Holbert v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Holbert v QBE Insurance (Australia) Limited [2025] NSWPICMP 716
CLAIMANT:	Mark Holbert
INSURER:	QBE (Insurance) Australia Limited
REVIEW PANEL
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Paul Friend
MEDICAL ASSESSOR:	Alan Doris
DATE OF DECISION:	16 September 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; review; insurer disputed causation and permanent impairment; significant psychological and physical injuries before accident; Commission referred psychiatric condition to assess permanent impairment; Medical Assessor’s certificate assessed 8% permanent impairment; referred for review; re-examination; claimant was cooperative and consistent; accident was capable of causing all referred injuries; 5% permanent impairment; different clinical findings; Held – different permanent impairment findings to original assessment; Review Panel revoked original medical assessment certificate; permanent impairment not greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes Medical Assessor Alexey Sidorov’s certificate dated 28 January 2024. 2. Certifies that Mark Holbert’s permanent impairment resulting from the injury caused by the accident is 5% permanent impairment arising from: · alcohol use disorder of a dependent type, and · adjustment disorder with mixed anxiety and depression caused by the accident, which is not greater than 10%.

REASONS

Mark Holbert (the claimant) was injured in a motor accident on 15 March 2021. The claimant claimed damages for his injuries arising from the accident and there is a dispute about permanent impairment under the Motor Accidents Injuries Act 2017 (MAI Act).
The claimant applied to the Personal Injury Commission (the Commission) to resolve this dispute.
On 9 January 2024 Medical Assessor Sidorov assessed the claimant’s psychiatric condition and produced a certificate dated 28 January 2024.

The Medical Assessor assessed 8% permanent impairment, which is below the threshold of greater than 10%, which would entitle the claimant to claim non-economic loss damages. This permanent impairment assessment included a deduction for a condition that was symptomatic before the accident.
The claimant applied under s 7.26 of the MAI Act to refer this assessment to a review panel on the grounds that the medical assessment was incorrect in a material respect. The insurer provided reasons why it opposed that application.
The Presidential delegate accepted the claimant's application.
The Commission’s President constituted this Review Panel (the Panel) to review the above medical assessment (the Review).
Following rule 128(1) of the Personal Injury Commission Rules, 2021 (the PIC Rules) the Panel “is to conduct and determine the proceedings in accordance with procedures determined by the panel.”
This Panel met on 17 April 2025.
The Panel’s report and directions noted the claimant’s bundle of documents comprises 4,962 pages.
Whilst Rule 67B of the PIC Rules does not apply to medical review panel proceedings the Panel informed it the parties that they must ensure ensure that the documents relied upon facilitate the just, quick and cost effective resolution of the real issue in the proceedings.
The Panel referred the parties to the decision of the High Court in Gamestar Pty Ltd v Lockhart [1993] HCA 79; (1993) 112 ALR 623 where it was observed in the absence of submissions referring to specific documents a court or tribunal is not obliged to search for references within documents where the submissions do not specifically address the materials. The Panel also referred to the comments of Bellew J in Bevan v Bingham [2023] NSWSC 19 which confirms that legal practitioners are obliged to place only the necessary evidence before the decision maker.
The dispute before the Review Panel is a dispute as to permanent impairment of a psychological injury.
Having undertaken a review of the claimant’s bundle the Panel considered many of the documents were not relevant to the dispute before the Panel. In particular the Panel noted the clinical notes included redundant references to various medical procedures, tests and issues, which were undisputed or irrelevant to the Panel’s consideration.
The claimant’s submissions did not address why the claimant’s entire clinical history was relevant or even highlight the aspects the Panel should address in its review. It was apparent a statement of agreed facts and a chronology would have sufficed to highlight the relevant issues.
The parties subsequently submitted a statement of agreed and disputed facts and issues dated 12 June 2025.
The parties agreed on the date and the place of the accident and the immediate sequelae.
They also agreed the claimant has an extensive relevant history of hospital admissions relating to psychological disorders and conditions and there is to be a deduction in any finding relating to the claimant’s permanent impairment (or WPI) based on his

pre-existing psychological symptoms.
The disputed facts and issues are:
The claimant alleges that the following injuries were caused by the subject accident and constitute non-minor psychological injuries and have caused WPI greater than 10%:
(a)aggravation of major depressive disorder, and
(b)relapse of alcohol use disorder.
The claimant further alleges that Medical Assessor Alexey Sidorov’s assessment was incorrect in a material aspect in relation to his application of the Psychiatric Impairment Rating Scale (PIRS).
The insurer disputes the diagnosis and severity of the injuries the claimant alleges he sustained and contends the assessment of Medical Assessor Sidorov was correct.
The insurer seeks causation of psychological injury and WPI be assessed afresh.
The insurer disputes there is a causal link between the subject accident and the claimant’s alleged injuries. The insurer also disputes the accident aggravated the claimant’s existing conditions.
The Panel considered re-examination was required and Medical Assessors Friend and Doris would examine the claimant in tandem on behalf of the Panel on 19 June 2025.

Legislative framework

Schedule 2(2)(a) of the MAI Act declares:
“ the degree of permanent impairment of the injured person that has resulted from the injury caused by the accident (including whether the degree of permanent impairment is greater than a particular percentage)” is a medical assessment matter.”
If there is a dispute about the degree of permanent impairment of an injured person being sufficient to award non-economic loss damages i.e. greater than 10%, then those damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
Division 7.5 of the MAI Act provides for the Commission to assess declared medical disputes including provisions relevant to an original medical assessment and for appointing Panels to review those medical assessments.[1]
[1] Sections 7.20, 7.24 and 7.26.
Parties may apply to the President of the Commission for review of a medical assessment on grounds that the assessment “was incorrect in a material respect (sub-s (1)).” If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President refers the application to a review panel consisting of a member of the Commission and two Medical Assessors (sub-ss (2) and (2B)) to reassess the dispute.
The review is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned (sub-s 3A).”
Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings and the rules of evidence do not bind the Panel, which may inquire into relevant matters as it thinks fit, while observing procedural fairness.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2) Impairments that result from more than one injury arising out of the same accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment, or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
Pre-existing impairment is addressed in cls 6.31-6.33 of the Guidelines. Clause 6.34 deals with subsequent injuries.
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5    An assessment of the degree of permanent impairment is a medical assessment matter under clause 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 accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The 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.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular

ss 5D and 5E.

Degree of psychiatric impairment rating scale

Impairment is assessed following the Motor Accident Guidelines version 9.3 (the Guidelines) which include a chapter entitled “Mental and behavioural disorders.” The assessment is to be undertaken in accordance with the psychiatric impairment rating scale (PIRS) and the AMA 4 Guides are to be used as “background or reference only.”[2]
[2] Clause 6.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with the current editions of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD).[3]
[3] Clause 6.213 of the Guidelines.
The PIRS provides[4] for the consideration of any psychiatric condition present before the accident in question:
“In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”
[4] Clause 6.218 of the Guidelines.
The PIRS provides in cl 6.219 for six areas of function:
(a)    self-care and personal hygiene;
(b)    social and recreational activities;
(c)    travel;
(d)    social functioning (relationships);
(e)    concentration persistence and pace, and
(f)    adaptation.
The PIRS then provides at 6.220 for five classes of impairment with a descriptor for each which is “illustrative rather than literal criteria” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury.”
The impairment may be adjusted for treatment,[5] that is treatment such as medication being taken to treat the psychiatric condition.
[5] See clauses 6.222 – 6.223 of the Guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage.[6]
[6] See clauses 6.225 – 6.228 and table 17.

ASSESSMENT UNDER REVIEW

On 9 January 2024 Medical Assessor Sidorov assessed the claimant’s psychiatric condition and produced a certificate dated 28 January 2024.
Mr Holbert was then aged 52 years and receiving the disability support pension for a back injury he sustained in the 1990s. He has not worked since 1996 when he injured his back at work.
He was initially depressed when he injured his back and his relationship ended.
He had taken antidepressant medications before the 2021 accident being commenced on fluoxetine a few months prior to that accident. He felt that his mood was improving but the accident caused a relapse.
Medical Assessor Sidorov noted the claimant consumes 400ml of spirits each day. He previously ceased drinking alcohol because of liver problems several years before the 2021 accident.
His medical history includes several surgeries on his back including a spinal fusion and two heart attacks.
The 2021 accident occurred when an oncoming vehicle turned right in front of him causing a head-on collision.
After the accident he subsequently developed pain in his back and chest and pain radiating down his legs. He developed increasingly depressed mood with a loss of energy and motivation. He was unable to engage in previously enjoyed activities. He developed intermittent suicidal ideation. He has symptoms of worthlessness, hopelessness, and helplessness.
He had some improvement when the dose of medication was increased.
He continued to experience reduced mobility and pain with depressive symptoms as well as significant anxiety. He was avoiding driving in the area of the 2021 accident.
His medications at this time were fluoxetine 40mg daily OxyContin 40mg daily and aspirin.
Medical Assessor Sidorov assigned class 1 to self-care and personal hygiene, class 2 to travel and social functioning and class 3 to the remaining 3 categories providing a current WPI of 13%.
Medical Assessor Sidorov assessed the pre-accident WPI. He assigned class 1 to self-care and personal hygiene, travel and social functioning, class 2 to social and recreational activities and class 3 to adaptation, which is a pre-accident WPI of 5% to which he added 1% for the partial effect of fluoxetine in improving the depression.
The current WPI was 13-6 which is 7%.
Medical Assessor Sidorov added another 1% for the reported slight improvement with the increased dose of fluoxetine post-accident.
Medical Assessor Sidorov’s certificate dated 28 January 2024 stated the injuries sustained in the accident has caused aggravation of major depressive disorder and relapse of alcohol use disorder. Assessor Sidorov assigns WPI of 8%.

Evidence

The discharge referral from John Hunter Hospital for the presentation emergency department on 17 March 2021 states that he was involved in an accident two days before and was assessed on the site by New South Wales ambulance. He had ongoing pain in his right hip and leg pain radiating to his lower abdomen. He was ambulant with a walking stick. The fast scan was negative. His chest x-ray was normal. The diagnosis was exacerbation of

pre-existing back pain with sciatic pain.
IME psychiatrist Graham Vickery’s report dated 28 November 2022 stated that his chest and rib fractures were healed but he has low back pain.
Dr Vickery noted following:
(a)     The claimant consumes alcohol to relax and to go to sleep.
(b)    He has initial insomnia until the early hours the morning.
(c)    He can wake up sweating and have nightmares but does not remember them.
(d)    He forgets his friends name has been which has been deteriorating the past year.
(e)    He enjoys riding his electric mobility scooter. He can drive an automatic motor vehicle.
(f)    He has gained 50 kg of weight due to inactivity.
(g)    He has impaired libido and reports that his partner says he is moody.
Dr Vickery stated there was no DSM-5 diagnosis arising from the injuries sustained in the accident.
The Calvary Mater Hospital clinical notes contain the following:
(a)    The discharge referral for the presentation on 30 December 2022 states he injured his right knee at 10 pm and was unable to weight-bear. He reported abdominal distortion for the past 12 months. He was taking out the wheelie bin. His right foot got caught in a dip rolled and twisted his knee in a crack and he fell to the ground.
(b)    He occasionally uses a single stick with his left knee and has back issues. He had an effusion in his knee. The X-ray showed a cyst or an old avulsion of the lateral femoral condyle.
(c)    The clinical notes from the Emergency Department dated 20 November 2015 states he presented with chronic and intractable urinary problems/symptoms. He was diagnosed as having a possible urinary tract infection at the preop clinic for spinal surgery.
(d)    He also exhausted his supplies of OxyContin. He takes three 80 mg oxycontin daily. He had a spinal fusion 8 years previously, L4-S1.
The clinical notes from the Emergency Department dated 26 September 2013 states the claimant present with acute pain arm. He stated that he had an ultrasound of his right leg which demonstrated deep venous thrombosis. He was commenced on Clexane.
The discharge referral from Emergency Department dated 8 August 2013 with ongoing central chest pain states that he has a previous history of gastro-oesophageal reflux, alcohol abuse and heroin and speed use.
He had a heart attack (NSTEMI) in May 2011 following which he had an angiogram which showed mild irregularities in the left anterior descending and the left coronary artery.
He has had an L5-S1 discectomy and spinal fusion and has had hepatitis C.
The clinical notes from the Emergency Department dated 29 May 2011 states he presented as generally unwell. He was discharged the previous day following acute myocardial infarct. He is withdrawing from alcohol as he is a heavy drinker not coping. He feels like he is going crazy.

The clinical notes from the Emergency Department dated 18 July 2010 states he presented with chest pain and a history of a myocardial infarction two years previously.
The report by Dr Phillip Janke of an MRI scan of the lumbar spine dated 11 June 2008 states L4/5 and L5/S1 have had decompressions and intertransverse/alar fusions between L4 and S1. There is moderate L3/4 canal stenosis.
The clinical notes from the Emergency Department dated 24 April 2008 states he presented after being allegedly assaulted by two men and has lower back pain radiating to the left leg. He has a history of spinal fusion and alcohol abuse. He is waiting to see a drug and alcohol regarding alcohol withdrawal and the pain team regarding back pain.
He had recently been discharged from James Fletcher Hospital for alcohol detoxification. He had an altercation with his girlfriend who called the police. She left. He went outside to look for the police and said a car approached and some people got out one of whom was his girlfriend’s nephew.
His diagnoses then included depression, alcohol abuse, hepatitis C, previous spinal fusion, and a myocardial infarct in 2003.
The clinical notes from the Emergency Department dated 7 November 2006 states he is taking Ribavirin and is in week 14 of therapy for Hepatitis C.
The clinical notes from the Emergency Department dated 21 December 2002 states he presented with a possible dislocated left knee after he fell off a trail bike in his backyard. He states that the left patella was laterally dislocated and the tibia-fibula laterally displaced which moved back to normal by kicking it from the other side.
His past history includes a dislocated elbow; a stab wound in the back and previous back surgery.
The clinical notes from the Emergency Department dated 14 March 2001 states he reviewed regarding a stabbing wound to the left scapula.
The clinical notes from the Emergency Department dated 19 August 1998 states he was brought in by ambulance after hitting a pothole while riding his Harley three days ago. He subsequently had backache with increased spasm and tingling down his legs.
He has had a previous back injury and surgery.
The handwritten letter to Dr Balaz dated 10 April 2008 states he took an accidental overdose of Valium.
He has alcohol dependence and is in withdrawal. He has depression, possibly alcohol related.
He has opioid dependence in remission, cluster B traits and chronic back pain.
He had an acute myocardial infarction 2003.
He was referred to drug and alcohol for detoxification and rehabilitation and was offered community mental health team follow-up.
The undated letter from the Emergency Department states he presented with back pain radiating into his left leg following a jolt whilst riding a motorcycle. He has pain in the front of his left leg and generalised low back pain.
The letter from Emergency Department dated 14 June 1996 states he presented with right leg pain on 13 June 1996. He is requesting pethidine.
He had a work-related injury September 1995. On 20 May 1996 he had an L5/S1 discectomy and states he has been receiving daily pethidine injections for ongoing back pain. His surgeon Dr Isaacs has stated that he is to have no injections for pain.
The discharge referral for the admission 15-21 December 2013 states he presented with central chest pain radiating to neck and jaw with sweating and noting the May 2011 heart attack and had minor irregularities in the left anterior descending and the left coronary artery.
The discharge referral for the admission 28-29 June 2010 states he presented with chest pain radiating to both arms. He had a blood alcohol of 0.024. Serial ECGs and serial troponins were showed no evidence of infarction.
The clinical notes from the Beresfield surgery from 24 November 2015 to 8 February 2023 contain the following:
(a)    The list of prescribed medications includes Prozac one daily 5 May 2016, 20 July 2016, 13 July 2017, 22 January 2018, 12 November 2018, 25 July 2019, 7 January 2020, 22 December 2020, 25 May 2022, 21 June 2022 and 4 August 2022,
(b)    There are multiple prescriptions for OxyContin and Endone.
(c)    There is one prescription for Endep on 14 November 2019.
(d)    There is one prescription for Avanza on 13 September 2018.
The General Practitioner (GP) health care plan dated 27 November 2017 includes a goal of maintaining optimal mental health by stabilising and improving his mood. He has depression and anxiety.
The adult health care assessment dated 6 July 2018 states that he suffers from depression and takes Prozac 20 mg daily.
The NDIS application form dated 14 October 2022 refers to depression and psychological treatment.
The progress notes state that the depression commenced on 13 September 2018.
The certificate capacity/certificate of fitness dated 16 April 2021 regarding the accident on 15 March 2021 states that was a head-on collision. He suffered a low back injury and bruises on the abdomen.
The certificate of capacity/certificate of fitness dated 7 July 2021 states that he has a low back injury and bruises on the abdomen following the accident on 15 March 2021.
There are multiple clinical entries some of which refer to agitation, depression, disorientation decreased libido and hallucinations. There is a reference to euphoric mood which undated. It appears to state that are related to withdrawal effects from opiates.
The clinical entry dated 22 December 2021 which includes a prescription for Prozac 20mg daily does not make any reference to depression other than as a potential complication of long-term use of opiates.
The clinical entry for 7 January 2020 states that Prozac 20mg daily was prescribed. It does mention of depression other than as a complication of the long-term use of narcotics.
The clinical notes from My Medical Services from 31 May 2011 to 10 November 2014 contain the following:
(a)    It states depression commenced on 15 October 2013.
(b)    He was prescribed OxyContin and OxyNorm on multiple occasions.
(c)    He was prescribed Efexor XR 75mg on 21 December 2012 and 27 November 2013.
(d)    The entry dated 21 December 2012 states he presented with depression. He was prescribed Efexor 75mg, one daily.
(e)    The entry dated 15 February 2013 states he presents for massive quantities of narcotic analgesia with little information. He states that he has been supplied with narcotics by Dr SK since 31 May 2011.
There were no reports from other doctors regarding the prescription of these medications.
The report by Dr Simon Tame pain specialist dated 14 July 2009 states the diagnosis is failed back surgery syndrome. He has a full house of maladaptive pain cognitions and significant drug and alcohol history.
He uses alcohol heavily if he is unable to get other pain relief. He states that he has responded to morphine based medications but is not enthusiastic about the idea of

non-medication pain management strategies.
He is at high risk of addiction problems.
It recommends continuing MS Contin 10mg twice daily for 8 weeks, 10 tablets dispensed each time and referral to the ADAPT program at Royal North Shore Hospital.
He is not a good candidate for long-term opiate therapy.
The clinical notes from the James Fletcher Hospital, Hunter New England Mental Health Service include the following
(a)    The assessment dated 21 June 2005 states he presented with a blood alcohol of 0.167. He states he tried to kill himself several weeks ago by tying a rope around his neck and driving away.
(b)    He did not have any medical attention.
(c)    He was paid today and now has nothing left. He “lost it tonight” yelling and punching walls and left to come to talk to somebody. He has chronic sleep difficulties because of an old ankle injury. He had a previous one day admission in 2000. He lives with his ex-partner but is not in a relationship and has a 6-10-year-old daughter. He is on a Disability Support Pension. He received $ 450,000 as a payout for a past back injury and was not eligible for Social Security for 10 years. He currently has no money. He drinks 500 ml or more each day of rum and and/or whiskey.
(d)    The discharge referral dated 17 April 2008 apparently for the admission on 16 April 2008 states that his diagnoses are alcohol dependency, opiate dependency, cannabis abuse, dysthymia, and narcissistic and borderline personality traits.
(e)    He has chronic back pain.
(f)    He has a 12-year history of back pain after a work injury treated with Panadeine Forte but has a history of drug-seeking for morphine, pethidine, Endone, and OxyContin. He also has alcohol abuse averaging 18 standard drinks each day.
(g)    He had dysthymia and preoccupation with his back pain. He externalised responsibility and denied suicidality.
Mark Holbert’s statement dated 22 February 2023 states that he attended school to Year 9 and then started doing factory and process work.
He joined the Australian Army for four years and subsequently worked in the mines at Barclay Molan.
He was doing rail maintenance until he injured his back and has been on disability support pension ever since.
He has 10-year history of alcohol use. He ceased drinking about 2009 because of liver impairment but has resumed drinking since the accident.
He had a bout of depression 20 years ago due to relationship break-up and work injury but this was settled prior to the motor vehicle accident.
Two months prior to the accident he was prescribed Prozac. The symptoms improved after taking Prozac.
He cannot ride a motorcycle, play sports or be intimate with his partner because of the back injury.
Both vehicles were written off in the accident. The police and ambulance attended. He did not want to go to hospital.
He became more anxious and depressed following the accident and the Prozac was increased to 40mg daily. He is currently taking OxyContin for pain.
He drinks up to 12 beers each day, sometimes twice each week or more.
He has gained 30kg of weight because of eating more.
The symptoms include easy fatigability, hypervigilance, anxiousness, irritability, and nightmares.
He cannot be bothered showering but previously showered twice each day.
He has the will to do everything and wears the same clothes for days.
He eats take away and easy cook meals because he does not want to cook.
Prior to the accident he went camping, kayaking, swimming, cycling, jet skiing, fishing and walked his dog.
He has ceased these activities since the accident.
He had a caravan and travelled around Australia.
He now drives very slowly and scared of being in an accident.
He purchased a four-wheel drive vehicle with a bull bar, so he feels safer driving.
He has lost contact with his friends.
He forgets people's names; PINs and has to write down everything. He has no problem with concentration or memory, prior to the accident.
Medical Assessor Michael Hong’s certificate addressing threshold injury dated 27 May 2022 states the diagnoses arising from injuries sustained in the accident are aggravation of major depressive disorder and alcohol use disorder which is a new injury. These are non-threshold injuries.
Medical Assessor Hong noted the following:
(a)    He was able to do various social activities enjoyed driving and had no problems with concentration and memory, prior to the accident.
(b)    He now thinks about the accident and feels he is lucky to be alive. He does not have dreams about the accident. His gained 30 kg of weight now weighing 110 kg. He is inactive and overeats.
(c)    He has sleep problems due to pain.
(d)    He no longer enjoys activities he normally enjoyed.
(e)    He is forgetful, easily distracted and easily fatigued.
(f)    He has worrying thoughts is irritable and has panic attack-like symptoms
The clinical notes from the LR Divine practice from 20 December 2014 to 1 December 2015 are a very poor copies and difficult to decipher. There are multiple prescriptions for MS Contin. There are prescriptions for Zyloprim, Plavix and Lipitor and at least one other prescription the name of which I cannot decipher. There are no prescriptions for antidepressant medication.
The insurer’s submissions dated 18 March 2024 states that the claimant's application for a panel review should be dismissed on substantive grounds. It does not show that Assessor Sidorov’s assessment was incorrect in material respect.

The Personal Injury Commission Certificate by Medical Assessor Alan Home dated

20 December 2021 states the following injury caused by the accident, aggravation of the

pre-existing condition of previous spinal fusion and laminectomy was a threshold injury for the purposes of the act.

Insurer supplied chronology

9 October 1991, admitted to the Newcastle Mater Hospital after an accident with fracture of the skull.
12 October 1991, intermittent headache since accident in association with alcohol in the past.
September 1995, claiming injuries back at work during a mining accident after falling on a railway line.
20 May 1996, Claimant underwent discectomy and spinal fusion to L5/S1.
May 1996, receiving Pethidine injections for ongoing back pain.
1998 or 1999, claimant's partner left him.
August 1998, further back pain and spasms down the leg after hitting a pothole in the car in the vicinity of Newcastle Mater Hospital.
1999, attempted suicide by trying to gas himself in his vehicle.
21 April 2000, deliberate attempt to overdose on paracetamol and diazepam because of recent stressful events. This occurred after an argument with his father on the telephone, the subsequent argument with his girlfriend and his house being robbed.
March 2001, admitted in Newcastle Mater Hospital after an assault and stabbing post-argument with his girlfriend.
2003, acute myocardial infarction, and claimant using amphetamines.
2004-2005, experiencing depression due to relationship breakup and work injury.
2005, attempted suicide by hanging a rope around his neck and driving away.
9 April 2008, accidental overdose of alcohol and Valium and admitted to Calvary Mater Hospital.
16 April 2008, presented to James Fletcher Hospital with suicidal ideation, depressive symptoms, reported to have chronic alcohol dependence and opioid dependence on the background of chronic pain.
2008, taking Valium and diazepam for sleep due to psychosocial stresses, including custody of a 12-year-old daughter. States has a history of chronic depression.
2009, ceased binge drinking because of liver impairment.
2009, ceased IV heroin use.
14 July 2009, report by Dr. Arian stating psychometric testing revealed he has extremely severe depression, moderate stress and anxiety, and a significant alcohol and drug history.
July 2011, accidental overdose of Valium. Opioid dependence in remission.
March 2014, claimant in a skateboard incident. He has severe spinal stenosis, L3/4, and had bilateral laminectomy decompression.
2014, taking OxyContin, 40 mg twice daily.
2015, taking OxyContin for back pain, 80 mg three times daily.
2016, taking Prozac for depression.
Clinical records of the Beresfield surgery for 2017, 2019, 2020 mentioned depression, taking antidepressants, and has anxiety.
16 March 2021 attended GP post-accident on 15 March 2021, with chest pain, abdominal pain, lower back pain, and was advised to go to hospital.
17 March 2021 attended John Hunter Hospital, severe pain, unable to walk, possible fractured ribs and bruising, and pain in the hip and leg radiating into the lower abdomen.
April 2021, recommenced drinking 10 standard drinks a day, Prozac dose was increased to 40 mg daily.

Submissions

Claimant’s submissions

The claimant’s earliest submissions state that the insurer’s determination is inconsistent with the evidence the claimant’s statement and Medical Assessor Michael Hong’s certificate and is therefore incorrect.
The claimant submits that his injuries should be greater than 10% WPI.
The review application submissions were critical of Medical Assessor Sidorov incorrectly assessing the PIRS and not providing adequate reasons for his findings.

Insurer’s submissions

The claimant’s discharge summary from John Hunter Hospital did not refer to psychological or psychiatric injury, such as shock.
There was no mention of any psychiatric injury in the claimant’s application for personal injury benefits, or in the Certificates of Capacity dated 16 April 2021, 10 June 2021, and

7 July 2021.
The claimant has an extensive medical history of relevance to his alleged accident-related psychological injury. The Beresfield Surgery clinical notes include a health care plan dated 24 March 2017. This health care report revealed a history of depression and anxiety., which was sufficient to be treated by a psychologist. The same psychological issues and treatment recommendation was made in the health care reports dated 27 November 2017, and

13 September 2018.
These psychological issues and recommended treatment were recorded again in health care reports dated 21 June 2022, 9 August 2022, 21 December 2022, and 1 February 2023, however these reports did not refer to the 2021 accident. The reports of ongoing issues with depression and anxiety demonstrate there is no causal relationship between those psychological injuries and this accident.
Further, Medical Assessor Hong’s threshold injury certificate of Assessment confirms the claimant’s psychiatric history that includes alcohol use disorder.
The certificate also confirms that the claimant suffered from depression before the accident, with symptoms including suicidal ideation and a neglect for self-care activities such as regular showering.
Medical Assessor Hong also reported that the Claimant denied having suffered anxiety before the accident, however the Health Care Reports found within the Beresfield Surgery clinical notes do not corroborate that. Thus, this aspect of the claim ought to be approached with caution.
Dr Graham Vickery’s report dated 13 December 2022 notes that the claimant has been driving his mother to medical appointments, suggesting no impairment to his capacity for travel or driving. Dr Vickey also reported that the claimant has no impairment to maintaining his hygiene and grooming. During the examination, Dr Vickery observed that the claimant was relaxed, made eye contact, was capable of humour, and his behaviour and mood were appropriate given the questions put to him and topics discussed.
Critically, Dr Vickery did not observe any “apparent clinically significant anxiety, melancholic depression, paranoid delusional ideation or formal thought disorder … [or] psychiatric impairment.” Accordingly, Dr Vickery concluded that “[t]here is no DSM5 diagnosis of psychological injuries due to the subject motor vehicle accident’, and ‘[t]here are no alleged psychological injuries that are directly and causally related to the subject accident on 15 March 2021.” Dr Vickery finally concludes that “[t]here is no [WPI] due to the subject motor vehicle accident as [t]here are no psychiatric conditions directly due to the subject motor vehicle accident.”
The claimant has failed to provide any evidence that establishes a causal link between this accident and the alleged psychiatric injury.
The claimant has also failed to provided evidence that suggests there is any permanent psychiatric impairment above 10% WPI.
The insurer submissions dated 18 March 2024 disputed that the claimant's application for a panel review should not succeed because Medical Assessor Sidorov’s assessment was not incorrect in material respect.

Re-examination

Who attended the assessment

Medical Assessors Friend and Doris examined Mr Holbert by video teleconference. Mr Holbert was in his solicitor’s office, Shine Lawyers in Hamilton Newcastle.
He had been driven to the office by his son from his home in Raymond Terrace. Mr Holbert lost his driver’s licence a few weeks ago because of low range drink driving.
He was the only one in the room.
He does not have a computer or know how to use a computer.

HISTORY

Psychosocial history and pre-accident history

Mr Holbert has an extensive pre-accident history of various events both physical injuries and also psychiatric/psychological events.

Mr Holbert was born in the Mater Hospital in Newcastle and lived in Fern Bay, near Stockton.
He completed school to the end of Year 9.
He initially worked in a takeaway shop later in a factory making fluorescent lights and then joined the Australian Army.
The claimant recollects he was in the Army Reserve before joining the regular Army.
He is not sure how many years he was in the army but believe it was less than four years. He stated that at this time his memory was “buggered up.”
He subsequently worked for a mining company, Barclay Mowlem, doing railway maintenance.
He replaced sleepers and laid new rail lines.
He had a fall, landing on the railway lines and suffered a severe injury to his back.
The letter from the Mater Hospital Emergency Department (Newcastle) dated 14 June 1996 refers to the claimant presenting to request pethidine, states that he had an L5/S1 discectomy on 20 May 1996. The work-related accident was in September 1995.
He had been having daily pethidine injections for his pain but his surgeon, Dr Isaacs, said he was to have no more injections.
Mr Holbert stated that he probably had a couple of surgeries and believed he eventually had a spinal fusion.
The chronology of events provided by the insurer states that he had a spinal fusion and discectomy on 20 May 1996.
Mr Holbert tried to return to work but could not do so and subsequently ceased work.
He received a sum of about $400,000 in compensation and has not subsequently attempted to return to work in any capacity.
Mr Holbert was in a relationship at the time of the accident. His eldest daughter was born on 18 February 1995.
That relationship ended in either 1998 or 1999. He stated that it ended because he was no longer the same man and could not do the same level of activities because of the ongoing pain.
Mr Holbert was subsequently in another relationship. His son from that relationship was born in early 2005.
Mr Holbert could not remember the date that his son was born but agreed that was probably correct as his son is now aged 20 years.
Mr Holbert was in a relationship for about six years until a few weeks ago, which if correct means that it would have commenced in 2019. Mr Holbert was unable to say when the relationship commenced.
The relationship ended because of his ongoing pain, inability to do activities and having no libido.
He does not know the reason the relationship with the mother of his son ended.
He reported that he was in another relationship which ended in 2000. His then partner asked if her twin sister could stay in the house to which he agreed. The sister stole the video camera and pawned it. He told his partner her sister needed to leave. The sister stabbed him in the back. This occurred either before or after he went to London, as mentioned in the document of events supplied by the insurer.
Mr Holbert stated that after the original accident and surgery in 1996, that he was in pain, and when his opiates were stopped, he started using intravenous heroin in an attempt to manage his pain.
He has been told that he developed Hepatitis C as a result of those injections.
He was treated for Hepatitis C with Ribavirin tablets.
He applied for a Disability Support Pension which was granted in 2006, having spent most of the money from the compensation claim. He stated that his partner had stolen a lot of the money.
Mr Holbert was unable to describe all the events before the accident.
He agreed that it was likely in 1999 that he attempted to suicide by trying to gas himself in his vehicle.
He agreed that in 2000 he took an overdose but he stated it was not to kill himself.
He agreed that in 2005 he tried to suicide by tying a rope around his neck and driving away.
He agreed that probably in June 2008 he had further surgery which is described as an L3/4 decompression and L5/S1 laminectomy.
He agreed that he had two myocardial infarctions but could not remember the dates except it was likely the first one was in about 2003 and the second one was some years later, which appears to have been in 2011 because the clinical notes from the Emergency Department dated 8 August 2013 and 29 May 2011 stated that he had an NSTEMI in May 2011.
He had drunk alcohol heavily after the work injury in 1995, but he could not quantify the amount.
He believes he ceased using intravenous heroin and alcohol in about 2009 and remained abstinent thereof.
He subsequently was prescribed oral oxycontin. It is difficult to know who initiated this prescription but the report by Dr Simon Tame, pain management specialist, dated
14 July 2009 states that he has a failed back surgery syndrome and has maladaptive pain cognitions. He states he uses alcohol heavily. It recommended weaning him off opioids using MS-Contin over about eight weeks.
It is difficult to know his intake of opiates subsequently, but he appears to have continued to take oxycontin up to the time of the accident. He recalled that he was taking 20mg twice daily at the time of the accident.
Mr Holbert agreed that he was recommenced on Prozac prior to the accident and accepted that it was likely to be 2016.
He could not provide a description of his symptoms but believed that Prozac 20mg daily had been helpful. He stated that he was not completely well at the time of the accident but was improved since taking Prozac.
Prior to the accident he was taking Prozac 20mg daily, oxycontin 20mg twice daily and various cardiac medications which included blood thinners and other medications which he could not name.
The clinical notes from the Beresfield Surgery from 24 November 2015 to 8 February 2023 indicate he was prescribed Endep on 14 November 2019 and Avanza 13 September 2018. There were multiple prescriptions for Prozac and Oxycontin and Endone.
Mr Holbert could not remember his other antidepressant medication.
Mr Holbert could not remember the reported accident in October 1991, listed in the insurers statement of facts and chronology.

History of the accident

The accident occurred when Mr Holbert was driving. He had a green traffic light and proceeded through an intersection. He was driving in the lane closest the centreline on a dual lane road.
An oncoming vehicle suddenly turned right at the intersection and struck the right front headlight of his vehicle.
Mr Holbert sat in his vehicle, not quite knowing what to do. Passersby came up to him and told him there was smoke coming from the vehicle and perhaps it was going to catch fire. They assisted him out of the vehicle.
He sat in the gutter and waited for the ambulance to arrive.
He was assessed by the ambulance officers and declined to go to the hospital. He was in shock and did not want his son to be notified “out of the blue” that he had been involved in an accident.
His vehicle was towed. The tow truck driver dropped him at home.
He agreed that he probably presented to the John Hunter Hospital two days later as stated in the John Hunter Hospital discharge referral dated 17 March 2021.
He had severe pain in his chest. He was told that he may have fractured ribs that may not be visible on a chest X-ray. He was advised that even if he had fractured ribs, there was no specific treatment and that he would gradually recover.
He was in pain around his lower sternum which he reported was along the line of the seatbelt.
He had pain in his lower back. He was walking bent over and started using a walking stick which he used very occasionally.
The pain could radiate down his legs.
His mother had a mobility scooter and loaned it to him until he could purchase his own mobility scooter.
He continued to have pain which made it difficult to get to sleep.
Mr Holbert developed various psychiatric/psychological symptoms.
He felt very anxious when driving or travelling in a motor vehicle. He had never previously been involved in an accident.
He drove carefully.
He would call out to the driver to tell him to slow down if he was a passenger and described himself as a “back seat driver.”
He felt on edge most of the time.
His memory deteriorated. He could not remember names, even his son’s name at times, PIN numbers, bank details and other things which he could not specify.
Mr Holbert consulted his doctor. Most physical treatment centres were closed because of COVID-19 pandemic restrictions. He was treated with increased doses of oxycontin, ice and heat packs.
The dose of Prozac was increased to two capsules daily.
At some stage, his general practitioner suggested medicinal marijuana but he did not want to trial that because it would prevent him from driving.
He believes he may have had one counselling session but it was not ongoing.
It appears that the dose of Oxycontin was increased. It was difficult to determine how much the dose was increased. It was subsequently reduced and currently is at the pre-accident dose of 20mg twice daily.
He continued to take all his heart medications and believes they are unchanged.

Details of any relevant injuries or conditions sustained since the accident

Mr Holbert has not been involved in subsequent accident, accidents of any kind, sustained any fractures or undergone any surgery.
He found a friend at his home, who had suicided by shooting himself in the head, on the afternoon after attending the Dawn Service at the local RSL club.

Current symptoms

Mr Holbert continues to have pain.
He goes to bed at 7.00 pm. He sleeps with six or seven pillows under his legs and knees and has to sleep on his back. He feels that he does not get to sleep until 4.00 am even though he listens to music of various types on the television. He tosses and turns. He sleeps for about an hour at a time when he does get to sleep. He repeatedly wakes and goes back to sleep.
He has pain in his lower back.
He has shooting pain down the back of both legs from his lower back when he walks or stands.
Any activities which requires bending forward such as doing the washing up causes shooting pain down his legs from his lower back.
His legs are tender to touch as if they are always bruised.
He described feeling depressed.
He was asked about the relationship ending. He stated that this was in part because he had resumed drinking alcohol to medicate himself for the pain and that he was unable to drive anywhere including taking out his campervan which he and his partner had done prior to the accident. He earlier mentioned the loss of libido as another factor in the ending of the relationship.
He did not go to clubs or pubs because he felt he would be targeted or vulnerable if there was an argument or someone got into a fight.
He described having mood swings. He was asked to elaborate and replied that he was not the same person and had lost the will. He could have angry outbursts. Others have told him he has changed.
He spends most of his time at home lying in bed watching television.
Mr Holbert despite all these events did attend the Anzac Day Dawn Service at his local RSL Club. He subsequently went to a friend’s house which was nearby and through the window saw his friend sitting up on the lounge. He opened the door he saw that his friend had shot himself in the head with a shotgun.
These events play over in his mind but do not appear to have further restricted his activities.
He ceased driving when he lost his licence due to low range drink driving a few weeks ago.

Current and proposed treatment

Mr Holbert continues to take Oxycontin 20mg twice daily, Prozac 40mg daily and all his previous cardiac medications which states have not changed.
No new treatment is proposed including any physical treatments for his pain. He has not been referred to a pain management clinic since the accident.

CLINICAL EXAMINATION

Mental state examination

Mr Holbert struggled during the examination but managed to remain in the examination which lasted about one hour and 45 minutes.
His account was imprecise particularly with regard to timeframes. He could not remember many of his health and other events or accurately date them in time prior to the accident but considering many of these events occurred before 2010 and were numerous, it was not surprising that he could not remember them.
He described his current symptoms, current level of activity and his functioning prior to the accident.
Mr Holbert has ongoing pain in his lower back which can radiate like an electric shock down his legs, particularly if he is standing or walking.
It is difficult to get to sleep because of pain and he repeatedly wakes after an hour.
He feels more depressed compared to prior to the accident. He has outbursts of anger.
He drove more carefully following the accident.

Current functioning

Mr Holbert lives with his son who is aged 20 years and a friend of his son. His son now drives him if he needs to travel. He continues to use the motorised scooter to get around locally.
Mr Holbert stated that he struggles to function each day. He showers once every 4-5 days because the shower is over the bath and the bath has a very high lip. It feels that it is unsafe to get into the bath to have a shower.
He does get dressed in clothes each day but does not have many clothes that fit because his weight has increased from 70kg to 111kg since the accident.
He rarely eats breakfast and occasionally has a cup of tea for lunch but does cook the evening meal for himself, his son and his son’s friend.
He struggles to do cleaning, laundry, and other household tasks because of the pain. He use the clothes dryer to dry his clothes because he cannot reach up to hang them on the clothesline.
He uses the mobility scooter each day and to go out and buy food for the dogs. He has his own dogs and his daughter’s two dogs. He does not walk the dogs. He feels his own dog is too big for him to walk.
He stated that prior to the accident he was very active doing scuba diving, motorbike riding and fishing, but when asked more closely it appeared that if he went fishing it was only with his son and he did not do scuba diving or motorbike riding because he had ceased activities those activities many years ago.
He was able to do the lawnmowing, the shopping and the cooking. He would go out with his children, including taking out his grandchildren.
Mr Holbert initially stated that did not do any social activities but when asked more specifically replied that he would walk down to the riverbank and talk to people that he met there which included homeless people. He had been invited to the local church and attended several times including an event where there was a guest speaker. He talked to people at the church.
Prior to the accident he would go away with his partner sometimes up to Forster or Nelson Bay but had ceased doing so because of the pain after the accident.
Mr Holbert before he lost his driver’s licence was driving to visit his mother near Stockton. He was able to drive to Newcastle. He drove once or twice a week each week to visit his mother and to look after her dog when she was taken out shopping with carers provided by her aged care package.
The limitations on his driving following the accident were mostly related to pain. He did feel anxious and was more vigilant and stated that he no longer had the confidence to drive further afield to Nelson Bay or Forster.
Mr Holbert’s relationship ended he said several weeks ago. He feels that this was because of his reduced level of activity, loss of libido and angry outbursts.
Mr Holbert stated that he is forgetful and described forgetting people’s names but he does not get lost when driving. He does forget to take his wallet with him at times.
He states he watches television including news programs, YouTube videos, police shows and travel shows. He is able to follow these programs.
Prior to the accident he would read newspapers and perhaps a magazine but now his eyes have deteriorated despite having glasses so it is a struggle to read.
Mr Holbert has not attempted to return to work since 1996 and feels that no-one would give him a chance to work. He stated that he would like to work but does not believe he can maintain it consistently.
The Review Panel at this stage asked him about his alcohol intake.
He replied that he consumes a 200ml bottle of spirits which is 6.3 standard drinks each day and can sometimes drink double or triple that amount. He starts drinking in the morning and also drinks at night before he goes to bed to help him get to sleep.
He drinks at home. The only time he is abstinent is if he has to go out to attend an appointment or event. He described feeling anxious, sweating, and craving alcohol if he did not drink.
He found his friend who had suicided this year on Anzac Day but this did not appear to have affected his ability to function day to day.

Comments on consistency

Mr Holbert had poor memory for past events.
His account and symptoms of the time immediately before and following accident was generally consistent with the accounts in the various supplied documents immediately before and following the accident.

DETERMINATIONS

Diagnosis and reasons

The Review Panel considered all the available information including the various supplied documents and the information provided by Mr Holbert.
The Panel determined that Mr Holbert met criterion for a diagnosis of an adjustment disorder with mixed anxiety and depressed mood.
Mr Holbert described being depressed and feeling anxious in certain situations including when driving but he did not avoid driving. He had angry outbursts and a loss of libido. He did fewer social activities, in part because of the ongoing pain.
This condition was not present prior to the accident.
His level of distress was out of proportion to the severity of the stressor considering that it was not a serious accident.
It causes impairment of his social and day to day functioning.
It does not meet the criterion for another mental disorder or exacerbation of a pre-existing mental disorder and it does not represent normal bereavement.
The stressor is ongoing because he continues to have pain from the accident and that is the major symptom that affects his day to day functioning.
Mr Holbert also reaches criterion for the condition of alcohol use disorder.
He was abstinent from consuming alcohol from about 2009 until after the accident. He now consumes 200ml, equivalent to 6.5 standard drinks, each day and sometimes double or triple that amount.
Mr Holbert occasionally has days of abstinence. He has withdrawal symptoms, including sweating, increased anxiety and craving alcohol if he does not consume alcohol. He has symptoms of alcohol dependence.

Causation and reasons

Mr Holbert was not consuming alcohol and had not consumed it for over ten years before the accident.
He reported that prior to the accident he had been feeling well. He had been treated with an antidepressant medication which had improved his mood and he reported that he was undertaking social and recreational activities, undertaking his personal care, and was in a relationship. He had not worked since 1995 or 1996.
He has not been involved in any subsequent accidents or accidents of any kind.
He has a previous extensive history of physical conditions and has had some episodes of mental illness, most of which are long in the past.
There is no objective evidence of another cause for the conditions of adjustment disorder with mixed anxiety and depressed mood, and alcohol use disorder of a dependent type, other than the accident on 15 March 2021.

Summary of injuries referred by the parties

The following injuries WERE caused by the accident:
· alcohol use disorder of a dependent type, and
· adjustment disorder with mixed anxiety and depression.

PERMANENCY OF IMPAIRMENT

Permanent impairment (or WPI) is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (p 315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”

The accident occurred over four years ago. Mr Holbert has had limited treatment.
His condition has not improved in that time and has not deteriorated. He functions at a stable but reduced level compared to prior to the accident.
It is very unlikely at this stage so long after the accident that any medical treatment would be effective.
The Panel considers that his condition is stabilised and permanent and unlikely to change substantially and by not more than 3% with or without medical treatment.

Degree Of Permanent Impairment Psychiatric Impairment Rating Scale

The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Accident Guidelines.

Psychiatric diagnoses	1. Alcohol use disorder of a dependent type	2. Adjustment disorder with mixed anxiety and depression
Psychiatric diagnoses	3.	4.
Psychiatric treatment description	Treatment with fluoxetine.

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	1	No deficit. Any impairment in this category is caused by the pain that Mr Holbert experiences day to day, particularly if he has got to bend forward whilst doing household duties, including washing up. He can cook, shop for groceries, travel by mobility scooter to buy his groceries but previously drove his vehicle prior to his driver’s licence being suspended for driving under the influence of alcohol.
2. Social and Recreational Activities	2	Mild impairment. Mr Holbert does get out and talk to local people both at church and along the riverbank. He has contact with his son and daughter and prior to his licence being suspended had contact with his mother who lived at least 16km away. These activities have reduced since prior to the accident because of his psychiatric symptoms but largely because of the pain that he experiences.
3. Travel	2	Mild impairment. Mr Holbert reduced the distances that he drove after the accident because he felt more nervous as a driver. He was still able to visit his mother who lived near Stockton, have contact with his daughter and drive into Newcastle or other places that were familiar. He no longer went away at weekends or for weekends at Forster or Nelson Bay, feeling he just did not have the confidence to do so.
4. Social Functioning	3	Moderate impairment. Mr Holbert’s relationship of six years ended at least a couple of weeks ago because of his ongoing physical and psychiatric/psychological symptoms arising from the injuries sustained in the accident.
5. Concentration, Persistence and Pace	2	Mild impairment. Mr Holbert reported that he had a poor memory and was forgetful but was able to sit through an examination of an hour and forty five minutes and provide the account described above albeit with some difficulties recalling more distant events. He does not get lost when driving or walking in the local area.
6. Adaptation	1	No deficit. Mr Holbert has not worked for many years but now has limitations on what he can do in terms of household duties and other activities but this is because of the pain and probably the weight gain which undoubtedly adds to his back pain.
List classes in ascending order: 1, 1, 2, 2, 2, 3
Median class value: 2
Aggregate score: 11
% whole person impairment: 5 %

*%WPI ^{= Percentage Whole Person Impairment}

Psychiatric Impairment Rating Scale – Pre-existing impairment

Psychiatric diagnoses	1. Depressive symptoms but unable make a specific diagnosis because of insufficient information	2.
Psychiatric diagnoses	3.	4.
Psychiatric treatment description	Treatment with fluoxetine.

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	1	No deficit. Mr Holbert reported that prior to the accident he had no difficulties with day to day functioning, self-care and personal hygiene, grocery shopping, cooking, cleaning, and mowing the lawn.
2. Social and Recreational Activities	1	No deficit. Mr Holbert reported that he drove to various places including Forster and Nelson Bay with his partner. He regularly met with his daughter and grandchildren and regularly visited his mother. He had ongoing contact with his son who lives with him. He enjoyed all those activities.
3. Travel	1	No deficit. Mr Holbert was able to drive wherever he wished. He was not experiencing anxiety in regard to pain and did not limit his travel because of psychiatric/psychological symptoms.
4. Social Functioning	1	No deficit. Mr Holbert had been in a relationship for at least two years prior to the accident. He had good relationships with his son and daughter, grandchildren, and mother. He had contact with various friends.
5. Concentration, Persistence and Pace	1	No deficit. Mr Holbert reported that prior to the accident he had no difficulties with concentration or memory. Although he was never inclined to read, he was able to follow television programs without difficulty.
6. Adaptation	1	No deficit. Mr Holbert has not worked for many years because of physical pain but he was able to care for himself, undertake all household duties, go shopping and help others.
List classes in ascending order: 1, 1, 1, 1, 1, 1
Median Class Value: 1
Aggregate Score: 6
Pre-existing % whole person impairment: 0%

*%WPI

Apportionment – pre-existing/subsequent impairment

Mr Holbert had no impairment of his day to day functioning prior to the accident but the Panel noted that he had been prescribed fluoxetine which had improved his mood.
The Panel determined that there was a pre-existing WPI of 0%.

Effects of treatment

Mr Holbert has not had any benefit from the increased dose of fluoxetine since the accident.
No allowance is made for the effect of treatment.
·Current WPI  5%
·Apportionment - pre-existing impairment 0%
·Effect of treatment  0%
·Final whole person impairment   = 5%

PERMANENT IMPAIRMENT

Degree of permanent impairment caused by the accident 5%.
Permanent impairment ratings take symptoms into account, however the percentage permanent impairment is not a direct measure of disability.
A finding of zero percent permanent impairment indicates that there was an injury caused by the accident and that there may be continuing symptoms, however, relevant Guides and Guidelines rate the associated impairment at 0%.

DETERMINATION

The Panel has considered the evidence relating to the claimant’s pre-accident psychological history that included his medical history and relationship breakups.
The Panel has given weight to its medical members’ opinion who, following a thorough examination of the claimant’s pre-existing functioning, were satisfied there was no pre-existing psychiatric condition at the time of the accident. The Panel finds that immediately before the accident the claimant was not suffering from a psychological condition.
Given its finding that the claimant was not suffering a psychological condition immediately before the accident the Panel is satisfied there was no pre-existing impairment.
The Panel is satisfied that the claimant suffered physical injuries as a result of the accident.
The Panel gives weight to the opinion of its medical members that as a result of the accident the claimant developed alcohol use disorder of a dependent type and adjustment disorder with mixed anxiety and depression. The Panel agrees with and adopts the reasons given by its medical members in their re-examination report in support of this finding.
The Panel is satisfied that the accident made a material contribution to the development of these disorders, and that but for the accident the claimant would not have developed these conditions.
The Panel has considered the class descriptors for each category of functioning in the PIRS and has evaluated the history provided by the claimant when the Panel’s medical members re-examined her.
The Panel notes that the clinical judgment of its medical members, both of whom are psychiatrists, is the most important tool in the application of the PIRS: cl 1.217 Impairment Guidelines. The Panel has given weight to the findings of its medical members with respect to the class they assigned for each PIRS area of functioning, and agrees with and adopts their findings, and the reasons they have given in support of those findings.
The Panel has found that the degree of permanent impairment of the claimant that has resulted from the conditions caused by the accident is 5%, and that the permanent impairment is not greater than 10%.
Given those findings, the Panel revokes Medical Assessor Sidorov’s certificate dated
28 January 2024 and issues a new certificate certifying that the degree of permanent impairment of the claimant that has resulted from the adjustment disorder caused by the accident is not greater than 10%.

[2025] NSWPICMP 716

16 September 2025