Insurance Australia Limited t/as NRMA Insurance v BHS
[2024] NSWPICMP 607
•28 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v BHS [2024] NSWPICMP 607 |
CLAIMANT: | BHS |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
SENIOR MEMBER: | Brett Williams |
MEDICAL ASSESSOR: | Christopher Canaris |
MEDICAL ASSESSOR: | Michael Hong |
DATE OF DECISION: | 28 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); review of medical assessment under section 7.26 of the MAI Act; parties agree that the claimant suffers from post-traumatic stress disorder as a result of the accident; whether degree of permanent impairment is greater than 10%; Medical Assessor found 16% permanent impairment; Held – claimant had a permanent impairment of 17%; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Nagesh dated (a) the degree of permanent impairment of the claimant that has resulted from post-traumatic stress disorder caused by the motor accident on 22 January 2021 is 17%, and (b) the degree of permanent impairment of the claimant that has resulted from the post-traumatic stress disorder caused by the motor accident on 22 January 2021 is greater than 10%. |
STATEMENT OF REASONS
BACKGROUND
[BHS] (claimant) was injured in a motor accident at Campsie on 22 January 2021 (accident). She subsequently made a claim on Insurance Australia Limited t/as NRMA Insurance (insurer) for both statutory benefits and damages in accordance with the Motor Accident Injuries Act 2017 (MAI Act). Liability for the damages claim has been admitted.
A dispute arose between the claimant and the insurer about whether the degree of permanent impairment of the claimant that has resulted from the psychological injury caused by the accident is greater than 10%. The dispute is about a medical assessment matter and is a medical dispute: Sch 2 cl 2(a) and s 7.17 MAI Act.
The dispute was referred to Medical Assessor Nagesh for assessment. The Medical Assessor certified that post-traumatic stress disorder that was caused by the accident gave rise to a permanent impairment of 16%, and that the permanent impairment was greater than 10% (Assessment).
The insurer subsequently made an application under s 7.26 of the MAI Act for referral of the Assessment to a review panel. The President’s delegate subsequently found that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, and referred the application to a review panel. The Review Panel (Panel) has been constituted by the President of the Commission to conduct the Review of the Assessment.
The parties agree that the claimant suffers from post-traumatic stress disorder that was caused by the accident, and that the Panel can undertake the Review on that basis.[1] Accordingly, there is no dispute about either diagnosis or causation.
[1] Messages from the parties to the Commission dated 12 March 2024.
THE REVIEW
The Panel is to conduct the Review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the panel is to be constituted by two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings: Rule 128.
Version 9.2 of the Motor Accident Guidelines (Guidelines), effective from 10 November 2023, apply to the Review.
DIRECTIONS
The Panel directed the parties to provide a joint bundle and submissions. The insurer subsequently lodged a joint bundle. The claimant also lodged a bundle that contained material that was included in the joint bundle, together with photographs of her vehicle.
Further, in response to a direction made by the Panel the parties agreed that the Panel can undertake the Review on the basis that the claimant suffers from post-traumatic stress disorder that was caused by the accident.
STATUTORY FRAMEWORK
No damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%: s 4.11 MAI Act.
If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2) Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Psychiatric impairment caused by mental and behavioural disorders is assessed in accordance with cls [6.201]-[6.228] of the Guidelines: cl 6.35.
ASSESSMENT UNDER REVIEW
Medical Assessor Nagesh gave a certificate and reasons dated 4 September 2023. The Medical Assessor certified that as a result of accident caused post-traumatic stress disorder, the claimant had a permanent impairment of 16%, an impairment that was greater than 10%.
The Medical Assessor’s reasons record details of the claimant’s pre-accident and post-accident history, her symptoms, treatment and functioning. There was no history of previous mental illness. She developed a range of psychological symptoms following the accident. Treatment involved antidepressant medication and counselling with a psychologist. In the Medical Assessor’s opinion, the claimant described symptoms that are consistent with someone suffering from post-traumatic stress disorder. The diagnostic criteria for that condition were satisfied. The reasons also address the psychiatric impairment rating scale (PIRS), and contain the Medical Assessor’s reasons for assigning various classes to each category.
EVIDENCE
The parties lodged a joint bundle that contains all the material they rely on for the purposes of the Review. As recorded earlier, the claimant subsequently lodged additional material, much of which was contained in the joint bundle. The Panel has reviewed and considered all this material.
Claim documents
In an application for personal injury benefits dated 29 January 2021, the claimant recorded that the accident involved her vehicle being T-boned “at speed”. It was also recorded that at the time of the accident she was pregnant, and that she suffered psychological injury together with injuries to her neck and back.
A NSW Police COPS report dated 11 March 2021 includes the following summary of the accident:
“About 08:48 on the 22 of January 2021, VEH 2 was travelling west on Seventh Avenue on lane 1 of 1 at an unknown speed. While VEH 2 was crossing the intersection of Fifth and Seventh Avenue VEH 2 was attempting to cross the intersection. VEH 1 was travelling north on Fifth Avenue on lane 1 of 1. VEH 1 failed to navigate the red light and continued through the intersection and has collided with the left nearside of VEH 2 resulting in VEH 2 to flip and landing on it’s right nearside Police attended the LOC along with the ambulance.
Upon arrival at the LOC, driver 2 was still stuck in VEH 2. Wish [sic] the assistance fire & rescue driver 2 was removed from the VEH and driver 2 was then taken by ambulance to St George Hospital for precautionary reasons as driver 2 stated she was seven months pregnant. Driver 1 was also assessed by paramedics”
The contents of the NSW Ambulance report dated 22 January 2021 have been noted. Among other matters, the report records that as a result of the collision, the claimant’s vehicle rolled three times, coming to a stop on its left side. The claimant was “in drivers seat, suspended and trapped by seatbelt”.
Material from treatment providers
A mental healthcare plan dated 24 February 2022 records a diagnosis of “PTSD” and major depression, and states that the claimant had been referred to Dr Kim for psychotherapy. The subsequent plan dated 9 August 2022 has been considered.
There are a number of certificates of capacity found in various places in the joint bundle. A certificate dated 19 February 2021 refers to “whiplash; soft tissue injuries”. The certificate records that the claimant had no work capacity from 22 January 2021 to 25 February 2021, and that she had some capacity for work from 26 February 2021, five hours a day, three days a week. A certificate dated 8 March 2021 includes “PTSD” as a diagnosed injury. There are certificates dated 10 September 2021, 7 October 2021, 4 November 2021,
23 December 2021, 21 January 2022, 21 February 2022, and 24 February 2022. A certificate dated 17 May 2022 refers to physical injuries and “PTSD”, and records that the claimant had capacity for some type of work between 17 May 2022 and 6 June 2022, four hours a day, two days a week. A certificate of capacity dated 31 January 2024 records that she had capacity for some type of work from 29 January 2024 to 29 February 2024, 7.5 hours a day, two days a week. A certificate dated 28 March 2024 records that the claimant has capacity for some type of work 20 hours a week “but not mentally stressful nor involve detail oriented tasks because of PTSD”.
An undated report from Dr Kim, psychologist, records that the claimant had been suffering from major depressive disorder and symptoms of post-traumatic stress disorder. While she had been able to return to work, she found that she was having difficulties performing her duties due to her psychological disturbances. She was unable to drive. Ongoing symptoms were reported, and ongoing treatment required.
Dr Pignataro, psychologist, reported to Dr Kim on 14 December 2022. Ongoing psychological symptoms were reported following the accident. The claimant presented with post-traumatic stress disorder. She had obsessive and avoidant personality features. Her attitude to treatment “has been questionable as there has been no significant desire to work through her concerns”. She had significant distrust of treatment. Ongoing treatment, including antidepressant medication, was required.
The clinical notes from JSK Mental Health Centre have been considered. The notes record details of consultations from 15 February 2021 – 28 June 2023, and include details of the claimant’s symptoms, record a diagnosis of “shock and developing PTSD” and depression, and record details of treatment.
Dr Kim, psychologist, reported on 22 May 2023. The doctor confirmed that the claimant had completed 52 sessions, that her condition had recently worsened, and that it was not anticipated she would return to pre-injury functioning. Her condition had not stabilised. The doctor provided an undated report that relates to treatment between 24 February 2022 and 23 June 2022. It is recorded that the claimant was having trouble performing duties due to her “psychological disturbances”. She reported feelings of hopelessness, hypervigilance, sleeping problems, lack of energy, irritability, agitation, avoidance behaviour, flashbacks, and memory problems. The claimant required ongoing treatment.
There are a number of Allied health recovery requests related to psychological treatment for “symptoms of PTSD” and depression. The requests record details of symptomatology, work capacity, and contain treatment plans.
The DASS 21 responses and results dated 11 November 2021 have been considered by the Panel.
The Panel has reviewed the records from Royal Prince Alfred Hospital (RPAH) Emergency Department. The notes record that the claimant attended on 22 January 2021 following the accident, and was discharged the same day. It is recorded that the claimant “self-extricated” from her vehicle “sliding out from the front window.” RPAH Outpatient Department records have also been considered.
The patient health summary from Dr Ke-Hwan Kim[2] has been reviewed and considered. The first entry is dated 8 March 2021, and refers to “ongoing stress” and “PTSD”.
[2] Printed on 2 March 2022.
An email from PJ Ratanasirilak, of rehab management, dated 1 February 2024 refers to a medical case conference conducted on 31 January 2024. The claimant reported that her psychological symptoms had worsened, and that she was seeing a psychologist weekly to manage post-traumatic stress disorder and depression. A further email dated 28 March 2024 refers to a case conference that day. It is recorded that Dr Kim advised the claimant would be able to increase her capacity for work to 20 hours per week however in order for her to be able to work 20 hours, the role “must not be mentally stressful or involve detail oriented tasks as this would aggravate her PTSD symptoms”. A trial of Lyrica had been recommended.
There are a number of emails from the claimant in the joint bundle, the contents of which have been considered.
Medico-legal reports
Dr Rosenthal, occupational physician, reported to the insurer’s solicitor on 21 April 2023. The doctor diagnosed a labral tear and mild trochanteric bursitis, that may be causing ongoing right hip symptoms. The doctor also thought that there may be a discogenic injury in the lumbar spine. The claimant’s injuries had not stabilised. The prognosis was good for a full recovery. The doctor recorded that there were “issues with doing more than 15 hours a week of office work and also driving”. The driving issues appeared to relate to her psychological state. The claimant’s restrictions were due to both her physical and psychological injuries. The doctor thought that the claimant would be able to return to her full pre-injury duties.
Dr Bisht, psychiatrist, reported to the insurer’s solicitor on 16 June 2023. There was no reported pre-accident history of a psychiatric condition. The doctor diagnosed post-traumatic stress disorder, that had been caused by the accident. The claimant’s injuries had stabilised. Her prognosis for further recovery was unfavourable, given the duration of symptoms. Ongoing treatment was recommended. Her ability to undertake pre-accident duties was restricted by her psychological injury. She would be able to work 20 hours a week in a role that doesn’t require her to drive or do detail oriented tasks. This level of incapacity is likely to persist indefinitely. The doctor assessed a 7% permanent impairment as a result of the injury.
Dr Poplawski, orthopaedic surgeon, reported to the claimant’s solicitor on
28 September 2022. The doctor diagnosed a number of physical injuries as a result of the accident, including ongoing lower back and right hip injuries. Physical limitations and disabilities are recorded. The prognosis “cannot be foretold with any degree of accuracy”. She had limited capacity for work. Future capacity would be subject to successful treatment of her conditions. The doctor assessed a 5% permanent impairment arising from the back injury.
Dr Chow, psychiatrist, reported to the claimant’s solicitor on 4 April 2022. The doctor diagnosed post-traumatic stress disorder, that was caused by the accident. Despite treatment, the claimant continued to have significant psychological symptoms. Prognosis was likely to fluctuate in the short to medium term, and perhaps long term. The claimant had attempted to return to work, was not able to cope with 15 hours a week, and dropped back to eight hours. She was fit to work eight hours a week. The doctor assessed a 22% permanent impairment as a result of the post-traumatic stress disorder.
Photographs
Photographs of the claimant’s vehicle have been provided. The photographs depict extensive damage to the vehicle.
SUBMISSIONS
Insurer’s submissions
The insurer relies on written submissions dated 3 April 2024. The insurer argues that
Dr Chow’s report of 4 April 2022 contains material errors with respect to the PIRS classes assessed for adaption, self-care and personal hygiene, and travel, and that the doctor’s assessment should not be accepted.
The insurer submits that Medical Assessor Nagesh’s assessment was incorrect in a material respect because the class allocated for social and recreational activities, concentration persistence and pace, and adaption does not appropriately reflect the claimant’s psychological impairment.
As to social and recreational activities, the insurer argues that the class 3 finding does not reflect the fact that the claimant had returned to church, where she sees her friends and socialises. With respect to concentration, persistence and pace, the insurer argues that a class 3 finding is not supported because the claimant’s ability to care for her child requires “far greater concentration than the assessment”, and that class 2 was the appropriate category. Finally, the insurer argues that a class 2 rating for adaption is appropriate, having regard to the change in the claimant’s “life circumstances” since having a child, and that she is (in its submission) capable of working “far more” than 20 hours.
In the insurer’s submission, the assessment of Dr Bisht is the most accurate in assessing the claimant’s individual circumstances, the history outlined in the claimant’s medical evidence, along with the claimant’s self-reported account. In the insurer’s submission, the claimant’s psychological injuries do not exceed the permanent impairment threshold.
Claimant’s submissions
The claimant relies on written submissions lodged on 17 April 2024. She argues that there is no material error in Medical Assessor Nagesh’s assessment, in particular in relation to social and recreational activities, concentration, persistence and pace, and adaptation.
The claimant submits the evidence supports the findings made by the Medical Assessor with respect to the PIRS categories, and that her permanent impairment as a result of the accident caused post-traumatic stress disorder is greater than 10%.
RE-EXAMINATION
The claimant was re-examined by Medical Assessors Canaris and Hong on 6 August 2024 by MS Teams. She was at home during the assessment. Medical Assessors Canaris and Hong were in their Sydney offices.
History
Psychosocial history and pre-accident history
The claimant was born in South Korea and came to Australia when she was 12. She had a good childhood and grew up with her parents and has a younger brother. There was no major illness or developmental trauma identified.
In terms of medical history, she does not have cardiac, thyroid or liver disease. She does not use drugs or abuse alcohol. She is not aware of a family history of mental illness. She does not have a forensic history. She has not had a previous motor accident. The claimant does not have a past psychiatric history.
History of the motor accident
The claimant said she can remember everything about the accident as she did not lose consciousness. She was 25 weeks pregnant and on the way to work and was about two blocks from her office. She reached an intersection and then stopped, when there was a car coming from her left that T-boned her car. Her airbags were deployed on impact and her vehicle was later written-off by the insurer.
The claimant's car rolled and then landed on the passenger side. Because she was wearing a seatbelt, she was dangling. Her window was partially open and she recalled that a man from a nearby construction site asked her whether she was okay. She told him she was pregnant and the man "freaked out" and called the ambulance. There was a woman that spoke to her through the window as well.
She recalled the paramedics came first but couldn’t get her out, then Fire and Rescue came and told her that she had two options; either they could cut her car in half, which would take longer, or they could smash the window and she could crawl through the windscreen. She chose the latter. It took approximately 15 minutes before she could be extricated.
The claimant was then taken to the Royal North Shore Hospital and stayed there for the day. She reported that due to her pregnancy they could not do some of the scans involving X-rays. They monitored the baby for five or six hours.
She described being extremely worried about the pregnancy after the accident, as this was her first pregnancy. She said later she had an emergency caesarean and recovered well. The midwife had concerns about her baby being outside the expected size and he was in the Neonatal Intensive Care Unit for a week. She said he has thrived and there are no delayed milestones, and no health concerns.
Physically, the claimant reported that she had ankle and knee problems that had largely recovered with physiotherapy. She sustained two labral tears in the hips, which have not healed. She had cortisone injections and the orthopaedic surgeon told her she would probably need surgery later on.
The claimant said that normally she likes to walk and often walked one or two hours a day but now she cannot do it. She can still walk, maybe 30-40 minutes with breaks, but no longer enjoys it as she normally does. She finds a lot of her usual housework chores to be affected because of her hip problem.
History of symptoms and treatment following the motor accident
The claimant reported that she didn’t realise she had psychological problems initially, but when she saw her general practitioner she started breaking down and crying, and she was referred to a psychologist, however, there was a few months’ wait. When she told the psychologist’s clinic she was pregnant and had been involved in an accident, they were able to fit her in earlier.
She was exposed to a life-threatening situation and gradually developed the full syndrome of post-traumatic stress disorder.
The claimant did not drive at all for a couple of years after the accident, due to her fears. Last year she started a driving program with an instructor to help her with her driving anxiety. She has had 30 sessions but said that she couldn’t pass a test to complete the program, and she is still having treatment now. She said she can drive 10 minutes on her own and she drives to drop her son off at the childcare centre.
Before the accident, she had no problems being in enclosed spaces and recalled that at work they were installing an MRI machine and needed a volunteer to be in there, and she went in there for an hour to help them set it up. After the accident she became claustrophobic and she couldn't tolerate being in the MRI machine to have a scan, and she ended up having to take an anxiety medication (likely Alprazolam). She said she can be inside a lift but if she is on a crowded bus, she starts to get anxious and has to close her eyes.
She said she feels depressed every day because the impact from the accident has not resolved, and said she had to quit her job recently.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant has not had further car accidents or sustained other psychological injuries.
Current symptoms
She reported a loss of intimacy in her partnership. Her weight has been stable in 2024. She reported having chronic sleep difficulties, and has frequent dreams, with good and bad dreams. She described having depressed moods. She reported an inability to enjoy things she would normally enjoy. She described being forgetful and easily distracted, causing problems at home and with her employment. She reported having low energy levels. She is anxious and described panic attacks in cars, including an episode when a friend drove and they went through a car wash machine. She has been irritable. She would yell at her son when angry and find it difficult to calm herself. She is hyper-vigilant in cars and even at home, she described a heightened sense of danger and thought there could have been home intruders. She generally avoids social events due to her anxieties. The claimant denied having had suicidal ideation.
Current and proposed treatment
The claimant is currently taking:
· Voltaren as needed for pain;
· Melatonin as needed for sleep;
· she carries Alprazolam on her for anxiety when she is out, and
· Lyrica for neuropathic pain.
She took Zoloft and felt sedated and it was ceased in 2023. She is doing a driving program. She consulted Dr Jung Sook Kim, psychologist since February 2021 and stopped in June 2023. She was referred to another psychologist, Anthony Pignataro and only had treatment with him briefly. She said she is about to see a new clinician for eye movement desensitization and reprocessing therapy next week. She had one session with Dr Howard Napper, psychiatrist around three months ago, but does not have further approval for treatment. She has not had a psychiatric admission.
Clinical examination
Mental state examination
The claimant spoke in a soft low tone. She engaged well with the assessment process. There were no abnormal movements. She was moderately restricted in her affect range and presented as flat. She spoke spontaneously and fluently. She was not thought disordered.
Current functioning
The claimant is living with her husband and their son. She has been married for five years and said the relationship is not good now. She reported intimacy problems between them. She said after the accident she couldn’t do all of the household chores and her husband has to do it. For a while, her parents were helping them but they moved out. The marital issues intensified and reached a point where they started talking about separation, but she said the relationship has since improved and they have not separated.
Normally, the claimant liked to read books, go to the cinema and watch movies at home. She said when she tried after the accident, she couldn’t really follow the shows, she could not read the books and after a while, she gave up as her focus was just not there.
She used to have friends and was very active at church. She said she belonged to several groups there and was in a committee and was in the choir for 10 years. In the first two years after the accident, she tried to maintain contact with her friends but people kept asking her questions, and she told them she was okay. They would invite her out and then she would refuse, to a point where she thinks they feel like she rejected them. Gradually, she severed contact with all of them and she stopped going to the church.
Recently, as the claimant stopped working, she said she found a new church and started going for the service, because nobody knows her there. She doesn't socialise with them or join any of the groups. She is there purely for the sermons.
She reported major difficulties looking after her son. She gets snappy and raises her voice with him and cannot tolerate his behaviour. Her husband does almost all childcare tasks now. She decided to increase daycare to five full days a week and on the weekend, her husband looks after him. She said if her husband is not available, she asks her parents to help. Aside from taking her son to the childcare centre, she doesn’t really do anything else with him. She said she tried to play with him but finds herself frustrated and so she stopped playing with him.
In terms of education and employment history, after high school, the claimant studied accountancy but has not worked in that capacity. She then went to University and completed a radiography degree. She has worked as a radiographer for 11-12 years. She reported that she reached what she considered to be the top of that career, and she worked for about a year doing cardiac CT scans. When she worked with patients, she found herself enjoying talking to them and spent a lot of time talking, and she realised that she wanted to change career.
She then started working for CASS as an NDIS coordinator. She worked full-time and managed disability clients, matched them with support workers, organised services and set up the contracts with them. She said she enjoyed the work very much and thought that eventually she would be opening her own NDIS company. When the accident happened, she was working full-time.
After the accident, the claimant went back to work briefly but said that her supervisor raised concerns that she wasn’t managing the clients well. She found herself irritable and couldn’t handle it when the clients complained, and so she decided to take maternity leave early. After maternity leave, she went back to work and there was a change in management. She was only certified fit for 15 hours a week and her employer wanted her to do more work. They were pushing her to do more sitting work, assigning her menial jobs, such as filing and photography. She found herself not coping with the changes so she left.
The claimant felt she could return to radiography work as she had done it for many years. She joined NSW Health Breast Screen as a mammographer and did this for almost a year at 15 hours a week, until she left in June 2024. She reported that she couldn’t do more hours, partly because of the constant moving, squatting and bending when she had shorter patients and this affected her hip, but she also found that she wasn’t focusing well. The claimant typically had 20 patients a day, at most 26 patients, and spent around 15 minutes per patient, however, she was making mistakes. She said that she would do one breast, go back to the console and come back to the patient to do the other side but forget which side she had to do. She had taken the X-ray of the same side twice by mistake. She said she had to ask the patient which side had been done already and she felt embarrassed, which led to her quitting that job. She reported the difficulty with work was a combination of her hip pain, problems with focus, not being able to do her job that she has done for more than 10 years, which she found easy and normally enjoyable for her.
The claimant reported that she worked 15 hours per week and that she has not worked in the last two months.
Comments on consistency
There was no inconsistency identified.
DIAGNOSIS AND REASONS
The claimant had no prior psychiatric problems. After the accident, she became phobic of driving and only started driving locally after having a driving program, and only drives in the local area now. She described major fear during the accident because she was pregnant and eventually her symptoms evolved into post-traumatic stress disorder, and this injury has not resolved. She has had regular treatment and has engaged in all treatment provided but has not improved. The claimant's psychological condition has now stabilised.
Her psychological symptoms have fulfilled all of the DSM-5-TR diagnostic criteria for post-traumatic stress disorder. The accident is consistent with a criterion A stressor, and she described major fear during the accident because she was pregnant, and trapped in her car after her car rolled. She has developed flashbacks and nightmares, persistent avoidance of situations and anxiety when exposed to reminders of the accident, persistent negative cognitions and low moods, including negative beliefs, fear, detachment and loss of positive emotions. She has physiological hyper-arousal with disturbed sleep, concentration, preoccupation with danger which affected her capacity to drive. Her symptoms have persisted longer than four weeks and are associated with functional impairment. Finally, the Medical Assessors have not identified another medical or psychiatric condition that better explains her trauma symptoms.
Causation and reasons
The claimant has no past psychiatric history and developed post-traumatic stress disorder after the accident. There are no other stressors or major personal changes in the relevant timeframe, unrelated to the accident. The Medical Assessors concluded her psychological injury was caused by the accident.
PERMANENT IMPAIREMENT
Psychiatric Impairment Rating Scale
PIRS
| Psychiatric diagnoses | 1. Post-traumatic stress disorder with depressive symptoms |
| Psychiatric treatment description | Psychologists Benzodiazepine Antidepressant Psychiatrist |
| Category | Class | |
| Self Care and Personal Hygiene | 2 | The claimant said she does not shower daily. She eats regularly but buys takeaway food or order delivery instead of cooking, as she burnt the food several times. She buys things online and does minimal household chores. Exercising professional judgement, from a psychological perspective she has a mild impairment. |
| Social and Recreational Activities | 3 | The claimant relinquished her usual recreational activities. She recently joined a new church to attend the service and maintain her faith. She does not socialize or join the groups, and remains isolated from other members. She said she does not attend birthday parties, weddings or special celebrations. In the clinical judgement of the Medical Assessors, she has a moderate impairment. |
| Travel | 2 | The claimant initially avoided driving and can drive locally on her own now. She has a mild impairment. |
| Social Functioning | 3 | The claimant's social functioning was considered from a psychological perspective. Her relationship with her husband has deteriorated without separation. She is anxious and socially avoidant and ceased contact with all of her usual friends. She reported major difficulties looking after her son. She gets snappy and raises her voice with him and cannot tolerate his behaviour. Her husband does almost all childcare tasks. She increased daycare to five full days a week. Her husband looks after their son on the weekend. If her husband is not available, she asks her parents to help. Aside from taking her son to the childcare centre, she doesn’t really do anything else with him. Exercising their professional judgement, the Medical Assessors determined that there was a moderate impairment, class 3. |
| Concentration, Persistence and Pace | 3 | The claimant described having poor concentration. She made mistakes at work and cannot read books, due to poor concentration, and cannot perform intellectually demanding tasks requiring a significant period of time. Although she had been able to work, much of this was repetitive and even here she found herself struggling because of forgetfulness. The Medical Assessors determined that there was a moderate impairment, class 3. |
| Adaptation | 3 | The claimant's irritability, problems dealing with people and concentration difficulties render her incapable of her pre-accident work for the NDIS and affected her ability to perform the radiography job which she has recently quit. When considered from a psychological perspective alone, she cannot perform full-time work. She can manage lower stress employment for less than 20 hours per week. There is a moderate impairment. |
| List classes in ascending order: 223 333 | ||
| Median Class Value: 3 | ||
| Aggregate Score: 16 | ||
| % Whole Person Impairment: 17 % | ||
*%WPI = Percentage Whole Person Impairment
Pre-existing/subsequent impairment
The claimant has not sustained a subsequent injury. She has no past psychiatric history.
Apportionment
Nil.
Effects of treatment
Zero per cent - She has not gained significant improvement with treatment.
Conclusion
Permanent Impairment = 17%
DETERMINATION
There is no dispute between the parties that the claimant suffers from post-traumatic stress disorder as a result of the accident. There was no past psychiatric history. There are no other stressors or major personal changes unrelated to the accident. The Panel is satisfied on the evidence, including the findings made by the Medical Assessors following their re-examination of the claimant, that she satisfies the DSM-5-TR diagnostic criteria for post-traumatic stress disorder. In this regard, the Panel agrees with and adopts the reasons given by the Medical Assessors. The Panel is satisfied that but for the accident the claimant would not have developed post-traumatic stress disorder.
The Panel has considered Dr Bisht’s opinion, in particular with respect to the classes the doctor assigned to the PIRS categories. The Panel notes that it is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[3] and Insurance Australia Ltd v Marsh.[4]
[3] [2021] NSWCA 287 at [40], [41] and [45].
[4] [2022] NSWCA 31 at [64].
The PIRS must be used by a properly trained medical assessor. Further, the clinical judgement of the Medical Assessors on the Panel, both of whom are psychiatrists, is the most important tool in the application of the PIRS: cl 6.217 Guidelines. The Panel is, accordingly, particularly reliant on the clinical expertise of the Medical Assessors in the assessment of the claimant’s psychological injury.
The Medical Assessors on the Panel have evaluated the claimant’s impairment as it is at the time of the assessment: cl 6.21 Guidelines. The Panel agrees with and adopts the precise examination findings and conclusions of the Medical Assessors based on their examination of the claimant, and their specific findings pertaining to PIRS ratings, and permanent impairment.
The Panel finds that the post-traumatic stress disorder caused by the accident gives rise to a permanent impairment of 17%. Accordingly, her permanent impairment as a result of the injury caused by the accident is greater than 10%.
Medical Assessor Nagesh certified that the accident caused post-traumatic stress disorder gave rise to a permanent impairment of 16%. Because the Panel has found that the claimant has a 17% permanent impairment, it has revoked the certificate given by Medical Assessor Nagesh and issued a new certificate.
Because these reasons contain sensitive personal information the Panel directs that the reasons be de-identified in accordance with rule 132 of the Commission Rules.
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