Insurance Australia Limited t/as NRMA Insurance v BES

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v BES [2023] NSWPICMP 113
CLAIMANT:	BES
INSURER:	Insurance Australia Limited trading as NRMA Insurance
REVIEW Panel
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Wayne Mason
MEDICAL ASSESSOR:	Matthew Jones
DATE OF DECISION:	28 March 2023
CATCHWORDS:	MOTOR ACCIDENTS – Review of the decision of Medical Assessor (MA); the MA assessed whole person impairment (WPI) of 15% on the basis of a panic disorder with agoraphobia; claimant involved in a motor vehicle accident on 28 January 2017; claimant was a front seat passenger in a car reversing out of a driveway when a collision occurred with another car on the road; the car airbag deployed hitting the claimant in the face while the car was spinning and then hitting another car; claimant suffered both physical and psychiatric injuries; claimant suffered panic attacks with palpitations and experienced fear in public places demonstrating avoidance behaviour; claimant had significant pre-accident issues of a long-standing history of domestic violence in her marriage; claimant examined by the Panel; Held – Panel not satisfied that at the time of the accident the claimant had an ongoing psychiatric disorder; the Panel concluded that the claimant had a mild panic disorder; WPI assessed at 6%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION STATEMENT OF REASONS The Panel revokes the certificate of Medical Assessor Barrett dated 9 May 2021. The Panel determines that the following injury was caused by the motor accident; · panic disorder. The injuries caused by the motor accident have a total whole person impairment of 6%.

Background

This is an application by the insurer for review of a decision of Medical Assessor Barrett dated 9 May 2021.
The accident occurred on 28 January 2017. The claimant was a front seat passenger in a small sized Suzuki Swift motor vehicle. This car was being reversed out of a driveway when another car collided with it, causing the car in which the claimant was a passenger to spin and then stop when it hit a parked car. The claimant has reported that the air bag of the car was deployed and went into her face.
The claimant was taken by ambulance to Goulburn Base Hospital for treatment. She was discharged the same day.
Following the accident, the claimant suffered both physical and psychiatric injuries.
The claimant has been assessed by the Medical Service for both physical and psychiatric injuries. This review is only with respect to the assessment of the claimant’s psychiatric injuries.
The following injuries were referred for assessment to the Medical Assessor:
• psychiatric condition, psychological - anxiety; panic attack; distress, and claustrophobia.
The Medical Assessor concluded that the claimant met criteria for panic attacks as she experienced shortness of breath, palpitations, chest pain and feeling dizzy, fearing she will pass out. She fears that she will have a panic attack and either not be able to escape or seek help, causing her to avoid situations where she fears she may experience a panic attack. BES also meets criteria for agoraphobia, meeting criteria as she experiences intense fear or anxiety in more than two situations, being out in public, in crowds and in enclosed spaces, associated with avoidance behaviours and the use of safety behaviours, being accompanied by a support person.
The Medical Assessor added that though the claimant has had some variable mood she did not meet criteria for a separate mood disorder.
The Medical Assessor concluded that the following injuries caused by the motor accident gave rise to a permanent impairment of 15%:
• panic disorder with agoraphobia.
The insurer says by way of reasons for review:
a. Medical Assessor Barrett has failed to appropriately consider any apportionment of whole person impairment which is attributable to the claimant’s long-standing and significant pre-existing psychiatric conditions and diagnoses;
b. Medical Assessor Barrett has provided an incorrect assessment of the psychiatric impairment rating scale (PIRS), as it does not consistently align to the reported capacities of the claimant nor accord with the criterion within the Motor Accident Guidelines (the Guidelines), and
c. a reassessment can have a material effect on the determination of permanent impairment and whether it meets the s 4.11 threshold of the Motor Accident Injuries Act 2017 (the MAI Act).

Application for Review

On 20 August 2021, the delegate of the President referred the medical assessment to the Panel as she was 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.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[1] that a Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[1] Section 7.26(5A) of the Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor.[2]
[2] 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 Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
All Panel members have had no previous involvement with the claimant or with this matter.

Submissions and medical evidence
The insurer’s submissions

The insurer submits that the Medical Assessor has failed to appropriately consider the claimant’s extensive pre-accident psychological history in the assessment of impairment, particularly as the claimant’s history carries some significance and is evidenced to be fairly longstanding.
The insurer submits that the claimant confusingly denied a history of past psychiatric history, she admitted to a progressive loss of self-esteem since she was 20 years of age, together with a longstanding history of domestic violence in her marriage. The claimant noted her husband as being alcohol-dependent, stating she would spend the night with a friend or in her car to avoid contact with her husband while he was intoxicated.
The insurer further submits that significantly, the claimant also recalled that she and her husband had been involved in altercations which required police intervention, wherein her husband had been charged and jailed for four months for assault for threatening the claimant with a knife. An Apprehended Violence Order was also made against her husband for a period of two years.
The insurer further submits that the Medical Assessor appears to have been aware of the claimant’s significant pre-existing psychiatric factors, however, failed to adopt any analysis of apportionment/deduction for this.
The insurer by way of submission, highlighted the following comments made by Medical Assessor Barrett:
(a)   “BES also has a history significant for asthma, requiring hospitalisation at times, and this can be a risk factor for panic disorder”;
(b)   “The GP records from 2013 indicate fluctuating symptoms of depressed mood and insomnia and that she was prescribed an antidepressant as well as a benzodiazepine, diazepam, in the context of domestic violence”;
(c)   “BES acknowledged pre-accident impact upon self-esteem from the domestic violence in her marriage, and that she saw counsellors at times”, and
(d)   “…the history of trauma, and impact upon her self-esteem, would have been a significant contributor to the subsequent development of panic disorder and agoraphobia”.
The insurer noted that the Medical Assessor concluded the episodic nature of the claimant’s attendances on treatment providers, relating to the abovementioned stressors, does not support a sustained, pre-existing psychiatric condition. The insurer submits that this opinion appears to conflict with several further assertions contained in the Certificate which indicate the claimant is suffering with pre-accident psychiatric history which requires adequate assessment of causation.
The insurer submits further, that the Medical Assessor had also not given any adequate consideration of a prior diagnosis of depression as early as 2013, requiring the prescription of Mirtazapine 40mg.
The insurer says that in view of the above, it appears the Medical Assessor has erroneously surmised that the entirety of the claimant’s pre-accident psychiatric history only pre-disposed her to sustaining the psychiatric injuries from the subject accident. The insurer submits this is evidently not the case on the available evidence, as the prior psychological conditions are, the insurer says, highly likely to be the primary reason of any psychological injury, particularly that which relates to panic.
The insurer submits that Medical Assessor Barrett has not appropriately assessed the claimant in accordance with the PIRS criteria within the Guidelines, particularly in relation to: Self-Care and Personal Hygiene; Social and Recreational Activities; Social Functioning; Concentration, Persistence and Pace; and Adaptation.
By way of reference to the Guidelines, the insurer says that on review of these, the insurer submits that the Medical Assessor has incorrectly attributed PIRS classes, whilst raising various indicators which provide a more positive impression of the claimant.
Concerning the PIRS assessment, the insurer submits:
a)    in relation to the criteria of self-care and personal hygiene the claimant more appropriately to a Class 1;
b)    in relation to social and recreational activities, as the claimant reports that her energy levels are normal and she continues to go out for family birthdays with her immediate family, then she aligns more appropriately to a Class 1;
c)    in relation to social functioning, the claimant has good relationships, and she aligns more appropriately to a Class 1;
d)    in relation to concentration, persistence, and pace there is no evidence that the claimant cannot read articles, follow complex instructions and maintain her work capacity and on this basis, she more appropriately aligns to a Class 2 at most, and
e)    in relation to adaptation/employment, the claimant was able to maintain her employment post accident and was capable of managing her role in large churches, such that she aligns strongly with a Class 1.
Finally, the insurer asserts the Medical Assessor has failed to apply proper analysis of the claimant’s reporting of capacities against the specific criteria outlined within the Guidelines for an assessment of the PIRS table.

The claimant’s submissions

The claimant submits that the Medical Assessor has taken an adequate history of the claimant’s pre-existing psychiatric factors. The claimant says that the Medical Assessor’s extensive comments regarding the claimant’s psychosocial history and pre-accident history were documented over 3 pages, from pages 2 to 4 of her reasons and Certificate.
The claimant further submits that the Medical Assessor’s comments were acknowledged by the insurer in paragraphs 18 (a - d) and 19 (a- d) of their own submissions.
The claimant submits that the Medical Assessor did accept the claimant was at a significant increased risk of developing a psychiatric illness due to her history of exposure to previous trauma, however, the Medical Assessor adequately explained that her current accident-related panic disorder and agoraphobia was additional trauma which “made a contribution to causation which was more than negligible”. As such, the claimant submits that the Medical Assessor more than adequately considered her pre-accident psychiatric history.
The claimant has referred to the insurer’s submission that the Medical Assessor provided an incorrect assessment of the PIRS scale, particularly in relation to Self-care and Personal Hygiene, Social and Recreational Activities, Social Functioning, Concentration, Persistence and Pace, and Adaptation. In this regard, the claimant relies on Oberon Council v Barton (2018) NSWWCCMA 100.
In Barton’s case, it was noted that the PIRS descriptors are to be considered as examples only. As such, the Medical Assessor must consider other matters such as the person’s cultural background and consider activities that are usual for the person’s age, sex and cultural norms. The claimant submits that the Medical Assessor adequately considered the claimant’s background and activities both pre- and post-accident.
The claimant submits that the insurer has incorrectly interpreted the reasons for decision provided by the Medical Assessor and incorrectly assumed that the examples provided needed to be exclusive to the corresponding PIRS scale.

Medical evidence

Neither party has served or relies on a medico-legal report of a psychiatrist.
The Panel has had the benefit of reading the certificate of Medical Assessor Barrett and the general practitioner’s (GP) clinical notes. Medical reports unrelated to any psychiatric disability have been provided but are generally not of assistance to this assessment.
To Medical Assessor Barrett, the claimant acknowledged longstanding difficulties in her marriage. Her husband was reported to be alcohol dependent and there had been longstanding domestic violence in the marriage. This was reported to have been a matter of police involvement and her husband had been charged and sent to gaol for period of four months in the past because of an assault. The claimant stated in the period prior to the accident her relationship with her husband was, “fair”. She said that he was binging on alcohol intermittently once or twice a week. She stated she would dread Saturday nights, if he was binging on alcohol and would spend the night with a friend or in her car to avoid contact with her husband whilst he was intoxicated. The claimant said that she had a good relationship with her children and she had a few supportive friends.
The Medical Assessor referred to the GP’s clinical notes for the period
16 February 2007 to 8 July 2020 and noted several stressful situations:
a)    there was an entry, 14 August 2013, with “depression” and she was prescribed mirtazapine 30 mg nocte;
b)    there was an entry, 23 August 2013, “had a restraining order for her husband for drunken dangerous behaviour, now in jail” and diazepam 5 mg one b.d. was added;
c)    there was an entry, 26 March 2014, “discussed her relationship problems, manipulative, domineering partner, alcoholic”;
d)    there was an entry, 17 April 2015, “Husband stopped drinking, marital situation improved”;
e)    there was an entry,16 September 2015, “Insomnia, discussed mood swings, long talk” and she was prescribed Diazepam, and
f)     there was an entry, 27 December 2018, “husband attacked her with a knife five years ago and went to jail. Since been released she meets up with him occasionally in public places but does not want to pursue the relationship. Unresolved trauma and retriggering”. She declined psychotherapy. She was not receiving any specific treatment.
The Medical Assessor referred to clinical notes and GP records from 2013 indicating fluctuating symptoms of depressed mood and insomnia and that she was prescribed an antidepressant as well as a Benzodiazepine, Diazepam, in the context of domestic violence.
The Medical Assessor reported that the claimant acknowledged pre-accident impact upon self-esteem from the domestic violence in her marriage, and that she saw counsellors at times. She said that the pattern of episodic attendance to her GP and counsellors over a five year period suggested that the claimant had an emotional reaction to her circumstances, and concluded that this did not support a sustained, pre-existing psychiatric condition. Nevertheless, the Medical Assessor said that the history of trauma, and impact upon her self-esteem, would have been a significant contributor to the subsequent development of panic disorder and agoraphobia.
The Medical Assessor reported that I note that the GP records in the period immediately after the subject accident did not indicate anxiety symptoms but referred to her physical symptoms, as well as sleep disturbance. The first GP records referring to psychiatric symptoms were not until July 2018, about 18 months after the subject accident, and state, “anxiety due to abusive relationship (ex-husband), panic attacks, poor sleep, loss of appetite, mild mood changes”, rather than referencing the subject accident as causative.
The Medical Assessor referred to a GP mental healthcare plan completed by Dr Ala’a Al-Zabin on 3 July 2018 indicated diagnosis of mixed anxiety and depression with the social history being “recent separation from her husband” and the symptoms recorded as “depression, anxiety, panic attacks, phobia”. She was referred to a psychologist as well as having Benzodiazepine, and Temazepam prescribed. The GP notes from
Dr Misev of 27 December 2018, that is almost two years after the accident state, “the husband attacked her with a knife five years ago and went to jail, has since been released. She meets up with him occasionally in public places but does not want to pursue the relationship, unresolved trauma plus retriggering. She does have an AVO against him which would expire in April”. The Medical Assessor commented that this seems to suggest that the subsequent stressors regarding the domestic violence issues, rather than the accident, was the key causative factor by the treating GP.
The Medical Assessor reported about a note in the GP records from Dr Ajjaward of
30 January 2020, that is three years after the subject accident, “history of panic attacks, has been on and off diazepam, talked about being a victim of crime, will need counselling”.
With respect to her assessment, the Medical Assessor said that there was no pre-existing or subsequent impairment.

Medical examination

The claimant was examined on behalf of the Panel by Medical Assessors Mason and Jones by audio-visual platform. Their report follows. The Panel adopts the findings of Medical Assessors Mason and Jones;
“THE EXAMINATION
The examination Panel consisted of Dr Wayne Mason, Psychiatrist, and Dr Matthew Jones, Psychiatrist.
The assessment took place via audio-visual link through the MS Teams platform, organised by the Personal Injury Commission. This was due to the coronavirus situation. The communication was adequate for the assessment and all parties agreed upon this.
BACKGROUND
BES is a fifty-seven year-old woman living in Goulburn, where she has been for approximately seven years or so, on the outskirts of town. She has been in that particular accommodation since December 2021. She is sharing the house with her husband, however they are separated. They have their own rooms and own en suite bathrooms. They have been separated for a few years and she described it as an ‘on and off thing.’ She reported she does not know the future intentions for the relationship. BES reported the house lease is in her name and her husband was living somewhere else, he came to her front door and told her he had nowhere to stay. She reported he would have been on the street, and she would ‘do it with anyone’, referring to taking him in.
BES reported there is no current AVO but there previously was one for two years that involved no breaches.
The Panel asked BES how her relationship with her husband was currently and she reported it was ‘a lot better.’ She reported the problems were because of alcohol and if he does not drink alcohol he is “a normal human being.” She reported he is currently clean and sober, however she has strategies in place, for example if she sees a beer around, she will get out of the house.
BES reported they have four children: Samantha aged thirty-four, Sarah aged thirty-two, Ben aged twenty-nine, and Ellie aged twenty-six. Samantha lives in Marulan, which is approximately twenty minutes’ drive away, and Sarah has a job in Canberra and lives between there and Goulburn. Ben lives in Goulburn, as does Ellie.
BES reported she has three grandchildren: Jayden aged twelve, Austin aged eight, and Tyler aged two. Two of these are to one of her children, the other to another. She sees them often and they are doing well and they are healthy. She reported Jayden comes over on most weekends and Austin not quite as often, but still comes and goes. She said they live in Marulan. She gets on very well with her grandchildren and they are “good boys.”
BES reported she is not currently working and last worked a couple of years ago as a funeral attendant at Bob Rudd Funerals. The job would involve going to the church an hour before, setting up and supporting the preacher. For example, the funeral attendant would play the music out the back. It was casual and intermittent work and sometimes would be every day for a while or sometimes every week. She said the work would come up whenever funerals occurred. She reported being taught how to arrange a funeral and also having worked in the office. She declared that she was a very good typist. Unfortunately, the business was sold, and she reported that she wished she was still there. She had been with them for ‘two, three or four years.’
The Panel enquired of BES whether she had applied for, or looked for, work since, and she responded that she had been offered work. As background, she reported she had gotten to know a lot of people through her work as a funeral assistant and she was offered work at Millers Women’s clothes shop. Her immediate reaction was that she would be unable to do a job in retail. She told the Panel she felt silly about the reason, but that the Millers store was inside a mall, across from Woolworths and when you walk in the door it feels like an enclosed, small space. BES said this would be very uncomfortable to work in. She said she was able to go into the shops, ‘go around and quickly get out.’ She feared she would probably have a ‘panic attack’ if she worked in the store, and offered that when she walks into a place, she always needs to see a way out. She otherwise has not looked for work.
BES completed her high school education at a Brisbane State High School, with an ATAR in the 70’s. She described her performance as good. She wanted to go into science originally but ended up in business school.
BES reported she was receiving the Disability Support Pension for a bad back which commenced in the late 1990’s. She had an injury in the 1980’s involving a head-on car crash.
BES reported she had worked at Centrelink for about twelve years doing customer service and in the call-centre. This was from about 1985-1997. She commenced receiving the Disability Support Pension after she was unable to continue to sit for long periods of time at work. She had reduced work to Monday, Wednesday and Friday in the 1980’s doing part-time and was still working part-time when she commenced receiving the Disability Support Pension. She was still having difficulties working three days a week but was grateful that her employer let her try for so long. BES reported that also around that time the staff were cut by half and she was offered $10,000 to “voluntarily be dumped.” She thought about it, took it and with respect to ability to stay in the workforce, she “tried for a long time.” Her only employment since has been at funeral directors, which was after the subject accident.
PRE-ACCIDENT FUNCTIONING
BES reported that prior to the accident, 28 January 2017, she was living in Goulburn in a different address, with her daughter: Ella and her husband. She does not remember if there was an AVO in place at the time and said that she thinks they were separated. Her recollection of their relationship at that time was that it was “not too bad.” She said it was the same arrangement as now, in that they had their own bedrooms; at the time it was a three-bedroom place.
BES was not in paid employment at the time of the accident and thinks she may have commenced with Bob Rudd Funerals, perhaps a year after the accident.
BES, when asked, reported that she had had no psychological therapy and had seen no counsellors prior to the accident. She then reported there was one situated near a dentist, Robbie, a female who she saw a long time ago but cannot remember the year. She said it was ‘because of things at home.’
BES offered, with respect to those problems, that ‘everybody knows about it, that she gets upset, she gets ‘a bit depressed about it’ and then she is ‘fine.’
BES was married in 1985 and about nine or ten years into the marriage ‘the trouble started’, referring to domestic violence. BES went on to report that she had never allowed herself to feel like a victim and she has a small group of close people around her including her mother and daughters and she will ask for help if necessary. She refuses to allow it to affect her life and when asked whether she felt that the impact of long-term domestic marital violence and problems had any effect on her, she reported ‘long-term, no, nothing, and short-term, no.’
HISTORY OF THE MOTOR ACCIDENT
BES confirmed the date of accident as 28 January 2017, and reported she was in the passenger seat. Her daughter was driving and they were in a small car, a Suzuki Swift. They were backing out of the driveway and a car driven by another woman hit the back of their car. She reported she would ‘never forget it.’ She said the car spun a couple of times and hit a parked car. The airbag came into her face and she remembers thinking she had to get out of there. She said she is a small person and she felt she could not breathe. Somebody got her out of the car, an ambulance came, and she remembers not being able to breathe through her nose or her mouth.
BES remembers going to the hospital and being there between four and six hours, ‘all afternoon.’ She said she had much skin removed from her left arm and it was like a burn and has since healed.
SYMPTOMS, INJURIES AND TREATMENT FOLLOWING THE MOTOR VEHICLE ACCIDENT
The Panel asked BES if she had any ongoing physical injuries and she said she did. She reported a hit to the head and feeling dizzy immediately after the accident. She had started to hear a noise in her left ear like the ocean and it would be there all day and night. She said it ‘drives [her] insane.’ It is not as bad in the daytime, for example when she is watching television, but she tends to hate the nighttime. She is taking no treatment for this, but there was discussion about a white noise device that may assist. She reported that when she talks with people, she can also hear the ocean. It interferes with her friendships, socially, and she has to focus very hard on people’s voices. She finds it annoying when she reads, and she now does not read so much. She used to be a big reader. She still likes reading science and will sometimes read Cosmos Magazine, although perhaps has not for a year. She said she is only able to read if she likes the topic, but otherwise has trouble concentrating.
With respect to psychological treatment, BES reported she saw ‘another lady, Chantelle’, who she described as lovely. She perhaps saw her four times or so and she started seeing her after the accident. BES found she was having a lot of anxiety and panic attacks like she had never had before. Chantelle gave her a booklet to read, which she found helped.
BES reported that lately she has found she is able to control these panic symptoms by avoiding the situation that she knows will trigger it. Examples of these would include, going into elevators, closed rooms, and she tends to leave the window open. She showers with the door open. She said if she goes to a small mall she is unable to shop for more than a few minutes. She had trouble with the ear test because it involved going into a cubicle.
BES saw Chantelle for a few sessions regarding this. She has seen no other psychologists for her symptoms and takes no medications for her symptoms. When asked if she was happy with not having any active treatment, she responded ‘sort of.’
BES offered that she would not drive to Sydney because she feels too closed-in during the trip. She reported she is unable to drive more than ten to fifteen minutes. She remembers having a panic attack in the back seat of the car on the way to Sydney last time for an assessment.
BES reported when she gets a panic attack her ‘breathing gets funny’, she feels that her heart is beating, and she feels like there are ‘great hands squeezing [her] chest.’ She also gets a feeling of being scared that something bad will happen to her, despite knowing that it will not. She described the feeling as overwhelming. She was not sure of the last time this occurred to her but said this is because she is avoiding triggers of which she is aware.
BES has not seen a psychiatrist and is not taking any psychiatric medications for this. She reported that she will not take medications because she does not know what that will do to her.
The Panel asked BES about her experience of tinnitus and vertigo. She reported that after the accident it did go away but then perhaps a year after that, she became sick, started vomiting and had to crawl around the house. An ambulance came, she was diagnosed with vertigo and admitted to hospital. That was fixed after about three days on Serc and she still carries the tablet with her but no longer takes it regularly. She remembers having not left home for about two months after the accident, apart from being driven to her doctors on a very regular basis.
BES reported that the dizziness she experienced made her anxious and made her afraid to go out of the house. She did however describe it as different to her panic attacks. Her first panic attack she described occurred in Woden Hospital when she was accompanying a friend there. They were finding it hard to find a parking space and they were going up levels in the carpark. BES became unable to see an exit and was thinking that they had to get out of there, but they were unable to. She was not sure how long after the accident this happened but thought it may have been a couple of months.
CURRENT FUNCTIONING
The Panel asked BES how she passed time and she said that she uses her small computer a lot and will watch science lectures through YouTube. She has completed a couple of short courses including from the University of Hong Kong about a month ago, a qualification in Astronomy. It was a six-month course and she finished it in three months, but still described it as difficult. She has a small backyard and a small telescope worth about $200. She is still enrolled in university and her last course was ‘totally online.’ She also achieved another qualification which was a Certificate of Achievement in Astronomy and Discovering the Universe. This was in 2017. She had previously studied a Business Degree and Secretarial Studies, Bookkeeping and Law, which was in Brisbane in the early 1980’s.
With respect to BES’ self-care and personal hygiene, she requires no personal assistance with showering, dressing or grooming. She reminded the Panel that she and her husband were living separately. She does her own cooking, but not very often.
With respect to friends, BES reported she has a few select people and described herself as “a very closed in type of person.” One of her close friends is her ex-boss. She had only ever had a few close people in her life. She said on the other hand that she knows a lot of people, but they are not as close.
BES reported she was previously a worshiper at church in the past, but this changed a few years ago when she “just stopped going.”
The Panel asked BES about her dream employment, and she responded that realistically she would be unable to do an office or administration job full-time because of anxiety but perhaps she would be able to work part-time. She did say however that she would be able to walk into a funeral director’s assistant’s job, but not in a full-time capacity. She referred to there being bad blood between her former employer and the competition so the local opportunity there is missing.
MENTAL STATE EXAMINATION
BES was a Caucasian female with short, brown hair and spectacles. She appeared to be wearing a black knitted top. There was no sign of overt grooming, but also no sign of gross neglect. She was polite, cooperative and attentive and displayed no abnormal movements. Her speech was normal, and she was in fact talkative and anecdotal and there was no evidence of formal thought disorder or delusional thought processes. When asked about her mood, she said that today she felt okay, and she tends to “go up and down like every other person.” Her affect was somewhat nervous, but otherwise bright, reactive and engaging. She was reactive to humour. There were no psychotic phenomena apparent. Her cognition, insight and judgement appeared grossly intact in the context of the interview. Rapport was excellent and BES spoke openly and freely.
RECENT SYMPTOMS
The Panel asked about BES’ sleep, and she reported she recently had been taking Magnesium, which seems to have helped somewhat. She still wakes after a couple of hours in a cyclical manner. Her appetite, she described as okay, and her weight she described as stable. Her height is 5’1” tall but she is unaware of her weight. Her energy levels vary, and she described her energy as better if she likes doing the thing she is doing.
The Panel asked BES about other symptoms, and she reported that she sometimes does not like going out of the house. She tends to do a lot of her shopping online, which she described as having solved her anxiety problems. She also utilises Menulog for meals.
STABILISATION
BES appeared stable in her psychiatric status and unlikely to change in her level of psychiatric impairment in the upcoming twelve months. She had reached maximum medical improvement.
SUMMARY OF RELEVANT DOCUMENTATION
Of psychiatric relevance in the documentation was:
·   Insurer’s submissions labelled A1. The submission for review of Assessor Barrett’s Certificate challenging not considering pre-existing psychiatric history and improper use of the PIRS.
·   Medical Assessor Melissa Barrett’s PIC Certificate labelled A4 and dated 9 May 2021. This diagnosed a Panic Disorder with agoraphobia and “permanent impairment of 15%.” Her assessment was broadly consistent with the presentation to the Review Panel.
·   The other Application documents relate to physical injuries including BES’ problems with vertigo and tinnitus.
·   General practitioner records available are consistent with BES’ reported history and include significant reference to relationship problems, domestic violence, AVOs and previously mental health problems.
·   The claimant’s submissions are noted. They support Assessor Barrett’s Certificate and request the application be dismissed.
·   The original Reply 2R to an Application for Assessment of Permanent Impairment included no documentation related to psychological injury. This is labelled R1 in the insurer’s 2A Submissions.
The original 2A Application from BES is noted with multiple physical injuries and psychological injuries including for anxiety, panic attacks, distress, and claustrophobia. Of psychiatric relevance in this bundle was:
·   The Personal Injury Claim Form including physical injuries only, the Medical Certificate including physical injuries only. There is a letter from an audiologist indicating that BES has tinnitus that keeps her awake at night.
·   The remainder of the Application bundle relates to BES’ physical and medical status, and is not particularly revelatory from a psychiatric perspective.
SUMMARY
BES was a fifty-seven year-old woman with a substantial history of previous mental health problems including protracted domestic violence. The Panel noted that BES received psychological treatment and psychiatric medications and had multiple presentations for mental health problems previously and noted that BES considered essentially that there had been no long-standing or significant mental health problems associated with those issues immediately prior to the accident. The Panel considered this only a minor inconsistency, in the sense that BES was likely minimising elements of her mental health past, however this is understandable, both in the context of her current situation and also the nature of the events themselves. BES certainly demonstrated a high level of resilience with respect to strategies that she has found beneficial in managing the situation.
Obviously, BES has ongoing physical problems, although the tinnitus and vertigo have now resolved. These are outside the scope of the psychiatric assessment but are somewhat relevant, for example with respect to the documented and reported impact of the tinnitus on BES’ sleep.
From a diagnostic perspective, BES satisfies criteria for the diagnosis of a Panic Disorder. She reports symptoms consistent with experiencing panic attacks, including physiological symptoms, she is aware of triggers, avoids these triggers, and the symptoms have led to an impact on BES’ global functioning, at least to some extent.
With regard to causation, the onset of the Panic Disorder occurred in a situation in which BES felt trapped as a passenger in a car in a situation which reminded her of the subject motor accident. The Panel considered the motor accident was sufficiently traumatic to initiate the Panic Disorder and without the motor accident the condition would not have arisen.
With respect to whether there was any pre-existing condition or impairment, the Panel accepts that there may well have been times when BES could have been diagnosed with a psychiatric disorder, such as an adjustment disorder. However, the Panel was unable to find sufficient evidence of an active, ongoing psychiatric disorder in the time period leading up to the motor vehicle accident. It was the finding of the Panel that the claimant had a mild Panic Disorder, for the reasons concluded below.

Degree of Permanent Impairment

Psychiatric diagnoses	1. Panic Disorder	2.
Psychiatric diagnoses	3.	4.
Psychiatric treatment description	Nil currently

Category	Class	Reason for Decision
1. Self-Care and Personal Hygiene	1	Minor deficit attributable to the normal variation in the general population. BES requires no direct assistance with respect to her self-care and personal hygiene. She described that she was living separately and independently from her husband and would be able to live fully independently with minimal assistance only. Utilising clinical judgment, there is a class 1, minor deficit in this category.
2. Social and Recreational Activities	3	Moderate impairment Despite the fact that BES maintains some cognitive interest in hobbies such as astronomy and cosmology, she has reduced these activities. BES reported globally having socially withdrawn, however also reported having been able to work in employment where she interacted with many people. She has difficulties with certain environments, such as small shopping malls, however, maintains the ability to shop for necessities. She does not get out as much, which decreases her social interaction and, utilising clinical judgement, the Panel considered that there was a class 3, moderate impairment in this category due to psychiatric factors, particularly avoidance behaviour.
3. Travel	2	Mild impairment The Panel noted that BES was still able to drive locally, for example up to ten to fifteen minutes, and complete tasks such as shopping. Although describing at times a fear of wanting to leave her house, she is still able to travel independently by herself. She has some difficulties in certain situations and longer trips. Utilising clinical judgment, there is a class 2, mild impairment here.
4. Social Functioning	2	Mild impairment Despite a relevant and significant history of marital problems, including domestic violence, BES described her current relationship with her separated husband, with whom she lives under the same roof but separately, as relatively good. There were no acute instabilities in any of BES’ current relationships. She maintains contact with her children and grandchildren who are supportive and with whom BES is attached and involved. BES described a small circle of close friends, which had always been the case. She has socially withdrawn somewhat. Utilising clinical judgment, the Panel considered that there was a class 2, mild impairment.
5. Concentration, Persistence and Pace	2	Mild impairment BES concentrated well for the assessment. She reported that she had attained some qualifications through online courses. She reported she could walk back into her previous employment and manage that. She reported she was able to read something if she was interested in the topic but was having subjective difficulties with concentration and attention. BES spoke freely throughout the assessment with no cognitive deficits evident. Utilising clinical judgment, the Panel considered there was a class 2, mild impairment in this category.
6. Adaptation	3	Moderate impairment The Panel notes that BES was not working at the time of the accident and was receiving the Disability Support Pension, however, also notes that since the accident she had been able to attain employment that was paid and meaningful and had a casual, intermittent, part-time schedule. BES reported she could step back into that job and had the skills to fulfil that role. The Panel considered that there would be some ongoing symptoms which would limit BES’ adaptive capacity, consistent with a class 3, moderate impairment. This is conceptually consistent with BES being able to work up to half the demand, effort and time as was her capacity prior to the motor vehicle accident, but in a lesser demand or intensity role. This assessment is determined on the basis of the clinical judgment of the Panel.
List classes in ascending order: 1 2 2 2 3 3
Median Class Value: 2
Aggregate Score: 13
% Whole Person Impairment: 6%

*%WPI ^{= Percentage Whole Person Impairment}

Apportionment
1. Nil
Pre-existing/subsequent impairment
2. Nil
Whether there was a pre-existing impairment has been discussed elsewhere. The Panel’s opinion is that this was incalculable.
The Panel accepts that there may well have been times when BES could have been diagnosed with a psychiatric disorder, such as an adjustment disorder. However, the Panel was unable to find sufficient evidence of an active, ongoing psychiatric disorder leading up to the motor vehicle accident.
Effects of Treatment
A Current % of permanent impairment 6%
B Pre-existing/subsequent % for permanent impairment 0%
C Adjustment % for effects of treatment 0%
There is currently no psychological or psychiatric treatment being undertaken and therefore no adjustment for treatment effect.”

Causation

This has been considered by the Panel within the examination report. The Panel considered that the accident was sufficiently traumatic to initiate a panic disorder. Without the intervention of the accident, the Panel finds that the condition would not have occurred.

Conclusion

The Panel adopts the findings above arising from the examination of the claimant.
The Panel concludes that the claimant has a whole person impairment of 6%.
The Panel is not satisfied that at the time of the accident on 28 January 2017, that there was any verifiable evidence that the claimant had an active ongoing psychiatric disorder in the time leading up to the motor vehicle accident.
For the reasons noted above, the Panel were not satisfied that the claimant had disorders in the nature of disabilities referred to Medical Assessor Barrett of;
• psychiatric condition, psychological - anxiety; panic attack; distress, and claustrophobia.

DETERMINATION

The Panel revokes the certificate of Medical Assessor Barrett dated 9 May 2021.
The Panel determines that the following injury was caused by the motor accident:
· panic disorder
The injuries caused by the motor accident have a total whole person impairment of 6%.

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Citations

Insurance Australia Limited t/as NRMA Insurance v BES [2023] NSWPICMP 113

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[2023] NSWPICMP 113

28 March 2023