Insurance Australia Limited t/as NRMA Insurance v BKA
[2022] NSWPICMP 450
•11 November 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v BKA [2022] NSWPICMP 450 |
| CLAIMANT: | BKA |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Wayne Mason |
| MEDICAL ASSESSOR: | Atsumi Fukui |
| DATE OF DECISION: | 11 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – Claimant involved in two motor accidents ten months apart; pre-existing psychiatric condition; depression; psychiatric injury; Motor Accidents Compensation Act 1999; Held – original medical certificate set aside; previous Medical Review Panel certificate set aside in Slade v Insurance Australia Ltd trading as NRMA; remitted to Commission for reconsideration; review of reconsideration; claimant involved in first accident and then a near miss on same country road ten months later; claimant’s psychiatric condition and psychological injury was caused by the first accident; chronic and severe post-traumatic stress disorder and major depressive disorder; degree of permanent impairment caused by first motor accident is 26%; previous history of depression but Panel found 0% pre-existing whole person impairment prior to the first accident; Panel followed and applied principles in State Government Insurance Commission v Oakley; Panel found that category one of Oakley applied; in this case the injury or impairment resulting from a subsequent incident (the near miss) was treated as caused by the first motor accident; Slade v Insurance Australia Ltd trading as NRMA and State Government Insurance Commission v Oakley followed and applied; treatment and care dispute; forty-eight disputes; Panel found all previous psychiatric, psychological, pharmacological and general practitioner treatments did relate to the first motor accident and were reasonable and necessary; varying hours of past and future personal and domestic assistance has been and continue to be reasonable and necessary as a consequence of her psychological injury. |
| DETERMINATIONS MADE: | Review Panel Assessment of Permanent Impairment Replacement certificate issued under the Motor Accidents Compensation Act 1999 Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10% The Review Panel revokes the Certificate of Medical Assessor Samuell dated 6 July 2021 and issues a new certificate determining that the following injuries were caused by the first motor accident on 28 April 2015 and give rise to a whole person impairment (WPI) which, in total, is greater than 10%: • post-traumatic stress disorder; and • major depressive disorder. |
Assessment of Treatment - Causation
Certificate issued under section 61 of the Motor Accidents Compensation Act 1999
The following treatment:
1. Whether the past 7 psychiatrist consultation sessions with Dr Richardson on 16/01/2018, 06/03/2018, 10/05/2018, 14/06/2018, 19/07/2018, 18/10/2018 and 06/12/2018 for psychological injuries is causally related to the injury sustained in the subject accident.
3. Whether the past 10 psychological consultation sessions with Life Matters Psychologist on 08/02/2018, 22/02/2018, 22/03/2018, 03/04/2018, 20/06/2018, 02/08/2018, 13/09/2018, 25/10/2018, 22/11/2018 and 04/12/2018 for psychological injuries is causally related to the injury sustained in the subject accident.
5. Whether the past 4 GP consultation sessions with Dr Garry Lyford, Gloucester Medical Centre on 06/03/2018, 27/03/2018, 22/05/2018 and 04/12/2018 for psychological injuries is causally related to the injury sustained in the subject accident.
7. Whether the 2x 5mg prazosin tablets taken daily at night from 22 December 2017 to date for the psychological injuries is causally related to the injury sustained in the subject accident.
9. Whether the 1x 5mg diazepam tablet taken daily at night and extra as required from 22 December 2017 to date for the psychological injuries is causally related to the injury sustained in the subject accident.
11. Whether the 2x 100mg of Pristiq tablets taken daily in the morning from 22 December 2017 to date for the psychological injuries is causally related to the injury sustained in the subject accident.
13. Whether the 2x 25mg of quetiapine taken daily at night and extra as required from 22 December 2017 to date for the psychological injuries is causally related to the injury sustained in the subject accident.
15. Whether the 1x 300mg Seroquel XR tablet taken daily at night plus 1x 50mg taken daily at night from 22 December 2017 to date for the psychological injuries is causally related to the injury sustained in the subject accident.17. Whether the 2x 45mg Avanza (mirtazapine) tablets taken daily at night from 22 December 2017 to date for psychological injuries is causally related to the injury sustained in the subject accident.
19. Whether the proposed psychiatrist consultations once every 6 months by Dr Richardson in his report of 14 June 2018 and Dr Parsonage for the psychological injuries from the date of assessment and ongoing for life is causally related to the injury sustained in the subject accident.
23. Whether the proposed 0 - 1 tablet of 150mg desvenlafaxine (Pristiq) per day prescribed by Dr Lyford, Dr Richardson and Dr Neale for injuries relating to the psychological injuries from the date of assessment and ongoing is causally related to the injury sustained in the subject accident.
25. Whether the proposed 0 - 1 tablet of 90mg Avanza (Mirtazapine) per day prescribed by Dr Lyford, Dr Richardson and Dr Neale for injuries relating to the psychological injuries from the date of assessment and ongoing is causally related to the injury sustained in the subject accident.
27. Whether the proposed 0 - 2 tablets of 100 - 500mg Seroquel per day prescribed by Dr Lyford, Dr Richardson and Dr Neale for injuries relating to the psychological injuries from the date of assessment and ongoing is causally related to the injury sustained in the subject accident.
29. Whether the proposed 0 - 1 tablet of 4mg prazosin per day prescribed by Dr Lyford, Dr Richardson and Dr Neale for injuries relating to the psychological injuries from the date of assessment and ongoing is causally related to the injury sustained in the subject accident.
31. Whether the proposed 0 - 2 tablets of 5 - 15mg diazepam per day prescribed by Dr Lyford, Dr Richardson and Dr Neale for injuries relating to the psychological injuries from the date of assessment and ongoing is causally related to the injury sustained in the subject accident.
35. Whether the 37.25 hours per week of gratuitous personal and domestic assistance provided by the claimants' husband from 28 April 2015 to 28 June 2015 for care needs arising from psychological injuries is causally related to the injury sustained in the subject accident.
37. Whether the 10 hours per week of gratuitous personal and domestic assistance provided by the claimants' husband from 29 June 2015 to 16 May 2016 for care needs arising from psychological injuries is causally related to the injury sustained in the subject accident.
39. Whether the 37.25 hours per week of gratuitous personal and domestic assistance provided by the claimants' husband from 17 May 2015 to 31 August 2016 for care needs arising from injuries to the psychological injuries are reasonable and necessary in relation to the injury sustained in the subject accident.
41. Whether the 12.5 hours per week of gratuitous personal and domestic assistance provided by the claimants' husband from 1 September 2016 to the date of assessment for care needs arising from psychological injuries is causally related to the injury sustained in the subject accident.
43. Whether the proposed once per month GP consultation by Dr Garry Lyford, Gloucester Medical Centre for psychological injuries from the date of assessment and ongoing for life is causally related to the injury sustained in the subject accident.47. Whether the proposed 12.5 hours per week of gratuitous personal and domestic assistance for care needs arising from injuries to the psychological injuries from the date of assessment and ongoing for life is causally related to the injury sustained in the subject accident.
RELATES TO THE INJURY caused by the motor accident
The following treatment:
21. Whether the proposed weekly psychologist consultations/counselling by Dr Richardson in his report of 14 June 2018 for the psychological injuries from the date of assessment and ongoing for life is causally related to the injury sustained in the subject accident.
33. Whether the proposed 0 - 1 inpatient admission to a psychological unit (St John of God) including 0 - 12 consultations with a psychiatrist and 0 - 18 consultations with a psychologist from the date of assessment to the completion of program is causally related to the injury sustained in the subject accident.
45. Whether the proposed 0 - 8 tablets of 500mg paracetamol per day prescribed by Dr Lyford, Dr Richardson and Dr Neale for injuries relating to the psychological injuries from the date of assessment and ongoing is causally related to the injury sustained in the subject accident.
DOES NOT RELATE TO THE INJURY caused by the motor accident
Assessment of Treatment– Reasonable and Necessary
Certificate issued under section 61 of the Motor Accidents Compensation Act 1999
The following treatment:
2. Whether the past 7 psychiatrist consultation sessions with Dr Richardson on 16/01/2018, 06/03/2018, 10/05/2018, 14/06/2018, 19/07/2018, 18/10/2018 and 06/12/2018 for psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident.
4. Whether the past 10 psychological consultation sessions with Life Matters Psychologist on 08/02/2018, 22/02/2018, 22/03/2018, 03/04/2018, 20/06/2018, 02/08/2018, 13/09/2018, 25/10/2018, 22/11/2018 and 04/12/2018 for psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident.
6. Whether the past 4 GP consultation sessions with Dr Garry Lyford, Gloucester Medical Centre on 06/03/2018, 27/03/2018, 22/05/2018 and 04/12/2018 for psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident.
8. Whether the 2x 5mg prazosin tablets taken daily at night from 22 December 2017 to date for the psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident.
10. Whether the 1x 5mg diazepam tablet taken daily at night and extra as required from 22 December 2017 to date for the psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident.
12. Whether the 2x 100mg of Pristiq tablets taken daily in the morning from 22 December 2017 to date for the psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident.
14. Whether the 2x 25mg of quetiapine taken daily at night and extra as required from 22 December 2017 to date for the psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident.
16. Whether the 1x 300mg Seroquel XR tablet taken daily at night plus 1x 50mg taken daily at night from 22 December 2017 to date for the psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident.
18. Whether the 2x 45mg Avanza (mirtazapine) tablets taken daily at night from 22 December 2017 to date for psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident.20. Whether the proposed psychiatrist consultations once every 6 months by Dr Richardson in his report of 14 June 2018 and Dr Parsonage for the psychological injuries from the date of assessment and ongoing for life is reasonable and necessary in relation to the injury sustained in the subject accident.
24. Whether the proposed 0 - 1 tablet of 150mg desvenlafaxine (Pristiq) per day prescribed by Dr Lyford, Dr Richardson and Dr Neale for injuries relating to the psychological injuries from the date of assessment and ongoing is reasonable and necessary in relation to the injury sustained in the subject accident.
26. Whether the proposed 0 - 1 tablet of 90mg Avanza (mirtazapine) per day prescribed by Dr Lyford, Dr Richardson and Dr Neale for injuries relating to the psychological injuries from the date of assessment and ongoing is reasonable and necessary in relation to the injury sustained in the subject accident.
28. Whether the proposed 0 - 2 tablets of 100 - 500mg Seroquel per day prescribed by Dr Lyford, Dr Richardson and Dr Neale for injuries relating to the psychological injuries from the date of assessment and ongoing is reasonable and necessary in relation to the injury sustained in the subject accident.
30. Whether the proposed 0 - 1 tablet of 4mg prazosin per day prescribed by Dr Lyford, Dr Richardson and Dr Neale for injuries relating to the psychological injuries from the date of assessment and ongoing is reasonable and necessary in relation to the injury sustained in the subject accident.
32. Whether the proposed 0 - 2 tablets of 5 - 15mg diazepam per day prescribed by Dr Lyford, Dr Richardson and Dr Neale for injuries relating to the psychological injuries from the date of assessment and ongoing is reasonable and necessary in relation to the injury sustained in the subject accident.
36. Whether the 37.25 hours per week of gratuitous personal and domestic assistance provided by the claimants' husband from 28 April 2015 to 28 June 2015 for care needs arising from psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident.
38. Whether the 10 hours per week of gratuitous personal and domestic assistance provided by the claimants' husband from 29 June 2015 to 16 May 2016 for care needs arising from psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident.
40. Whether the 37.25 hours per week of gratuitous personal and domestic assistance provided by the claimants' husband from 17 May 2016 to 31 August 2016 for care needs arising from injuries to the psychological injuries are reasonable and necessary in relation to the injury sustained in the subject accident.
42. Whether the 12.5 hours per week of gratuitous personal and domestic assistance provided by the claimants' husband from 1 Septmber 2016 to the date of assessment for care needs arising from psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident.
44. Whether the proposed once per month GP consultation by Dr Garry Lyford, Gloucester Medical Centre for psychological injuries from the date of assessment and ongoing for life is reasonable and necessary in relation to the injury sustained in the subject accident.48. Whether the proposed 12.5 hours per week of gratuitous personal and domestic assistance for care needs arising from injuries to the psychological injuries from the date of assessment and ongoing for life is reasonable and necessary in relation to the injury sustained in the subject accident.
IS REASONABLE AND NECESSARY in the circumstances
The following treatment:
22. Whether the proposed weekly psychologist consultations/counselling by Dr Richardson in his report of 14 June 2018 for the psychological injuries from the date of assessment and ongoing for life is reasonable and necessary in relation to the injury sustained in the subject accident.
34. Whether the proposed 0 - 1 inpatient admission to a psychological unit (St John of God) including 0 - 12 consultations with a psychiatrist and 0 - 18 consultations with a psychologist from the date of assessment to the completion of program is reasonable and necessary in relation to the injury sustained in the subject accident.
46. Whether the proposed 0 - 8 tablets of 500mg paracetamol per day prescribed by Dr Lyford, Dr Richardson and Dr Neale for injuries relating to the psychological injuries from the date of assessment and ongoing is reasonable and necessary in relation to the injury sustained in the subject accident.
IS NOT REASONABLE AND NECESSARY in the circumstances
REASONS
Background
On 28 April 2015 Ms BKA (the claimant) was driving her car east on Bucketts Way, Gloucester NSW. She was on her way to work at about 10.20 pm. BKA had just driven past Mograni lookout when she was confronted with a car that was stopped on the Bucketts Way. That car was unlit and was stationary in her lane. She tried to avoid the stationary car but she collied with it which resulted in her car losing control and flipping onto its roof and then back onto its wheels. In these reasons the Review Panel will refer to this accident on 28 April 2015 as “the first accident”.
BKA reported suffering numerous injuries in that accident including to her: neck, spine, shoulders, left knee and abdomen . She was taken by ambulance to Manning Base Hospital and stayed there overnight.
The owner and driver of the other motor vehicle was insured by the NRMA Ltd (the insurer) who had liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accidents Compensation Act 1999 (the MAC Act).
After the accident the claimant returned to work as a nurse in about October 2015 and continued to work until she stopped work in May 2016.
On 2 February 2016 BKA reported driving to work and having a “near miss” with another car coming out of an exit road at the Mograni lookout on Bucketts Way. This occurred close to where the first accident occurred some ten months previously. BKA reported that immediately after this near miss she was vomiting and feeling sick. She also reported later development of other symptoms including a significant increase in alcohol consumption. Her symptoms worsened and then in May 2016 she was diagnosed with Post-traumatic Stress Disorder (PTSD) and stopped work. The claimant has not returned to paid employment since that time. In these reasons the Panel will refer to the incident on 2 February 2016 as “the second accident” or “the near miss”.
There is a dispute about whether the degree of permanent impairment sustained by the claimant as a result of psychological injury caused by an accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Sections 57 and 58 of the MAC Act.
There are three disputes before the Panel :
• the degree of permanent impairment under section 58(1)(d) of the MAC Act;
• whether any such treatment relates to the injury caused by the motor accident under section 58 (1)(b) of the MAC Act; and
• whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances under section 58(1)(a) of the MAC Act.
The current dispute is about a determination made by Medical Assessor Doron Samuell who issued a Medical Assessment Certificate dated 6 July 2021. Medical Assessor Samuell’s certificate concluded that the claimant sustained a Chronic Post-traumatic Stress Disorder which was caused by the motor accident which gave rise to a permanent impairment of and greater than10 %. Medical Assessor Samuell’s assessed the claimant’s whole person impairment at 21 %.[2]
[2] Insurer bundle R1 page.
The review procedure
In this application for review the insurer is the applicant.
The present application is a review of a medical assessment under section 63 of the MAC Act. The relevant medical assessment was conducted by Medical Assessor Samuell. He issued a certificate dated 6 July 2021.
An application for review of the medical assessment of Medical Assessor Samuell was lodged on behalf of the insurer on or about 23 August 2021.
On 27 September 2021 the delegate of the President being satisfied 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 referred the medical assessment to the Panel.[3]
[3] Section 63(2B) of the MAC Act.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under clause 14A(1)(a)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F(2) of Schedule 1 of the PIC Act provides that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review which was completed before 1 March 2021.
The new review provisions provide that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Commission. The President’s Delegate referred this application for review to the Panel.
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.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[6]
[6] Section 63(3A) of the MAC Act.
The Panel considered it appropriate for the assessment to review all matters with which the assessment of Medical Assessor Samuell was concerned. Because the review involved the assessment of permanent impairment the Panel decided to medically examine BKA.
The Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered. The parties were subsequently advised that the claimant would be examined by the Medical Assessors on the Panel.
On 1 August 2022 BKA was examined by Medical Assessor Fukui and Medical Assessor Mason by video conference on behalf of the Panel. The Medical Assessors prepared a report about that examination which is contained later in these reasons.
Statutory provisions and Guidelines
Under subsection 63(3A) of the MAC Act, a review of a medical assessment is not limited to a review of only what is alleged to be incorrect, it is a new assessment of all the matters with which the medical assessment is concerned. A review should also generally involve a re-examination of the claimant. See the decision of the Court of Appeal in Sydney Trains v Batshon [2021] NSWCA 143 where Leeming JA (with White JA and McCallum JA agreeing) stated at [41]:
“Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review ‘should generally include a re-examination of the claimant’, especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings: see cl 4(a)(i) and (ii) of the ‘Review Panel Practice Note 3/2005’, reproduced in Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127 at [36]. Importantly, the review ‘is not limited to a review only of that aspect of the assessment that is alleged to be incorrect’, but rather ‘is to be by way of a new assessment of all the matters with which the medical assessment is concerned’: Motor Accidents Compensation Act 1999 (NSW), s 63(3A); Motor Accident Injuries Act 2017 (NSW), s 7.26(6).”
The Motor Accident Permanent Impairment Guidelines 2018 (the Guidelines) were issued under section 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides are followed.[7]
[7] Clause 1.2 of the Guidelines.
The Guidelines set out the procedure to be followed when assessing the degree of permanent impairment.
“1.18 An assessment of the degree of permanent impairment involves three stages:
1.18.1 a review and evaluation of all the available evidence including:
○ medical evidence (doctors’, hospitals’ and other health practitioners’ notes, records and reports)
○ medico-legal reports
○ diagnostic findings○ other relevant evidence.”
26.In regard to issues of pre-existing impairment and subsequent injuries , the Guidelines provide as follows:
“1.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
1.34 The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”
27.In regard to the issue of causation of injury, the Guidelines provide as follows:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) 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 claims assessor) in considering such issues.
“1.6 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.1.7 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.”
28.The Panel will now consider the decision in Slade v NRMA[8] which gives some guidance about how the issue of causation of injury should be analysed. The Panel will then summarise the Medical Assessment Certificate of Medical Assessor Samuell dated 6 July 2021.
[8] Slade v Insurance Australia Ltd trading as NRMA [2020] NSWSC 1031
Supreme Court Review of Medical Assessor Jager’s certificate dated 24 April 2019.
29.Before considering the Certificate of Medical Assessor Samuell the Panel needs to refer to a prior Certificate of Medical Assessor Jager dated 24 April 2019 and the resulting review of that Certificate by the NSW Supreme Court in Slade v Insurance Australia Ltd trading as NRMA [2020] NSWSC 1031, (Slade v NRMA).[9]
[9] See also GIO GENERAL LIMITED v SMITH & Ors INSURANCE AUSTRALIA LTD T/as NRMA INSURANCE v SMITH & Ors [2011] NSWSC 802
30.On 9 April 2019, BKA was assessed by Medical Assessor Jager.
31.On 24 April 2019, Dr Jager gave three certificates in relation to the assessment of the matters referred to him to the following effect:
(1) in MAS matter number 2018/02/3778, that the injury, being Chronic Post-traumatic Stress Disorder (PTSD), caused by the 2015 motor accident gave rise to a permanent impairment which was not greater than 10%;
(2) in MAS matter number 2018/01/3773, that certain treatments listed in the certificate related to the injuries caused by the 2015 motor accident and that the other treatments did not; and
(3) in MAS matter number 2018/01/3773, that certain treatments listed in the certificate were reasonable and necessary in the circumstances and that the other treatments were not.
BKA sought judicial review by the NSW Supreme Court of the three certificates and decisions of Medical Assessor Jager. The main grounds for the review of the Medical Assessor’s decisions were that he: erred in law when determining the degree of permanent impairment, did not apply the correct principles in relation to causation and failed to give adequate reasons for his decisions.
In the resulting decision in Slade v NRMA , Wright J ruled on the application for review of the decisions of Medical Assessor Jager. His Honour set aside all three certificates and decisions of Medical Assessor Jager. His Honour also decided to remit the matter back to the Commission to be referred for assessment under Pt 3.4 of the MAC Act according to law.
In Slade v NRMA Wright J wrote about the Medical Assessor’s reasons that :
“… it is difficult, if not impossible, to express any concluded view on which of the Oakley categories the assessor determined that BKA’s case fell into and whether the assessor applied the correct legal principles because the reasons in this case do not disclose his actual path of reasoning.”[10]
[10] See Slade v NRMA at paragraphs 53 to 65.
In this present review the insurer submits that the reasoning of Medical Assessor Samuell was similarly in error because he failed to explain in his reasoning about causation and how he apportioned the injuries between the first accident and the second accident.
The relevance of the decision in Slade v NRMA to this Medical Review is that Wright J sets out in detail where Medical Assessor Jager erred at law and the necessity for a medical assessment to express the actual path of reasoning and a concluded view on which of the Oakley[11] categories the assessor determined that BKA’s case fell into.
[11] State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81-003; 10 MVR 570
His Honour sets out in detail the relevant legislation and Guidelines. Detailed reference is made to: sections 57 to 65 of the MAC Act, paragraphs 1.5 to 1.7, 1.9, 1.17, 1.18, 1.31 and 1.34 of the Guidelines[12] His Honour noted that a medical assessor making assessments under Pt 3.4 of the MAC Act must follow the requirements of the 2018 Guidelines including the three stages set out in paragraph 1.18. His Honour states that the reasons should make clear that these stages have been followed.[13]
[12] See Slade v NRMA at paragraphs 53 to 65.
[13] See Slade v NRMA at paragraph 71.
His Honour sets out in detail the applicable principles in relation to causation.[14] His Honour refers with approval to the decision of Campbell J in in Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [27] where it was held that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s.5 D.[15] Wright J then summarised the principles that were set out in the judgment of Malcolm CJ in Oakley[16] and the analysis the medical assessor is required to take in relation to the issue of causation as follows :
[14] See Slade v NRMA at paragraphs 75 to 106.
[15] See Slade v NRMA at paragraph 81.
[16] See Slade v NRMA at paragraph 85.
“102 In relation to issues of causation, the medical assessor was required to undertake a careful analysis of all the evidence and, in light of that evidence, consider:
(1) whether what occurred in the 2015 motor accident could have caused, or contributed to, the impairment resulting from BKA’s PTSD, which is a medical determination, as specified in par 1.6(1) of the 2018 Guidelines; and then consider:
(2) whether what occurred in the 2015 motor accident did cause, or contribute to, the impairment caused by BKA’s PTSD, which is a non-medical determination, as specified in par 1.6(2), noting that the motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible, as provided in par 1.7.
103 In carrying out the second element of this process in a case where there is a subsequent, unrelated event leading to relevant impairment, the assessor was required to apply pars 1.5, 1.7 and 1.34 of the 2018 Guidelines, as informed by the principles in relation to causation that would be applied by a court in considering such issues, including:
(1) s 5D(1)(a) and (b) of the CL Act, which provisions are reflected to some extent in pars 1.6 and 1.7 of the 2018 Guidelines; and
(2) the principles in Oakley, which assist to determine how the permanent impairment resulting from the PTSD caused by the earlier motor accident is to be determined based on the values calculated, as required by par 1.34 of the Guidelines, and in light of s 5D(1)(b) of the CL Act.
104 The principles in Oakley establish, relevantly for present purposes, in effect that:
(1) Where the further injury or impairment results from a subsequent incident, which would not have occurred had the claimant not been in the condition caused by the earlier motor accident, the added damage should be treated as caused by the earlier motor accident. In this situation, par 1.34 is not engaged because the “injury or condition” is not “unrelated”.
(2) Where the further injury or impairment results from a subsequent incident, which would have occurred even if the claimant had not been in the condition caused by the earlier motor accident, but impairment is sustained or is greater because of aggravation of the earlier injury, the additional impairment resulting from the aggravated injury should be treated as caused by the earlier motor accident.
(3) Where the further injury or impairment results from a subsequent incident, which would have occurred even if the claimant had not been in the condition caused by the earlier motor accident, but the impairment sustained includes no element of aggravation of the earlier injury, the subsequent incident and further impairment should be regarded as causally independent of the earlier motor accident.
105 In the latter two situations, par 1.34 is engaged because the “subsequent … injury or condition” is “unrelated” to the first motor accident, as that expression is to be understood in that paragraph. The Oakley principles provide a structure of analysis which is of assistance when applying the approach referred to in pars 1.5 – 1.7 and 1.34 of the 2018 Guidelines and s 5D(1)(b) of the CL Act.”
Assessment under review
Medical Assessor Samuell certified that the claimant sustained a Chronic Post-traumatic Stress Disorder (PTSD) which was caused by the motor accident which gave rise to an assessment of a 21% whole person impairment.
Medical Assessor Samuell found there was 0% pre-existing/subsequent impairment. His findings on the issue of apportionment – pre-existing/subsequent impairment was that it was “not applicable.”
Medical Assessor Samuell provided a certificate dated 6 July 2021. He diagnosed post-traumatic stress disorder noting the claimant met DSM-5 criterion A. He went on to record symptoms of tremor, traumatic nightmares, insomnia, depression, concentration difficulties, suicidal thoughts, heightened arousal and avoidance. He noted the onset of these symptoms did not occur until after the second motor accident in February 2016. He wrote “BKA was quite specific in saying that she had no awareness of psychological issues directly after the subject accident. She said the psychological difficulties became obvious to her after the ‘near miss’.” He assessed whole person impairment at 19% (224135), and after allowing a 2% treatment effect the total was 21%. He concluded all treatments other than pain management treatment related to the motor accident and were reasonable and necessary.
Medical Assessor Samuell provided the following assessment under the psychiatric impairment rating scale (the PIRS):
Degree of permanent impairment Psychiatric Impairment Rating Scale
| Psychiatric diagnoses | 1. Posttraumatic Stress Disorder | 2. |
| 3. | 4. | |
| Psychiatric treatment description | Medications, psychiatrist and psychologist. | |
| Category | Class | Reason for Decision | |
| 1. Self Care and Personal Hygiene | 2 | She is showering less than normal. She is able to attend to some activities of daily living. | |
| 2. Social and Recreational Activities | 2 | There has been a moderate reduction in her social and recreational functioning. She pursues some hobbies and friends but does so less frequently. | |
| 3. Travel | 4 | She finds it extremely uncomfortable to leave her residence even with a support person. | |
| 4. Social Functioning | 1 | She reported no relationship difficulties with her husband. | |
| 5. Concentration, Persistence and Pace | 3 | There was moderate impairment with observed and reported difficulties in concentration. | |
| 6. Adaptation | 5 | In her totality, from a psychological perspective she is totally unable to work. | |
| List classes in ascending order: 1,2,2,3,4,5 | |||
| Median Class Value: 3 | |||
| Aggregate Score: 17 | |||
| % Whole Person Impairment: 19 % | |||
*%WPI = Percentage Whole Person Impairment
Medical Assessor Samuell found current treatment improved the claimant’s level of function to a moderate extent and as such a further 2% was added to the WPI.
Medical Assessor Samuell concluded with his assessment that claimant’s degree of permanent impairment caused by the motor accident was 21%.
Insurer’s submissions
In this matter the insurer was the applicant for review. The insurer made detailed and lengthy submissions and also referred to significant medical evidence. Some of the insurer’s submissions are referred to briefly below. The insurer’s submissions about the medical evidence are referred to in the latter sections of these reasons.
In its submissions about the review of Medical Assessor Samuell’s decision, the insurer identifies five errors as follows:[17]
[17] Insurer bundle AD 1 , R-A1 at pp 3 to 12.
a)The Decision Maker has fallen into error in failing to apply the correct test for causation under clause 1.5 and 1.7 of the Guidelines.
b)The Decision Maker has fallen into error in failing to consider the legal test of causation.
c)The Decision Maker has fallen into error in concluding that there was no other potential cause of the Post Traumatic Disorder symptoms identified.
d)The Decision Maker has fallen into error in concluding that all of the criterion for Post-Traumatic Stress disorder was satisfied as being causally related to the subject accident.
e)The Decision Maker has failed to provide adequate reasons for finding that an apportionment to the subsequent accident was ‘Not applicable’.
47.The insurer refers to BKA’s personal injury claim form where the claimant described the first accident as follows. At 2220 on 28 April 2015 the claimant was driving to work on Bucketts’ Way (Wallanbah Rd) Gloucester in a Nissan SUV at approximately 90kph. She encountered an unlit stationary vehicle on the road in her lane as she rounded a sweeping downhill bend. She attempted to divert but could not avoid a collision. Her car left the road, flipped onto the roof, hit an embankment and ended upright facing in the wrong direction on the wrong side of the road. Police attended. She was transported to Manning Hospital (Taree) by ambulance where she remained overnight. Injuries were listed as laceration to R side of head, friction burns to thumbs, bruising swelling and laceration to L knee, L2 transverse process spinal fracture, bruising to R shoulder, sternum, abdomen and sacrum plus painful neck and L shoulder. She did not report any psychiatric symptoms. Treatment consisted of pain management and rest. She noted a pre-existing L4/5 disc injury. There was a GRTW from August 2015 with resumption of full time duties in December 2015. She was employed mainly on night shifts working 64 hours per fortnight.[18]
[18] Insurer bundle AD 1 , R-A4 at p47.
48.One of the insurers main submissions is that BKA displayed no psychological symptoms following the subject accident in April 2015.[19]
[19] Insurer bundle AD 1 , R-A 29
49.The insurer refers to the Supreme Court decision by Hoeben J dated 5 August 2011 affirming the necessity to apportion between two separate motor accidents. [20]
[20] Insurer bundle AD 1 , R-A16.See GIO Gen. Ltd v Smith [2011] NSWSC 802 & Allianz vMAA
50.The insurer refers to the decision of Hoben J in General Limited v Smith & Ors: Insurance Australia Ltd t/as NRMA Insurance v Smith [2011] NSWSC 802.The insurer submits that in the present case:
“….where there was no evidence of a diagnosable psychological injury until after the accident in February 2016, the proper approach to assessing impairment would be to assess the claimant's impairment as at the date of the assessment, her impairment immediately before the accident in February 2016 and again immediately before the accident in April 2015. That would result in all of the impairment being attributed to the subsequent event. The insurer submits that the Medical Assessor should therefore find that the claimant's requirement for treatment of her psychological condition was attributed to her pre-accident condition and that any increase in treatment after February 2016 was causally related to the subsequent accident.”[21]
[21] Insurer bundle AD 1 , R-A 3 p 42
Claimant’ssubmissions
The claimant’s solicitors’ make several submissions on causation and also in response to the insurer’s submissions.
The claimant’s solicitors’ submissions are headed: Claimant’s submissions in reply review of assessment of decision maker Samuell[22]. These submissions give a detailed response to the insurer’s submissions about five alleged errors. We have briefly referred to these five points made below.
Error 1 – Failed to correctly apply the guidelines and common law test of causation. By citing only Clause 1.5 and 1.7 of the Guidelines and only one of numerous findings of the Assessor, the Insurer has over-simplified the task of determining causation and has erroneously represented the Medical Assessor’s decision. The submissions summarised the medical evidence and concluded that it was very clear that Medical Assessor Samuell did find
that the subject accident (the first accident) caused the Claimant’s injury - PTSD.
Error 2 – Failed to provide adequate reasons for PTSD. This ground is another allegation that the Medical Assessor erred in his findings on causation because he, allegedly, failed to provide adequate reasons for how he arrived at the diagnosis of PTSD.
Error 3 – There was no other cause. The claimant submitted that there can be no error in the Medical Assessor applying his medical knowledge and expertise in determining that the cause of the accident was the subject incident and not the near miss. This was arrived at upon a full review of all evidence before him and on the basis of the reasons summarised above. The Medical Assessor’s decision is entirely consistent with the expert opinion of Dr Vickery, engaged by the insurer, who specifically rules out the near miss as a cause of PTSD.
Error 4 – Diagnosis. The Insurer’s submissions under Error 4, fall well short of demonstrating that there is reasonable cause to suspect the assessment of the Medical Assessor is incorrect in a material aspect.
Error 5 – Apportionment. it should be found that there was no error in determining that the subject accident was the cause of the incident and, therefore, there was no other cause. There would, therefore, be no apportionment necessary. Secondly, the Insurer is not correct when it states that on the Medical Assessor’s own reasoning, the near miss was a potential cause. The Medical Assessor never made such a finding. Even if the Claimant is wrong, the Medical Assessor, by law, would not have been able to make any finding of impairment attributable to the near miss. If there was any apportionment, it ought to have been determined that all damage flows from the subject accident as no injury would have been sustained by the Claimant in the near-miss if she had been in normal health. Thus, there would have been 0% WPI attributable to the near miss in any event.
The claimant’s solicitors also refer to the decision by Wright J in the Supreme Court of NSW in Slade v Insurance Australia Ltd t/as NRMA set aside the certificates of Medical Assessor Jaeger and referred the matter for further assessment. [23]There was reference in the decision to the Oakley principles cited by Malcolm CJ in State Government Insurance Commission v Oakley.
[23] Claimant bundle AD 3 , p 10
The solicitors for the claimant refer to the medical reports of Dr Parsonage and Dr Richardson and submit that, but for the subject motor accident, the claimant would not have developed symptoms following the second incident. It therefore must follow as a matter of "common sense" that the subject accident was the cause of the claimant's psychological conditions.[24]
[24] Claimant bundle AD 3 , submissions p 73
MATERIAL BEFORE THE REVIEW PANEL
Both parties filed bundle of documents in accordance with the initial Direction dated 24 February 2022.
In response to this direction the solicitor for the insurer filed a bundle of indexed documents dated 11 May 2022 and paginated from pages 1 to 549 and filed in the portal as AD1. The solicitor for BKA filed a bundle of indexed documents paginated from pages 1 to 323 and filed in the portal as AD 3.
The Panel notes that there are extensive and voluminous medical records, reports and clinical notes describing the claimant’s psychological and physical injuries. The Panel has read, discussed and carefully considered all of these medical records reports and notes before it. The Panel has not referenced or summarised the records relating to BKA’s physical injuries or symptoms unless they are relevant or have some bearing on the consideration of her psychiatric injuries which are the subject matter of the Panel’s reassessment process. Nor has the Panel referenced or summarised all of the records relating to BKA’s psychiatric symptoms or injuries. If some of those medical records and reports are not referred to in the Panel’s review, it should not be assumed that the Panel was unaware of that medical material or that the Panel failed to take the material into account. In its review the Panel is endeavouring to carry out its statutory function and promote the objects of the legislation it operates under including the legislator’s guiding principle that proceedings in the Commission be just, quick and cost-effective resolution of the real issues in the proceedings.[25] Consistent with this guiding principle, the Panel has not referred to every item of medical evidence but has done its best to refer to them sufficiently but briefly.
[25] Sections 3 and 42 Personal Injury Commission Act 2020.
Pre- second accident medical records – prior to 2 February 2016
A brief summary of the pre- second accident medical records, prior to 2 February 2016 , is as follows.
64.Comminsure records appears to refer to recurrent episodes of diverticulitis in 2005 and a work-related lower back injury in 2008.[26]
[26] Insurer bundle AD 1 , R-A14
BKA suffered a work-related back injury in 2008 causing intermittent depressive symptoms over the next 6 or 7 months treated with sertraline 50mg by her GP and had 3 consultations with a psychologist. She made a satisfactory return to work after some months but continued on sertraline 100mg until the subject motor accident.[27]
[27] Claimant bundle AD 3 , p 132
NSW ambulance service report indicates the claimant struck a stationary vehicle at 80 kph and her vehicle rolled. Airbags deployed, she self-extricated and was ambulatory at the scene on arrival. GCS of 15. She complained of thoracic back pain, sternum pain and lower abdominal pain. She was transported to Taree Hospital by ambulance.[28]
[28] Claimant bundle AD 3 , p 134
Manning Base Hospital Taree clinical record indicates the claimant was admitted at 12:11 am on 29 April 2015 and discharged at 1:15 pm. History taken indicates she hit a stationary vehicle at 80 kph. Seatbelt was worn and airbags deployed. She self-extricated and mobilised. There was no head injury or loss of consciousness. She complained of left knee, abdominal and intrascapular pain. She was discharged on Endone 5 mg as needed. There was an undisplaced fracture of the right L2 transverse process. There was no reference in the typed or handwritten clinical notes of psychological injury.[29]
[29] Claimant bundle AD 3 , p 141
68.A Medical certificate by Dr Khalid dated 20 May 2015 indicates soft tissue injuries and a fracture of the transverse processes of L2 in the subject motor accident. He noted a painful neck and chest and bruises and haematoma on the abdomen, tender thoracolumbar spine and swollen left ankle.[30]
[30] Insurer bundle AD 1 , R-A5
69.Referral by GP Dr Gary Lyford to psychiatrist Dr Mike Richardson indicates overwhelming anxiety and depression following the subject motor accident on 28 April 2015 with symptoms arising in February 2016 after witnessing reckless driving at the same spot. He described symptoms of flat mood, sleep disturbance, flashbacks, tearfulness, lack of motivation, poor concentration and inability to drive. He had referred her to a psychologist and increased sertraline from 100 to 200 mg.[31]
[31] Insurer bundle AD 1 , R-A11
70.NRMA request for information form by Dr Gary Lyford dated 26 June 2015 lists only physical symptoms.[32]
[32] Insurer bundle AD 1 , R-A13
71.Accident and Health International medical certificate dated 20 April 2015 indicating unfitness for work until 20 May 2015 following the subject motor accident.[33]
[33] Insurer bundle AD 1, R-A15
72.Case closure report by occupational therapist Ms Elizabeth Hibberd is dated 28 October 2015. She had participated in a graduated return to driving programme and was able to drive independently to and from work including at night by 27 July 2015. She reported no ongoing issues with driving. She had returned to her pre-injury 64 work hours per fortnight on 8 October 2015. OPMQ score had been reduced from 195 to 95.[34]
[34] Insurer bundle AD 1 , R-A17
Post-second accident medical records-after 2 February 2016
73.A brief summary of the post-accident medical records, after 2 February 2016 , is as follows.
74.There is a report by orthopaedic surgeon Dr Murray Hyde Page is dated 19 May 2016. He noted "she ran into the back of a stationary vehicle at about 80 kph pushing it 50 m up the road. Just as her car came to a standstill the airbags went off and her car was then upright. She was very shaken by the accident and able to get out of the vehicle. She was immediately aware of generalised pain from the seatbelt and in her neck and back. She had hit her left knee against the dash”. He made no mention of the February 2016 incident. He diagnosed seatbelt injuries to her abdomen and chest and soft tissue injuries to the cervical spine. There was also a fracture of the transverse process of L2 and a left shoulder injury. He noted subsequently she is back doing her normal work duties as a registered nurse in the aged care unit at Gloucester Hospital. He assessed whole person impairment at 10%.[35]
[35] Insurer bundle AD 1 , R-A 18
75.Centrelink medical certificate by Dr Gary Lyford dated 6 June 2016 indicates onset of anxiety and depression from 23 May 2016.[36]
[36] Insurer bundle AD 1 , R-A12
In a report to the claimant's lawyer dated 9 June 2016, GP Dr Gary Lyford indicated he first became aware of psychological issues during the consultation and 17 May 2016. Symptoms included flashbacks, periodic vomiting, disturbed to sleep, night sweats, irritability, self-imposed social isolation, poor motivation, tearfulness and generally flat mood. She was drinking up to 6 standard drinks daily. There was no suicidal ideation. There was a previous history of depression and anxiety in 2008 and she had remained on Zoloft from that time. DASS 21 scores were all extremely severe.[37]
[37] Claimant bundle AD 3 , p 178
77.In the report from Dr Gary Lyford dated 9 June 2016 also stated that he increased the Zoloft, prescribed propranolol, referred her to psychologist Ms Amy Sellers and psychiatrist Dr Mike Richardson. He declared her unfit for work from 17 May 2016.[38]
[38] Claimant bundle AD 3 , p76
Treating psychiatrist Dr Mike Richardson provided a report dated 17 June 2016. He diagnosed PTSD and a major depressive disorder secondary to both motor accidents. He recommended cessation of sertraline and propranolol and the introduction of quetiapine and mirtazapine. He suggested a single night-time dose of Prazosin 3 mg and supported referral to a psychologist.[39]
[39]Claimant bundle AD 3 , p77
On 6 October 2016 in a letter to the claimant’s lawyers Dr Richardson indicated the onset of PTSD symptoms followed 2015 motor accident.[40]
[40] Claimant bundle AD 3 , p79
On 22 February 2017 Dr Richardson noted her condition was not significantly improving. He recommended increasing desvenlafaxine to 150 mg and continuing mirtazapine 90 mg. He indicated he was retiring from practice for health reasons and recommended referral to psychiatrist Dr Brian Neale.[41]
[41] Claimant bundle AD 3 , p 80
81.Centrelink medical certificate by GP Dr Gary Lyford is dated 14 June 2017. He diagnosed post-traumatic stress disorder with onset 23 May 2016. Symptoms consisted of flat mood, tearfulness, sleep disturbance, aggression and memory impairment. She was totally unfit for work or study.[42]
[42] Insurer bundle AD 1 , R-A 22
On 11 July 2017 Dr Parsonage concluded BKA suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood before the accident of 28 April 2015 which had resolved and did not require apportionment. He diagnosed PTSD with delayed expression and major depressive disorder. He assessed WPI at 22% (333234) which he initially attributed wholly to the second “incident” in February 2016, rather than the subject accident in April 2015. He was very clear in stating there were no psychological sequelae of the 2015 accident until after the 2016 event.[43]
[43] Claimant bundle AD 3 , p 81
Following correspondence with the lawyers for the claimant Dr Parsonage attributed the impairment wholly to the first accident, arguing BKA suffered from delayed onset PTSD caused by the subject accident but triggered by the second incident. [44]
[44] Claimant bundle AD 3 , p 95
On 6 March 2018 there was a further referral from GP Dr Gary Lyford to psychiatrist Dr Mike Richardson. He noted she was improving and could drive without panic but not on the main road. She required Valium as a passenger on the main road. She was dismissed from her employment. He noted she was more in control.[45]
[45] Claimant bundle AD 3 , p 102
Medico-legal reports
Reports of Dr Graham Vickery, Psychiatrist, various dates
85.Psychiatrist Dr Graham Vickery (p204) provided a report dated 1 December 2016. His report of the 2015 motor accident was consistent with documentation provided. He stated the second incident occurred in December 2016, rather than in February 2016. Following this he described the onset of PTSD symptoms. He diagnosed PTSD and thought the prognosis was hopeful because of the recent partial recovery. He attributed the symptoms to the 2015 motor accident and regarded treatment and care as reasonable and necessary.[46]
[46] Insurer bundle AD 1 , R-A 26
86.In a further report dated 16 May 2018 Dr Graham Vickery noted the second incident was in February 2016. On this occasion he diagnosed resolving PTSD. He noted an increasing ability to resume normal life activities but did not consider her fit to return to work. He did not provide an assessment of whole person impairment because she had not reached maximal medical improvement. He attributed her psychological condition to the 2015 motor accident.[47]
[47] Insurer bundle AD 1 , R-A 25
87.Dr Graham Vickery submitted a further report dated 25 October 2018. After review of the statement by Dr Mike Richardson on 9 May 2018 that she had no PTSD symptoms until after the 2016 incident he provided an opinion on apportionment. He attributed 0% to pre-accident conditions, 0% to the April 2015 motor accident and 100% to the February 2016 incident.[48]
[48] Insurer bundle AD 1 , R-A 27
Reports of Dr Richardson, various dates
88.In a report of Dr Richardson dated 6 October 2016 he attributed the first accident as being entirely causal in terms of BKA’s current PTSD. Had she not already been significantly impaired by PTSD from her first motor vehicle accident she would have been able to deal with the second accident with only minimal upset.[49]
[49] Claimant bundle AD 3 , p 79
On 9 May 2018 Dr Richardson corrected his report of 6 October 2016 and stated his handwritten records confirmed the PTSD related symptoms did not commence until following the February 2016 incident.[50]
[50] Claimant bundle AD 3 , p 106
On 14 June 2018 Dr Richardson gave the opinion that the incident of 2016 would not have resulted in PTSD symptoms if she had not been in the April 2015 motor accident. He recommended monthly GP attendance, psychiatric attendance every 2 months and weekly psychologist attendance plus ongoing psychotropic medication for an indefinite period. He believed she was unable to work or drive to work and her prognosis was poor.[51]
[51] Claimant bundle AD 3 , p107
Reports from Gloucester Medico, various dates
Clinical record of Gloucester Medico dated 24 July 2017. Attendance at psychiatrist Dr Mike Richardson noted in August 2016 on a monthly basis. BKA’s husband Ken has applied for disability and carers allowance. Attends visits accompanied by her Irish Wolfhound. Seeing psychologist Jo Sellers at Catholic Care. Treating psychologist Ms Sellers provided a report dated 12 September 2016. Treatment had consisted of trauma informed CBT and support; she reported good progress and recommended referral to another psychologist for EMDR. On 11 October 2016 she noted the claimant had accepted referral to psychologist Ms Renae Taylor at Taree. Treating mental health social worker Ms Joanne Soper provided a report dated 28 November 2016 noting ongoing PTSD symptoms. Treatment consisted of psychoeducation, narrative therapy and mindfulness. Treating psychiatrist Dr Mike Richardson provided a report dated 22 February 2017 and noted a positive therapeutic relationship with Joanne Soper. He noted continuing disabling anxiety. He recommended referral to psychiatrist Dr Brian Neale because he was retiring for health reasons. Dr Brian Neale provided a report dated 19 June 2017. He commented on her disabling symptoms and slightly reorganised her medication to assist with sleep.[52]
[52] Insurer bundle AD 1 , R-A 20
Reports of Elizabeth Hibberd, Occupational therapist , various dates
The insurer’s solicitors made detailed written submissions about the reasonable and necessary treatment and care dispute.[61]
[61] Insurer bundle AD 1 , R-A 3 pp 35 - 43
The insurer’s concluding submission is that the Medical Assessor should find that the claimant's requirement for treatment of her psychological condition was attributed to her pre-accident condition and that any increase in treatment after February 2016 was causally related to the subsequent accident.[62]
[62] Insurer bundle AD 1 , R-A 3 p 42
Regarding the treatment dispute, the insurer refers to the report of Dr Parsonage dated 11 July 2017 (A7), where he expressed the view that the claimant's need for domestic assistance, as outlined by Ms Erika Stevenson OT, were primarily attributed to the psychological condition after February 2016.[63]
[63] Insurer bundle AD 1 , R-A 3 pp 39
The insurer submits that there is no evidence that the claimant suffered a psychological injury in the first accident and she displayed no signs or symptoms of an injury until after the subsequent event which was clearly more temporally connected.[64]
[64] Insurer bundle AD 1 , R-A 3 p 41
The insurer submits that :
“'In addition to the physical injuries that resulted from the accident, this claim
involves a psychological injury or symptoms that did not present until after a
subsequent accident, in February 2016 (10 months after the subject accident in
April 2015.) The second accident was not reported or recorded until May 2016 (13
months post-accident).The claimant had repeatedly stated until December 2015 that she had suffered no
psychological disability and she had returned to full duties at work at that time….
The contemporaneous medical evidence referenced in paragraph 1 above,
establishes that the claimant commenced complaining of psychological symptoms
after the accident in February 2016.”[65]Claimant’s submissions - Reasonable and Necessary Treatment
The claimant’s solicitors provided numerous written submissions in their bundle of documents however no detailed submissions were provided on the treatment and care dispute.
Relevant case law - Reasonable and Necessary Treatment
In AAI Limited v Phillips[66] Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the meaning of the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in sub-section 58(1) of the MAC Act.
[66] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.
Davies J found the motor accident need only be a material contribution to the need for treatment. His Honour further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.
The claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987in Clampett v WorkCover Authority of NSW[67], Grove J stated:[68]
“22 I return to the expression "reasonably necessary" in s60. Dictionaries stipulate that "necessary" has relevant definition as "indispensable, requisite, needful, that cannot be done without" - (Shorter) Oxford English Dictionary, 3rd Ed and "that cannot be dispensed with" - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as "reasonably". The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word "necessary" if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be "reasonably necessary" there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of "necessary" in this context.”
[67] [2003] NSWCA 52 (Clampett).
[68] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[69]
[69] See ING Bank (Australia) Ltd v O’Shea[2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd[2012] NSWCA 445 at [113].
Panel Deliberations
In this case the Panel finds that the first accident caused the claimant’s injuries of Post-traumatic stress disorder and major depressive disorder.
The Panel finds the severity of the psychiatric injuries sustained by BKA and all previous psychiatric, psychological, pharmacological and general practitioner treatments did relate to the motor accident and were reasonable and necessary.
The Panel notes the report by orthopaedic surgeon Dr Murray Hyde Page is dated 19 May 2016.[70] The examination and report was written by Dr Page about three months after the second accident. Dr Page wrote:
“I have already noted the significant limitations that are placed on her at home where she used to do a lot of gardening and animal care, allowing her to produce jams, condiments and fruit for the markets. This has had to stop. She is unable to do heavy domestic tasks and needs assistance.
Taking all this into account, I consider that she now needs domestic assistance, as a result of her injuries, of six hours a week. However she does not need any personal assistance. Her condition has stabilised. The prognosis Is for her to have persistent pain and stiffness in her neck and lower back that would restrict her general activity.”
[70] Insurer bundle AD 1 , R-A 18 pp 431 - 462
Occupational therapist Ms Erika Stevenson provided a detailed report dated 10 June 2017[71]. The report noted that BKA said that her husband assists her with the performance of all her domestic activities of daily living such as cleaning, laundry, cooking and shopping. BKA reported that her social interaction has been limited due to the injuries she sustained. It is anticipated that BKA will require domestic assistance indefinitely. This would improve her current quality of life.[72] BKA reported requiring domestic and gardening assistance from husband BGD totalling 30.25 hours per week as a direct result of the injuries sustained in the subject MVA.[73] BKA also reported requiring transport and past personal care assistance totalling 5.5 hours from BGD. The report also stated that BKA will require assistance with the domestic activities of daily living indefinitely for thirty hours and fifteen minutes per week.
[71] Insurer bundle AD 1 , R-A 19 pp 431 - 462
[72] Insurer bundle AD 1 , R-A 19 p 438
[73] Insurer bundle AD 1 , R-A 19 p 457
BKA reported to Ms Stevenson that she does not currently attend any treatment for the management or rehabilitation of her cervical spine, lumbar spine and left shoulder injuries. BKA reported that she performs an unsupervised exercise program In her home gym for twenty (20) minutes twice per week comprising riding a stationery exercise bike, using a "cardio twister", performing core strengthening exercises on a Swiss ball and performing strength training exercises with tend weight of a maximum of five (5) kg.[74]
[74] Insurer bundle AD 1 , R-A 19 pp 441
Ms Stevenson reported about BKA’s shower/bathing/toilet and other self-care activities. Her report notes that in some activities she is independent now. Other activities required assistance from BGD for a period of two (2) months following the MVA for fifteen or thirty minutes per day.[75]
[75] Insurer bundle AD 1 , R-A 19 pp 445
Ms Stevenson reported about BKA’s domestic and home maintenance such as cooking, washing and cleaning. BKA reported that she is unable to perform these domestic activities due to increased lumbar and cervical spine pain, increased left shoulder pain and reduced motivation. BGD is now responsible for these tasks[76].
[76] Insurer bundle AD 1 , R-A 19 pp 445
BKA reported that she has been unable to resume all her routine domestic tasks and has relied on assistance from husband BGD for support with the performance of these tasks. She is independent in all personal care tasks.[77]
[77] Insurer bundle AD 1 , R-A 19 pp 451
At the re-examination by the two medical assessors , BKA described her current functioning on 1 August 2022 . BKA said she showers twice weekly, changes her clothing every second day and changes her underwear daily. She said she has no appetite and eats only 1 meal per day. She said she has lost 15 kg. Clothing size has reduced from 20 to 15. She has no interest in cooking or housework and relies on her husband. At the examination the Panel concluded that, because of her psychological symptoms, BKA is totally unable to work and unable to manage the household and is reliant on her husband for cooking, cleaning and shopping.
Having reviewed BKA’s evidence at the re-examination, the OT report and all the other evidence and submissions, the Panel concluded the following about the treatment and care dispute.
The Panel considered ongoing psychiatric review will be required on a 6 monthly basis rather than 2 monthly basis as proposed at items 19 and 20. Ongoing weekly psychological consultations as proposed at items 21 and 22 were not regarded as necessary. Items 33 and 34 regarding the admission to an inpatient PTSD treatment program is not regarded as necessary because of the time that has now elapsed since the subject motor accident; for this reason, the Panel did not believe the treatment was likely to be effective.
Items 35 through to 42 relate to gratuitous personal and domestic assistance. The Panel carefully considered the report of Occupational therapist Ms Erika Stevenson regarding BKA’s personal and domestic assistance. The medical assessors on the Panel formed a view at the re-examination on 1 August 2022 that BKA’s function seemed to have improved compared how she presented to Ms Stevenson in June 2017. The Panel considered the hours claimed were excessive but believe some gratuitous domestic assistance has been and continues to be necessary as a consequence of her psychological symptoms. The Panel notes Ms Stevenson’s report that in some activities BKA is independent now. Other activities required assistance from BGD for a period of two (2) months following the MVA for fifteen or thirty minutes per day. The Panel also notes the opinion of Dr Page that in May 2016 BKA needs domestic assistance, as a result of her injuries, of six hours a week. However she does not need any personal assistance.
The Panel’s view is BKA was acutely unwell in mid 2015 after her first accident and then again for a period after the second accident from May 2016 to about September 2016.
The Panel agrees that for a short period after her first accident, 37.25 hours per week of gratuitous personal and domestic assistance provided by the claimant’s husband from 28 April 2015 to 28 June 2015 for care needs arising from psychological injuries is reasonable and necessary.
Based on the Panel’s review of all the reports and its examination of BKA, the Panel’s view is that BKA physical and mental condition gradually improved after the first accident. The Panel notes the BKA also reported to the Panel and other doctors becoming more independent in her self-care needs. For example , a case closure report by occupational therapist Ms Elizabeth Hibberd dated 28 October 2015. BKA had participated in a graduated return to driving programme and was able to drive independently to and from work including at night by 27 July 2015. She reported no ongoing issues with driving. BKA had returned to her pre-injury 64 work hours per fortnight on 8 October 2015. OPMQ score had been reduced from 195 to 95.[78] Accordingly the Panel finds that in view of the gradual improvement and increased self-care BKA would require less personal and domestic assistance for a period between the first and second accident. The Panel find that for the period from 29 June 2015 to 16 May 2016 that 10 hours per week of gratuitous personal and domestic assistance provided by the Claimants' husband for care needs arising from psychological injuries is reasonable and necessary.
[78] Insurer bundle AD 1 , R-A17
The Panel notes that BKA reported to her GP after the second accident a severe relapse of her condition and reappearance of her psychological symptoms. In a report dated 9 June 2016, GP Dr Gary Lyford indicated he first became aware of psychological issues during the consultation on 17 May 2016. Her symptoms included: flashbacks, periodic vomiting, disturbed to sleep, night sweats, irritability, self-imposed social isolation, poor motivation, tearfulness and generally flat mood.[79]
[79] Claimant bundle AD 3 , p76
The Panel find that , given the evidence of BKA’s delayed reaction to the second accident, for the period from 17 May 2016 to 31 August 2016 that 37.25 hours per week of gratuitous personal and domestic assistance provided by the Claimants' husband for care needs arising from psychological injuries is reasonable and necessary.
The Panel find that BKA’s condition gradually improved after the second accident. The Panel’s view is that for the period from 1 September 2016 and ongoing for life that 10 hours per week of gratuitous personal and domestic assistance provided by the claimant’s husband for care needs arising from psychological injuries is reasonable and necessary in relation to the injury sustained in the subject accident. The Panel’s also finds that for the period from 1 September 2016 and ongoing for life that 2.5 hours per week of gratuitous travel and driving assistance provided by the claimants' husband is reasonable and necessary. The figure of 2.5 hours per week travel and driving assistance was the figure recommended by Ms Stevenson in her report. Thus the Panel finds that a total of 12.5 hours per week ongoing of gratuitous personal and domestic assistance and driving/travel assistance provided by the claimant’s husband for care needs arising from psychological injuries is reasonable and necessary.
Items 43 and 44 relate to monthly attendance at her general practitioner; the Panel believes this is appropriate given the intermittent contact she has with her psychiatrist and the requirement for the regular monitoring of her multiple psychotropic medications. Items 45 and 46 regarding the use of paracetamol do not relate to psychiatric injury.
The Panel concluded treatments 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 23, 25, 27, 29, 31, 35,37, 39, 41, 43 and 47 were causally related to the motor accident. Treatments 21, 33, and 45 were not causally related to the motor accident.
The Panel concluded that treatments 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 36, 38, 40, 42, 44 and 48 were reasonable and necessary in relation to the subject motor accident. Treatments 22, 34 and 46 were not reasonable and necessary in relation to the motor accident.
Review Panel’s findings - Assessment of Treatment - Causation
The Review Panel’s findings in relation to whether the assessment of treatment provided, or to be provided, is causally related to the injury sustained in the subject motor accident are different to the findings as stated in the certificate issued by Medical Assessor Samuell. The Panel disagreed regarding the frequency of psychiatric attendance, personal and domestic assistance and other matters. Accordingly, the Review Panel has determined that Medical Assessor Samuell’s certificate is to be revoked and a new certificate be issued by the Review Panel.
Review Panel’s findings - Assessment of Treatment– Reasonable and Necessary Treatment
The Review Panel’s findings in relation to whether the assessment of treatment provided, or to be provided, is reasonable and necessary in the circumstances are different to the findings as stated in the Reasonable and Necessary certificate issued by Medical Assessor Samuell. The Panel disagreed regarding the frequency of psychiatric attendance, personal and domestic assistance and other matters. Accordingly, the Review Panel has determined that Medical Assessor Samuell’s certificate is to be revoked and a new Reasonable and Necessary Treatment certificate has been issued by the Review Panel.
Conclusion
The Panel concludes that the claimant suffers from psychological injuries described as Post-traumatic Stress Disorder (PTSD) and major depressive disorder within the meaning of DSM-5. The Panel concludes that the degree of permanent impairment caused by the first motor accident is 26 %. The replacement certificate is contained at the commencement of these Reasons.
On review, the Panel accepts that BKA suffered psychological injuries in the first motor accident. The nature of those injuries is set out in our Reasons.
We also accept that the injury she sustained is causally related to the first motor accident and that the treatment detailed in the replacement certificate was reasonable and necessary in the circumstances.
The replacement certificates are set at the commencement of these Reasons.
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