Goode v Allianz Australia Insurance Ltd
[2025] NSWPICMP 483
•3 July 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Goode v Allianz Australia Insurance Ltd [2025] NSWPICMP 483 |
CLAIMANT: | Rebecca Goode |
INSURER: | Allianz Australia Insurance Ltd |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Dr John Baker |
MEDICAL ASSESSOR: | Dr Christoper Canaris |
DATE OF DECISION: | 3 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); dispute as to the degree of permanent impairment; claimant employed as driveway attendant at service station; claimant injured when insured vehicle reversed over her; claimant pregnant at time and feared losing unborn child; claimant’s daughter died two years later from unrelated cause; claimant not working prior to daughter’s death; application of principles in State Government Insurance Commission v Oakley where psychiatric injury caused by subsequent unrelated event; Medical Assessor found 15% whole person impairment (WPI) for post-traumatic stress disorder (PTSD); Review Panel finds 8% WPI for major depressive disorder related to accident and 0% WPI related to subsequent event; Held – MAC revoked. |
DETERMINATIONS MADE: | 1. The Review Panel revokes the certificate of Medical Assessor Abishek Nagesh dated 15 April 2024 and issues a new certificate determining that: (a) the following injury caused by the motor accident gives rise to a permanent impairment of 8% and IS NOT GREATER THAN 10%: · major depressive disorder. |
STATEMENT OF REASONS
INTRODUCTION
On 7 January 2019 at approximately 4.35pm, Rebecca Goode (the claimant) was in the course of her employment as a driveway attendant at the Shell service station on the Princes Highway at Wandandian. The claimant had moved behind the insured 4WD motor vehicle which had stopped at a petrol bowser, in order to check the underground tank levels with a dipstick, when suddenly and without warning, the insured vehicle reversed into her, causing her to suffer both physical and psychological injuries. The driver of the insured utility vehicle did not hear the claimant scream but eventually moved forwards, away from her, when he heard her pounding on the rear of the vehicle.
The claimant was assisted to her feet and walked over to the office counter cash register, where she collected money from other customers who were waiting to pay. She phoned her Manager, who called an ambulance. The claimant also called her partner who immediately came to the petrol station to render assistance. An ambulance arrived but the claimant chose to be driven by her partner to Shoalhaven Hospital where she was assessed. The claimant was shaking and crying and felt pain in the lower back, shoulder and neck. She was concerned about the possibility of injury to her 23-week unborn baby.
Tragically, the claimant’s daughter passed away in February 2021, some two years after the subject accident. It is not alleged that her daughter’s passing was related to the subject accident. The claimant’s level of functioning at the time of her daughter’s passing was such that the claimant was not working prior to her daughter’s death. The claimant was treated under a mental health care plan.
Allianz (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages under the Motor Accident Injuries Act 2017 (the Act). The insurer denied liability for the claim and does not concede that the 10% whole person impairment (WPI) threshold is exceeded for physical and psychological injuries.
ASSESSMENT UNDER REVIEW
As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the claimant was referred to Medical Assessor Abishek Nagesh for assessment of a psychiatric condition, being post-traumatic stress disorder.
Medical Assessor Nagesh certified on 15 April 2024 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 15% and IS GREATER THAN 10%:
- post-traumatic stress disorder
Medical Assessor Nagesh found that the claimant had no previous pre-existing condition and that there is 0% whole person impairment (WPI) for the subsequent condition, being the death of the claimant’s daughter. Medical Assessor Nagesh said, for that reason, no portion of the assessed WPI was deducted. Medical Assessor Nagesh made no adjustment for treatment effects, as the claimant’s symptoms had not improved, with treatment received to the time of assessment.
The assessment made by Medical Assessor Nagesh under the psychiatric impairment rating scale (PIRS) was as follows:
Classes in ascending order: 2, 2, 2, 3, 3, 3
Median Class Value: 2.5 equals 3
Aggregate Score: 15
Pre-existing % Whole Person Impairment: 15%
OTHER ASSESSMENTS
Medical Assessor Douglas Andrews certified on 3 August 2023 as follows:
The claimant has a total WPI of 7% utilising AMA 5 and the NSW Workers Compensation Guidelines for the evaluation of permanent impairment for injuries received after 1 January 2022.
Utilising the PIRS, Medical Assessor Andrews ratings were as follows:
Score: 2, 2, 2, 2, 2, 3
Median Class: 2
Aggregate Score Impairment: 13 equals 7% WPI
Medical Assessor Andrews made the following diagnosis:
· post-traumatic stress disorder, and
· possible somatisation disorder.
Medical Assessor Andrews noted possible inconsistencies in the claimant’s presentation. He said that objective tests have failed to define an anatomical injury consistent with her presentation and that, from a psychiatric perspective, she may have a somatising disorder.
Medical Assessor Adam Rapaport certified on 19 March 2024 as follows:
The following injuries caused by the motor accident gives rise to a permanent impairment of 0% and IS NOT GREATER THAN 10%:
- soft tissue injury to lumbar spine
The following injuries caused by the motor accident have resolved and give rise to no assessable permanent impairment:
- soft tissue injury to cervical spine
- contusion injury to right shoulder
An assessment of the degree of permanent impairment of these injuries is therefore not required.
The following injuries referred to me for assessment have been assessed and determined to be not caused by the motor accident:
- injury to left shoulder
An assessment of the degree of permanent impairment of these injuries is therefore not required.
It is not known if an application for review has been made in relation to those certificates.
The claim was exempted from assessment by the Division Head on 1 March 2024 (upon the recommendation of Member David Ford) as it was found not to be suitable for assessment. That decision does not affect the task of the Panel which is to assess the degree of WPI arising from the claimant’s accident-related psychiatric condition.
THE REVIEW
The insurer sought a review of Medical Assessor Nagesh’s certificate, on the grounds that the medical assessment was incorrect in a material respect, under s 7.26 of the Act. The insurer relied on the particulars set out in the application and supporting documentation.
The insurer brought the application within the time prescribed by s 7.26(10) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The insurer made the following submissions:
PSYCHIATRIC INJURY AND CAUSATION
Error 1
a. The insurer refers to Motor Accident Guidelines cl 6.218 and submits that Medical Assessor Nagesh failed to assess the claimant’s impairment arising from a diagnosable condition, being Persistent Depressive Disorder, arising from a specific event, being the death of the claimant’s daughter, and subtract that value from the current impairment rating.
b. The insurer submits that Medical Assessor Nagesh erroneously assessed impairment arising solely as a result of post-traumatic stress disorder, at the time of the death of the claimant’s daughter, and assessed current impairment arising as a result of both post-traumatic stress disorder and persistent depressive disorder. The insurer further submits that Medical Assessor Nagesh erroneously found there was 0% WPI arising from persistent depressive disorder, which is an error, and has not followed cl 6.218 of the Guidelines.
c. The insurer submits that Medical Assessor Nagesh failed to assess the impairment caused by the specific event of the claimant’s daughter’s passing leading to a diagnosable condition, which must be assessed and subtracted. Medical Assessor Nagesh erred in conflating the two events and assessing impairment for both.
Error 2
d. The insurer submits that Medical Assessor Nagesh erred in his failure to reconcile the history provided by the claimant at the examination with the history provided to her psychologist, as well as the claimant’s IME Dr Bell.
Error 3
e. In relation to Category 1 of the psychiatric impairment rating scale (PIRS), for self-care and personal hygiene, the insurer submits there is no psychiatric impairment at all to do domestic duties, as any limitations are due to alleged physical pain only.
Error 4
f.In relation to Category 2 of the PIRS, for social and recreational activities, the insurer submits that the history recorded by Medical Assessor Nagesh, that the claimant has stopped going fishing, is incorrect and that the assigned Class 3 is an error.
Error 5
g. The insurer submits that Medical Assessor Nagesh failed to consider other stressors and tragedies in the claimant’s life, as documented by Dr Bell. The insurer submits that the Medical Assessor’s failure to consider this at “psychosocial history and pre-accident history” is an error.
Further Material
h. The insurer also relies on social media posts by the claimant at her fishing club and the opinion of Dr George, consultant psychiatrist, which it particularises.
The insurer’s application for review was opposed by the claimant on various grounds. As those submissions were not accepted by the President’s delegate, it is not necessary to state them in detail. Briefly, they can be summarised as follows:
(a) The claimant’s submissions address the findings of Medical Assessor Nagesh, both in relation to his assessment of 15% WPI arising from the subject accident, and in considering whether there should be any deduction of the currently assessable level of impairment on account of the subsequent and intervening psychiatric event, being the unrelated death of the claimant’s daughter.
(b) As to ALLEGED ERROR 1, the claimant submits that cl 6.218 of the Guidelines has no relevant application to this case, as it is limited to ‘pre-existing psychiatric diagnosis or diagnosable condition’. The claimant further submits that s 6.34 of the Guidelines, relating to ‘subsequent injuries’ applies. It is a more generic requirement that if there is objective evidence of a subsequent and unrelated injury or condition in the same region, it’s value should be calculated, as must be the permanent impairment resulting from the relevant motor accident.
(c) The claimant submits that the Medical Assessor appropriately applied s 6.34. The claimant says there has been a new, subsequent and objectively identified condition, from an unrelated event, causing psychiatric trauma. The claimant further submits that the Medical Assessor appropriately determined there was a subsequent psychiatric injury, with a different DSC-5 diagnosis.
(d) The claimant submits the appropriate mechanism to measure the impairment arising from this additional psychiatric injury is to consider the level of impairment before the subsequent event and the current level of impairment which, the claimant says, is what the Medical Assessor did.
Alleged Errors 2 - 5
(e) The claimant submits that the Medical Assessor appropriately applied his clinical judgment to arrive at the relevant Class scores under the PIRS. As to other stressors in the claimant’s life, the claimant submits there is no evidence that any of the other stressors have led to a diagnosable psychiatric impairment.
(f) As to NEW MATERIAL, the claimant submits that the President’s delegate should not read nor have any regard to this material, in determining whether a review is to be granted.
President’s delegate, Melinda Drew, issued a Determination of an Application for Review of a Medical Assessment on 24 July 2024 which stated the satisfaction of the President’s delegate there is reasonable cause to suspect that Medical Assessor Nagesh’s assessment was incorrect in a material respect. The basis of that decision was stated to be, with respect to calculation of an impairment caused by a subsequent injury, the Medical Assessor erred by failing to correctly calculate WPI arising from the separate psychological condition of persistent depressive disorder and subtract that from the WPI calculated for the motor accident caused condition of post-traumatic stress disorder.
Accordingly, the insurer’s review application was accepted. The Panel is to reassess the psychiatric condition that was referred to Medical Assessor Nagesh for assessment.
The Panel inclines to the view that, in assessing WPI arising from the subject accident and the subsequent death of the claimant’s daughter, it should be guided by the Oakley principles, as explained in Slade v Insurance Australia Limited t/as NRMA [2020] NSWSC 1031 per Wright J which, relevantly for present purposes, are to the effect that:
(a) Where the further injury or impairment results from a subsequent incident, which would not have occurred had the claimant not been in the condition caused by the earlier motor accident, the added damage should be treated as caused by the earlier motor accident. In this situation, paragraph 6.34 of the Guidelines is not engaged, because the “injury or condition” is not “unrelated”.
(b) 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 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.
(d) In the latter two situations, paragraph 6.34 is engaged because the “subsequent….. injury or condition” is “unrelated” to the first motor accident, as that expression is to be understood in that paragraph. The Oakley principles provide a structure of analysis which is of assistance when applying the approach referred to in paragraph 6.5 to 6.7 and 6.34 of the Guidelines and s 5D(1)(b) of the Civil Liability Act 2002.
The parties were invited to make further submissions relating to the foregoing principles and proposition. The parties made further submissions as follows:
(a) The claimant agrees that the Oakley principles are of relevance and application to the circumstances of the current case where the claimant had a traumatic motor vehicle accident resulting in psychiatric impairment and then subsequently had to cope with the death of her daughter.
(b) The claimant leaves it for the Review Panel to discuss the issues resolved with the claimant. It is anticipated the claimant will advise that she would have coped far better with her daughter’s death were it not for the strain she was already under as a consequence of impairments arising from the subject motor vehicle accident.
(c) The insurer submits any assessable psychiatric permanent impairment must be as a result of the injury caused by motor vehicle accident (insurer’s emphasis).
(d) The insurer submits in the present case there are multiple contributing causes. Particulars are given.
(e) The insurer submits that, while there were multiple tragedies in the claimant’s past life, the cause of the claimant’s impairment is the tragic passing of her daughter, which was a subsequent event that falls within scenario 3 of the Oakley principles. The tragic death was a subsequent event which was unrelated to the motor vehicle accident and, therefore, the Oakley scenario 1 is not engaged.
(f) The insurer says the tragic death of the claimant’s daughter caused a psychiatric condition pursuant to DSM-5 – TR, likely a Prolonged Grief Disorder, and any impairment arising was not greater because of aggravation of the earlier injury and therefore Oakley scenario 2 is not engaged.
(g) The insurer submits the tragic death of the claimant’s daughter caused a psychiatric condition pursuant to DSM-5 – TR, likely Prolonged Grief Disorder, which would have occurred had the claimant been in normal health, and the impairment arising does not include an element of aggravation of the earlier injury. The subsequent impairment arising from prolonged grief disorder should be regarded as causally independent of the subject accident.
(h) The insurer submits, pursuant to s 5D(1)(b) of the Civil Liability Act 2002 (NSW), it is not appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability) to the permanent impairment arising from the tragic death of the claimant’s daughter and impairment arising from prolonged grief disorder, in circumstances where the evidence supports the subsequent event causing a subsequent impairment, which is non-compensable. (The Panel notes that this submission itself is beyond the scope of the Panel’s invitation).
(i) The insurer finally submits that, as the evidence supports an impairment independent of the subject accident, that subsequent impairment must be calculated and subtracted from any impairment arising from the motor accident.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with s 63 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
See Briggs v IAG Limited t/as NRMA Limited.[4] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] wherein his Honour Justice Wright stated at (35):
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.
[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.
Wright J then described the Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination;
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
BUNDLES OF DOCUMENTS
The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”. The Panel has come to its own conclusions and has taken its own history.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Panel has considered:
Document
Author
Date
Start Page
Review submissions
Andrew Stone SC
05.06.24
2
See previously.
Medical Assessment Certificate
Assessor Abishek Nagesh
15.04.24
8
See previously.
Letter to Dr Ibrahim
Rebecca Goode
21.06.20
22
Orthopaedic Medico-legal report
Dr James Bodel
08.02.21
36
Psychiatric Medico-legal reports (x2)
Dr Chris Rikard-Bell
25.02.22
44
Complete record
Sussex Inlet Medical Practice
25.06.20
59
Complete record
Sussex Inlet Medical Practice
08.12.21
78
Medical Certificate
Dr Ibrahim
04.06.21
110
Medical Certificate
Dr Ibrahim
08.06.21
111
Treating Doctors Report
Associate Professor Matthias Jaeger
10.12.19
112
Treating Doctors Report
Associate Professor M Jaeger
17.02.24
113
Ultrasound (right thigh)
Sanctuary Point Ultrasound
01.04.19
114
MRI (lumbar spine)
Southeast Radiology
20.12.19
115
Ultrasound (right hip)
Southeast Radiology
05.02.20
116
Certificate of Capacity
Dr S Lockhart
16.08.19
117
Certificate of Capacity
Dr Lockhart
15.10.20
120
Certificate of Capacity
Dr S Ibrahim
Various
123 - 198
Medical records
Shoalhaven Pain Management
10.12.21
201
Clinical records
Shoalhaven District Memorial Hospital
07.01.19
213
Medical records
Rod Armour, psychologist
16.12.21
243
CCTV footage (1)
07.01.19
CCTV footage (2)
07.01.19
Dr Bodel says the nerve conduction studies show no neurological abnormality in the lower limbs. Symptoms in the right lower limb therefore are non-verifiable. Dr Bodel opines that further pain management treatment is necessary to optimise the claimant’s outcome. He says that the clinical findings confirm mechanical symptoms in the neck, rotator cuff pathology in both shoulders and mechanical back ache, with referred pain into the right leg. The diagnosis is probable soft tissue injuries to the neck, rotator cuff pathology in both shoulders, disc injury to the lumbosacral junction, with no clinical evidence of nerve root compromised. Dr Bodel says the injuries had been substantially caused by the work-related injury at the claimant’s workplace when she was struck by a car. He says the prognosis generally is very guarded.
Dr Bodel provides WPI assessments for the cervicothoracic spine (5%), lumbosacral spine (5%), and both shoulders (each 10%).Dr Rikard-Bell gives a detailed REVIEW OF DOCUMENTS describing what occurred from the date of the accident up to the date of his examination. Of particular relevance is the following notation:
“On 3 February 2021, prior to her daughter’s death, it was noted there was significant problems with pain, depression and there were some suicidal thoughts. Ms Goode’s daughter died 10 days later on 13 February 2021. Therefore, there were significant emotional and physical problems prior to the death of her daughter.”
Dr Rikard-Bell notes that the claimant has had significant problems with pain in the neck, lower back and shoulders, since the accident. There has been treatment with exercise physiology as well as psychological treatment with rod armour who treated the claimant for post-traumatic stress disorder over 24 sessions. The claimant also was treated by Felicity Slevin, pain psychologist. Dr Rikard-Bell recorded there was no previous history of anxiety, depression or mental health treatment. There was no family history of psychiatric illness and no history of drug or alcohol problems.
Under the heading CURRENT SYMPTOMS, Dr Rikard-Bell records as follows:
“Currently, Ms Goode is struggling with her sleep and there are flashbacks and nightmares about the motor vehicle accident. There is pain down the right leg. Her appetite is normal and her weight has increased. Ms Goode’s mood is depressed with suicidal thoughts at times and there are recurrent panic attacks and fearfulness. Ms Goode avoids going out and is fearful of interacting socially.”
Dr Rikard-Bell then describes the claimant’s current functions.
Under the heading Diagnosis, Dr Rikard-Bell says as follows:
“There is post-traumatic stress disorder. In addition, there has been an exacerbation of depressive symptoms and grief following the death of her daughter, which has compounded the post-traumatic stress disorder…. The psychological injury is causally related to the motor vehicle accident in the course of employment. In addition, there is a complex grief reaction following the death of her daughter.”
Dr Rikard-Bell says the prognosis is guarded due to chronic pain and the death of the claimant’s daughter which has compounded her psychological injury.
In a separate report, Dr Rikard-Bell assessed 15% WPI utilising the PIRS as follows:
Classes in ascending order: 2, 2, 2, 3, 3, 3
Median Class Value: 3
Aggregate Score: 15 equals 15% WPI
Dr Rikard-Bell made no apportionment for pre-existing injuries. He added 1% for treatment effects as psychological counselling has been helpful. His final assessment was 16% WPI.
Dr Rikard-Bell did not give separate assessments for the impairment arising from the motor accident and the impairment arising from the claimant’s grief reaction consequent upon her daughter’s death.The insurer relied upon the following material which the Panel has considered:
Document
Author
Date of Doc
Page No.
WPI submissions
Insurer
05.04.2024
3
Application for Review Submissions
Insurer
13.05.2024
8
See previously.
Sussex Inlet Fishing Club
21.11.2022 10.09.2023
11
PIC Certificate
Medical Assessor Douglas Andrews
03.08.2023
26
See previously.
Medico-legal report to insurer’s lawyers
Dr Robert Breit, orthopaedic surgeon
19.05.2021
46
After recording the history of injury, Dr Breit states as follows:
“There was pain in the neck radiating into the shoulders as well as low back pain radiating into the right buttock and right leg laterally in the knee with associated pins and needles.
I am told that all of her scans were fine.
Between February and September 2019, she had physiotherapy without improvement and the therapist indicated there was nothing more that she could do though this lady claimed to be getting worst.
There was a review by Dr Jaeger, a neurosurgeon, who did not find any significant spinal abnormality and recommended that she be further assessed, commenting that there were no trauma-related changes and that he could not explain her pain and felt that the likely scenario of a traction injury to the lumbosacral flexes need to be considered and she was referred for neurophysiological studies the report of which stated no abnormality. He also suggested a review by an orthopaedic surgeon which has not been undertaken because her new GP did not feel it would be helpful.”
Specifically, in relation to the left shoulder condition, Dr Breit says as follows:
“There is no liability. There is gross inconsistency throughout all of her examination with a singular lack of objective evidence of pathology as noted by Dr Jaegar and a history of complaints of pain and disability which are totally inconsistent with the mechanism of injury and objective findings….. In my opinion, there is no evidence of any musculoskeletal orthopaedic disorder other than some minor bruising which occurred initially. In my opinion, this lady’s problems are overwhelmingly a psychological or psychiatric nature….. In my opinion, there is no musculoskeletal impairment.”
Dr Breit accepts that the claimant feels pain but is of the opinion it is not of physical origin.
Medico-legal report to insurer’s lawyers
Dr Graham George, psychiatrist
23.08.2021
56
Under the heading Presenting Complaints, Dr George records as follows:
“When asked about accident, she said that she was checking the amount of fuel in fuel tanks at the service station where she was working. She said that she had a large dipstick, which she would put down into the tank to measure its volume. She said that a Ute pulled into the bowser and she was behind the Ute. The driver realised he had come to the wrong bowser, so he reversed rapidly. She was behind him. She said that he ran over her and she was beneath the car. She said “He ran straight over the top of me.”. She said “My legs were stuck over the top of me beneath the car.”. She said the driver had to drive forward to release her.”
Dr George records the subsequent history of psychiatric treatment and the tragic loss of the claimant’s infant daughter.
Under the heading SUMMARY AND OPINION, Dr George says as follows:
“Since the accident, she has had chronic pain. She has had typical intrusive symptoms of PTSD. Her diagnosis is one of chronic post-traumatic stress disorder and persistent depressive disorder secondary to pain and the consequences of her accident. She also is undergoing a bereavement disorder currently in relation to the tragic drowning death of her daughter…”
Dr George says the chronic post-traumatic stress disorder is a primary disorder and her persistent depressive disorder is a secondary disorder. Dr George opines the claimant has continuing symptoms of chronic post-traumatic stress disorder due to her work accident and she is now suffering a normal bereavement reaction in relation to the loss of her daughter. He says there did not appear to be any inconsistency in the claimant’s presentation. Dr George says that the claimant’s prognosis is guarded.
IMC file review
Dr Con Kafataris
31.05.2022
67
This report deals with the claimant’s work capacity.
Physiotherapy review
David Young
31.07.2022
72
Further physiotherapy review
Michael Ward
17.01.2023
76
Further Medico-legal report to insurer’s lawyers
Dr George, psychiatrist
25.01.2023
80
Dr George describes the claimant’s progress since last seen. Dr George refers to the tragic passing of the claimant’s daughter and also to the deaths of a number of people with whom the claimant was close. Dr George says the diagnosis at this stage would be one of a persistent depressive disorder in association with residual symptoms of post-traumatic stress disorder. Dr George refers to the comments made by Dr Breit without noting that Dr Breit’s description of the circumstances of the accident is markedly different to the description given in Dr George’s first report. As to the cause of the claimant’s psychiatric condition, Dr George says as follows:
“At this point in time, Ms Goode presents more with a persistent depressive disorder contributed to by the subject accident, the death of her daughter in 2021 and more recent deaths of friends since last seen. She did record many symptoms at all of post-traumatic stress disorder on this occasion….. There has been resolution of the symptoms of PTSD to a large degree but Ms Goode continues with some symptoms related to the accident, specifically, related mostly to pain, limitation of movement and decrease in activity level, but also, contributed to by more recent losses.”
Dr George says that the claimant’s primary psychological injury would be regarded as post-traumatic stress disorder and that she has mainly a secondary psychological injury in relation to the development of her depressive disorder. He goes on to say as follows:
“Essentially, I believe that the significant contributor to her mental state at this point in time relates to the death of her daughter….. This is a large contributor to her persistent depressive disorder currently as much as is pain, limitation of movement and a decrease of activity due to her alleged ongoing physical injury.”
Dr George assesses WPI utilising the PIRS as follows:
Classes in ascending order: 2, 2, 2, 2, 3, 3
The aggregate is 14, the median class is 2, WPI is 7% with 1% added for treatment effect, equals 8% WPI.
Dr George makes no apportionment for other matters as her persistent depressive disorder, which is secondary, has been contributed to by other matters not relevant to post-traumatic stress disorder.
Supplementary report
Dr George, psychiatrist
15.02.2023
95
Dr George was asked to further consider comments made by Dr Breit and also by Dr Kafataris who stated that “The main barrier at this point appears to be abnormal illness behaviour and psychological factors.” Dr George also was asked to consider an apparent prior history of depression as noted in the Shoalhaven Hospital notes dated 3 November 2002. Dr George says there is insufficient detail to use the reference to prior depression currently. In response to the insurer’s query whether his entire assessment of 8% WPI is attributable to a primary psychological injury, Dr George says as follows:
“I have assessed her impairment as 8% WPI on self-reported information provided on the day of assessment. In all but two categories, I have assessed her as having mild impairment in relation to the initial injury of PTSD. I have assessed her having moderate impairment in the area of “concentration, persistence and phase”, for the same in the area of “employability”. It is difficult to make an accurate assessment when there is a mixture of both physical and psychological symptoms, and also competing factors, which could contribute to her symptoms….. At this stage, I am unable to separate out the contributions of different events, which have impacted on her mental state over time…. A psychometric evaluation would be invaluable.”
Report
Ambulance
07.02.2019
101
EXAMINATION REPORT
The report of the Medical Assessors is as follows:
Medical Re-examination of Rebecca Goode
The claimant was re-examined by both Medical Assessors Dr John Baker and
Dr Christopher Canaris. The claimant attended by MS Teams. The assessment was completed by videoconference. The claimant was alone for the re-examination. There was no need for an interpreter for this re-examination.The claimant was born in St. George Hospital, Kogarah NSW. She said her father was a fire fighter and her mother was fully occupied with home duties. The claimant was the third daughter of three sisters.
The claimant said she attended Sussex Inlet Public school from kindergarten to Year 6. She then progressed to Vincentia High School between Year 7 to Year 12. Whilst at school she enjoyed swimming, bushwalking, yoga and fishing.
The claimant said that her mother separated from her father when she was a child. She said that her mother (about 73 years) formed a new relationship with her stepfather (about 69 years). She reported that her stepfather was the person whom she called “father”. She said he was a truck driver. She said her childhood was not subject to trauma, abuse or neglect. At the time of this re-examination, her mother and stepfather lived close to her home.
The claimant was asked about the 2002 note about suffering from depression. She said as the date was many years ago, she had no memory of depression at that time. She said that she had been in her first marriage and her husband would frequently move between different country towns.
The claimant said her biological father died in about 2024. She and her sister went to the funeral. The claimant said spontaneously, “It was weird…I didn’t cry.” She explained that this was possibly because she had little contact with her biological father during her life. She said she had resolved the normal grief associated with her father’s death.
The claimant commenced her career in a Jobseeker role. She said she would work as part of her mutual commitment to receiving Jobseeker payments. She said she also received family support when her children were babies. The claimant first found paid employment working for McDonald’s in Young, NSW during 2007. This franchise was a 24-hour service, and she would work both day and night shifts as required by her employer. She said she was in her first marriage for about 14 years and there were no children to this union. She said that this first union was unsuccessful because the couple had grown apart.
The claimant said that after meeting her second husband (husband) she would go fishing with him in his boat on Sussex Inlet with their friends. She said that she a was a member of the Sussex Inlet Fishing Club and that she was a longtime member. She said she stopped being a member of the committee after the motor accident. The claimant said that after the motor accident she would fish from the shore as she was fearful of falling out of her husband’s small fishing boat. She said that she had never had a boat licence, and she trusted her husband with his boating skills prior to the motor accident. She said she met him in about 2018 before the motor accident. She lived in her sister’s granny flat and he lived outside of the flat in his own accommodation before the motor accident.
The client said that she and her husband had experienced a number of deaths that included:
· Her partner's brother in May 2018 from pneumonia at about aged 49 years. She was not close to him, as the relationship with her second husband was not long prior to his brother’s death.
· Her partner’s father died in 2018 as well and her partner's mother died in April 2019 from pancreatic cancer. She said that she was not close to these people as she had only commenced her relationship with her second husband a short time before these people dying.
· Prior to the motor accident, the claimant was about 23 weeks pregnant with her first child. She said that she was working in her usual role at the service station when the motor accident happened.
· Her first child’s accidental death in 2021 (the child who was unborn at the time of the motor accident)
The claimant said that she had a second child (a daughter) who was 16 months of age at the time of this re-examination. Both children were born naturally. Neither child was diagnosed with any disability.
The claimant’s husband was no longer working in his own business and had found employment working for the local government as a heavy plant operator working on the local government’s drainage of the residential areas. She said he was 49 years of age and was working fulltime. The claimant said her mother was also close to where she lived and would assist.
The claimant said that she was not a smoker of tobacco, she rarely drank alcohol, she was not allergic to medications, and she did not gamble.
Motor accident
The claimant said she was working at the service station. She said she was about 23 weeks pregnant. She said that she was working 32 hours or more at the service station depending on the roster. She reported she was flexible in her hours of work and would work both daylight and night shifts.
The claimant said a Ute had entered the service station to refuel. She thought he had commenced refuelling. She walked behind the Ute to a storage tank port where she would measure the level of fuel left in the underground tank.
The claimant said whilst performing this task, the Ute unexpectantly reversed slowly. She said she started hitting the panels of the Ute to alert the driver to stop. The driver did not stop immediately, and she was forced into a position with her legs over her head whilst being trapped under the Ute. She said that the measuring stick hit the Ute and made a loud noise whilst he continued to reverse over the claimant. The claimant said she thought other customers at the service station were yelling out to warn the driver to stop.
The claimant said since the motor accident she frequently wakes – reliving the Ute hitting the stick and her with her legs over her head trapped thinking, “save the baby.” She said the next thought was, “This is Not OK! The baby might be dead!”
The claimant said that the NSW Ambulance service attended. She said she was told she had not broken any bones, so the NSW Ambulance service did not transfer her to hospital. She was transferred to hospital by her husband. They attended Shellharbour Hospital Emergency room. She said that the medical team organised for her to have an ultrasound of the baby, and she was told that the baby was not injured.
The claimant said she returned to her usual accommodation at that time which was her sister’s granny flat at her sister’s home. She said she had not commenced cohabiting with her husband, before the motor accident.
Treatment and progress
The claimant said she suffered from pain that failed to settle, and she was unable to sleep.
The claimant said that her mood began to become depressed as she was unsure whether she could work. She said that she attended her general practitioner, and she was issued with a medical certificate that she was unfit to work.
The claimant said she waited for two weeks for the employer to lodge the NSW Work Safe report about the motor accident. She said he had not lodged the report. The claimant said with the support of her husband she lodged a NSW SafeWork report on the advice of the officer who answered their enquiry.
The claimant said her general practitioner had diagnosed “soft tissue injuries.” She said she was pregnant and continued to experience pain in her lower back, right leg and right shoulder. She said she was investigated for these injuries. She was referred to a physiotherapist due to her slow recovery from the motor accident.
The claimant said due to her being pregnant she was only provided with paracetamol as pain relief.
The claimant said that her physiotherapist noticed that her right leg was becoming weaker. The claimant said that she had experienced falls due to her weak right leg. She said her right leg remained weak at the time of the re-examination. She was referred to a neurologist who conducted nerve conduction studies. She said she had the studies repeated. She said on each time she was informed that she had mixed results and “nothing” to cause the pain.
The claimant said that she was referred to a pain specialist in Nowra. She said she was breast feeding her first child at the same time as she was attending the pain service. She was not prescribed medications because of her breast feeding her child.
The claimant said that she had moved and was living with her husband at the time of the death of her first daughter. The claimant said that she, her husband and her daughter had gone to visit her sister with whom she had stayed before the motor accident. She said her sister had a swimming pool in the back yard. She said that her daughter who died was about 20 months of age at the time of her death. She said that her daughter could talk and was very active with the toddler running around.
The claimant said that she had trouble remembering the details of how her child was found in the swimming pool. The claimant said her next memory was of her sister pulling her child out of the water. The ambulance was called. She said a helicopter was than called. The child and the claimant were airlifted to a children’s hospital in Sydney. The claimant said she could not remember which children’s hospital she attended.
She said her daughter was admitted to ICU on 11 February 2021 and deceased on 13 February 2021. The claimant said she remember the medical practitioner saying, “Tell me what I told you.” She said that she could remember the above details because of the doctor’s request for her to commit the information to memory.
The claimant said that she did not speak with the NSW Police Officers when they arrived at the hospital. The claimant said that her husband spoke to the police. She said she believed that there was a coroner’s enquiry into the death of her child. The claimant said she did not know what the findings were as she had not read the report.
The claimant said that she had resolved the death of her first child. She said she had grieved the death of her child, prior to this re-examination.
The claimant said her general practitioner had referred her to a clinical psychologist. She said she had continued to attend and be treated by her psychologist. She said she was treated for the trauma of the motor accident and the death of her daughter. She had received eye movement desensitisation and reprocessing, cognitive behavioural therapy, mindfulness and relaxation therapy.
The claimant said that she was trialled on various antidepressant medication. She said she had side-effects from the medication. She said at the time of this re-examination she was breast feeding her 16-month-old daughter and had not been prescribed psychiatric medication. She was not referred to a psychiatrist. She was not referred for inpatient psychiatric treatment.
The claimant said she had received financial support from her NSW Workcover claim.
Current Symptoms
The claimant’s current symptoms at the time of this re-examination were assessed in the paragraphs below:
The claimant had the following symptoms of major depressive disorder as follows:
· depressed mood most of the day, nearly every day, as evidenced by the claimant’s feelings of hopelessness.
· loss of the ability to experience pleasure with loss of interest in most things (anhedonia).
· markedly diminished interest with marked psychomotor slowing of her affect, speech and movements.
· insomnia nearly every night with initial and middle insomnia where she would wake from sleep and not return to sleep.
· diminished ability to concentrate with increased indecisiveness when attempting to make decisions or attempt to progress any complex task.
· fatigue with loss of energy nearly every day.
· increase in weight of many kilograms without attempting to change her weight.
· recurrent intrusive depressive thoughts and themes about her losses since the motor accident.
Pain
The claimant reported that she still experienced pain every day. She said that the severity of her pain had restricted her working.
The claimant explained that she had spoken to her general practitioner about her pain treatment. She said because she was breast feeding, she did not wish to use medication that might have any effect on her baby she was nursing.
The claimant said she could not lift her children after they got too heavy. She said at the time of this re-exanimation she was still capable of lifting her 16-month-old child up on to the change table to maintain the child’s hygiene.
The claimant explained that her pain prevented her from lifting his arms above her head for long periods as is commonly required to run cable and wires for various electrical jobs she was certified to perform.
The claimant said her pain was ongoing and restricted her capacity to walk. During the assessment she stood up to stretch. She was slow moving; she used both arms to stabilise herself before slowly walking away from the camera. She said she had fallen frequently. The claimant said she might be walking and then the next thing she remembers is that she is lying on the floor. She said she was unable to provide any more about this repeated experience and she had attributed the falling to her weak right leg. She said, “I’m perfectly fine and then my leg fails.”
Mental state examination
The claimant presented as an agitated sullen and depressed woman who looked older than her stated age. Her hair was unwashed and uncombed. The claimant was slow in her speech and slow in her response to questions. She would rapidly fatigue and say she did not remember details. She said she often had no memory of details of what happened to her or her first child, except for the main points.
The claimant was able to sit for about 20 minutes and then she stood slowly and slowly walked, before returning to the re-examination. She spoke about pain and did demonstrate excessively slow and cautious movements.
The claimant reported loss of joy and happiness in her life. She said she was not interested in intimacy with her husband as she had been prior to the motor accident.
The claimant said she was not motivated to manage her self-care and personal hygiene. She lacked energy. She said that she was restricted in her walking distance because of her recurrent fails. The claimant said she could slowly assist with some activities, and she was wanting to help with the care of her 16-month-old daughter as much as she possible could achieve.
The claimant said her energy was low. She had a depressed mood most days for most of the day.
The claimant said her relationship with her eldest sister was tense but “OK.” She said that her other sister and the claimant and stopped talking. She said the reasons they did not talk was not related to the motor accident. She said she felt guilt for not being able to provide her daughter with all the play and other activities such as mothers and babies play group. She said she could only assist with in home immediate family events. She said she was not interested in fishing as she was not able to reel in her catch. She said she was not interested in the committee. She said she was less interested in watching her husband catch fish. She said she was scared of falling out of her husband’s boat. She said she had attended after the motor accident but she no longer enjoyed the club and so she stopped attending prior to this re-examination.
The claimant said she was unable to return to work as she had experienced reduced capacity to work at pace in an unrestricted manner as she could have before the motor accident.
The claimant was orientated in time, place and person. Her concentration through this re-examination demonstrated a slow pace of thinking and responding to questions. She would wander off topic. Her concentration, persistence and pace were impaired by intrusive depressive ruminations of her loss of work. The claimant was tearful and able to recompose herself when provided time to settle.
The claimant reported depressive ruminations of intrusive distressing depressive thoughts of being hopeless and loss of her work. She did not report suicidal thoughts or plans.
The claimant did not report any psychotic symptoms or delusional ideas. Her judgement was fair, and she was insightful into her condition.
Consistency
The claimant presented a consistent report of her difficulties at this re-examination. The claimant’s report of depressive symptoms being more prominent than was present at the time of her assessment with Dr George in his report in 2023.
The slowness of movement and speech is clinically observed and consistent with the claimant’s diagnosed psychological injury – major depressive disorder.
The claimant’s resolving of normal grief in relation to the death of her first daughter and friend is clinically consistent with normal grief. The claimant’s explanation about resolution of family members death due to known conditions prior to death is consistent with clinical observations of normal grief. The claimant’s reports of reduced grief in relation to people whom she had known only for a brief period after forming her union with her husband is consistent with routine clinical observation of normal grief.
The claimant’s falling for undefined medical reasons is not consistent with the medical observations by various examiners, but was only a mild contributor to her clinical presentation, as agreed by the Medical Assessors.
Diagnosis
At the time of this re-examination the claimant meets criteria for DSM-5-TR F32.1 Major Depressive Disorder. The claimant had not described symptoms of posttraumatic stress disorder other than her re-living experience of being trapped under the Ute and thinking that her unborn baby might be injured or dead. This report was consistent with Dr George’s report where he documented that the claimant’s posttraumatic stress disorder symptoms were in remission. For these reasons the claimant was diagnosed with DSM-5-TR F43.1 posttraumatic stress disorder in full remission. At the time of this re-examination the clinical presentation of major depressive disorder was clinically well to the fore. This is again consistent with Dr George’s documented finding in his report dated 25 January 2023.
The claimant was not diagnosed with F43.8 prolonged grief disorder as she had resolved the deaths that had occurred since she commenced her relationship including the death of her first child. The claimant said that all the grief regarding the deaths she and her husband had experienced including the suicide of a close friend were resolved before this re-examination.
The claimant was diagnosed with DSM-5-TR F32.1 Major depressive disorder. Using DSM-5-TR criteria the claimant’s DSM-5-TR F32.1 Major depressive disorder was defined by:
Criterion A.
The following symptoms have been present during the same two-week period and represent a change from previous functioning with the claimant experiencing a depressed mood as well as the following:
· depressed mood most of the day, nearly every day, as evidenced by the claimant’s feelings of hopelessness.
· loss of the ability to experience pleasure with loss of interest in most things (anhedonia).
· markedly diminished interest with marked psychomotor slowing of her affect, speech and movements.
· insomnia nearly every night with initial and middle insomnia where she would wake from sleep and not return to sleep.
· diminished ability to concentrate with increased indecisiveness when attempting to make decisions or attempt to progress any complex task.
· fatigue with loss of energy nearly every day.
· increase in weight of many kilograms without attempting to change her weight.
· recurrent intrusive depressive thoughts and themes about her losses since the motor accident.
· Diminished ability to concentrate with increased indecisiveness when attempting to make decisions as observed during the re-examination.
· Fatigue with loss of energy nearly every day.
· Loss of her self-esteem.
Criterion B
The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
This criterion is met by the claimant not been able to return to work, play with her child,
socialise with extended family and had reduced friendships with less interest in her self-care and personal hygiene to the same standard as he had prior to the motor accident. Due to her increased disorganised behaviour caused by her major depressive disorder symptoms.
Criterion C
The episode is not attributable to the physiological effects of a substance or to another medical condition.
This criterion is met as the onset of unremitted symptoms of pain caused her to become depressed in her mood due to the consequences of the injuries she sustained in the motor accident.
Criterion D
The occurrence of the major depressive episode is not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder, or other specified and unspecified schizophrenia spectrum and other psychotic disorders.
This criterion is met as the claimant does not have a history of any of these conditions.
Criterion E
There has never been a manic episode or a hypomanic episode.
This criterion is met as the claimant does not have a history of any of these conditions.
For the above reasons the claimant meets all the criteria required to diagnose DSM-5-TR
F32.1 Major depressive disorder.
The Medical Assessors note that using DSM-5-TR F45.1 criteria for Somatic Symptom Disorder – with predominant pain, the symptom of depressed mood is not included in this diagnosis.
The Medical Assessors note that the presence or absence of Somatic Symptom Disorder – with predominate pain, does not exclude the clinical presence of pain from other causes.
At the time of this assessment the claimant did suffer from pain which significantly affects the claimant’s day to day functioning. Whilst the diagnosis of DSM-5-TR F45.1 criteria for Somatic Symptom Disorder with predominant pain is excluded for the above reasons, the Medical Assessors note guidelines:
a. 6.214 impairment due to physical injury is assessed using different criteria outlined in other parts of these Guidelines, and
b. 6.215 the PIRS must not be used to measure impairment due to somatoform disorders or pain.
The claimant did have physical injuries and persistent pain since the date of the accident. The diagnosis of DSM-5-TR F45.1 criteria for Somatic Symptom Disorder with predominant pain is not made as the severity of the claimant’s report is not excessive or out of keeping with her physical injuries sustained in the motor accident.
The Medical Assessors note current guidelines, that pain from any cause is excluded from assessment under the PIRS categories for assessment of psychological impairment caused by this motor accident.
The Medical Assessors agree that the difference between persistent depressive disorder and major depressive disorder is as follows:
· The diagnosis of major depressive disorder recognises that the claimant did not have a pre-existing psychiatric depressive disorder condition prior to the motor accident.
Causation
The claimant was independent in her lifestyle, capacity to work, capacity to enjoy her main hobby of fishing as well as recreational activities and events with her husband and fishing club friendships before this motor accident.
The claimant was in a significant motor accident. The claimant was hit by a Ute and pushed under the Ute whilst preforming her work at the service station. She was about 23 weeks pregnant. The claimant was in pain at the time of the motor accident and has remained in pain since. Various diagnoses have been offered as to the cause of her pain.
The claimant had unsuccessful treatment that failed to place her physical injury symptoms including pain into full remission. The ongoing presence of pain is evidence from the documents provided as well as the claimant’s self-report at the time of the re-examination.
The claimant had experienced subsequent losses in her life. These included the accidental death of her first child. The claimant stated that she had resolved the grief related to the deaths she and her husband had experienced during their union. Whilst the claimant had suffered from subsequent exacerbation of psychological injury symptoms after the motor accident. At the time of this re-examination the claimant was no longer suffering from grief and had resolved her normal grief in relation to these members of her family and extended family and friend passing.
The nature of the motor accident and subsequent compilations of necessary treatment, in the Medical Assessors’ opinion, could have caused the psychological injury major depressive disorder as defined by DSM-5-TR F32.10.
In the opinion of the Medical Assessors the motor accident did cause the psychological injury major depressive disorder as defined by DSM-5-TR F32.10.
Assessment of whole person impairment
Self-care and personal hygiene
Assessable psychological injury
The claimant reported that she had less energy and less interested in her selfcare and personal hygiene. She said that she was less interested in maintaining her self-care and personal hygiene. She said that she had less energy to assist in the care of her daughter, cleaning and maintenance of her house. She said her appetite had changed and she had increased significantly in weight as her nutrition was poor. The claimant said she could assist in the care of her 16-month-old daughter and maintenance of her daughter’s personal hygiene. She was independent in her self-care though her rate of performing these tasks was reduced.
The Medical Assessors assessed a Class 2, mild impairment for the assessable psychological injury caused by the motor accident.
Pain
The claimant said that she could participate less in cleaning and maintaining the home because of pain. The loss of function due to pain was not included in the assessment of impairment for this table of functioning.
Social and recreational activities Assessable psychological injury
The claimant reported that she had fished from the banks and shore after the motor accident. She said she was now too depressed to be interested in socialising with his past fishing friends. She had stopped fishing with her husband, she said “I used to fish more”. She said she had celebrated a small birthday for her 16-month daughter turning 1 year of age. She reported that she was less interested in playing with her daughter. She said her eldest sister and her closest friends would visit her home. The Medical Assessors assessed a Class 2 mild impairment.
Pain
The claimant reported that she was unable to be pain free sufficiently to participate in any social or recreational activities without pain. The loss of function due to pain restricted her movement which was not included in the assessment of impairment for this table of functioning.
Travel
Assessable psychological injury
The claimant was able to leave her home and travel short distances within her local and familiar areas. She was able to attend her local and medical services for treatment. Medical Assessors assessed a Class 2 mild impairment for the assessable psychological injury caused by the motor accident.
Pain
The claimant said that she could not drive for long distances due to pain. Her loss of function due to pain for driving long distances was not included in the assessment of impairment for this table of functioning. She said, “I don’t do a lot of driving – I’m afraid with my leg and my back playing up, I might cause an accident”. Her husband drove her to her solicitor’s office as the travel time was too long. She said her husband drove for about one hour to get to the venue where she was re-examined. She said she had loved driving before the motor accident but her husband does 98% of it – at the time of this re-examination.
Social functioning
Assessable psychological injury
The claimant said she was less interested in intimacy with her husband. She reported that they had tension in the relationship. She said that the tension was not associated with any domestic violence or periods of separation. She was not expecting to become divorced, separated or estranged from her husband or 16-month daughter.
The Medical Assessors assessed a Class 2, mild impairment for the assessable
psychological injury caused by the motor accident.
Pain
The claimant said that his pain had restricted her physical capacity to be intimate with his wife. He said that his pain had restricted his capacity to remain as physically intimate as he had been prior to the motor accident.
The loss of function due to pain was not included in the assessment of impairment for this table of functioning.
Concentration, persistence and pace
Assessable psychological injury
The claimant was able to participate throughout the re-examination which lasted about 90 minutes. She was able to provide information as to her injury and other factors which were like the reports provided by other assessors. The claimant said he had not participated in any new learning or completed any course since the motor accident.
At the time of the re-examination, the medical assessors noted that her thinking was slow and that she had significant difficulty remaining on topic. She would wander off topic. Her concentration, persistence and pace were impaired by intrusive depressive ruminations which were reported whilst the claimant was tearful.
The Medical Assessors assessed a Class 3 moderate impairment based on observed evidence of impaired concentration in relation to the assessable psychological injury caused by the motor accident.
Pain
The claimant reported to be experiencing pain throughout the re-examination. She was able to sit for the assessment, and she did stand and walk slowly at the 20-minute mark of the re-examination.
The loss of ability to perform complex tasks due to pain was not included in the assessment of impairment for this concentration, persistence and pace.
The Medical Assessors’ observed pain-behaviours of the claimant that were mild.
Adaptation
Assessable psychological injury
The claimant said she was unable to continue to organise herself quickly as she had been prior to the motor accident. She said she was too depressed to attempt any job as she feared she would be too slow.
The claimant had not worked in any capacity since the motor accident.
The claimant was able to provide some care for her 16-month daughter. She was assessed as having a severe impairment in her adaptation because of the motor accident. The claimant was assessed as Class 4, severe impairment for the assessable psychological injury caused by the motor accident.
Pain
The claimant said she was often in too much pain to safely work. The loss of function to work due to pain was not included in the assessment of impairment for this table of functioning.
Pre-existing psychological impairment
The claimant did not have a pre-existing psychological condition prior to this motor accident. The assessment of pre-existing condition is zero (0% WPI)
Subsequent condition
The Medical Assessors note that there is not defined method of assessing subsequent psychological condition, whole person impairment in current guidelines.
The Medical Assessor note that no assessment of Subsequent psychological condition whole person impairment is required as the claimant’s intercurrent exacerbations of psychological injury symptoms from a number of losses including the death of the claimants first daughter and death for a friend as well as other extended family had resolved prior to this re-examination, resulting in an assessment of Nil.
Effects of treatment
The claimant had received evidence-based psychological treatment. The claimant was not treated as a psychiatric inpatient of a psychiatric hospital because of this motor accident. The claimant was not treated with psychiatric medication. The evidence-based psychological treatment the claimant received has provided the claimant with no improvement in her psychiatric symptoms as evidenced by her remaining psychiatrically symptomatic from her psychological injury at the time of this assessment.
For these reasons the Medical Assessor have assessed the claimant’s effects of treatment as zero. 0%WPI.
Psychiatric diagnoses
DSM-5-TR F32.1 Major depressive disorder
Psychiatric treatment description
The claimant was treated by her general practitioner and psychologist. She had evidenced-based psychological treatment. She was not referred to a psychiatrist. She was not referred for inpatient psychiatric treatment.
Category
Class
Reason for Decision
1. Self Care and Personal Hygiene
2
The claimant reported that she had less energy and less interested in her selfcare and personal hygiene. She said that she was less interested in maintaining her self-care and personal hygiene. She said that she had less energy to assist in the care of her daughter, cleaning and maintenance of her house. She said her appetite had changed and she had increased significantly in weight as her nutrition was poor. The claimant said she could assist in the care of her 16-month-old daughter and maintenance of her daughter’s personal hygiene. She was independent in her self-care though her rate of performing these tasks was reduced. The
Medical Assessors assessed a Class 2 mild impairment.
2. Social and Recreational Activities
2
The claimant reported that she had fished from the banks and shore after the motor accident. She said she was now too depressed to be interested in socialising with his past fishing friends. She had stopped fishing with her husband. She said she had celebrated a small birthday for her 16-month daughter turning 1 year of age. She reported that she was less interested in playing with her daughter. She said her eldest sister and her closest friends would visit her home. The Medical Assessors assessed a Class 2 mild impairment.
3. Travel
2
The claimant was able to leave her home and travel short distances within her local and familiar areas. She was able to attend her local and medical services for treatment. The Medical Assessors assessed a Class 2 mild impairment.
4. Social Functioning
2
The claimant said she was less interested in intimacy with her husband. She reported that they had tension in the relationship. She said that the tension was not associated with any domestic violence or periods of separation. She was not expecting to become divorced, separated or estranged from her husband or 16-month daughter.
The Medical Assessors assessed a Class 2, mild impairment for the assessable psychological injury caused by the motor accident.
5. Concentration, Persistence and Pace
3
The claimant was able to participate throughout the re-examination which lasted about 90 minutes. She was able to provide information as to her injury and other factors which were like the reports provided by other assessors. The claimant said he had not participated in any new learning or completed any course since the motor accident.
At the time of the re-examination, the medical assessors noted that her thinking was slow and that she had significant difficulty remaining on topic. She would wander off topic. Her concentration, persistence and pace were impaired by intrusive depressive ruminations which were reported whilst the claimant was tearful.
The Medical Assessors assessed a Class 3 moderate impairment based on observed evidence of impaired concentration in relation to the assessable psychological injury caused by the motor accident.
6. Adaptation
4
The claimant said she was unable to continue to organise herself quickly as she had been prior to the motor accident. She said she was too depressed and sullen to attempt any job as she feared she would be too slow.
The claimant had not worked in any capacity since the motor accident.
The claimant was able to provide some care for her 16-month daughter. She was assessed as having a severe impairment in her adaptation because of the motor accident. The claimant was assessed as Class 4, severe impairment for the assessable psychological injury caused by the motor accident.
List classes in ascending order: maybe 2, 2, 2, 2, 3, 4
Median Class Value: 2
Aggregate Score: maybe 15
% Whole Person Impairment: 8 %
*%WPI = Percentage Whole Person Impairment
Scores, values and impairments
Assessable Whole Person Impairment Scores
The scores or value for the claimant’s current assessable psychological condition caused by the motor accident were:
2, 2, 2, 2, 3, 4 which gives a median of 2 and provides an aggregate score of 15 which translates to 8 % whole person impairment (WPI).
Pre-existing condition
The claimant did not have a pre-existing psychological condition prior to this motor accident. The assessment of pre-existing condition is zero (0% WPI)
Subsequent condition
The Medical Assessors note that there is not defined method of assessing subsequent psychological condition, whole person impairment in current guidelines.
The Medical Assessor note that no assessment of Subsequent psychological condition whole person impairment is required as the claimant’s intercurrent exacerbations of psychological injury symptoms from a number of losses including the death of the claimants first daughter and death for a friend as well as other extended family had resolved prior to this re-examination, resulting in an assessment of Nil.
Final Whole Person Impairment
The assessment of whole person impairment caused by the motor accident was 8% WPI minus 0%WPI for pre-existing psychological condition and Nil for Subsequent condition.
The Final Whole person impairment is the 8% WPI which is not greater than 10% WPI.
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the Act.
The Panel is not required to choose between medical opinions and is required to form its own opinions.[7] The Panel adopts the findings and opinions of the Medical Assessors who concur with one another.
[7] Allianz Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.
The Medical Assessors have explained the basis and rationale of their assessments. They are similar to the findings and opinions of Dr George. The Medical Assessors respectfully disagree with the findings of Medical Assessor Nagesh in relation to his diagnosis, methodology and PIRS ratings. Medical Assessor Nagesh gave a higher rating for Category 4 Social Functioning (3) then did the Medical Assessors (2). Medical Assessor Nagesh gave a lower rating for Category 6 Adaptation (3) then did the Medical Assessors (4). Their reasons are stated.
The medical assessment of permanent impairment is made at the time of examination. In that respect, the assessment made by Medical Assessor Nagesh is outdated, and does not reflect current symptomology, in the Medical Assessors’ opinion. The Medical Assessors do agree with Medical Assessor Nagesh that there is no additional assessable impairment now arising out of the tragic death of the claimant’s daughter.
CONCLUSION
For the above reasons, the Panel concludes the certificate issued by Medical Assessor Abishek Nagesh dated 15 April 2024 should be revoked. The new Certificate appears at the commencement of these reasons.
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