Hajipavlou v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Hajipavlou v Allianz Australia Insurance Limited [2025] NSWPICMP 19
CLAIMANT:	Kiveli Hajipavlou
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Nolan
MEDICAL ASSESSOR:	Jones
MEDICAL ASSESSOR:	Canaris
DATE OF DECISION:	9 January 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; psychiatric injuries; review of Medical Assessment Certificate under section 7.23(1); whether persistent depressive disorder constituted a permanent impairment caused by the motor accident; claimant, a passenger in a motor vehicle accident, experienced memory loss and emotional distress following the incident; initial diagnosis of adjustment disorder evolved into persistent depressive disorder (dysthymia); whether impairment was permanent and exceeded 10% whole person impairment (WPI); prior Medical Assessor’s finding of 6% WPI reviewed; Review Panel found claimant had no relevant pre-existing or subsequent psychiatric impairments; claimant’s permanent impairment assessed at 17% WPI; Held – persistent depressive disorder caused by the motor accident constituted a permanent impairment exceeding the statutory threshold.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017 WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% The Review Panel revokes the certificate of Medical Assessor Atsumi Fukui dated 16 February 2023. The Panel issues a new certificate determining that the following injury caused by the motor accident gives rise to permanent impairment greater than 10% (17%): (a) persistent depressive disorder (dysthymia).

STATEMENT OF REASONS

INTRODUCTION

Kiveli Hajipavlou, the claimant, was involved in a motor vehicle accident on

17 February 2019. Her husband was driving, and she was seated in the passenger seat. Another vehicle struck the passenger side where she was sitting, T-boning their car. The airbags deployed and struck her face, resulting in bruises on her face and arms. However, she did not lose consciousness or experience a blackout during the incident.
The claimant was amnesic to the entire event. She experienced both retrograde and anterograde amnesia following the accident. The last thing she remembered was asking her husband to take her to church, and the first memory she had afterward was opening her eyes in the Fairfield Hospital Emergency Department. Her recollection of what happened in the hospital remained patchy.
Since the accident, she had struggled to form new memories and relied on writing everything down in a notebook, including her daily tasks and appointments. She also had difficulty recalling older memories. Before the accident, she had been highly capable, running multiple successful restaurants with excellent organisational skills.
After the accident, she found it difficult to fall asleep at night. Her stress levels were very high, and she experienced low mood and emotional instability. She started seeing a psychologist and was prescribed Cymbalta.
The claimant made an Application for Personal Injury Benefits on 17 March 2019 claiming, as a result of the motor accident, she had suffered memory loss, a black eye, chest pain and bruising. The medical certificate from Dr Roy Ani-Hanna, which supported the application, dated 4 April 2019, provided a diagnosis of traumatic brain injury (TBI).
In the correspondence exchanged between May and December 2020 with Allianz Australia Insurance Limited (the insurer), the relevant insurer with liability to pay any damages to the claimant under the Motor Accident Injuries Act 2017 (NSW) (the MAI Act), the claimant’s representatives presented medical evidence, including Dr Thomas Oldtree-Clark’s report, arguing that the claimant’s impairments exceeded the 10% Whole Person Impairment (WPI) threshold. The insurer responded by requesting additional information, ultimately denying the claim in December 2020, citing insufficient stability of the claimant’s injuries for permanent impairment assessment.
In an internal review application submitted in December 2020, the claimant contested the insurer’s decision, citing evidence such as Dr Oldtree-Clark’s 20% WPI assessment. However, the insurer upheld its original decision in January 2021, maintaining that the injuries did not meet the threshold for non-economic loss damages, giving rise to a medical dispute.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether:
(a) the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
The dispute as to permanent impairment was referred to Medical Assessor Atsumi Fukui (Medical Assessor) who assessed the claimant and issued a certificate dated 16 February 2023 (the MAC).

MEDICAL ASSESSMENT THE SUBJECT OF REVIEW

In the MAC, the Medical Assessor diagnosed the claimant as suffering from persistent depressive disorder with mixed anxiety and depressed mood, which was attributed to the psychological trauma resulting from the subject accident. Based on the findings, the claimant’s WPI was assessed at 6%, applying the Psychiatric Impairment Rating Scale (PIRS).
The Medical Assessor evaluated six aspects of functioning as required under the PIRS guidelines. The aspect of social and recreational activities was rated as class 3, reflecting moderate impairment. The claimant was found to have substantially withdrawn from social interaction and leisure pursuits, which the Medical Assessor attributed to her psychological condition following the accident. Travel was rated as class 2, indicating mild impairment. The claimant was noted to experience significant anxiety during car journeys, contrasting sharply with her pre-accident independence in this regard. The aspect of concentration, persistence, and pace was similarly rated as class 2, acknowledging mild difficulties with cognitive tasks such as memory retention and task completion, which interfered on occasion with her daily activities.
The assessment of self-care and personal hygiene resulted in a class 1 rating, denoting minimal or negligible impairment, with no substantial changes observed in the claimant’s ability to manage these activities independently. The Medical Assessor considered the claimant’s ability to adapt to life changes following the accident and found moderate challenges in this aspect, which also influenced the final assessment. Collectively, the evaluations of these aspects resulted in a median class of 2, yielding an aggregate PIRS score of 12 and a corresponding WPI rating of 6%.
In reviewing the claimant’s treatment history, the Medical Assessor noted limited engagement with psychiatric care. While such limited participation might ordinarily suggest less severe impairment, the Medical Assessor emphasised that the claimant’s symptoms were consistent with the chronic nature of her psychological condition and had persisted despite the absence of intensive therapeutic intervention. The Medical Assessor found no evidence of significant pre-existing psychiatric conditions that might have contributed to or exacerbated the claimant’s current state. Additionally, there were no intervening injuries or events that could have influenced the findings, allowing the assessment to focus solely on the impact of the accident.

APPLICATION FOR REVIEW

The claimant lodged an application for review of the MAC arguing that the MAC contained significant material errors, particularly in the rating of adaptability under the Psychiatric Impairment Rating Scale (PIRS). The claimant submitted that the Assessor failed to adequately consider her pre-injury roles and responsibilities when assessing adaptability. Relying upon cl 6.221 of the Motor Accident Permanent Impairment Guidelines (the Guidelines), the claimant contended that when adaptation cannot be measured by reference to work or similar activities, consideration should be given to other personal or family responsibilities. It was argued that the psychological condition and its effects on these roles were improperly assessed, necessitating a review.
In response, the insurer contended that the claimant’s dissatisfaction with the outcome did not amount to grounds for a review under s 7.26 of the Act. The insurer emphasised that a review could only be initiated if a material error was demonstrated, one that involved a misunderstanding or misapplication of the facts or Guidelines. It argued that the claimant’s submissions did not meet this threshold.
The President’s Delegate was satisfied that there was reasonable cause to suspect the medical assessment contained a material error, particularly in the treatment of the adaptability criteria. Consequently, the application for review was accepted, and the matter was referred to the Review Panel presently constituted (the Panel).

REVIEW

Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (NSW) (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. Accordingly, the President’s Delegate referred the matter to this Review Panel, presently constituted (the Panel), to assess.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of 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.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel understands that the following injury has been referred to it to review:
(a) post-traumatic stress disorder, depression, anxiety
The Panel issued a direction dated 12 March 2024, with which the parties complied, that the parties provide a joint bundle of all the material upon which they relied for consideration by the Panel on review.
The following is a summary of the relevant material contained in that joint bundle.

EVIDENCE

In an admission report to Fairfield Hospital dated 17 February 2019, the claimant, then a 66 year old woman, presented to the hospital following the subject motor vehicle accident. She reported that she had self-extracted from the car after the airbags deployed and did not lose consciousness. She experienced approximately one hour of amnesia, both retrograde and anterograde. The last thing she remembered was heading to church, and the first memory following the accident was waking up in the hospital.
Physical examination revealed a bruise on the right infraorbital area and some tenderness on the left side of her neck, but there were no bruises or significant cervical spine tenderness. There was no visible seat belt bruising on the anterior chest wall. Other areas, including the chest, shoulders, abdomen, hips, and gait, were normal.
The medical team conducted a primary survey and found no abnormalities. Diagnostic imaging, including CT scans of the brain, facial bones, and cervical spine, as well as a chest X-ray, revealed no abnormalities. Routine blood tests, including liver function tests and markers for inflammation, showed no significant issues.
The impression was a likely mild TBI with significant amnesia. The claimant was reassured and provided with head injury advice, including guidance on recognising red flag symptoms. A follow-up with her general practitioner was recommended within two days, with the possibility of further investigations, such as a thyroid ultrasound, if deemed clinically necessary.
A CT of the cervical spine taken on 17 February 2019 demonstrated no evidence of acute fractures or bone abnormalities, and the alignment of the cervical spine was normal. There was no abnormal prevertebral soft tissue swelling. However, degenerative changes were identified at the atlantoaxial joint and at the C 5-6 disc level. These degenerative changes included bilateral foraminal narrowing at C5-6, caused by uncovertebral osteophytes. Despite this narrowing, the cervical canal remained capacious, indicating no significant compression of the spinal cord. The imaging also revealed an abnormality involving the left thyroid lobe, which appeared enlarged and was likely associated with a multinodular goitre. The report recommended a thyroid ultrasound for further evaluation of this finding, as no prior imaging had assessed the thyroid. There were no signs of apical pneumothorax, and the imaging did not show any acute traumatic changes. The report concluded that while there were degenerative changes and thyroid abnormalities, there were no acute findings related to trauma. Further investigation of the thyroid abnormality was advised to rule out any underlying pathology.
The Brain & Spine Cervical CT scan dated 17 February 2019 detailed imaging, performed without contrast, included axial and reformatted scans of the head and cervical spine, extending from the cranio-cervical junction to the disc level between T1 and T2. For the head, the CT scan revealed generalised involutional changes, which were consistent with the claimant’s age. There was no evidence of intracranial abnormalities, haemorrhage, or surface collection. The ventricles and basal cisterns were symmetric and midline. No skull vault fractures, or facial bone fractures were identified. However, there was patchy mucosal thickening within the inferior maxillary antra, while the remainder of the paranasal sinuses and mastoid air cells appeared clear.
The cervical spine imaging showed that alignment was maintained, with no acute fractures or bone abnormalities detected. There was no abnormal prevertebral soft tissue swelling. However, degenerative changes were observed at the atlantoaxial joint and the C5-6 disc level. These included bilateral foraminal narrowing caused by uncovertebral osteophytes. Despite these findings, the cervical canal was capacious, indicating no significant spinal cord compression. Additionally, an abnormality was identified in the left thyroid lobe, which appeared enlarged and was likely related to a multinodular goitre. The report recommended further evaluation of this finding through a thyroid ultrasound, as this issue had not been previously investigated. The CT scan demonstrated no evidence of intracranial haemorrhage, surface collection, or fractures. The cervical spine exhibited normal alignment with no acute abnormalities. The thyroid enlargement was identified as an area requiring further assessment.
In the Certificate of Capacity dated 4 April 2019, Dr Abi-Hanna diagnosed the claimant with TBI stemming from the accident. The report noted her ongoing memory issues and psychological distress, including anxiety, which severely impacted her functional capacity. It recommended psychological interventions, neuropsychological assessments, and the initiation of antidepressant medication (Cymbalta).
In the report dated 4 April 2019, psychologist, Ms. Belinda Messer, documented an initial assessment of the claimant’s mental health following the accident. The claimant exhibited anxiety and avoidance behaviours, particularly related to driving and social interactions. Recommendations included mindfulness strategies and engagement in enjoyable activities to manage her distress.
The Liverpool Hospital discharge report for the claimant detailed her admission on

17 April 2019
for assessment and management of memory loss, anxiety, and emotional distress following the subject motor vehicle accident. The primary diagnoses were post-traumatic stress disorder (PTSD) and mild TBI.
The claimant presented with symptoms including fear of riding in vehicles, emotional instability, and significant memory difficulties. She reported both retrograde and anterograde amnesia immediately following the accident, which persisted in the form of short-term memory issues. Her emotional state was marked by frequent crying, low mood, and heightened anxiety, especially in situations that reminded her of the accident. The claimant was evaluated by a multidisciplinary team. She denied suicidal ideation, psychotic symptoms, or hallucinations but described difficulty maintaining her train of thought, although she could refocus quickly. Neurological assessments did not reveal any acute abnormalities. Her history of using Cymbalta for mood regulation was noted, and she was encouraged to continue psychological therapy under the guidance of her GP. The discharge plan included obtaining a Mental Health Care Plan to address PTSD symptoms, maintaining regular follow-ups with her GP, and undergoing further neuropsychological evaluation to monitor her cognitive function. The report highlighted her supportive family environment, with her husband actively involved in her care. She was reassured about her symptoms and encouraged to engage fully in psychotherapeutic interventions to aid her recovery.
Dr Choong's report, dated 21 May 2019, detailed the claimant's condition following the subject accident. Dr Choong noted that the claimant was amnesic to the entire event, with retrograde and anterograde amnesia. She recalled asking her husband to drive her to church but had no memory of the accident itself. Her first recollection afterward was waking up in the Fairfield Hospital Emergency Department. Her recollections of the events in the hospital were described as patchy.
Post-accident, the claimant experienced significant difficulties forming new memories, necessitating the use of a notebook for daily chores and appointments. She also reported challenges recalling old memories. Previously, she was a highly functional and successful owner of multiple restaurants, with excellent organisational skills, but this was no longer the case.
The claimant reported difficulty sleeping at night, high levels of stress, a low mood, and emotional instability. She was receiving psychological support and had recently been started on Cymbalta. On examination, Dr Choong observed normal speech, full range of eye movement, and normal visual fields. Neurological and physical examinations, including cranial nerve and upper/lower limb assessments, were unremarkable.
Dr Choong concluded that the claimant likely sustained a concussion during the accident and had developed symptoms consistent with PTSD. He recommended an MRI scan of the brain, an EEG, and a formal psychometric assessment by a neuropsychologist. Dr Choong also encouraged the claimant to continue seeing her psychologist.
In the MRI brain report dated 29 May 2019, imaging revealed no extra-axial collection or space-occupying lesion. The ventricles and surface cerebrospinal fluid (CSF) spaces appeared normal, and the grey and white matter demonstrated normal signal and appearance, indicating no acute intracranial abnormalities. A notable finding was a 5mm ovoid susceptibility artefact in the right posterolateral parietal lobe. This artefact showed no corresponding abnormalities on other sequences and no evidence of gliosis. It was most likely interpreted as a prior microhaemorrhage or cavernoma. No signs of diffusion restriction or acute haemorrhage were detected, further ruling out recent injury in this region. Additionally, mild mucosal thickening was observed in the maxillary sinuses, along with a few mucus retention cysts in the left maxillary sinus. Similar mild thickening was also noted in the ethmoid air cells bilaterally, but the remaining paranasal sinuses and mastoid air cells appeared clear. These findings were incidental and unrelated to the claimant’s primary concerns. In conclusion, the MRI identified a small susceptibility artefact in the right parietal lobe, likely representing a prior microhaemorrhage or cavernoma. There were no acute abnormalities observed, and the sinus findings were considered mild and incidental.

An EEG performed on 28 June 2019 was unremarkable. It revealed symmetrical alpha rhythm posterior background. No epileptic discharges or focal abnormality was noted.
Clinical neuropsychologist, Dr Amanda White’s, neuropsychological assessment report dated 8 July 2019, evaluated the claimant’s cognitive and psychological functioning following the subject motor vehicle accident. Since the accident, the claimant had reported significant changes in her mood, cognition, and daily functioning.
During the evaluation, the claimant presented as anxious and emotional, often crying when discussing the impact of the accident on her life. Her thought processes were circumstantial and tangential, and she displayed low self-confidence, frequently seeking reassurance. She had difficulty maintaining attention and became easily overwhelmed during testing.
The neuropsychological assessment revealed several cognitive findings. The claimant’s ability to learn and retain new information ranged from low average to average, though she struggled with unstructured material. Her performance declined with repeated tasks, indicating difficulties with sustained processing. Problem-solving, reasoning, and planning skills were assessed as low average to average, although verbal abstract reasoning was a relative weakness, potentially influenced by language-related factors. Self-reported questionnaires indicated severe depression, extremely severe anxiety, and moderate stress, aligning with her clinical presentation. Basic attention was in the borderline range, and verbal-based tasks, such as naming and semantic fluency, showed weaknesses, potentially due to interpreter-related issues.
Dr White concluded that the claimant exhibited clinically significant psychological distress, including anxiety and depression, which negatively affected her cognitive abilities and social functioning. The doctor opined that these issues were likely linked to a mild TBI sustained during the accident.
Several recommendations were provided. Regular therapeutic support with a psychologist was advised to address the claimant’s emotional distress, while cognitive rehabilitation was not considered necessary at the time. Practical strategies were suggested, such as presenting information in smaller chunks, focusing on one task at a time, and taking regular breaks to manage attention and reduce feelings of overwhelm. Medical monitoring was also recommended, including reviewing her mood and medication regimen. Given that the claimant had stopped taking Cymbalta, alternatives were suggested. Further evaluation of her dizziness, such as assessing her blood pressure, was also advised.
Dr White emphasised that with structured support, encouragement, and appropriate treatment, the claimant’s cognitive and emotional symptoms could improve over time. A feedback session was planned to explain the assessment results and provide additional guidance.
In the follow-up neurologist report dated 2 August 2019, Dr Ho Choong reaffirmed that the claimant continued to experience memory difficulties without significant neurological findings. Normal EEG and MRI results were emphasised, pointing to psychological stress as the predominant factor contributing to the claimant’s cognitive dysfunction. Continued therapy with a psychologist was strongly recommended.
The report dated 14 August 2019, psychologist, Belinda Messer, opined that the claimant's presentation following the subject motor vehicle accident was consistent with a diagnosis of PTSD.
Ms Messer opined that the claimant was directly exposed to a traumatic event, being a passenger in a vehicle involved in a T-bone collision. She reported significant fear and anxiety regarding the incident and its aftermath. Intrusion symptoms included unwanted upsetting memories, nightmares, flashbacks, and heightened emotional and physical distress when exposed to reminders of the event. She described frustration and upset feelings about the changes in her competence due to memory loss.
Avoidance behaviours were identified, such as not engaging in activities or going out as before, particularly avoiding being in a car. Negative alterations in cognition and mood were evident, including low mood, lack of motivation, decreased interest in activities, and difficulty engaging with family and social circles. The claimant expressed concerns about her memory, feeling isolated, and being unable to travel to see her family overseas.
Alterations in arousal and reactivity included irritability, hypervigilance, heightened startle responses, difficulty concentrating, and sleeping disturbances. The symptoms persisted for more than one month and were not attributable to substance use, medication, or other illnesses.
The claimant's presentation significantly impaired her ability to maintain social and occupational functioning as previously. She had actively participated in treatment, attending five sessions to address her condition. The report concludes that the claimant's symptoms were a direct result of the motor vehicle accident.
In the psychiatrist’s report dated 12 February 2020, Dr Thomas Oldtree-Clark, Consultant Forensic Psychiatrist, assessed the claimant, on 12 February 2020 following a referral to evaluate the psychiatric consequences of her motor vehicle accident. The report documented the claimant's history, mental health symptoms, functional impairments, and the resulting WPI in accordance with statutory guidelines.
Dr Oldtree-Clark conducted a detailed assessment and applied the Psychiatric Impairment Rating Scale (PIRS) to evaluate the claimant's impairments across several aspects of functioning. He noted that the claimant experienced moderate impairments in concentration, persistence, and pace due to intrusive memories of the accident aftermath. Social and recreational activities were also restricted, limited to family interactions, and the claimant was unable to travel unaccompanied, indicating moderate impairments in these domains. Although her social functioning in relationships was intact, with a supportive marital relationship, her employability was severely impacted, as she was deemed not employable despite having retired. This was attributed to significant psychiatric symptoms arising from the accident.
Dr Oldtree-Clark diagnosed the claimant with PTSD, a primary psychiatric injury related to the accident. He concluded that her condition was permanent and stable, unlikely to change substantially within the next 12 months. Using the PIRS, he calculated the claimant's total WPI at 19%, with an additional 1% adjustment for the effects of ongoing psychotropic medication. This resulted in a total WPI of 20%, reflective of the significant and enduring impact of her psychiatric condition on her overall functioning.
Dr Antonella Ventura's report, dated 26 November 2020, examined the psychological and emotional impacts of the accident, focusing on memory concerns, emotional symptoms, and functional impairments, while considering pre-existing conditions and life circumstances.
The claimant reported that on the morning of the accident, she was being driven to church by her husband when their car was T-boned by another vehicle. She recalled no memory of the collision itself but remembered waking up in a hospital bed. She was discharged the same day with a black eye but no other significant injuries. Following the accident, the claimant described significant stress and anxiety. She noted feeling socially withdrawn, tearful, and concerned about her memory, expressing fears that her memory issues would worsen over time. While she denied experiencing intrusive memories of the accident, she described ongoing anxiety, particularly when traveling as a car passenger, and feeling hypervigilant in such situations.
The claimant also expressed concerns related to COVID-19, particularly its potential impact on her husband, which she said had further restricted her social and recreational activities. Despite these challenges, she maintained a degree of routine in her daily life, including cooking, cleaning, and gardening, although she felt less confident in her abilities compared to before the accident. She visited her parents regularly and occasionally went out for coffee or shopping. Her primary source of distress remained her perceived memory deficits and the unpredictability of life since the accident.
During the mental state examination, the claimant presented as a well-groomed woman who demonstrated no signs of self-neglect. Her mood was dysphoric but reactive, and her affect was appropriate. While she expressed significant concerns about her memory, there was no evidence of cognitive impairment during the evaluation. Dr Ventura noted that the claimant’s symptoms were consistent with an adjustment disorder with anxiety, which she attributed directly to the motor vehicle accident. The condition was exacerbated by pre-existing anxiety and external stressors, including family issues and the ongoing impact of COVID-19.
Neurological investigations revealed no evidence of brain damage related to the accident. Dr Ventura concluded that the claimant's memory issues were more likely linked to anxiety and possible dissociation at the time of the incident. She recommended that the claimant be provided with education and reassurance about the nature of her memory concerns, emphasizing that there was no physical damage to her brain.
The claimant demonstrated no impairments in self-care, personal hygiene, or daily activities and was deemed fit for independent living. Dr Ventura concluded that no further psychiatric treatment was required as her symptoms were mild and stable. Her prognosis was described as favourable, with no significant impact on her daily life or capacity for activities.
In relation to permanent impairment, Dr Ventura concluded that the claimant's adjustment disorder with anxiety was not stable and was likely to improve with time and further education about her memory loss. She noted that permanent impairment had not been reached, as the claimant had not yet achieved maximum medical improvement. Dr Ventura recommended reassessment in three months. Additionally, she clarified that her evaluation did not include comparisons with Dr Oldtree-Clark’s WPI assessment from February 2020, as that report was unavailable for review.
Dr Ventura concluded that the claimant’s adjustment disorder with anxiety was mild, likely to improve, and manageable with appropriate reassurance and education about her condition. No further psychiatric intervention was deemed necessary at the time of the assessment.
Dr Ventura’s psychiatric re-assessment report dated 19 May 2021, was based on a review of historical records, available medical documentation, and an interview with the claimant. The claimant had previously been evaluated on 26 November 2020, with the assistance of an interpreter. For this session, she declined an interpreter, stating she no longer required one. During the interview, the claimant expressed ongoing concerns about her memory, which her doctor described as a result of her brain being “shaken” during the accident. Although she remained somewhat preoccupied with her memory, she appeared clinically less distressed compared to the earlier assessment.
The claimant reported feeling socially withdrawn, stating that she no longer invited guests to her home and rarely socialised. She expressed a desire for company but noted that many people no longer visited her, attributing this to others being preoccupied with their own lives. She experienced ongoing sleep difficulties, sleeping an average of five hours per night, though her appetite remained unaffected. She described minimal anxiety outside of driving situations but continued to feel anxious when riding as a passenger, particularly in heavy traffic. Despite this, she retained the ability to enjoy daily activities such as walking in the garden, spending time with her grandchildren, reading, and doing household chores. When shopping, she preferred walking around rather than sitting in a café.
During the mental state examination, the claimant presented as a well-groomed, older woman who spoke fluent English and showed no signs of self-neglect. Her mood was dysphoric but reactive, with an appropriate affect. There was no evidence of thought disorder, psychosis, or cognitive dysfunction, despite her subjective memory complaints. She exhibited somatic-focused anxiety, particularly concerning her memory and a fear of developing stomach swelling due to medications. She denied any suicidal ideation or depressive ruminations and appeared grossly cognitively intact.
The claimant reported having discontinued all prescribed medications due to concerns about side effects, specifically swelling in her stomach. She stopped taking her thyroid medication and continuous positive airway pressure treatment for sleep apnoea. Additionally, she expressed concerns about receiving the COVID-19 vaccine, fearing it might cause complications such as stomach swelling.
Dr Ventura concluded that the claimant’s symptoms were consistent with adjustment disorder with anxiety, which was directly attributable to the motor vehicle accident. These symptoms occurred against a backdrop of pre-existing anxiety and untreated medical conditions, including thyroid disease and sleep apnoea, which likely exacerbated her condition. The adjustment disorder was described as mild, stable, and permanent, with minimal impact on her ability to carry out daily activities.
The claimant’s functional impairments were assessed across several areas. She demonstrated no impairment in self-care or personal hygiene. Her participation in social and recreational activities was limited, as she avoided events and gatherings. She experienced mild anxiety when travelling as a passenger in a vehicle, though there was no marked avoidance. While she reported some loss of friendships, her family relationships remained strong. She also described subjective memory disturbances but showed no objective cognitive impairment. Her overall capacity for adaptation was unaffected.
Dr Ventura calculated the claimant’s WPI as 5%. The adjustment disorder was considered stable and caused only mild, permanent impairment. No further psychiatric treatment was recommended, as her symptoms were not incapacitating and did not interfere significantly with her activities of daily living. Dr Ventura concluded that the claimant was fit for all daily activities, including driving as a passenger, and suggested maintaining her engagement in routine activities for overall well-being.
Dr Cameron's report dated 28 February 2022, assessed the claimant for any WPI arising out of the subject accident. At the time of the assessment, the claimant lived with her husband in Cecil Hills and had retired shortly before the accident. She reported pre-existing health issues, including hyperthyroidism, osteoarthritis, and a history of multiple surgeries, but no prior history of psychiatric illness. Despite her retirement, she had been actively managing her household and engaging in daily activities before the accident.
Dr Cameron found that the claimant remained distressed and emotionally affected by the accident. She reported ongoing memory deficits, dizziness, and limitations in her ability to perform household tasks. She stated that she enjoyed activities such as cooking and gardening but found them more challenging. Physical examination revealed moderately reduced range of motion in the cervical and lumbar spine, with no significant neurological abnormalities.
Clinical records reviewed included those from Fairfield Hospital, which noted a mild TBI and one hour of amnesia following the accident. Records from other treating practitioners, including Drs White, Choong, and Ventura, provided further insight into her condition, including diagnoses of adjustment disorder with anxiety and post-traumatic stress disorder.
Dr Cameron concluded that the claimant sustained a mild TBI, as well as musculoskeletal soft tissue injuries, during the accident. These injuries were consistent with her complaints and disabilities. He determined that her symptoms were stable and unlikely to deteriorate further. Using the Motor Accident Permanent Impairment Guidelines (the Guidelines), he assessed her WPI at 5%, primarily attributing this to emotional and behavioural impairments plausibly related to her brain injury.
Dr Cameron noted that future treatment was not necessary and emphasised that the assessment should focus on the impact of emotional and behavioural impairments rather than physical injuries. He provided an evaluation of functional limitations, concluding that while the claimant managed her daily life with some assistance, her impairments, including mild memory deficits and emotional distress, had a tangible impact on her quality of life.

SUMMARY OF DOCUMENTS CONSIDERED

The Panel considered all the documents provided. No additional/late documents were provided.

RE-EXAMINATION

Who attended the assessment

The Panel determined a re-examination was necessary which took place by MS Teams on

8 May 2024.
The claimant together with a Greek interpreter engaged by the Commission, Joanna Missouli, was present throughout the assessment.

HISTORY

Psychosocial history and pre-accident history

The claimant is a 71 year old married retiree who had never seen a psychologist or psychiatrist before the subject accident.
The claimant indicated that in or about April 2014 her general practitioner (GP), who was situated next door to her business had offered her “tablets”, which the clinical notes for Dr Harrington reveal were Lexam 10 10 mg half daily for four days and then one daily. She declined to use these tablets. The clinical notes reveal that Lexam was not prescribed again.
The clinical notes also reveal another report by the claimant to her GP on 1 February 2016 of depression/anxiety, which required a long consult.
The Panel were of the view neither incident amounted to a pre-existing psychiatric condition because both were transient self-limiting episodes of emotional distress. The claimant reported she saw herself as “a very strong person – a strong personality before the accident”. She used to be very friendly and outgoing.
She said she had been medically well apart from a gallbladder operation, an appendectomy, and a hysterectomy when she was young. The Panel noted references in the documentation to her being on Neo-mercazole for hypothyroidism. It also noted references to thalassaemia (presumably thalassaemia minor), hypercholesterolaemia, obesity, diverticular disease, varicose veins, L4/5 spondylolisthesis, back pain, diverticular disease, varicose vein, and cystocoele. She had also had sleep apnoea for many years for which she had a continuous positive airway pressure (CPAP) machine, which she had stopped using after a coughing episode. She did not attribute any subsequent waking to not using her machine.
She does not drink alcohol. She does not smoke. She does not use drugs. She does not gamble.
She denied any history of problems with the law. She had no other claims history.
She knew of no family history of psychiatric illness.
She was born in Cyprus in a village. Her parents used to run businesses making clothes and dry cleaning. She has two younger brothers. She had “a very good life” growing up.
She completed three years of high school and then a year of senior high school.
She got engaged at age 16 years and married at the age of 18 years.
She lived 16 years in England – she left in 1972 – her brother-in-law had restaurants in England. She could not go back to Cyprus because her village was occupied during the 1974 Turkish invasion.
She had her children in England. She came to Australia as other family members had moved here including her parents, grandparents, and uncles had come here. She came in 1986.
She was happy in Australia – she worked hard and had helped her children study, “and I had a beautiful life except for the accident”.

Her older son works in computers and her younger son has finished journalism but worked in the business with them and now drives trucks.
She has four grandchildren aged 19-12 years all from one son.
She used to run a charcoal chicken shop– she had sold the business on the Friday before the accident. She intended buying another business. She found running the business would “make you upset all the time because you have to be 100% all the time”. She admitted she was a perfectionist, and everybody used to admire her business – she took manifest pride in her work.
She had sold the business just before the subject accident and had been intending to buy another business. She employed a lot of workers as well as her husband and son as well as other relatives.
She owns her home and lives off proceeds of an investment property “and [she has] some money”. She has never been on any social security payments.

History of the motor accident

She was a passenger on her way to church in a car driven by her husband and does not recall the accident itself – only that she was then in hospital. The hospital notes indicate that she was amnestic for approximately one hour.
She was sent home some hours later. She subsequently saw her family doctor and many other doctors. She had black eyes and bruises “but the most important thing is that I can't remember a lot and I can't do the things I used to do – I have to have my husband help – if I am cooking, I have to be in the kitchen – I forget what I’m doing – I have stress most of the time”.

History of symptoms and treatment following the motor accident

She said her life changed after the accident and that she preferred not have connection with people – she would prefer to be just with her husband.
When asked whether she felt sadness, she responded she felt simply that she was “different” and – that her life had changed acknowledging that she found it hard to describe her emotions.
She admitted to being tearier, again saying, “My life is very different”.
She is very anxious in cars.
She gets very upset for example if she sees accidents on TV. Moreover, “small things after the accident are big things for me”.
She does not sleep well saying, “When I go to bed – I’m thinking all the time – I can’t get relaxed… I’m thinking about different things – what happened to me – it changed my life”. She struggled to articulate more precisely what she meant by this.
She saw a psychologist after the accident for a time. She is not on any medication apart from Nurofen (a nonsteroidal anti-inflammatory drug) saying, “Tablets upset my stomach”. The Panel noted references in the documentation to her having been started on Cymbalta (duloxetine – an antidepressant).
She spends her day doing some housework or occasionally going in her garden. She would sit with her husband and watch TV – usually Greek news or TV. She goes to bed early and does not fall asleep for some hours because “my mind is working like a machine”. She wakes around six o’clock in the morning.

Details of any relevant injuries or conditions sustained since the motor accident

None in evidence.

Current symptoms

She is tearier, ruminating on the change in her life since the motor vehicle accident finding it difficult to get off to sleep because she cannot shut down her mind.

Current and proposed treatment

She is not having any treatment currently. None has been proposed.

CLINICAL EXAMINATION

Mental state examination

The Panel interviewed the claimant via Microsoft Teams. She was at her home in Cecil Hills. A good audiovisual connection was established. Her head and shoulders were clearly visible. She presented as a woman of appearance consistent with her stated age who seemed neatly presented. She provided the history documented above. Her narrative was coherent and consistent save for her difficulty in articulating emotions. She impressed as an open historian.
She appeared depleted but retained some reactivity and warmth of affect with a capacity for humour.
There was no evidence of psychosis or of cognitive impairment.

Current functioning

She manages at home with help from her husband who helps with cleaning and shopping. She continues to shower every day and change her clothes though “sometimes when I feel very, very upset, I stay in bed” in her pyjamas. She has never been a big eater, and her weight has been steady.
She goes to visit her children and her parents who live close by. They also visit her often “because they know it makes me happy when I see my children”. She enjoys their visits but does not go out to see them. She used to enjoy going out dancing, to restaurants, and holidays but no longer does these. She no longer goes to church and prefers to watch the service on TV.
She said, “I’m scared a lot in the car”, although she will go shopping with her husband. She prefers that her children drive her for longer journeys even though she rates her husband as a good driver. She does not use public transport. She did not articulate why she did not like doing this just saying that she prefers to be with her family and that she prefers to go shopping.
She gets on “alright” with her family. They “support me a lot”. She denied arguments or quarrels though “in the beginning I was very upset, and I used to cry a lot, and I used to make everybody upset”. She has not kept up with close friends – they occasionally come over, but she prefers not to see them.
She is forgetful saying, “I’m looking for a key and the key is in front of me” and she leaves things on the stove or forgets to close doors and finds it hard to remember telephone numbers. She no longer reads whereas she was once a keen reader. She finds she cannot focus on what she reads and feels no interest. She does not watch TV other than to keep it on in the background. She struggles with motivation saying, “I need always help – I can’t start and finish something” which she blames on feeling tired and lacking in interest. Her energy levels are low.
The Panel noted that she had intended buying another business just before the accident and that she did not see herself as having retired. It further noted submissions from her solicitor that she intended working part-time. She has not worked in any capacity since then – she has not felt up to doing so. At the same time, it was evident that she maintained a presence in her family in her role as mother and grandmother though her contribution was significantly attenuated by her social withdrawal. She also did some housework with assistance from her husband and family.

DETERMINATION

Diagnosis and reasons

Her presentation is consistent with a persistent depressive disorder (dysthymia).
In terms of DSM-5-TR criteria, there is evidence of depressed mood for most the day for more days than not over the preceding five years (Criterion A), with insomnia, low energy, and poor concentration (Criterion B). She appears never to have been without the symptoms (Criterion C) although she may not have met criteria for a major depressive disorder (Criterion D). She has never had a manic or hypomanic episode nor was there any evidence of cyclothymia (Criterion E) and there was no evidence to suggest a schizoaffective or schizophrenia spectrum or other psychotic condition (Criterion F). Her symptoms were not attributable to the physiological effects of a substance or another medical condition (Criterion G) and caused significant distress and impairment (Criterion H).
In relation to the question of whether her symptoms could be accounted for by another medical condition, the Panel noted that there was no evidence to support anything more than a minor traumatic brain injury, that is, the absence of any neurological symptoms, and significant cognitive issues) and that neuropsychological testing indicated that her symptoms were attributable to anxiety and depression. It also noted that while she had ceased medication for her thyroid condition, her decision to do so had arisen from her perception that medication upset her stomach and that her symptoms had been very much present before that time. Her GP’s notes record the results of thyroid function tests on 8 September 2021, 23 August 2022 and 10 July 2023. On no occasion were thyroid function tests significantly deranged (on 10 July 2023, her TSH was 0.39 IU/L which was marginally abnormal). In the experience of the medical members of the Panel, such results would not account for the presence of psychiatric symptoms. Similarly, the Panel were of the view that untreated sleep apnoea which had preceded the motor vehicle accident was unlikely to account for her symptoms.

Causation and reasons

The Panel was of the view that her persistent depressive disorder had arisen in the aftermath of the subject motor vehicle accident and seemed initially driven by her distress that she could not remember the event but had woken up to find herself in hospital. It may have begun as an adjustment disorder but took on a life of its own.
The Panel is satisfied that the following injuries were caused by the motor accident:
(a) persistent depressive disorder (dysthymia).

PERMANENCY OF IMPAIRMENT

She has been continuously unwell for five years. Her level of impairment is unlikely to change substantially, or by more than 3%, over the next year.

Degree of Permanent Impairment Psychiatric Impairment Rating Scale

Self-Care and personal hygiene = Class 2. Prior the accident the claimant was attending to the business of her shop without incident. She had intended on opening up another take-away business after selling her chicken shop immediately prior to the accident. Following the accident, appears to look after herself to a basic level, but reported that she would unusually for her in contract to her pre-accident functioning occasionally stay in her pyjamas over a whole day when she feels “very, very upset”.
Social and recreational activities = Class 3. Before the accident, she was an outgoing and sociable woman who went out dancing or to restaurants and attended church regularly. Following the accident, she no longer goes out and does not go to church, although she appreciates visits from her family.
Travel = Class 3. Prior to the accident, the claimant was able to travel independently. Following the accident, she does not go out on her own at all and does not use public transport. She is a very anxious passenger in a car. She no longer travels independently.
Social functioning = Class 2. Prior to the accident, the claimant was sociable and outgoing in both her work and personal lives and had a number of friends with whom she would regularly socialise. Following the accident, she has become socially withdrawn and her social network has significantly reduced.While she enjoys the support of her family, she avoids seeing her close friends even when they try to come over.
Concentration, persistence, and pace = Class 3. Prior to the accident, she was active and successful in the cognitively demanding task of running a small running customer facing retail food business. She no longer reads whereas she previously enjoyed this. She does not watch TV other than to keep it on in the background. Her energy levels are low. She struggles with motivation finding it difficult to complete tasks which she blames on tiredness and lack of interest. She is forgetful which she finds very disconcerting.
Adaptation = Class 3. Prior the accident, the claimant had the psychiatric capacity to run a small business and actively partake in her family and community activities. The Panel was persuaded by the claimant’s reports that she intended buying another business and working part-time following the sale of her chicken shop immediately prior to the accident. It was the Panel’s view that she was no longer employable whether in self-employment or on the open market and noted in this context her low energy levels, her difficulties with motivation, her problems with concentration, and her forgetfulness. However, it noted that she remained a presence to her family in her role as wife, mother, and grandmother, and that she still did some housework albeit with assistance from a husband and family.
Impairment ratings: 2, 2, 3, 3, 3, 3
Median rating: 3
Aggregate: 16
Percentage WPI: 17%
Deductions for pre-existing/subsequent impairment: 0%
Adjustment for treatment effects: 0%
Final whole person impairment:17 %
The Panel notes the passage of 15 months from the assessment of the Medical Assessor and the passage of nearly three years since the assessment of Dr Ventura which might well account for significant deterioration in her level of impairment.

[2025] NSWPICMP 19

9 January 2025