Insurance Australia Limited t/as NRMA Insurance v Babbo
[2025] NSWPICMP 87
•13 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Babbo [2025] NSWPICMP 87 |
CLAIMANT: | Sandy Babbo |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Alexander Bolton |
MEDICAL ASSESSOR: | Michael Hong |
MEDICAL ASSESSOR: | Christopher Canaris |
DATE OF DECISION: | 13 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; review of certificate and reasons of Medical Assessor dated 18 September 2023 who assessed the claimant as having a major depressive disorder and a whole person impairment (WPI) of 17%; the claimant was injured in a motor vehicle accident on 21 February 2017 in a rear end collision and suffering injuries to her neck shoulder and lower back pain; photographs of damage to the claimants car indicated a light impact; the claimant was initially assessed for physical disabilities at 7% WPI but on review by a Review Panel was assessed at 17% WPI; the insurer subsequently obtained surveillance of the claimant and sought a further assessment for which the claimant was assessed at 4% WPI for physical injuries and thereafter the claimant was assessed at 17% WPI for psychiatric disabilities by Medical Assessor; as the insurer obtained surveillance footage of the claimant it made submissions about this but the Medical Assessor did not address inconsistencies demonstrated within the footage; the claimant had submitted that as a result of the accident and continuous pain she developed a psychiatric disorder; Held – Review Panel accepted that the surveillance footage identified the claimant’s undertaking physical activities for which she had submitted she was unable to undertake; the claimant was assessed by the Review Panel as having a persistent depressive disorder caused by the accident and WPI of 5%; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Nagesh dated 18 September 2023. 2. The Review Panel finds that the claimant has suffered a Persistent Depressive Disorder. 3. The Review Panel finds that the claimant has a whole person impairment of 5%. |
STATEMENT OF REASONS
INTRODUCTION
This is an application by the insurer for review of a certificate and reasons of Medical Assessor Nagesh (the Medical Assessor) dated 18 September 2023. The Medical Assessor found that Sandy Babbo (the claimant) had a major depressive order and a whole person impairment (WPI) for psychiatric injury of 17%.
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
· Major depressive disorder, melancholic subtype with anxiety and chronic pain disorder.
The insurer disputes that the claimant exceeds the 10% WPI threshold.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Review Panel have read all the documentation. If a particular document is not referred to by the Review Panel, this does not mean that the Review Panel or a Review Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned – see WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46].The Review Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Review Panel has come to its own conclusion and has taken its own history.
The accident
The claimant was involved in accident on 21 February 2017 on Highland Road, Yagoona. She was stationary at traffic lights when the insured driver failed to stop in time and collided with the rear of the claimant’s car. Both cars were able to be driven away after the accident.
Following the accident the claimant continued to work and thereafter had the onset of neck, shoulder and lower back pain.
Insurers submissions
The insurer submits that the Medical Assessor failed to review and evaluate all available evidence and failed to properly address the inconsistencies.
The insurer submits that the assessment is incorrect in a material respect and, had the Medical Assessor reviewed all of the material and properly addressed the inconsistencies, the claimant’s WPI would have been assessed at not greater than 10%.
The insurer submits that the Medical Assessor failed to address the inconsistencies within the material before him, including the surveillance report and footage.
The insurer says that the Medical Assessor accepted that the claimant’s pre-accident anxiety disorder was in “remission” when the accident occurred and that she had since “experienced pain,” “functional limitations” and “inability to be active”. The Medical Assessor stated that his conclusion was “based on the self report of the claimant and her documents from her GP surgery.” The insurer says that it is clear from this statement that the Medical Assessor did not consider all material available when coming to this decision.
The insurer submits that the Medical Assessor should have reviewed the actual footage which it says shows the claimant behaving in a manner inconsistent with her self-reported levels of function and social activity. The insurer submits that the surveillance footage shows more than what is described by the Medical Assessor in his certificate. In this regard the insurer says that the surveillance footage shows the claimant was observed to sit for an extended period and engage in conversation with an animated and jovial disposition. The claimant was also observed to have an intimate interaction with a male person. The insurer says that these inconsistencies, both from a psychiatric point of view but also physically, were not put to the claimant or referred to in the Medical Assessor’s certificate.
The insurer says that had the Medical Assessor reviewed the surveillance footage, the alleges physical incapacities of the claimant would have been called into question as it shows:
(a) the claimant sitting in a café with another person for 29 minutes without any obvious discomfort and with good range of motion of the neck;
(b) the claimant interacting with a male companion showing good range of motion of the neck and back;
(c) the claimant carrying a toddler;
(d) the claimant bending into her vehicle, and
(e) lifting her upper limbs above shoulder height and throwing punches.
The insurer submits that the Medical Assessor’s reported pre-accident history is inaccurate or incomplete at best. The insurer says that the report of Dr Brimage confirmed that the claimant had previously been diagnosed with multiple sclerosis (MS) in her teenage years, which was not reported by the claimant and not addressed by the Medical Assessor. The insurer says that the Medical Assessor made no reference or comment in his certificate to the two reports of Dr Brimage. The claimant has previously indicated Dr Brimage did not diagnose her with multiple sclerosis in her teenage years, whilst his reports suggest that such a diagnosis was made.
The insurer referred to a report of Dr Vickery which noted the claimant reported that her marriage ended in October 2019, describing her husband as “quite a greedy person” and reported issues with him paying child support. The treating records however refer to the claimant suspecting her partner of infidelity. The insurer submits that the Medical Assessor should have also addressed this further to the claimant’s reports that “she separated from her partner due to her apathy and social withdrawal.”
The insurer says that the claimant was able to form a new relationship post-accident and bear a child, which the insurer says is another inconsistency not addressed by the Medical Assessor.
The insurer submits the inconsistencies between the Medical Assessor’s examination and the available records were not addressed or brought to the claimant’s attention under clause 1.41 of the Motor Accident Permanent Impairment Guidelines (the Guidelines).
The insurer says that the Medical Assessor did not address the report of Dr Rogers in which it was reported that the claimant attributed the worsening of her lower back pain due to pregnancy, “particularly as the pregnancy advanced.”
Lastly, the insurer says that the Medical Assessor failed to consider the photographs showing minor damages to the vehicles, which the insurer says was particularly relevant in circumstances where the psychological complaints are said to arise from the claimant’s physical incapacities.
The insurer submits that, having regard to the above submissions, particularly the claimant’s ability to form a new relationship and have a second child, the Medical Assessor’s psychiatric impairment rating scale (PIRS) assessment is incorrect.
Insurers submissions for WPI assessment
The insurer says that according to general practitioner (GP) records the claimant had suffered from an anxiety disorder for a long time but had developed a recent worsening of her symptoms. She had previously had a panic attack.
Surveillance
The insurer referred to a report of Dr Rastogi, psychiatrist, dated 18 September 2020. Dr Rastogi assessed 19% WPI. The insurer noted the following history recorded in his report:
(a) she had “lunged forwards and backwards with significant force” as a result of the accident;
(b) there was a suggestion she had constant pain after the birth of her daughter and the suggestion that she was “struggling to cope” physically and emotionally was “a wreck”;
(c) the claimant reported that she had self-loathing thoughts, felt helpless and hopeless and a burden after the birth of her child. She developed “self-hatred” and avoided social events;
(d) there was a lack of intimacy and her relationship with her ex-husband was strained. She did however bond well with her daughter and denied post natal depression. She felt guilty due to an inability to carry her daughter, bend or bathe her and breastfeed;
(e) she could not return to her job in July 2019 as she had “self-doubts”, lost her confidence and developed “fear in her ability to do things”;
(f) her partner was critical of her as she was extremely underweight with a body mass index (BMI) of under 18. He was critical that she was not working and dismissed her functional impairments. He left in December 2019;
(g) she was embarrassed and felt shame about financially relying upon her parents;
(h) her anxiety impacted her ability to function. She had poor distress tolerance. She felt she could not cope with minimal stress and had poor frustration tolerance. She felt emotionally numb and did not care about things. She avoided attending social event and outings;
(i) she had erratic sleep;
(j) she had panic attacks associated with nausea, and feeling “extreme overwhelmed responses”;
(k) her self-care had decreased;
(l) she was “very withdrawn and shut down”;
(m) she “avoided public places and people”;
(n) she had lost friendships and “feels isolated”;
(o) she “struggles with day to day routine”, and
(p) she was “socially reclusive and stays indoors, walking occasionally”.
The insurer submits that the surveillance footage obtained suggests that the claimant may be more socially active than has been suggested to Dr Rastogi.
The insurer submits that it is of note that the claimant saw Dr Rastogi in September 2020, and footage was obtained of the claimant in November and December 2020 and February 2021.
The insurer reports that In the footage, the claimant is able to socialise and meet with friends at cafes, undertake grocery shopping, carry a toddler on her left hip and bend (without obvious restriction) into her vehicle.
The insurer makes the following observations from the surveillance;
(a) 27 November 2020 – when she was sighed putting petrol into her vehicle;
(b) 2 December 2020 – she attended a shopping centre, attended a café (sitting and speaking with three male persons), meeting with a female friend at a café (where she ate and spent approximately one hour), collecting a male person later that afternoon and then spending two hours with that male person (who would seem to be an intimate partner based upon the interactions between them);
(c) 8 December 2020 – the claimant left her home, took her child to a day care facility, picked up a passenger at Georges Hall, attended Bass Hill Plaza Shopping Centre and attended a café with a female friend, drove to Chester Hill where they entered a further shopping centre, attended a green grocers in Sefton, before returning to Bass Hill Plaza;
(d) 8 February 2021 – the claimant left her home, attended a day care centre and returned to the residence;
(e) 16 February 2021 – the claimant attended a childcare facility, she then attended a nail salon in Greenacre, attended a service station and then attended a private residence where she was greeted by a male;
(f) 17 February 2021 – the claimant attended a childcare facility, returned home, then drove to the same private residence she had attended on other occasions where she collected a male passenger and drove away from the residence, and
(g) 22 February 2021 – the claimant attended the child care centre and returned to her residence,
The insurer submits the footage is inconsistent with the history given to Dr Rastogi that she avoided public places and people, was socially isolated, socially reclusive and stayed inside, and struggled with day-to-day routine. The insurer observed that the claimant also appeared well-presented, generally she wore makeup and her hair was neat. It is of note that she attended a nail salon during the course of the surveillance obtained which the insurer submits is not consistent with someone who alleges she has difficulty with self-care tasks or motivation to complete such tasks. In February 2019, there is references in the GP clinical notes (A15) to the claimant having had eyelash glue in her right eye after applying false eyelashes, which the insurer submits is also not consistent with the claimant having incapacities in respect of self-care.
The insurer submits that the claimant’s physical capabilities upon surveillance footage are not suggestive of the level of functional impairment she reported to Dr Rastogi and, in the insurer’s submission are not supportive of a lack of adaption that was “quite debilitating and aggravating her depressive cognitions”.
The insurer submits that it would also appear that the claimant has been able to commence a new relationship since the breakdown of her relationship with her ex-husband.
The insurer submits the surveillance footage is not consistent with the findings of Dr Rastogi that the claimant required four hours of assistance per week with domestic tasks due to amotivation, poor energy levels, anxiety and a lack of drive.
The insurer submits the following:
(a) the surveillance footage calls into question Dr Rastogi’s assessment of mild impairment in relation to self-care and personal hygiene. It is noted the claimant is able to attend a nail salon and appeared well groomed. The insurer submits a person who was not motivated to look after their appearance would be unlikely to attend a nail salon;
(b) the surveillance footage calls into question the assessment of a moderate impairment for social and recreational activities. The claimant was active during the period of surveillance (leaving her home almost every day). It could not be said that she had “stopped going out” and the insurer submits it could not be said that she “rarely goes to social events” or that she was unable to leave the house without a support person. She also appeared actively involved whilst interacting socially during the period of surveillance;
(c) the surveillance footage calls into question the assessment of a moderate impairment for social functioning and relationships. The claimant is observed to meet a number of friends, and would appear to have entered a romantic relationship since the dissolution of her marriage. She remains able to look after her child;
(d) the surveillance footage calls into question the assessment of a moderate impairment for concentration, persistence and pace. The claimant was able to attend multiple different locations on a single day, and
(e) it also calls into question the severe impairment assessed in respect of adaption. The claimant is observed to perform small amounts of grocery shopping, attend multiple different shops, attend cafes and meet with friends and spend more than two hours meeting with a male friend in a park. The insurer submits the footage is not consistent with Dr Rastogi’s assessment that the claimant “can barely do her basic duties”.
The insurer submits that if the claimant was assessed as having a class 1 impairment for self-care, and class 2 impairments for the other PIRS areas, she would be assessed as having 5% WPI. Even if she was assessed as having a class 3 impairment for adaptation and a class 3 impairment for one other area of functioning, she would still have less than 10% whole person impairment.
Claimants submissions
The claimant says that because of the claimant's anxiety and depression, the Medical Assessor noted, and the GP notes confirmed the prescription of anti-depressant medication at the time of assessment. The claimant had been referred to a psychologist, where she was treated with cognitive behavioural therapy (CBT) and supportive counselling. The claimant also had panic attacks, and on one occasion she was taken to hospital because of hyperventilation. Again, there was objective evidence in support of this position.
At the time of the assessment, the Medical Assessor noted the claimant remained with depressed mood, anxiety, insomnia, a lack of appetite, a lack of energy, fatigue, social withdrawal, diminished concentration, continued feelings of worthlessness, and panic attacks at least once or twice per week.
The claimant says that when she was asked about a history of prior mental illness, she denied any, and at page 4 of the certificate, when reminded of the history of anxiety in 2014, the claimant said that issue had well resolved before this accident. The claimant submits that this is objectively borne out by the clinical, and other records.
In respect of causation, the claimant relies on page 6 of the certificate and reasons, where the Medical Assessor reported she had previously been diagnosed with anxiety disorder in remission. The claimant submits that the Medical Assessor rationalised that her diagnosis of major depressive disorder was made against a background of chronic pain, and the claimant's inability to be active, her inability to work, and her lost income.
Claimant’s statement
The claimant has provided three statements within her bundle of documents. These are statements made on 2 April 2019 and 17 June 2020 and 6 October 2021.
In the first statement of 2 April 2019, the claimant referred to a heavy collision with the rear of her car.
The claimant noted increasing pain after time, and following the accident she said that she was in pain most of the time and had stiffness in her back. She said that driving was difficult, and she tended to avoid this as much as possible.
In the claimant’s statement of 6 October 2021, she reported that she has become socially reclusive and withdrawn. The claimant said that her social circle and social life had decreased. She said her mental health had significantly deteriorated and medication was her last hope. The claimant said that she was in pain most of the week and will not risk seeing people because of the pain and that she is self-conscious about her body which has significantly affected her health.
Regarding surveillance which had been undertaken of the claimant by the insurer, she said that she had never suffered from paranoia until after the surveillance footage. The claimant said that her privacy had been threatened and invaded, with respect to the surveillance footage.
Medical evidence
The claimant was assessed by a Medical Assessor Assem for physical injuries on 29 July 2019. He assessed the claimant’s physical injuries as having 7% WPI which was attributable to the claimant’s cervical spine at 5% and 1% each for the left and right shoulders. There was no allowance for WPI for injury to the thoracic spine and lumbar spine
The claimant sought a review of this assessment and a Medical Review Panel provided a certificate of 23 December 2019. The Review Panel assessed WPI of 17%. This assessment was with respect to 5% for the lumbar spine, 8% for the right shoulder and 5% for the left shoulder. There was 0% allowance for the cervical spine and thoracic spine.
A further assessment took place by Medical Assessor Gorman who provided a certificate dated 12 November 2022. The insurer made submissions to the Commission that a further assessment should occur as surveillance footage and additional material not available to the Medical Review Panel had become available.
Medical Assessor Gorman said:
“I accept the claimant’s submissions that she did not lift her arms far above her head. However, she moved the shoulders easily in doing manoeuvres such as reaching into the car to lift out her children. She lifted the right arm above the 100 degrees she was able to for the Review Panel. To hold her children on her hip, she internally rotated the shoulders more than the 40 degrees on the right and 60 degrees on the left she demonstrated to the Review Panel.
During my examination she was easily able to reach her bra strap on both sides demonstrating to me normal extension and internal rotation of the shoulders and not the marked restriction seen by the Review Panel.
She also rotated her cervical spine easily from side to side in the surveillance. She was able to bend forward to lift her children out of the car – her lumbar spine was flexible. As well, she was easily able, on multiple occasions, to carry her child cradled in her arm after swinging the child up from the car.
These manoeuvres were inconsistent with her having significant permanent impairment of the cervical, lumbar and thoracic spines. The surveillance is consistent with my findings on examination.
To the Panel, when squatting she could only ‘go down about a third of the way before stopping and recovering’. In my examination she could squat normally and certainly to get her children out of the car she needed to perform a part squat manoeuvre.”
Medical Assessor Gorman assessed 2% upper percentage impairment for each of the left and right shoulders making a total assessment of 4% WPI. He made no allowance for any WPI of the cervical spine, the thoracic spine and the lumbar spine.
Medical Assessor Nagesh provided a certificate dated 18 September 2023. It is this certificate which is being reviewed by the Review Panel.
The Medical Assessor reported that the claimant developed her symptoms due to pain and her performance at work declined. She started to become anxious, and depressed, the pain affected her sleep, she lost her appetite, lost weight, lacked energy and motivation, struggled to concentrate, was anxious all the time, and felt worthless in her situation.
The Medical Assessor said that the claimant’s described symptoms were:
“…consistent with someone suffering from major depressive disorder of moderate degree with anxious distress. I have come to this conclusion based on the self-report of the claimant and her documents from her GP surgery where the claimant has presented multiple times with depressive and anxiety symptoms and also with chronic pain symptoms. Ms Babbo meets the criteria for major depression of moderate degree with anxious distress under the DSM-5 category as follows. She satisfies Criteria A, where she has experienced depressed mood for more than two weeks. Criteria B. In addition, she has experienced five or more of the following symptoms, which include anxiety, insomnia, lack of appetite, lack of energy and motivation, diminished ability to concentrate, feelings of worthlessness. Criteria C. These symptoms are not due to a substance misuse or general medical condition. Criteria D. These symptoms do not meet the criteria for any other mental disorder. Criteria E. Her symptoms have caused significant distress and social occupational impairment”.
The Medical Assessor said that at the time of the accident the claimants previously diagnosed anxiety disorder was in remission.
The Medical Assessor said that since the accident, the claimant had been experiencing pain and her ability to be active as she had before, had been limited. In the context of her pain, her inability to be active and functional limitations, she has developed the following symptoms which include depressed mood, anxiety, insomnia, lack of appetite, lack of energy and motivation, diminished ability to concentrate, feelings of worthlessness, social withdrawal.
The Medical Assessor said that the claimant’s diagnosed major depressive disorder “has been in the context of her chronic pain and her inability to be active and also not able to work and loss of income. Hence, the subject MVA has given rise to her major depressive disorder”. He made no reference to light impact and surveillance inconsistencies.
His PIRS assessment was as follows;
Psychiatric diagnoses
1. Major depressive disorder
2.
3.
4.
Psychiatric treatment description
Pharmacotherapy, CBT, Supportive psychotherapy
Category
Class
Reason for Decision
1. Self Care and Personal Hygiene
2
I have assessed her as class two, mild impairment. My rationale is Ms Babbo relies on her mother to do the cooking, cleaning and shopping. She has a shower on most days.
She is able to care for her daughter, hence I am of the opinion she is able to live independently although she has been struggling with the ADLs, hence class two, mild impairment.
2. Social and Recreational Activities
3
I have assessed her as class three, moderate impairment. My rationale is Ms Babbo has become socially withdrawn. She does not attend any social or recreational activities, which include sporting events, family functions, weddings, dinner parties, and anniversaries.
She cannot attend big group events which make her anxious.
3. Travel
2
I have assessed her as class two, mild impairment. My rationale is Ms Babbo is able to drive and travel independently in local areas where she can drop her children to school. She goes to the local shops at times. However, she cannot travel to far away and to unfamiliar places independently. She requires a support person.
4. Social Functioning
3
I have assessed her as class three, moderate impairment. My rationale is Ms Babbo has lost contact with the majority of her friends. At the time of the subject MVA she was in a relationship and since the subject MVA because of her apathy and social withdrawal, she has separated from her partner.
5. Concentration, Persistence and Pace
3
I have assessed her as class three, moderate impairment. My rationale is Ms Babbo is able to concentrate barely for five minutes. She cannot watch television, cannot read a book, cannot read magazines. She is forgetful.
6. Adaptation
3
54. I have assessed her as class three, moderate impairment. My rationale is Ms Babbo has not been able to work. However, part of her inability to work is the pain and hence keeping aside the pain factor and using my professional judgment, I am of the opinion Ms Babbo's capacity to handle stress has decreased significantly hence she warrants a category three, moderate impairment.
List classes in ascending order: 2, 2, 3, 3, 3, 3
Median Class Value: 3
Aggregate Score: 16
% Whole Person Impairment: 17 %
There was no deduction for a pre-existing impairment.
The claimant was examined on her behalf by Dr Rastogi who provided a report of 18 September 2020.
Dr Rastogi described that:
“…a CT /MRI showed disc bulge in lower back and cervical neck. She was referred to physiotherapy and oral analgesics. She struggled to drive for 1-1.5 hours each day as she was having severe pain and was in constant discomfort. She decreased going to gym as her pain aggravated gradually and stopped her gym training. She was training six days a week premorbidly and was extremely fit and active person and gradually her motivation plummeted. She has few absences from work due to episodic pain and exacerbation.”
Her diagnosis was major depressive disorder, melancholic with anxiety.
Dr Rastogi’s PIRS assessment follows:
Permanent Impairment, Assessment – Motor Accidents Authority
Diagnosis
Major depressive disorder , melancholic type with anxiety
Permanent disability
Yes
Co-morbidity
Chronic pain disorder
Pre-existing condition
There is no evidence of pre-existing condition
Category
Reason for decision
Class
Self-care and personal hygiene
Mild impairment as she needs prompting with showers and meals, she needs prompting and struggles with meals , struggles with self-care , lack of desire and no interest to do things , had lost significant weight and was cachectic
2
Social and recreational activities
Moderate Impairment and does not get too involved in social activities. She stopped going out loss of enjoyment and loss of interest, poor energy levels and fears with anxiety, loss of enjoyment in pleasurable activities
3
Travel
Mild impairment as does drive to familiar places, lost confidence and lack of motivation and drive
2
Social functioning and relationships
Moderate Impairment as feels burden on her family and feels helpless and worthless and failure as a mother , relationship separation recently due to her injuries
3
Concentration, persistence and pace
Moderate impairment as feels tired and exhausted and has difficulty with following complex tasks.
She struggles with multitasking and increased pressures, poor stress coping and forgetful . She is unable to make decisions
3
Adaptation
Severe impairment as pace is very erratic and reduced and can barely do her basic duties and struggles with simple decisions
4
The median class was 3 and WPI was 19%.
Dr Rastogi provided an updated report of 18 May 2023. Her opinion was unchanged. She disagreed with a report of Dr Vickery for the insurer. She did not say if surveillance material had been provided to her, nor reports of Dr Rogers of 3 March 2021 and 12 May 2021.
Clinical notes of Ms Maja Popovic of Psych Central have been provided. The claimant attended Ms Popovic during 2022. The claimant consistently complained about anxiety, depression and chronic pain, as well as dealing with an unfaithful and emotionally abusive husband from whom she separated after the accident.
Dr Gehr, an orthopaedic surgeon, provided several reports for the claimant. He assessed WPI at 34%.
The claimant’s GP, Dr Malek provided a report which, among other things, clarified that the diagnosis of Multiple Sclerosis in 2009 By Dr Brimage may have been incorrect, with no subsequent treatment or symptoms.
The claimant obtained an occupational therapist’s report from Mr Byrnes dated 2 April 2020.amongst other things, the occupational therapist said that the claimant would benefit from participating in a pain management program to assist her to manage her chronic pain and fear of movement.
Dr Rogers, an occupational physician, provided a report of 3 March 2021 for the insurer.
The claimant had reported that she would go to the gym six days per week for the accident. However, following the accident she informed Dr Rogers that she gradually stopped in 2018. The claimant also said that she would now go for short walks around the block on “good days”.
Dr Rogers said that the claimant could not explain the claimant’s level of disability at the time of examination on the basis of an organic injury sustained in the accident. She assessed 0% WPI for the claimant’s cervical spine and 5% WPI for the lumbar spine. There was no WPI assessment for both shoulders due to inconsistencies of measurement.
Dr Rogers was subsequently shown surveillance observations obtained by the insurer which she viewed. Dr Rogers noted that the claimant rotated her neck maximally to the left when she looked behind her and that this was greater than the range of motion observed for her examination.
Dr Rogers said that the surveillance showed the claimant carrying out her normal activities in a manner which, in her opinion, was inconsistent with complaints of chronic pain. The claimant repeatedly lifted her child with apparent ease which was inconsistent with her history of a 5kg lifting limit. Dr Rogers said that this confirmed her impression that there was no impact on the claimant’s daily activities.
Dr Yu, an occupational physician retained by the insurer, provided a report of 4 December 2018
Dr Yu said that any soft tissue injury that worsened from the accident resolved within two days the accident without the need for any treatment. He said that from and since 23 February 2017 the claimant had not had any bodily injury as a result of the accident with respect to which to stabilise. He said that the claimant’s restrictions and treatment needs relating to her neck, thoracic, lumbar back and bilateral shoulders is not at all attributable to the accident. He did not however provide any substantiation of these conclusions.
The insurer relies on a report of Dr Vickery, psychiatrist of 23 March 2021.
Dr Vickery observed that the claimant was despondent and frustrated when discussing her current situation and her pain perception however, he said that there was no clinically significant anxiety, melancholic depression, paranoid delusional ideation or formal thought disorder. There was no apparent cognitive impairment.
Dr Vickery said that there was no psychiatric impairment noted in the clinical examination.
The insurer has referred to a report of Dr Brimage which it submits, confirmed that the claimant had previously been diagnosed with MS in her teenage years, and which was not reported by the claimant and not addressed by the Medical Assessor. The insurer says that the Medical Assessor made no reference or comment in his certificate to the two reports of Dr Brimage. The claimant has previously indicated Dr Brimage did not diagnose her with MS in her teenage years, whilst his reports suggest that such a diagnosis was made. The Review Panel does not accept that a definitive diagnosis of MS was made as there is no ongoing medical evidence to support this.
Post accident photographs of claimant’s car
The insurer attached to its bundle of documents, two photographs of a car which it has submitted are photographs of the claimant’s car after the accident. The Review Panel does not know who took the photographs, when they were taken and if they actually are photographs of the claimant’s car.
However, the Review Panel assumes that these are photographs taken after the accident of the claimant’s car as no objection has been raised about this by the claimant.
The police report noted that the claimant was a provisional licence holder and that she was driving a Toyota Corolla with a registration number which corresponds with the photographs.
Copies of the photographs follow:
The Review Panel observes that there is no readily identifiable damage to the rear of the car which indicates a light impact. This observation that a light impact occurred is based on normal day to day experience.
Surveillance observations
The insurer relies on and has provided copies of reports and footage of surveillance observations and investigations of AHC Investigations dated 21 December 2020 and 9 March 2021
The surveillance shows the claimant, over observation from various days in November 2020 through to February 2021, to pick up her young daughter and carry her various distances to and from her car. The claimant is seen to bend forward to place her child into the rear of her car and also to remove her from the car. When seen with her daughter, the claimant is seen to be carrying her, resting on her hip.
The claimant is observed getting in and out of her car without restriction at various times and to move freely when undertaking this activity.
The claimant is observed at a café talking to three males and then later talking to a female, separately, shortly after that first meeting.
The claimant is seen socialising on a park bench with a male and openly displaying signs of affection and laughter and showing unrestricted movement in that activity for an extended period.
The claimant was observed driving her car at various times in an unrestricted manner.
The claimant was observed at a café on several occasions with an acquaintance.
The claimant was also observed to attend a nail salon where she remained for approximately 45 minutes.
The claimant was observed to move freely at all times, to perform movements without restriction and to carry her daughter without difficulty and moving her daughter in and out of her car without difficulty as well as to socialise with friends/and or acquaintances.
In the claimant’s statement of 6 October 2021, she reported that she has become socially reclusive and withdrawn. The claimant said that her social circle and social life had decreased. She said her mental health had significantly deteriorated and medication was her last hope. The claimant said that she was in pain most of the week and will not risk seeing people because of the pain and that she is self-conscious about her body which has significantly affected her health. This statement is six months after surveillance was undertaken, which showed that at the time of the surveillance, she was capable of socialising, wore gym gear and did not demonstrate pain restriction.
Medical examination
The claimant was examined by Medical Assessor Hong and Medical Assessor Canaris on 29 January 2025. Their report follows:
“History
Psychosocial history and pre-accident history
Background:
Ms Babbo was born in Australia and grew up with her parents and reported a happy childhood and was not exposed to any neglect or abuse.
In terms of general medical history, she does not have cardiac, thyroid or liver disease. Multiple sclerosis was suggested in in her teens, and eventually it was confirmed she never had it.
She does not have drug or alcohol problems.
She is not aware of a family history of mental illness.
She does not have a forensic history.
Past psychiatric history:
In terms of past psychiatric history, the Review Panel began by discussing that we have read the GP records (Dr Huda) and noted a pre-accident psychiatric history, with a referral to psychologist. Ms Babbo's response was she had never had mental health problems before the accident, ‘there was nothing, I was very healthy’. She said she has never seen a psychologist and never been referred to a psychologist.
She said she doesn't know who Dr Huda is and her GPs were Dr Malek and Dr Azzi. She said before the accident she was healthy, happy with her life; she trained six days a week. She had work stress, but it was normal work stress.
On specific inquiry about anxiety attacks, Ms Babbo responded ‘maybe’, and said that she ‘hyperventilated’ because she was in a high-pressure job. She worked at Commonwealth Bank for eight years and said she did every role there and at one point, had two roles in home loan compliance and lending. She then started work in Westpac in November 2016.
History of the motor accident
Ms Babbo had an accident on 21 February 2017 and said it happened in Yagoona; she was driving to work. She had started a new role at Westpac Bank and went to the Top Ryde branch that day. She was going to go on to Hume Highway. She was at a traffic light; she was rear-ended when stationary and her car was pushed forwards. She exchanged identification with the other driver and then went to work. She said she did not want to call in sick as it was a new role. At work, she started having pain symptoms. After a work conference, she told her manager about the accident and took a taxi to see a GP.
The ambulance and police did not attend. There was no loss of consciousness and the airbags in Ms Babbo's car did not deploy. Her father picked up her car and it was repaired later.
She recalled the other driver was a lady, and her brother contacted Ms Babbo and said they did not want to go through insurance. She recalled he was aggressive towards her and then discovered the other driver was not insured.
Ms Babbo sustained physical injuries and reported now, she has daily neck and back pain, and migrainous headaches. She had physiotherapy and exercise physiologist and later saw a psychologist. She said she paid for treatment herself. The worst problem now is her lower back pain. She said she also has right shoulder problems and weakness from it. She said because of her physical injuries, she cannot do things, she cannot socialize, and she cannot go to the gym. She said over time, pain took over and she cannot do anything with her friends.
She cannot run and her walking tolerance is 10-15 minutes now. She said she cannot lift her son, who is 13kg now. She said her mother does most cleaning and washing at home, and every 2 weeks, her mother has a cleaner too.
History of symptoms and treatment following the motor accident
Ms Babbo described the onset of anxiety symptoms shortly after the accident and her psychological symptoms have persisted.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Babbo has not had further car accidents or sustained other psychological injuries.
Current symptoms
Ms Babbo said she has always worked, but since the accident, she cannot work and has no purpose, and she has depression and cries every day.
She reported chronically disrupted sleep and wakes up with pain during the night. Sometimes she sleeps on the couch as it is more comfortable, and she generally sleeps around 4-6 hours. She said she has bad dreams about random and weird things, eg, ‘getting chased, running’.
In terms of weight, she said she lost a lot of weight and was 65kg. She then gained weight and has been 70-71kg for 12 months now. Before the accident, she was 72kg. She said she has no complaints about her current weight. She eats regularly. She is 178cm tall.
She does not have suicidal ideation.
She described being irritable and ‘impatient’. She said she tries to be patient with her children.
She said she has very bad memory and forgets things. She said she assumed she told her mother about the assessment today, but she did not.
She said she has bad anxiety and panic symptoms.
Current and proposed treatment
Ms Babbo said she does not talk to a psychologist now, as she did not improve and still has anxiety after treatment.
Ms Babbo takes Panadol and Nurofen as needed for pain. She previously took Sertraline, and the last time was in 2020. She consulted psychologists and the last session was in 2021.
There are no proposed treatments.
Clinical Examination
Mental State examination
Doctors Canaris and Hong assessed Ms Babbo for 1 hour 10 minutes. She was at home and alone during the assessment. Her hair was tied back with a headband, and some highlights were visible. She had neatly shaped eyebrows and appeared well-groomed. She wore nail polish and gestured regularly. There was no psychomotor slowing or abnormal movements. She was not restricted in her affect. She smiled and laughed. She spoke spontaneously and fluently. She was attentive and gave a clear history. She remained focused throughout the assessment. She recalled a reasonable amount of detail with her general history and maintained a steady pace.
Current functioning
Ms Babbo is 33 and living with her parents, her seven-year-old daughter and four-year-old son.
She reported having an amicable relationship with the father of her daughter, who has custody every second weekend. She said that the father of her son lives in Queensland and is an interstate truck driver, and might come and see them once every month. They are not in a relationship anymore, but they relate well.
Ms Babbo married in 2016. She said her ex-husband was into gym and she stopped going to the gym, as she was always in pain, and she could not do things intimately with him after the accident. The marital relationship ended in 2019. The Review Panel discussed the recorded history and asked about her ‘apathy’ and her ex-husband being ‘greedy'. She said he did not empathize and did not care if she was in pain, and because she could not work, they had financial problems, and he wanted separation. She also could not do things and was withdrawn, and this affected the marital relationship too. She said the relationship is amicable now.
Ms Babbo entered another relationship and said it was serious although it then it fizzled out after her unplanned pregnancy. He wanted to do adventure and go out, but she could not do it. He wanted to go hiking and overseas but due to her physical injuries and pain, she could not. She also said he promised to live with her but did not follow through. She has not had another partner after that. Ms Babbo met him on social media and said she does not have social media anymore, because it affected her negatively, eg, seeing others progress with their lives and having more children.
Ms Babbo said she does not drive far and cannot drive long distances, due to her pain. She can drive 20 minutes before she has back pain. She said she does not have other problems with driving or being out.
Ms Babbo wakes up and makes breakfast, prepares lunch boxes, and does the school and childcare centre drop-off. She tidies up at home and goes to the shops, browses and buys items from the shops she needs.
She showers daily but avoids showering if she is in pain. She said she looks after her children before herself. She helps her daughter with her hair, and she showers her son. She reads books to her children.
Ms Babbo has a hairdresser coming to her home, every couple of months, who colours her hair. She goes to a nail saloon every 5-6 weeks.
Normally, Ms Babbo had many recreational activities, e.g. she went to the gym 6 days per week, sometimes twice a day and socialized with the friends at the gym. She enjoyed going out on the weekends to bars. She said she did some surfing, hiking and bicycle riding. She said she cannot exercise or do anything physical, as there is too much pain. She cannot even wear high heels.
She tried light weights. She said she can only walk 10-15 minutes without pain and explained she does not want to take analgesic medications just to take walks.
She said she can enjoy activities with her children. She would feed them, look after them, do homework with them, and read to them.
Ms Babbo said she has no friends now. The Review Panel asked about the people from work, as she mentioned she had contacted them. She said they talk and message each other, but she does not see them since leaving the CBA.
In terms of trips away, Ms Babbo said there have been no trips away and no interstate travel for 3-4 years now.
She loved reading books previously and she now reads to her children. She said she has concentration difficulties but can focus on reading and doing things with her children.
She acknowledged her concentration was good today, even after 1 hour.
Ms Babbo is the youngest of five sisters. One sister is in Hong Kong, and everyone else in her family is in Australia. She said all her sisters are married and she has adult nieces and nephews. She sees her niece and nephews daily and sees her sisters
1-2 times per week, as they all come to her parents' home. She said they do not have parties or go to restaurants as a family since the COVID pandemic. She said they would come, and they chat over coffee and refreshments. She enjoys talking to them and said it is easier to do it at home, as one nephew has Autism, and she does not like being out herself. Before COVID pandemic, as a family, they went to restaurants and celebrated special events out, but since the COVID pandemic and because of her nephew, she said they stopped doing things out.When asked to compare the impact of her psychological symptoms with that of her physical injury, she said she does not want to risk more pain by doing things. She said she has social anxiety and does not feel attractive now, and this stops her going out with her
Employment history:
After year 12, she went to Commonwealth Bank immediately and did her training at the bank. She then moved to Westpac Bank as a premium personal banker and worked full-time from November 2016.
Ms Babbo reported that after the accident, she only took two days off work. Subsequently, she had a new manager who ‘wasn't on board’ with her need to take time off for her treatment. She was not happy with Ms Babbo going off work at 5 p.m. so she could attend physiotherapy at 5.30. She struggled some aspects of the role, for example, having to stand up for four hours as a concierge to greet customers who came to the branch, as it caused severe back pain. She said her manager didn't believe that she couldn't stand for a long time even after she submitted her medical certificate.
Ms Babbo discovered she had an unplanned pregnancy in May 2017 and decided to take early maternity leave in September 2017. Subsequently, she resigned from Westpac, saying that the bank couldn't find a closer branch for her. Even though she wanted to return to work, they couldn't find a role that was suitable for her needs. In terms of performance issues, other than not being able to stand for four hours or to sit down for a long time, there was no other problem with performing after the subject accident, before her maternity leave.
Ms Babbo said that she still wants to work now, and she has been talking to some people from CBA and said they want her back. But because she cannot sit down or stand up for long, there is nothing that she can do at the bank.
She said that working from home is a possibility because it would offer flexibility in sitting and standing, but this has not been offered to her.
Comments of consistency
The Review Panel could not reconcile the inconsistencies related to Ms Babbo's past psychiatric history as noted in her GP's treatment records, after discussing these with her.
Review of Documentation
Summary of relevant documentation
Handwritten Application for personal injury benefits form noted the nature of the accident in Yagoona with a diagram, there is no mention of her psychological symptoms, and she was certified fit for pre-injury duties but not carry heavy weights. Comment: The Review Panel took the same history.
The police assessed the subject accident as a minor traffic crash and there were two vehicles involved in the accident.
The claimant’s initial statement noted she was in shock after the subject accident. She exchanged identification with the other driver and then drove to work. She started having physical symptoms and pain, she discussed her employment history and problems with performance after the accident. There is no mention of her psychological symptoms affecting her employment.
The claimant’s further statement advised she could not work, as she could not travel 1.5 hours to work. In 2009, she had a misdiagnosis of multiple sclerosis and was otherwise in good physical and mental health before the subject accident. She lost 10g since the accident and no longer goes to the gym. On 3 April 2020, her employment was terminated with Westpac as she could not returned to work in her pre-injury duties.
Ms Babbo's further statement discussed that her mental health had deteriorated since the accident and in dealing with the insurer. Her psychologist is Dr Ayoub, and she had around 5 treatment sessions. She consulted other psychologists and took Sertraline
50 mg. She could not return to her recreational activities, going to the beach, hiking and exercising. She discussed the surveillance material and being worried and paranoid someone is watching her and she never had paranoia before surveillance.Medical Assessment Service (Motor Accidents) certificate by Assessor Mohammed Assem 22 July 2019 assessed her cervical, thoracic and lumbar spine level injuries at 7%.
Review panel, comprised of Medical assessors Mark Burns, Michael Couch and Drew Dixon, 22 July 2019, concluded Ms Babbo has 17% physical injury WPI.
Dr Richa Rastogi IME psychiatrist’s report dated 18/9/20, noted the subject accident. Ms Babbo had an unplanned pregnancy after the accident and took early maternity leave. She reported chronic pain symptoms and lack of intimacy in relationship and could not carry her daughter due to pain. Her BMI dropped to below 18. She has ongoing anxiety and depressive symptoms and avoids social events and outings. Many symptoms were noted by the IME, including loss of interest, concentration difficulties, hopelessness, shame, avoiding public places and people, overwhelmed, emotionally dysregulated, pain, loss of friends, only driving 30 minutes and she had not washed her hair for years and went to hairdressers. Ms Babbo needs prompting with own meals and gained weight since she moved back with her parents. Ms Babbo has no past psychiatric history. She diagnosed Major depressive disorder with melancholia and chronic pain disorder. She provided a PIRS with ratings 232334, 19%.
Dr Richa Rastogi 18 May 2023 – reassessment with similar ongoing psychological symptoms. Ms Babbo would only drive 20 minutes now, and her parents help with her daughter and her sister helps with her son. She struggled with cleaning due to her pain and motivation. She is reclusive and stays indoors, walks occasionally, stopped gym and has lost friends. She diagnosed persistent Major depressive disorder. She again assessed 2,3,2, 3,3,4, - 19%.
Comment:
· In terms of self-care and personal hygiene, Ms Babbo described improved functioning since Dr Richa Rastogi and Dr Abhishek Nagesh’s assessment. She gave a history of good self-care and personal hygiene and there is only minor deficit, attributable to the normal variation in the general population. From a psychological perspective, therefore the Review Panel rated 1.
· In terms of social and recreational activities, as Ms Babbo does have regular social and recreational activities at home with her family and she is actively engaged. Because she does not need a support person or prompting, a rating of 3 cannot be supported.
· In terms of travel, Ms Babbo reported only deficits from her physical injuries. From a psychological perspective, the Review Panel rated 1.
· In terms of concentration, persistence and pace, Dr Rastogi and Dr Nagesh did not record any intellectually demanding tasks. The Review Panel noted she reads books to her children and presented as having good concentration during the assessment hence concluding that a rating of 3 cannot be supported and rated her as 2.
· In terms of adaptation, Ms Babbo believes she can work and has contacted her previous employer. From a psychological perspective, the Review Panel concluded she can work in her pre-injury duties with reduced work hours and rated her as 2.
CDC personal injury assessment service, 27 March 2020. The occupational therapist noted Ms Babbo's physical injuries and needs for care. She lost 12kg, with BMI 19.5.
Vocational assessment functional report, from Injury Assess, dated 21 December 2022 noted her psychological symptoms and activities of daily living. She needs to visit hairdresser once a week and is mostly independent in self-care. She showers and change to clean clothes regularly every 3 days. She ceased all recreational activities. Dr Richa Rastogi’s report was discussed.
Restwell medical centre GP complete records. The top entry began on 15 January 2020.
GP letter to psychologist Maja Popovic, 12 January 2022, noted Mr Babbo has pain and PTSD.
Personal Injury Commission certificate by psychiatrist Medical Assessor Dr Abhishek Nagesh dated 19 September 2023, assessed 17% WPI, and he provided a PIRS with ratings 2,3,2, 3,3 and 3. He explained the PIRS ratings based the following impairment and activities: Ms Babbo is socially withdrawn and does not attend any social and recreational activities, sporting activities, family functions, parties or anniversaries, she lost contact with most friends, separated from her partner due to apathy and social withdrawal, and can only concentrate for 5 minutes and she cannot read a book or magazines. She has a pre-existing anxiety disorder and pre-accident PIRS was assessed at 0%. He discussed inconsistency with Ms Babbo in relation to 2014 anxiety in her GP records.
Dr Graham Vickery IME psychiatrist provided a report dated 23 March 2021. Her marriage crashed in 2019 because of financial stressors and her husband was greedy. She said she slacked off socializing as she cannot sit too long due to pain and because she does not drink alcohol with her medications. He said there is no psychological restriction with her driving, she has reduced concentration and a good memory. There is no post-accident psychological requirement for personal or domestic assistance. There is no diagnosable psychological injury and therefore, no WPI from a psychological perspective.
Dr Nazmul Huda GP records:
· 17 November 2014, stressed at work.
· 2 April 2015, anxiety disorder for a long time and recently worse for a month, agrees to see a psychologist, panic attacks before, no depression, no suicidal ideation. Taking herbal medication.
· 10 April 2015, weight reduction exercise at gym.
· Comment: Ms Babbo said she does not know who Dr Huda is, even after the Review Panel discussed the other entries in that file.
The photograph of cars after the subject accident has been noted.
AHC investigation reports discussed with Ms Babbo:
· The Review Panel confirmed Ms Babbo was in the photos. 21 December 2020 report with photograph and 9 March 2021 report including footage 22 February 2021:
· She said the man was the father of her son and they were first dating at that time. She said she never told him about her pain and that he could not touch her as it would hurt her. He said he did not believe her pain after she told him.
· She said she talked to people at the café, as she was trying to get a job, and it was a job interview at the café, in the photo with the man who has a laptop. She said she knew the café owner, who organized the meeting, but they wanted someone who could work full-time and worked in the office, so she did not get the job.
· She said she went to the same café with a friend one or two times.
· The Review Panel discussed Dr Abhishek Nagesh’s recording that she did not attend any activities or do things with her friends and this contrasted with the surveillance material.
· She said the people in the photo in the café, are not friends, they are acquaintances. The cafe owner is an old friend, and he organized a job interview at the cafe for her. She said that nobody ever asked her or allowed her to elaborate on the surveillance material. The Review Panel discussed that the reason this was brought up is because we wanted her to elaborate. The Review Panel also noted that she had provided a statement in relation to the surveillance material. She then said, ‘there is no other explanation I could provide’.
Determinations
Diagnosis and causation
In summary, Ms Babbo's file indicated that she had suffered long-term anxiety disorder. However, her recollection was that she had never seen that GP and she had good mental health before the accident.
She described that after a relatively minor accident, she suffered chronic pain and developed depression and anxiety symptoms. The Review Panel she had back pain during her pregnancy, and she does not have medical complication from the pregnancy now. The physical Review panel concluded she has a physical injury caused by the subject accident.
The Review Panel concluded there is more than a negligible contribution from the subject accident to Mr Babbo's current psychological injury.
She had psychological/psychiatric treatment but did not gain significant improvement and is not having treatment anymore. Overall, her condition is consistent with a Persistent depressive disorder, this is caused by the accident and the physical injuries arising from the accident.
Ms Babbo's impairment is permanent and entrenched, and unlikely to change substantially and by more than 3% in the next year, with or without medical treatment.
Psychiatric Impairment Rating Scale
Category
Class
1. Self Care and Personal Hygiene
1
She eats regularly and has a stable weight, and showers daily. She buys things she needs. She has a regular home hairdresser and goes to a nail salon. She is independent in living and does not need prompting.
2. Social and Recreational Activities
2
She described having regular social recreational activities with her family at home, including her children, nieces and nephews (some are adults), her parents and sisters. Her sisters visit and they talk, and drink coffee or eat at home.
She said they had parties and went to restaurants after the accident, but they stopped going out since the COVID pandemic and this is not related to her psychological injury.
As she actively enjoys fewer activities over time, and does not go to parties with friends anymore, she does not need prompting or a support person in recreational activities, this is consistent with mild impairment.
She cannot participate in sporting activities or exercises due to her physical injuries and pain, which are not assessable in the PIRS.
3. Travel
1
Ms Babbo has no psychiatric impairment in driving or being out on her own. Her physical injuries are not assessable in the PIRS.
4. Social Functioning
3
Ms Babbo's relationship with her husband ended and the relationship is amicable as co-parents. She was able to establish a new partnership, but it fizzled and did not progress, and they have a reasonable relationship as he is the father of her son.
She is anxious and socially avoidant, and ceased contact with her friends. She acknowledged she bumps into people sometimes and keeps in contact with some friends or acquaintances, via messages.
The relationship with her family is good and they are close.
5. Concentration, Persistence and Pace
2
Ms Babbo said she has poor concentration. She reads to her children. She can focus more than 30 minutes. She exhibited good concentration during the assessment, which is an intellectually demanding task and took 70 minutes.
6. Adaptation
2
Ms Babbo continued working full-time for 6 months after the accident in her pre-injury duties until a new manager was not supportive, and did not provide work she could do physically. She has reduced stress tolerance as a result of her psychological injury and can perform her pre-injury duties, 20 hours per week.
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/subsequent impairment
She has a past psychiatric history. It is not possible to assess her pre-accident PIRS, as her recollection was significantly different to her GP's treatment records.
Accepting her assertion that she was free from all psychiatric impairment, her pre-accident PIRS would come to 0%. The Review Panel considered the possibility that she may have had panic attacks at the time that she changed over from CBA to WPA but determined on balance that this would not have made a substantial difference to her level of pre-accident impairment.
Apportionment
Nil.
Effects of Treatment
0%
She is not on psychological/psychiatric treatment now.
The final WPI is 5%.”
The Review Panel adopts the report of Medical Assessor Hong and Medical Assessor Canaris.
Reasons/conclusion
The police report was a late accident report made by the claimant. The report refers to the accident as being minor.
The claimant says that as a result of the physical injuries suffered by her, she has had to seek treatment for pain and has developed a psychiatric disability. The Review Panel has difficulty however, reconciling surveillance video of the claimant and go to sleep her claim of considerable ongoing pain. This surveillance material demonstrates uninhibited and unrestricted physical exertion by the claimant including placing her daughter in and out of the child car seat of her car without restriction and involving her bending her back to perform these activities, again, without restriction.
It is clear though, from the claimant’s GP’s clinical notes that she has sought treatment over time for pain from her physical injuries attributable to the accident. The claimant would appear to have some good days and some bad days with her physical activities although the surveillance relied upon by the insurer has only demonstrated what would appear to be activities on good days where she has demonstrated no physical restriction.
The Review Panel must ask itself whether the accident contributed to the claimant’s physical injuries which in turn have led to her psychiatric disabilities. The Review Panel notes that the photographs of the rear of the claimant’s car evidence no visible damage. From this, the Review Panel discerns only a small impact. Nevertheless, the claimant’s physical injuries were such that she has sought regular medical treatment following the accident. The Review Panel accepts that it would be reasonable that on the balance of probabilities that the claimant might have suffered injuries of a physical nature following the accident and which have led to some amount of pain which in turn has led to psychiatric disability.
The recovery of the injury to the claimant’s lumbar spine would appear to have been hampered by the claimant’s pregnancy which she reported to Dr Rogers, worsened due to that pregnancy.
Overall, the Review Panel finds that the claimant has suffered a psychiatric disability but not one that inhibits her from the completion of most day-to-day tasks. This is evidenced by the PIRS assessment of the Review Panel. The claimant has been able to form new relationships, she gets on well with her family, she is able to socialise, and she is able to groom herself and has no difficulty with self-care tasks or motivation to complete such tasks. She is capable of undertaking some work although she says this would be limited in hours and part time work rather than full time work. The surveillance video does record her apparently being interviewed for a job.
Determination
The Review Panel revokes the certificate of Medical Assessor Nagesh dated 18 September 2023.
The Review Panel finds that the claimant has suffered a Persistent Depressive Disorder.
The Review Panel finds that the claimant has a WPI of 5%.
0
2
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