Iaon v QBE Insurance (Australia) Limited
[2024] NSWPICMP 144
•12 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Iaon v QBE Insurance (Australia) Limited [2024] NSWPICMP 144 |
| CLAIMANT: | Selvana Iaon |
INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Michael Hong |
MEDICAL ASSESSOR: | Matthew Jones |
| DATE OF DECISION: | 12 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury in a motor accident on 13 November 2018; rear end collision; claimant re-examined by both Medical Assessors; observations by Panel that assessment caused by psychological injury is based on the behavioural impact of the psychological condition and not due to the effects of pain from the physical injuries; Held – claimant assessed at 7% permanent impairment due to psychological injuries; medical assessment confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment 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 ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel confirms the certificate dated 10 November 2022. |
REASONS
BACKGROUND
On 13 November 2018 Ms Selvana Iaon (the claimant) was a front seat passenger in a stationary vehicle. The insured vehicle rear-ended the vehicle behind the claimant which in turn rear-ended the claimant’s vehicle.[1]
[1] Claimant’s bundle, p 8.
QBE Insurance (Australia) Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Iaon any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Ms Iaon’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Chew and dated 10 November 2022 (the medical assessment).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
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 Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties otherwise filed bundles of documents for the Panel’s consideration.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[9] In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[9] See s 3B(2) of the Civil Liability Act 2002.
[10] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor found that the motor accident caused an adjustment disorder with mixed anxiety and depressed mood resulting in whole person impairment assessed at 7%.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing condition
The clinical records do not refer to any pre-existing psychological condition.
Medical records post-accident
Initial certificates refer to various physical injuries caused by the motor accident.[11]
[11] Claimant’s bundle, pp 21 - 26.
The claim form dated 20 November 2018 referred to the motor accident causing a number of physical injuries and “psychological sequalae”.[12]
[12] Claimant’s bundle, p 8.
An assessment report by Pinnacle rehabilitation for the activities of daily living dated
31 January 2019 was requested to review the claimant’s capacity for performing activities of daily living. The report noted that the claimant had sustained whiplash, right rib fractures, left wrist fracture, soft tissue injury to upper and lower back and abdomen, and psychiatric injury by way of post-traumatic stress disorder, anxiety and depression.[13][13] Claimant’s bundle, p 462.
The report noted that the claimant was previously independent with respect to self-care, transfers, cooking and meal preparation and was unable to complete these tasks following the injury and had been relying on the assistance of a cousin and daughter.[14]
[14] Claimant’s bundle, p 468.
An Allied health recovery request dated 15 March 2019 referred to symptoms of “depression, not sleeping, anxiety, stress, no social interaction, labile mood, social withdrawal, not engaging in any chores.”[15]
[15] Claimant’s bundle, p 130.
A “PTSD checklist” dated 15 March 2019 referred to extreme scores in 18 of the 20 categories.[16]
[16] Claimant’s bundle, p 260.
The general practitioner (GP) clinical note dated 10 March 2020 referred to poor sleep, impaired concentration, tearfulness and thoughts of self-harm.[17]
[17] Claimant’s bundle, p 151.
Dr Yaser Mohammad provided a report dated 15 May 2020.[18] Counselling commenced in September 2019 with regular counselling session after that time. The doctor noted worsening psychological condition following the motor accident with insomnia, poor eating habits, low motivation, tearfulness, anxiety lo energy and other symptoms.
[18] Insurer’s bundle, p 153.
On 3 June 2021 the GP referred the claimant for management of “depression and suicidal ideations” and noted that the claimant recently took a box of Celebrex with “thoughts of killing herself”.[19]
[19] Claimant’s bundle, p 502.
Dr Alexander Phung, psychiatrist, provided a report dated 22 November 2021.[20] The doctor noted that prior to the motor vehicle accident the claimant had a “normal life”. Current symptoms included re-experiencing memories, hypervigilance, tension and feeling unwell which involved quarrelling with family.
[20] Claimant’s bundle, p 505.
The doctor noted that the claimant had been prescribed diazepam but was not currently taking any medication due to allergic reactions in the past.
The mental state examination by phone noted that communication was difficult even with Arabic interpreter due to “poverty of thought”. Mental state examination revealed anxious and depressed mood, no delusions, orientation to time, no thoughts of self-harm and insight into accepting treatment. The doctor diagnosed post-traumatic stress disorder with comorbid severe panic disorder and recommended ongoing psychotherapy.
Qualified opinions
Dr Dixon, orthopaedic surgeon, was jointly qualified by the parties and provided a report dated 15 September 2020.[21] The doctor assessed impairment of the cervical and thoracic spine at 10%.
[21] Insurer’s bundle, p 68.
Dr Anthony Samuels, psychiatrist, was jointly qualified by the parties and provided a report dated 27 April 2021.[22]
[22] Insurer’s bundle, p 37.
Dr Samuels’ examination findings were:[23]
“Mrs Iaon was quite pleasant and cooperative. She had a bad cough. Her affect displayed some reactivity but her mood was dysthymic. She had limited memories of the accident or what treatment she received after the accident or what her symptoms were. She said now she feels depressed and anxious, has thoughts to kill herself quite frequently and has tried to hurt herself. She is always feeling down, tired, overthinking and does not like seeing people. She is quite focussed on physical pain, particularly her arm, leg and hand problems but also talks about problems in her back. Mrs Iaon indicated that she was forced to work by Centrelink until about a month ago in a restaurant. She said that her son is now her carer and she is unable to care for her husband who has multiple health problems.”
[23] Insurer’s bundle, p 45.
The doctor opined:[24]
“The main limitations appear to be her physical injuries although depression and anxiety would be affecting her motivation and her desire to interact with people and she does state that she is fearful in cars and around roads.”
[24] Insurer’s bundle, p 46.
In a separate report Dr Samuels assessed permanent impairment of the psychological injury caused by the motor accident at 5%.[25]
[25] Insurer’s bundle, p 59.
Dr Yajuvendra Bisht, psychiatrist, was qualified by the claimant and provided a report dated 15 December 2021.[26] The doctor noted current functioning included not attending any social gatherings, not able to read more than a few lines, able to shower and groom independently but require constant prompting, skipping meals, leading to tasks finished and doesn’t leave the house by herself.
[26] Claimant’s bundle, p 514.
The doctor noted a pre-accident employment history where the claimant was the primary carer for her husband who has chronic health issues. Dr Bisht assessed permanent impairment at 24%.
SUBMISSIONS
Claimant’s submissions dated 18 October 2021[27]
[27] Claimant’s bundle, p 3.
These submissions were filed seeking assessment of permanent impairment of physical and psychological injuries.
The claimant referred to treatment from Dr Yaser Mohammed, psychologist, and Dr Nhut Phung, psychiatrist, alleging psychiatric injury diagnosed as depression, post-traumatic stress disorder and anxiety.
Claimant’s submissions dated 8 December 2022[28]
[28] Claimant’s bundle, p 488.
These submissions were filed seeking a review of the medical assessment.
The claimant submitted that the medical assessor erred when utilising the psychiatric impairment rating scale (PIRS) to determine the level of whole person impairment.
In relation to self-care and personal hygiene the claimant referred to the Pinnacle Rehabilitation report dated 31 January 2019 which noted that the claimant was previously independent with cooking, meal preparation, cleaning bed making and other activities and now was relying on a cousin and daughter will assist with those tasks. The Allied health recovery request dated 15 March 2019 noted the claimant’s symptoms and that she was “not engaging in any chores”.
A report from Dr Mohammed dated 15 May 2020 noted the claimant was struggling to carry out day-to-day activities and was bingeing on food and sometimes not eating meals.
The claimant submitted that she still required family to support to perform the activities of daily living.
The claimant did not assert error with respect to the findings of the PIRS categories for “social and recreational activities”, “travel” and “social functioning”.
In relation to “concentration, persistence and pace” the claimant submitted that a class 2 rating did not apply to the claimant. Reference was made to the post-traumatic stress disorder checklist dated 15 March 2019 which noted that the claimant was experiencing “extreme difficulty concentrating” it was the most severe category rating. A referral to
Dr Mohammed dated 10 March 2020 by the GP noted symptomatology which included “concentration/memory – impaired”.In a report dated 15 May 2020, Dr Mohammed noted that the claimant “could not complete small tasks”.
The claimant submitted that the statement by the Medical Assessor that she was able to function at a restaurant was incorrect as she had been unemployed for an extended period of time.
In relation to “Adaptation” the claimant submitted that she is totally impaired. It was submitted that the finding by the Medical Assessor that she was able to return to work in a restaurant post-accident failed to note that this work was only for a short period of three months.
The claimant referred to the report of Dr Mohammed dated 15 May 2020 which noted that the claimant was incapable of managing the study/work demands following the motor accident and will require the support she needs to look after her family and herself.
The claimant submits that there has been a significant treatment effect noting treatment with a psychologist for multiple sessions and a statement taken psychotropic medication.
The claimant noted that there have been improvements in a condition and referred to the Allied health recovery request dated 15 March 2019 which reported that the claimant had no social interaction and the clinical records of Mr Li dated 15 March 2019 which noted the claimant could not sit in a car.
These histories were compared with those obtained by the Medical Assessor which noted that the claimant was able to travel accompanied and that she was able to attend some activities with family.
The claimant also submitted that there had been an improvement in symptoms as evidenced by the absence of flashbacks which were present when reported to Dr Li. The claimant otherwise referred to the “PTSD checklist” completed on 15 March 2019 where the claimant reported extreme findings in all but 2 of the 20 questions.
Insurer’s submissions dated 8 November 2021[29]
[29] Insurer’s bundle, p 30.
The insurer referred to the report of Dr Anthony Samuels dated 27 April 2021 which was jointly commissioned. Dr Samuels opined that the claimant suffered a mild adjustment disorder with mixed anxiety and depressed mood and assessed impairment at 5%.
The insurer submitted that the claimant’s main reported limitations are due to the alleged physical injuries.
Insurer’s submissions dated 11 January 2023[30]
[30] Insurer’s bundle, p 4.
These submissions opposed the application to review the medical assessment.
In respect of self-care, the insurer noted that the claimant relied on reports in 2019 and 2020 and submitted that the the Medical Assessor’s assessment “is more reliable than a history obtained over 3 years ago”.[31]
[31] Insurer’s bundle, p 5.
The insurer otherwise referred to the Medical Assessor’s clinical judgement (cl 6.217 of the Guidelines) and that the examples in the classes are “illustrative rather than literal criteria” (cl 6.220 of the Guidelines).
With respect to concentration, the insurer again noted that the reports relied upon by the claimant were old and were inconsistent with the clinical findings of the Medical Assessor.
With respect to adaptation, the insurer again noted that the reports relied upon by the claimant were old and that the claimant ceased work because her contract expired.
With respect to treatment, the insurer referred to cl 1.222 of the Guidelines [sic cl 6.222] and noted that the claimant initially saw a psychologist and a psychiatrist for around eight sessions but not for a year and only took medication for a short period. There was no current treatment regime. The insurer submitted that the decision not to make any adjustment was in accordance with the Medical Assessor’s clinical judgment and the claimant’s treatment history.
RE-EXAMINATION
Ms Iaon was examined by both Medical Assessors. The examination report is as follows:
“Who attended the assessment
Video assessment.
Ms Iaon went to her solicitor’s office and was assessed on her own.
Ms Malak Hijazi was the interpreter.
Drs Jones and Hong were in their Sydney offices.History
History of the motor accidentOn 13 November 2018, Ms Iaon remembered her husband was driving and she was the front passenger, and they were on Smithfield Road, but she cannot remember the suburb. She remembered they had visited her brother-in-law and they were going home, and it was night-time. They stopped at a traffic light and the car behind was struck by another car and rear-ended them. She remembered having her seatbelt on and there was ‘high pressure’ and a lot of pain from the collision. She said that her body was pushed to the dashboard on impact and she suffered rib fractures and a left wrist fracture.
She spontaneously discussed her psychiatric disability and said that psychologically, she is “not good”, she does not go out and does not want to see her relatives. At home, she does not even talk to her children or her husband, and she is always distracted and fearful and she cannot bear to look at small cars. She said the relationship with her husband has not been good and she does not sleep next to him anymore, and that she sleeps with her daughter, she said due to her fear. She stated the accident has left a lot of damage on her and that she is always stressed, and this is ‘involuntary’.
The Panel made enquiries, and Ms Iaon confirmed that the police came, but the ambulance came late and so her cousin came and took her to Fairfield Hospital and she had x-rays and stayed there for a few hours. She remembered she could barely stand up and her whole body ached. She has not made a substantial recovery physically over time. She said she suffers from lower spine pain, and she cannot sit up straight. Her back is always held in a certain position and cannot be upright.
Ms Iaon went on to say that she is always hungry and always eating and has gained weight and cannot lose the extra weight. She stated her menstrual cycle stopped after the accident and the GP told her it was due to psychological stress.
The Panel asked about her menstrual problems and noted her records, which suggested she had gynaecological symptoms or peri-menopausal symptoms before the accident. She said that she was still having her period, and on the day of the accident, she had a major bleed and no further periods since.In terms of her recent physical functioning, she reported that she struggles to walk and can walk less than 15 minutes, which is the distance to go to the local shops. She said that before the accident, she would carry four bags between her two hands, and now she can only carry one plastic bag in each hand, or two bags of groceries.
She has not had surgical treatment since the accident.
She stated her car had rear damages and damages to the bumper and has been repaired.The Panel returned to ask her about why she is sleeping with her daughter, and she said she is scared and has no sexual desire, therefore does not sleep with her husband.
History of symptoms and treatment following the motor accident
The Panel noted the psychological history Ms Iaon spontaneously gave.
She said she often imagines there are things in front of her, such as somebody suffocating her or trying to hit her or to kill her. The Panel asked whether this related to her childhood experience in Iraq, and she said that in Iraq, she had a good childhood and was always happy. Even after she had come to Australia, she was always happy and never had any problems. The Panel asked her about bombings and the conflict in Iraq, and strangely, she initially said ‘no’, there was no bombing. The Panel discussed what she told Dr Chew, and Ms Iaon said that despite the bombing, she was very happy in her family life. She said that her father passed away when she was young, and she grew up with her mother who looked after her and her brother well. Her brother is in the USA now. She said she came to Australia, and she was fine and very happy.
The Panel noted that she came to Australia in 2015 and asked her the type of Visa she was on and whether she was a refugee. She said her brother made the application, so she does not know.Psychosocial history and pre-accident history
The Panel asked Ms Iaon about previous physical problems before the subject accident through the interpreter. She gave a long response and told the Panel about her psychiatric disability and that since the accident, she is never happy. She has no urge to entertain or to go to social functions. She does not want to do shopping and only goes shopping with her husband. She cannot tolerate driving and does not like to be in cars because of her fear. If there is a car next to her husband, she gets anxious and wants to argue. She saw Dr Phung, psychiatrist, who gave her a tablet which caused an allergy, and she had to stop it. At one point she fainted and was taken to Liverpool Hospital with the allergy and had to stay in hospital for 10 days.
The Panel again asked Ms Iaon about previous physical problems before the subject accident through the interpreter. She said that she had a recent cyst in her liver and kidney.
The Panel asked Ms Iaon about previous physical problems before the subject accident through the interpreter, and explained to the interpreter to ensure she understood the question, as this was the third attempt. She said there was no problem. She had never complained about a physical problem and had never gone to see a doctor about any physical problems. The Panel discussed that in her application for personal injury benefits form, she reported that she suffered leg arthritis. She confirmed she suffered arthritis in both legs and said that she used to love walking and used to walk to the shops and the church but now, she is very tired and dizzy, and she cannot walk like she used to.
In terms of developmental history, Ms Iaon was born in Iraq and came to Australia in 2015.She does not have drug or alcohol problems.
She is not aware of a family history of mental illness.Ms Iaon does not have a confirmed past psychiatric history.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Iaon has not sustained other psychological injuries.
Current symptoms
She said gained weight since the accident, that she was 86kg before the accident and is now 69kg. The Panel discussed through the interpreter, this meant she lost weight. She said she gained weight. However, she does not know how much her weight changed in the last 12 months, as she does not check her weight. She said she eats all the time and her daughter does most of the cooking. Ms Iaon said she cooks maybe twice a week. She makes traditional Iraqi food and rice dishes, which takes an hour. She said there was an incident where she left the stove on and caused a fire, so the family did not want her to cook too much for a while, but and she is cooking now, less than before the accident.
Her anxiety symptoms are triggered by being near cars and driving.
She described having depressed moods.
She reported an inability to enjoy things she would normally enjoy, such as socialising.
She reported having major problems with her memory and concentration, from a subjective perspective.
She reported in 2018, she attempted an overdose and took 2 packets of medications, then made herself vomit and told her doctor. She has transient suicidal thoughts over time and no further self-harm behaviour.
She reported having chronic sleep difficulties, generally only 1 or 2 hours, and has nightmares. She has distressing memories related to the accident.
She is anxious and irritable and starts arguments with people.
She avoids socialising.
Ms Iaon denied having experienced true psychotic symptoms.Current and proposed treatment
Ms Iaon took psychotropic medications and had side effects or allergic reactions, and the last medication was a couple of years ago. She consulted Yaser Mohammed, psychologist and Dr Alex Phung (Nhut), psychiatrist and the last time was a couple of years ago. She said she has had enough psychiatric treatment and it did not help her. There are no proposed treatments.
Clinical Examination
Mental State examination
Ms Iaon was assessed by video.
Ms Iaon had dark eyebrows and in contradistinction, very light colour hair. She was talkative and gave long answers to all questions. She gestured regularly. She smiled and laughed appropriately. The assessment took 1 hour 20 minutes. There was no psychomotor slowing or acceleration. She was not restricted in her affect, but she presented as anxious. She spoke spontaneously. She remained focused throughout the assessment. She maintained a steady pace in her speech. No overt cognitive impairment was observed.
Current functioningMs Iaon is 49 and living with her husband, who is on a Disability Pension. They have three adult children including two sons, and all three children are living at home. The two sons do not work, and they are on a Carer's Pension, one for Ms Iaon and the other son for her husband. Ms Iaon herself is on Jobseeker payments and said that she has been looking for part-time cleaning work.
When the accident happened, she was on a learner’s license and had taken two driving lessons. After the accident, she stated she allowed it to expire because she was too scared to return to driving.
She showers twice a week and said that she is dizzy in the shower and needs to have a shower chair and her daughter helps with the showering. If she is not dizzy, she said she will shower a lot more.
Ms Iaon said she never goes out on her own. On further enquiry, she said that when she does go out on foot, she becomes dizzy and short of breath, therefore her husband or her daughter needs to be with her and to hold onto her when she is dizzy. She wants to go out but cannot cope with her physical symptoms.
She rarely catches the train, maybe once a year. The Panel asked about the last time she caught a train and she said, ‘where would I go?’, and the Panel confirmed she has no reason to catch a train, and therefore does not catch a train.
She goes to the church much less since the accident, maybe once every one or two weeks now.She has been married since age 18 and reported that the marital relationship has declined since the accident.
She left school at age 11 and said she can read and write well, but she does not read now due to vision problems. She said even when wearing glasses, she cannot see well from her right eye. The Panel asked her if she wears her glasses, how long she could read a book for. She said she has not read a book since she left school.
She worked as a cleaner in Iraq and after coming to Australia, the only time she worked was for three months after the accident. She worked in a restaurant making salads. She worked about 15 hours a week across three days, and she said there was no problem making salads, but she had problems interacting with people. She had an argument and people complained she was always angry and stressed. Therefore, she left that employment.
Before the accident, she had never worked and was looking after her husband who had many health issues. She said she is no longer her husband's carer, because she is sick herself and cannot help him or lift him and she needs help herself (e.g. with her showering, due to her physical injuries).Comments of consistency
Inconsistencies were discussed with her and noted in different parts of this report; however we did not see these as significant and this did not affect the assessment of permanent impairment.
Permanent impairment
Diagnosis and reasonsMs Iaon confirmed growing up in Iraq and was exposed to war experiences. She initially denied this but later said there were bombings but said it did not affect her psychologically. There was no evidence of her having needed psychiatric care in the past. She reported coming to Australia and was caring for her husband. She initially denied pre-existing physical health issues, and later confirmed she had arthritis in her legs.
After the accident, she reported that she became fearful, with constant anxiety and depression, and having significant physical injuries and physical disabilities.
There was some inconsistent reporting, but overall, the evidence suggested that the accident had caused a significant psychiatric injury, which is consistent with PTSD. She does not have Major depressive disorder, as her depressive symptoms are amorphous and there are no psychomotor changes, both objectively and in her file.Causation and reasons
Ms Iaon does not have a confirmed past psychiatric history. She has significant distal vulnerability factors, and grew up in a potentially traumatising environment, which makes her a susceptible individual. The onset of her psychological symptoms is related to the subject MVA. The Panel noted some inconsistencies. Having analysed the pathogenesis history and the nature of MVA and the onset of symptoms, the Panel determined the subject MVA is a major causal factor of her psychological injury.
Ms Iaon's impairment is permanent and unlikely to change substantially and by more than 3% in the next year, with or without medical treatment.
Psychiatric Impairment Rating Scale
Ms Iaon’s physical impairment and pain are not assessable in the PIRS.
Category Class 1. Self Care and Personal Hygiene 2 Ms Iaon said she showers twice a week and eats too much. She cooks twice a week. Her weight changed over time (either increased or decreased) but she does not weigh herself.
From a psychological perspective, she is capable of independent living without regular support, and does not need prompting with her self-care as she initiates self-care and personal hygiene herself.2. Social and Recreational Activities 3 She rarely attends recreational activities. She enjoys going to Church with her family, but does it much less frequently now.
3. Travel
2 Ms Iaon is anxious near cars and did not continue with her driving lessons. She can go out on her own on foot from a psychological perspective. Her physical disability behaviours are not assessable in the PIRS.
4. Social Functioning
2 Ms Iaon's relationship with her husband has been strained as she starts arguments with him. She sleeps in a different room now but the marriage is intact.
She is anxious and avoids people.
The relationship with her general family has declined. The relationship with her children is reasonable and a son is her carer.
5. Concentration, Persistence and Pace 2 Ms Iaon described having poor concentration.
She can focus on cooking for 1 hour, and still cooks regularly, although she had at one time, left the stove on. It is likely her concentration has improved, as her family did not want her to cook, and now she is cooking twice a week.
Her mental state examination on the day of assessment, is consistent with 1 or 2.6. Adaptation
3 She can work and make salads in a restaurant; however, she struggles with social interaction due to her irritability. From a psychological perspective, she cannot perform full-time work. She can manage low stress employment at around 20 hours per week. She is looking for work.
She continues to engage in some pre-MVA life roles, including contributions to the household. This is closer to 3 than 2.List classes in ascending order: 2 2 2 2 3 3
Median Class Value: 2
Aggregate Score: 14
% Whole Person Impairment: 7 %
*%WPI = Percentage Whole Person Impairment
Psychiatric Impairment Rating Scale
Pre-existing/subsequent impairment
Ms Iaon has not sustained a subsequent injury.
She has no confirmed past psychiatric history.Apportionment
Nil.
Effects of Treatment
0%
No treatment now.
The final WPI = 7%.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[32]
[32] Section 7.26(6) of the Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[33] and Insurance Australia Ltd v Marsh.[34]
[33] [2021] NSWCA 287 at [40], [41] and [45].
[34] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the detailed and substantive examination report provided by the Medical Assessors.
The Panel noted the PIRS on file from the doctors qualified by the parties. Dr Yajuvendra Bisht did not identify any inconsistency.
In terms of self-care, Dr Bisht rated a class 3, and noted that she needed constant prompting and was skipping meals unless prompted. The Panel took a different history that she showered twice a week and wants to shower more. She reported constantly eating and gained weight over time and finds it hard to lose the weight, although her reported weight before and after the subject accident suggested she lost weight overall. She eats and cooks without prompting and attends to basic self-care independently from a psychiatric perspective, and therefore, the Panel rated a class 2.
In terms of concentration, persistence and pace, Dr Bisht rated a class 3 and said she could not concentrate for more than a few minutes at a stretch and was unable to read more than a few lines. It is unclear what sort of reading he had assessed, and the Panel noted that she does not normally read and has not read a book since she was at school. The Panel noted that she focused well during the assessment which took 1 hour and 20 minutes and she can focus on some day-to-day activities, such as cooking for about an hour now (although she did leave the stove on once), and therefore rated class 2.
In terms of adaptation, Dr Bisht was not aware of her full work history after the subject accident and use the wrong guides and assessed her employability instead of adaptation. The Panel explained the claimant’s assessment for adaptation in the examination report.
We otherwise note that the assessment of permanent impairment is based on the behavioural impact of the psychiatric condition and not due to the effects of pain or any physical injuries.[35]
[35] Guidelines, cls 6.214 and 6.215.
We are satisfied the psychiatric condition is caused by the motor accident. This is the common view of the various opinions provided by qualified and treating doctors. The conclusion is consistent with the onset of symptoms following the motor accident in circumstances where there was an absence of prior problems.
The impairment is stabilised and permanent within the meaning of cls 6.19 and 6.20 of the Guidelines due to the duration of symptoms and the consistency of symptoms over recent times. There is no suggestion of treatment in the future that would affect our findings. Based on the clinical experience of the Medical Assessors on the Panel, we do not expect any change in impairment over the next 12 months.
CONCLUSION
The permanent impairment is the same as that assessed by Medical Assessor Chew. Accordingly, the medical assessment certificate is confirmed.
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3
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