he avoided news about car crashes.
At the time of the work incident, the claimant was able to work and focus on his rehabilitation tasks. He worked less than normal work hours, but his history and the documents indicated a minor impairment of functioning before the March 2022 work incident. The Medical Assessors are of the opinion that Mr Gill would have had a class 1 impairment in his concentration, persistence and pace before the work incident on the basis of “No deficit, or minor deficit attributable to normal variation in the general population. Able to operate at previous educational level; for example, pass a TAFE or university course within normal timeframe.

Adaptation

It is the clinical judgment of the Medical Assessors that Mr Gill has a class 5 impairment. The claimant is at the time of this assessment almost totally impaired for all forms of employment because of his psychiatric symptoms. He is too symptomatic from his psychological injury to return to policing and potential exposure to further traumatic events and incidents. He is also too symptomatic to return to other forms of employment where he could be exposed to further traumatic events or stressors. He continues to suffer from intrusive symptoms of his psychological injury, flashbacks, nightmares and sleeplessness which would seriously affect his ability to undertake any form of work.
At the time of the work incident, the claimant was able to work but in a reduced role and at reduced hours. He had not been issued with his firearm or any of the accoutrements of policing on the beat. Had the work incident not occurred, the Medical Assessors are of the opinion that Mr Gill would have had a class 3 moderate impairment as he could not “work at all in same position as previously. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different; for example, less stressful.”

Scores, values and impairments

The scores or value for the claimant’s current condition are 2, 2, 2, 3, 3, 5 which produces a median of 2.5 (which is rounded up to 3[29]) and an aggregate score of 17 which translates to a 19% WPI in accordance with table 6.17.
[29] In accordance with cl 6.226 of the Guidelines.
The scores or value for the claimant’s motor accident condition are 1, 1, 1, 2, 2, 3 giving a median of 2 and an aggregate of 10 which is a 5% WPI in accordance with table 6.17.
Clause 6.34 requires the assessment of the work incident impairment which is either the difference between the aggregate score (7) or the difference in WPI values (14%).
If the claimant falls within Oakley/Slade category 1 then all of the claimant’s current impairment is caused by the motor accident which is the WPI of 19%.
If the claimant falls within Oakley/Slade category 2, then the claimant’s work-related impairment should be added to the motor accident impairment resulting in the WPI of 19%.

Effects of treatment

Clause 6.222 of the current Guidelines permits a Medical Assessor (and this Panel) to adjust the final WPI for the effects of treatment but only if all of the following requirements are met:
(a)    research evidence demonstrates the treatment prescribed is effective for the diagnosed psychiatric condition;
(b)    the treatment has been appropriate, for example, medication has been taken in the appropriate dose and duration;
(c)    there is clear clinical evidence that the treatment has been effective, that is, the injured person's symptoms or their functioning has improved, and
(d)    it is the clinical judgment of the medical assessor that ceasing treatment will result in a deterioration of symptoms or worsening in function.

If an adjustment is to be made, then cl 6.223 permits the increase in WPI percentages by:
(i)    0% WPI (no or negligible treatment effect)
(ii)    1% WPI (a mild treatment effect)
(iii)   2% WPI (a moderate treatment effect)
(iv)   3% WPI (a full remission).
The Medical Assessors on the Panel are of the view that the medical treatment provided to the claimant was evidence based and appropriate. Before the aggravation of the posttraumatic stress disorder on 5 March 2022 the effects of treatment (counselling, psychiatric overview, medication) were significant. The claimant’s level of functioning had improved, he had returned to work (albeit in a different role), his symptoms had reduced, and his sleep was improving. As his treating psychologist said he was approaching remission, but he had not yet got there. If the Panel had been required to, the Panel would have added an additional 2% to the motor accident-related impairment for the effects of treatment.
It is the clinical judgment of the Medical Assessors that the effects of treatment at the time of this re-examination is negligible and that no adjustment of WPI is now warranted.

CONCLUSION

The Panel has come to the same conclusion as Medical Assessor Nagesh, that is that the claimant has a WPI of greater than 10% but we have arrived at a different percentage. As Medical Assessor Nagesh has included the actual percentage in his certificate it follows that his certificate must be revoked.

[2025] NSWPICMP 348

20 May 2025