Insurance Australia Limited t/as NRMA Insurance v BSS

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v BSS [2025] NSWPICMP 296
CLAIMANT:	BSS
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
SENIOR MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Wayne Mason
MEDICAL ASSESSOR:	Alan Doris
DATE OF DECISION:	30 April 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); section 7.26; dispute about whether degree of permanent impairment of the claimant that has resulted from the psychological injury caused by the accident is greater than 10%; Medical Assessor certified that major depressive disorder caused by the accident and gave rise to a permanent impairment that was greater than 10%; Held – MAC revoked; new certificate issued; Review Panel certified the degree of permanent impairment of the claimant that has resulted from the adjustment disorder caused by the motor accident is not greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Nagesh dated 28 November 2023. 2. Certifies that the degree of permanent impairment of the claimant that has resulted from the adjustment disorder caused by the motor accident on 24 February 2020 is not greater than 10%.

STATEMENT OF REASONS

BACKGROUND

There is a dispute between BSS (claimant) and Insurance Australia Limited t/as NRMA Insurance (insurer) about whether, for the purposes of the Motor Accident Injuries Act 2017 (MAI Act), his degree of permanent impairment as a result of a psychological injury caused by a motor accident on 24 February 2020 (accident) is greater than 10% (dispute).
The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(a) of the MAI Act. The medical dispute was referred to Medical Assessor Nagesh for assessment. On 28 November 2023 the Medical Assessor certified that major depressive disorder was caused by the accident and gave rise to a permanent impairment (15%) that was greater than 10% (assessment).
The insurer sought a review of the further assessment under s 7.26 of the MAI Act. The President’s delegate subsequently determined that there was reasonable cause to suspect that the assessment was incorrect in a material respect. The review application was accepted and referred to a Review Panel.
The Review Panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the review of the assessment.

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 and may determine the proceedings solely based on the written application: Rule 128.
Version 9.3 of the Motor Accident Guidelines (Guidelines), effective from 6 December 2024, apply to the Review.

DIRECTIONS

On 12 November 2024 the Panel directed the parties to file a joint bundle that contained all material relied on for the purposes of the Review. The parties were also directed to provide submissions for the purposes of the Review. A joint bundle was subsequently filed.
On 22 January 2025 the Panel issued further directions. The Panel noted that the directions made on 12 November 2024 stated that each party should only lodge one set of submissions, and that if previous submissions were relied on, those submissions were to be incorporated into the submissions lodged in accordance with the directions. It was further noted that neither party complied with the Panel’s directions in relation to the provision of submissions and that, contrary to the Panel’s directions, the joint bundle contained multiple sets of submissions from each party. The parties were given notice that the Panel would not consider the submissions included in the joint bundle. Further directions were made for the provision of written submissions by the parties.[1] Submissions were subsequently filed and have been considered by the Panel.
[1]

STATUTORY PROVISIONS

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.”
Clause 6.35 of the Motor Accident Guidelines states that psychiatric impairment is assessed in accordance with ‘Mental and behavioural disorders’ found in cls [6.201]-[6.228] of the Guidelines.
Pre-existing impairment is addressed in cls 6.31-6.33 of the Guidelines. Clause 6.34 deals with subsequent injuries.
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.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.

ASSESSMENT UNDER REVIEW

Medical Assessor Nagesh gave a certificate and reasons dated 28 November 2023. The Medical Assessor certified that major depressive disorder caused by the accident gave rise to a permanent impairment of 15%, and that the impairment is greater than 10%.
In his reasons, the Medical Assessor recorded that while the claimant gave a history of behavioural problems and being irritable, he denied having being diagnosed with any mental illness prior to the accident. The Medical Assessor noted a past history of substance abuse and gambling.
A history of the accident provided by the claimant included that there was no loss of consciousness, he was able to self-extricate and exchange information, the airbags did not deploy, and neither ambulance nor police were called to the scene. The claimant reported feeling sore in his legs and back, and that he presented to Canterbury Hospital.
The claimant told the Medical Assessor that since the accident he had stopped working, his knee “would give out”, and he was “in a lot of pain”. He reported having depression in the context of the pain and not earning enough money. He denied having stopped driving since the accident and denied any flashbacks or nightmares since the accident. He was referred to a psychologist and psychiatrist by his general practitioner (GP) and had been treated with antidepressants and therapy.
The claimant reported that his symptoms included: depressed mood, anxiety, worry about his future, anhedonia, insomnia, fluctuating appetite, lack of energy and motivation, diminished ability to concentrate, and feelings of worthlessness. He reported that there had been no improvement in his symptoms.
The Medical Assessor recorded that the claimant’s report of having no pre-accident history of mental illness was not consistent with the Centrelink records.
The Medical Assessor found that the claimant described symptoms consistent with him suffering from a major depressive disorder of moderate degree with anxious distress. He assessed a permanent impairment of 15%. There was no pre-existing permanent impairment.

EVIDENCE

The bulk of the documentary evidence before the Panel consists of the joint bundle filed by the parties in accordance with the Panel’s directions. The Panel has considered all this material.
The insurer made an application to lodge additional documents on 14 February 2025. For the reasons given by the Panel on 24 February 2025 the insurer was given leave to rely on the following documents:
(a)    Centrelink medical certificate dated 9 October 2023;
(b)    medical certificate dated 10 November 2023;
(c)    housing pathways medical assessment dated 22 November 2023;
(d)    updated clinical records from Campsie Medical & Dental Centre as at
18 December 2024, and
(e)    Centrelink job capacity assessment reports dated 27 March 2007,
30 November 2007, 9 January 2008, and 13 June 2008.
The Panel has considered the additional documents referred to at [25].
Neither party filed submissions addressing the additional documents despite having been given an opportunity to do so.[2]

[2] Review Panel Report and Directions dated 24 February 2025.

Medico-legal evidence

Associate Professor Shatwell, orthopaedic surgeon, reported to the insurer on

22 October 2021. The doctor took a history that prior to the accident the claimant had been self employed as a cleaner and handyman for approximately five years. He took a history of the accident, including that the claimant was not wearing a seatbelt. He attended Canterbury Hospital, attended his GP, underwent radiological investigations, and was referred for physiotherapy. There was a subsequent fall at work in April 2021 that exacerbated symptoms in his left knee and back. When he was examined by the doctor the claimant reported experiencing pain in his left knee and back. In the doctor’s opinion “[m]any of [the claimant’s] symptoms relate to his morbid obesity”. Some symptoms are due to diabetes. Symptoms in his lower limbs are suggestive of peripheral neuropathy.
A/Professor Shatwell considered that the claimant has significant pain in his lower back and left knee. There were no inconsistencies in his presentation. The doctor diagnosed degenerative joint disease in the claimant’s left knee “which may be associated with his psoriasis”, and degenerative disc disease in the lower lumbar spine that had not been aggravated by the accident. The accident had caused minor musculoskeletal injuries.
A/Professor Shatwell reported again on 19 November 2021. In the doctor’s opinion: the claimant’s bilateral knee pain and low back pain are not related to the accident; the accident did not result in the aggravation of degenerative changes, and any soft tissue injuries caused by the accident would have resolved within a few days of the accident or “2 or 3 weeks at most”.
Records from treatment providers confirmed the doctor’s impression that the claimant had chronic low back symptoms which were present before the accident, and “are most likely related to his high body mass index with overload of the lower lumbar discs”. The claimant may have suffered a minor contusion of his left knee “which settled satisfactorily”.
Dr Herald reported to the claimant’s solicitors on 9 August 2022. The doctor took a history of a motor vehicle accident in 2016 and injuries to his back, left shoulder, and left ankle as a result. He reported knee and back pain following the subject accident. In Dr Herald’s opinion as a result of the accident the claimant suffered a left knee ACL rupture, bilateral retropatellar chondral damage, and aggravation of underlying lumbar spondylosis with radiculopathic symptoms in both limbs. His injuries have affected his physical capacity to work. Further treatment was required. In a separate report of the same date the doctor assessed a 5% impairment of the lumbar spine, a 7% impairment of the left knee, and a 2% impairment of the right knee. A whole person impairment of 14% was assessed.
Dr Kneebone, psychiatrist, reported to the insurer’s solicitor on 15 June 2023. The claimant reported both psychological and physical symptoms. He reported pain in his left knee and back following the accident. The pain would wax and wane but never remitted completely. The claimant reported that he developed symptoms of anxiety and depressed mood some 12 months after the accident “when he came to the realisation that he was no longer able to work on a full-time basis and earn a reasonable income and had to lean on family for financial support”. His symptoms of anxiety and depressed mood have worsened since late 2021. The claimant attributed this to the “lack of support provided by his insurance company, his experience of loss of pain and loss of lower limb function, his loss of income and inability to fully participate in family life”.
The doctor noted the claimant’s past psychological history, including post-traumatic stress disorder. There was also a history of problem poker machine gambling. A prior motor accident in August 2012 and a diagnosis of type II diabetes, hypertension, psoriasis, and obstructive sleep apnoea were noted.
Dr Kneebone diagnosed an adjustment disorder with mixed anxiety and depressed mood as a result of the accident. The condition is secondary to the claimant’s physical injuries and his experience of pain and loss. He had a pre-existing “complex post-traumatic stress disorder”. The pre-existing condition predisposed the claimant to developing anxiety and depressed mood in response to life stressors including chronic pain. In the doctor’s opinion, “more than 90% of [the claimant’s] current disability can be apportioned to the motor vehicle accident on 24^th February 2020 and at least 10% of his current disability can be apportioned to his prior condition.” The claimant should engage in a multidisciplinary pain management program as a result of his accident caused injuries. The claimant’s adjustment disorder has taken a chronic and persistent course. Continuing significant impairment affecting his self-care, social, interpersonal and recreational function extending into the indefinite future “is highly likely”.
In Dr Kneebone’s opinion, it was the claimant’s physical rather than psychological injuries that have compromised his capacity to work. The doctor declined to assess whole person impairment on the basis that he was unable to determine whether the claimant had reached “maximum medical improvement”.

Records from treatment providers

A Canterbury Hospital Emergency Department discharge referral dated 24 February 2020 records that the claimant attended the hospital that day following a motor vehicle accident. The claimant reported that he was unrestrained and struck the windscreen with his forehead. He complained of pain in his lower neck, lower back, right shoulder, left knee, leg and ankle. There was no loss of consciousness reported. Radiological investigations of his brain, cervical spine, pelvis, right shoulder and left tibia/fibula/ankle did not demonstrate any pathology. The claimant was discharged home for GP follow-up. The referral records that the claimant had type II diabetes, had a “markedly raised BMI”, and had been involved in a previous motor accident.
Progress notes from the Royal North Shore Hospital record that the claimant had been referred by Dr Lam. He provided a history of being involved in a motor accident in February 2020. He reported problems with his knees, in particular his left knee. He had difficulty climbing stairs and reported having tripped and fallen. The claimant reported that he had “put on weight, [was] depressed, losing [his] mind”. The notes refer to diabetes type II, obesity, obstructive sleep apnoea, asthma, and psoriasis. In addition to the February 2020 accident the claimant had been involved in a motor vehicle accident in 2007/08. In the earlier accident he injured his ankle, back, and left shoulder. The notes record that the claimant had been seen by a psychologist “for the past 2 years for support”. He had not seen a psychiatrist and had been on Duloxetine “on and off”. The claimant’s substance use history recorded in the notes has been considered. Under the heading “Overall impression” the following is recorded:
“…presenting with chronic pain in his knee+ Left leg following an MVA in Feb-2020 on a b/g of obesity + Sleep apnoea and poorly managed DM and the pain has caused limitations to carry on with [h]is work (as a cleaner + handyman) – and loss of income leading to stress, depression and poorly controlled diabetes.
-His presenting features are suggestive of L5/S1 Disc prolapse + S1 Radiculopathy with diabetes possibly adding to LL neuropathy…”
Further progress notes from the hospital that relate to an admission date of 24 November 2022 were recorded by Bradley Wood, clinical psychologist, following a face to face cognitive behavioural assessment. The notes refer to an “MVA” in February 2020, and state that the “current pain problem” is “[c]onstant widespread pain” and that the claimant is “bothered most” by left leg and knee pain. The claimant reported that he sees a psychologist monthly and it was “not helpful”. He reported “[s]ignificant avoidance/escape behaviour”. It is recorded that the claimant was “on the verge of divorce”. There is reference to significant financial stress, and stress dealing with the insurer. Symptoms of depression included irritability, anger, being teary and low motivation and energy. The questionnaire scores recorded in the notes have been considered. Those scores included Depression Anxiety and Stress Scales (DASS) as follows: depression - 34 EX severe, anxiety - 28 Ex severe, and stress - 40 Ex severe. The Pain Self-Efficacy Questionnaire (PSEQ) score was 15 severe, and the Pain Catastrophising Scale (PCS) was 46 - severe.

The notes include a history of the claimant being on weekend detention for three years, and oxycodone dependence after a previous accident. There is reference to the claimant being irritable and lashing out at his wife. A diagnosis of adjustment disorder with depressed mood was made, with a history of substance use disorder and gambling that was in remission.
Dr Singer, psychiatrist, reported to Dr Lam on 28 November 2022. The claimant had been referred to the Pain Clinic and had a history of chronic low back pain, bilateral lower limb and knee pain following a motor vehicle accident in February 2020. He had multiple medical comorbidities. The treatment recommendations have been noted.
The multidisciplinary assessment report of the same date has been considered by the Panel. There is reference to widespread pain, mostly in the left leg and knee. Medical co-morbidities are noted. The claimant reported being significantly disabled and distressed by persistent pain. The physiotherapy assessment findings contained in the report have been noted.
There is also a report from the drug and alcohol registrar, co-signed by Dr Higgs, dated

28 November 2022. The history and recommendations contained in the report have been considered by the Panel.
A report to Dr Lam from Dr Singer dated 1 December 2022 records that the claimant was assessed by Dr Higgs “and her team” on 24 November 2022 regarding chronic pain in his left knee and leg associated with “multifocal pain” following a motor vehicle accident in February 2022. Pain had caused significant limitations in this work. There was a history of developmental trauma and a family history of depression and substance issues. On interview the claimant was frustrated, fed up, irritable, anxious, and worried about his future. He had developed an adjustment to mood in the context of injuries sustained in the February 2020 accident.
The Panel has considered the progress notes dated 11 January 2023.
Dr Higgs, specialist pain medicine physician, reported to Dr Lam on 16 February 2023. The report refers to “chronic multisite pain” including lower back and bilateral lower limb pain. The claimant had “many psychological stressors including financial and interpersonal”. He had not tolerated duloxetine or desvenlafaxine. Treatment was ongoing.
Dr Singer’s undated progress notes[3] have been considered. The claimant reported that he had recently been evicted. He was “catastrophic about his situation”, and “remains passive…overwhelmed”.
[3] From joint bundle page 113.
Progress notes dated 16 February 2023 recorded by Dr Higgs, refer to multi-sight pain including in his lower back and legs. Reference is made to “depression”, “many psychosocial stressor[s] (financial/interpersonal)” and low mood.
A report from Dr Singer to Dr Lam dated 8 March 2023 refers to medication side effects, and the claimant’s anxiousness about loss of income from his business and destress about being evicted. He remained “passive and overwhelmed”. A different antidepressant was prescribed, and further treatment, including attendance at a pain program, recommended.
Dr Singer reported on 27 April 2023. The claimant had an infected right foot. His daughter had made allegations about one of her teachers and intended to make a complaint to police. “[H]e and his wife are very distressed”.
Progress notes dated 6 July 2023 recorded by Dr Singer refer to financial worries, alleged abuse at his daughter’s previous pre-school, and needing to leave his home after receiving a termination notice. In a report dated 6 July 2023 Dr Singer records that: the claimant had been hospitalised for treatment of a right heel ulcer related to diabetes; his diabetes is poorly controlled; he has obstructive sleep apnoea, and he is depressed, overweight, and deconditioned. The claimant described ongoing low mood in response to pain disability and multiple stressors.
The Burwood Backpain confidential patient information form dated 8 April 2019 records that the claimant’s major complaint was “left leg from knee down and back”, he had the condition for two years, and his knee was collapsing and left leg was swelling. There is reference to a “car accident and 3 bulging discs”. The form records that the claimant suffers from diabetes, low back pain, neck pain, shoulder and knee pain.
The physiotherapy records have been considered.[4] A physiotherapy assessment form refers to an assessment on 19 February 2020 and indicated pain sites at the low back, left knee, and left shoulder. The provisional diagnosis is disc bulge. A form relating to an assessment on 29 February 2020 refers to an “MVA”. A form relating to an assessment on

26 March 2020 refers to an “MVA on 24/02/20”. The site of pain was the neck, shoulders, low back and left knee. The patient notes are difficult to read.
[4] Joint bundle pages 127-135.
The DASS scores, brief pain inventory, and medication recorded in the document at page 155 of the joint bundle have been considered.
The Campsie Medical and Dental Centre records have been considered by the Panel. The records relate to attendances between 11 April 2023 and 14 December 2023. There is reference to the claimant being discharged from Concord Hospital on 4 April 2023 for treatment of a diabetic foot ulcer and cellulitis. The possibility of the claimant experiencing anxiety attacks is recorded. The focus of the entries in the progress notes is treatment of the foot ulcer.
The records from Alliance Medical Healthcare Centre relate to consultations from

30 March 2021 to 22 November 2024. The first entry is dated 30 March 2021. There is reference to previous back strain, a motor vehicle accident on 24 February 2020, and symptoms in the left knee, low and upper back that had persisted. On 27 April 2021 it was recorded that the claimant was “mentally-very down” and that he “has a lot of flashbacks, nightmares – pain is also acting as traumatic trigger and precipitating reminders, which then in turn worsens the pain”. He was “eager” to see a psychologist. On 25 May 2021 it was recorded that the claimant has “severe sleep difficulties – been depressed – and weight put back on due to poor mood and poor sleep…”. There are a number of entries that refer to the claimant not taking duloxetine despite it having been prescribed.
A referral to the Royal North Shore Hospital Pain Clinic was made on 18 December 2022. On 6 February 2023 the notes record that the claimant was switched from duloxetine to desvenlafaxine by the pain clinic but he was “unable to tolerate -caused more irritability”. On 6 March 2023 it was recorded that the claimant didn’t take the desvenlafaxine prescribed by

Dr Singer. On 25 July 2023 Dr Lam recorded “pain remains severe++, unable to work”.
On 22 August 2023 Dr Lam recorded: “Frustrated, angry – Upset++ - still in pain, unable to work, feels that MVA had impacted on every facet of life …depressed, low self esteem and self worth…”. On 25 October 2023 Dr Lam recorded “SEVERE depression…apparently tried desvenlafaxine and reboxetine for a while – but the former made him irritable (so stopped after 2/7) and the latter just ceased – felt that issues were too overwhelming to even take medication…”. The claimant was asking for stronger pain medication. The doctor recorded “at one point Pt had a severe dependency on Oxycontin (for an unrelated condition)”. The claimant was advised to start duloxetine to “get him more focused, reduce anxiety and also reduce pain”.
On 22 November 2023 there is reference to the claimant’s “problems worsening”; he was falling behind in financial commitments, and had “somehow managed to get into a dispute with [his] landlord”. Dr Lam recorded that the claimant “unfortunately still has little insight into own anxiety and reactions”. On 20 December 2023 the doctor recorded “MH remains the biggest barrier”. The claimant had moved into his mother’s place.
On 5 January 2024 Dr Lam recorded that the claimant was completely dependent on his wife for “instrumental ADL’s (i.e household chores) – but can still self care, undertake personal hygiene”. On 19 February 2024 duloxetine was increased to 60mg. On 18 March 2024 the doctor recorded that there was “extremely poor glycemic [sic] control”.
On 27 May 2024 Dr Lam recorded “psychological symptoms and issues escalating”. The claimant had been “off duloxetine since admission” to Concord Hospital. On 25 June 2024 she recorded “Psychosocial issues becoming dominant over recovery”. On 30 July 2024 the doctor recorded that the claimant was “Happily more stable this month”. On 15 October 2024 Dr Lam recorded “genera; health much improved !”. He had gone on a diet and his weight was down. She also recorded “mentally – still struggling”.
In the last entry in the notes, dated 12 November 2024, Dr Lam recorded:
“Pt does not believe that he will ever return to work
All sparked by MVA – had become severely depressed, with self care having deteriorated rather precipitously
Compounding this is that Pt has never really had much insight into psychological barriers…”
The various referrals to other medical practitioners and the medication prescribed have been noted by the Panel.
The clinical records of Ms Yu, psychologist, have been considered. The first entry is dated

15 September 2021. On 27 September 2021 it was recorded that the claimant was “depressed at home, lockdown puts a toll on him”. There was a physical altercation involving his wife. It is also recorded:
“car accident last week – car reversed into his door – back is hurting him. [D]ay before that, daughter pushed him off the chair, he slipped back and feel [sic] on his tailbone.”
On 15 November 2021 it is recorded “MVA still triggering him”. The claimant had not been sleeping, was breathing fast “unsure if panic attack or heart attack. [S]ays he needs to sleep”. On 14 February 2022 there is reference to “issues at work”, and a “situation with brother’s best friend”.
The Allied health request dated 11 September 2022 has been considered, as have the various certificates of capacity.

Records relating to a motor accident on 4 August 2012

A motor accident personal injury claim form dated 30 October 2012 relates to an accident at Enfield on 4 August 2012. The claim form records as follows:
“…I was driving along Coronation parade and came to a stop due to traffic lights. As I proceeded when the lights changes the vehicle behind me collided into the rear of my vehicle…”
The claim form states that the claimant’s vehicle suffered damage to the rear and was a “total loss”. The claimant recorded that he suffered injury to his right ankle, lower back, right shoulder, neck and “psychological sequelae”, including “shock/anxiety/depression/stress”.
A medical certificate dated 5 August 2012 refers to cervical spine injury, bilateral restricted internal rotation and abduction, and right foot hyperextension injury. The claimant was certified fit for alternative duties on 6 August 2012.
In a report addressed to Dr Hui dated 2 August 2013 Dr Woo, orthopaedic surgeon, recorded a history of the claimant being involved in a motor accident on 4 August 2012. He reported neck pain, back pain, and left shoulder pain. The claimant rested for one to two days and returned to work as a storeman rather than his pre-injury duties as a welder. The doctor diagnosed “strain injuries” to the claimant’s neck, back, left shoulder and left ankle.
Dr Davis reported to the claimant’s solicitor on 19 September 2013. The claimant reported neck, low back, left ankle, and bilateral shoulder pain following the August 2012 accident. The doctor described “a reasonably high impact rear-end” accident and expressed the opinion that the claimant had suffered “mechanical trauma” in the cervical and lumbar spine with disc injuries and aggravation of pre-existing pars defects and mild spondylolisthesis, together with trauma to his left ankle and both shoulders “where he has developed tendonitis and bursitis”. The doctor made various treatment recommendations and recommended that the claimant “seek work of a sedentary or semi-sedentary nature”. He was not thought to be capable of returning to work as a welder. The doctor recorded that “[b]y the end of a week he is suffering with quite severe pain”. The doctor also “believed” that the claimant had developed an adjustment to injury disorder with anxiety and depression that required treatment by way of counselling. In a separate report of the same date the doctor provided various assessments of whole person impairment.
Dr Briet, orthopaedic surgeon, reported to NRMA on 7 January 2014. A history of the August 2012 accident was recorded, as were the claimant’s complaints of neck, back, left shoulder and left ankle pain. In the doctor’s opinion, the claimant’s “major problem is his morbid obesity”. That, in the doctor’s opinion, “is the cause of his underlying spinal pain and a major factor in its persistence”. The claimant’s neck and back complaints were related to the accident. The doctor thought that the claimant was fit to perform his pre-injury duties. The claimant had a 5% impairment of both his thoracolumbar spine and lumbosacral spine.
On 31 March 2014 Medical Assessor Gorman certified that the 2012 accident caused soft tissue injuries to the claimant’s cervical spine, lumbar spine, left shoulder, left ankle, left hind foot, and right shoulder, and that those injuries did not give rise to a permanent impairment which is not greater than 10%.
In his reasons, the Medical Assessor recorded that the claimant continued to have pain in his neck, left shoulder, left ankle, and low back. He had been prescribed Oxycontin and other medication and was on insulin for diabetes. Of the accident caused injuries diagnosed only the lumber spine and left shoulder injuries resulted in a whole person impairment; 5% and 3% respectively.
The Medical Assessor subsequently re assessed the claimant and gave a certificate and reasons dated 12 October 2014. He certified that the impairment resulting from injuries to the claimant’s cervical spine, thoracic spine, lumbar spine, left shoulder, left ankle, left hind foot and right shoulder (all of which were soft tissue injuries) did not give rise to an impairment that was greater than 10%. In his reasons, the Medical Assessor recorded that the claimant’s main pain remains in the neck, left shoulder, low back, and left ankle. His shoulder was more symptomatic following the cessation of therapy. The lumbar spine, left shoulder, and left hindfoot injuries gave rise to whole person impairment (5%, 3%, and 1% respectively).

Medical Assessor Home’s assessment

Medical Assessor Home issued a certificate and reasons dated 14 August 2023. The Medical Assessor certified that as a result of the accident the claimant suffered aggravation of “underlying long standing symptomatic lumbar spondylosis, ACL tear with symptomatic patellofemoral chondropathy, and patellar tendinopathy” and that those injuries did not give rise to a permanent impairment that is greater than 10%. In a separate certificate the Medical Assessor certified that physiotherapy treatment for the claimant’s knee and lumbar spine was not reasonable and necessary.

In his reasons the Medical Assessor referred to the claimant’s pre-accident history that included a motor accident in 2012 and consequential neck, back, right shoulder and right ankle injuries. There was also reference to chronic back pain and bilateral sciatica. There was a history of a subsequent motor vehicle accident in September 2021 and an incident in which his daughter pushed him off his car.
The Medical Assessor recorded the following account of the subject accident:
“On 24 February 2020, [the claimant] was the unaccompanied driver of a VW Transport Van. He was not wearing a seatbelt and tells me he has a medical exemption due to obesity. He was travelling along Kingsgrove Road when a car came from the left side across his path. He attempted to take evasive action by steering to the right, however, the front left corner of his van fitted with a bull bar struck the front driver’s side aspect of the other car.”
The Medical Assessor described the claimant as being “consistent in his clinical presentation”. In his opinion, as a result of the accident the claimant had suffered an aggravation of pre-existing chronic symptomatic lumbar spondylosis, local trauma to the patellofemoral joint with likely development of a partial thickness tear in a degenerative ACL ligament, and patellar tendinopathy in the right knee due to consequential loading of the right leg. The Medical Assessor assessed a 5% permanent impairment as a result of the left knee injury.

Centrelink records

The records from Centrelink have been considered. The claimant was unfit for work from 9 October 2023 to 7 January 2024. His medical conditions were listed as “lower limb deficiencies, spinal disorder – other, diabetes – insulin dependent, respiratory disorder – other, morbid obesity, lower limb deficiencies”. The records disclose that the claimant received jobseeker payments and other allowances.

Other evidence

The claimant submitted an Application for Personal Injury Benefits (claim form) dated

18 March 2020. The claimant described the accident in the following terms:
“I was driving on Kingsgrove road and the driver from [E]dward street appeared in front of me and I had not time to stop as I was driving 50km.”
The claimant recorded that he hit his head on the windscreen and his knee hit the dashboard. His knee cap had been “cracked”, and there was bruising on his head and shoulder. He had “a lot of pain” in his upper and lower back, and his leg muscles “are very tight”. The claim form records that at the time of the accident the claimant was self-employed as a cleaner/handyman.
The police report dated 19 May 2020 has been considered. The report includes a narrative of the accident circumstances. It is noted that the claimant was unrestrained and that at the time of the accident he was travelling at 50kmph.
The insurer’s internal review decision dated 25 July 2022 has been considered by the Panel. The internal reviewer affirmed the insurer’s decision that the claimant’s whole person impairment does not exceed 10%. Among other things, the internal review recorded that they “have insufficient clinical evaluation to determine” whole person impairment arising from the claimant’s psychological injury.
Dr McIntosh’s “Collision and Biomechanic” reports dated 29 March 2021 and 11 May 2021 have been considered by the Panel. Dr McIntosh expressed the opinion that “the mechanics of the collision could not have reasonably led to the injuries in total of which the [c]laimant is now complaining”. He thought that the magnitude of the forces to which the claimant would have been exposed in the accident “would have been low”. In Dr McIntosh’s opinion it was “plausible” that the claimant suffered soft tissue injury to his neck/whiplash associated disorder “if there was a head impact with the windscreen involving a moderate magnitude impact force”. He may also have suffered superficial injury to the anterior knee. While it was plausible that the impact exacerbated symptoms of underlying knee pathology, the exacerbation would have been for a “short period of closed duration”. He thought it was unlikely the claimant suffered lumbar spine injury, left knee joint injury, and cervical spine injury with symptoms and impairments “of a prolonged nature”.
In his May 2021 report, Dr McIntosh stated that had the claimant been wearing a seatbelt, it is unlikely that he would have suffered a neck or left knee injury as a result of the accident. The loads on his cervical spine and left knee would have been reduced and as a result the likelihood of “injury and/or severity of injury” would also have been reduced.

Additional documents relied on by the insurer

A Centrelink medical certificate dated 9 October 2023 completed by Dr Islam records that the claimant was unfit for work from 9 October 2023 to 9 January 2024. The “main medical condition” which impacted on the claimant’s capacity to work is recorded as being a non-healing right lower leg and foot ulcer. The certificate records that the symptoms will affect the claimant’s capacity to work for between 13-24 months.

A NSW Health medical certificate dated 10 November 2023 records that the claimant attended as an outpatient on 9 November 2023 and that he was unfit for “work/school/usual activities” from 9 November 2023 to 10 May 2024 due to an aggressive non-healing right heal ulcer.
A “Housing Pathways” Medical Assessment dated 22 November 2023 was completed by

Dr Lam and relates to an infected right heel ulcer. The assessment records that the claimant needs “urgent stable accommodation – he needs to be admitted to hospital ASAP for ulcer…”. It is also recorded that he “[c]an’t walk with infected right heel ulcer”. The box “Yes” next to “Is the client’s current accommodation exacerbating their medical condition(s)?” and “Is the client’s mobility restricted?” is marked with an X, as is the box “Yes” next to “Is the client able to live independently without support?” and “Do psychological issue affect the client’s ability to cope”. The assessment records that the claimant is supported by mental health workers and counsellors.
The updated records from Campsie Medical & Dental Centre have been considered. The progress notes record that on 5 February 2024 the claimant wanted a “Drivers Lic Medical”.
A NSW Fitness to Drive Medical Assessment records that the claimant suffers from a number of medical conditions, including diabetes. In response to the question “Does the patient have mental health issues that may impact on safe driving?” “No” is recorded. It is recorded that the claimant suffers from chronic pain.
Material from Concord Hospital relates to a left heal diabetic foot ulcer. The report from

Dr Suryawanshi, Director Concord Diabetes Service, dated 29 April 2024 has been considered.
The Centrelink documents (pages 29-51 of the additional documents lodged by the insurer) refer to "[BRW]". On 24 February 2025 the Panel sought confirmation from the insurer as to whether these documents relate to the claimant.[5] On the same day the insurer responded:
“…We refer to the Personal Injury Claim Form (previous accident) dated 30 October 2012, contained at pages 382-398 of the Joint Agreed Bundle lodged on 4 December 2024.
At page 389 of the Joint Agreed Bundle, the Claimant declares that he has been known by another name and indicates that the other name is ‘[BRW]’.
Additionally, we also note that the Claimant’s CRN (Centrelink Reference Number) ends in … 087-X.
We understand that a CRN stays the same for all Centrelink payments and services, and is never deleted even if payments are stopped.
The Claimant’s CRN is the same on the Centrelink job capacity assessment reports dated 27 March 2007, 30 November 2007, 9 January 2008, and 13 June 2008 (pages 29-51) as it is on the Centrelink Medical Certificate dated 9 October 2023 (page 1).
On 24 February 2025, we sent an email to the Claimant’s solicitor enquiring whether the Claimant has changed his name at any time. No response has been received as yet.
Accordingly, the Insurer submits that the Centrelink documents at pages 29 – 51 of the ALAD relate entirely to the Claimant and ought to be provided to the Review Panel for consideration with the review proceedings…”
[5] By message of the same date, to which the claimant’s solicitors were copied.
The claimant did not respond to the message from the Commission or the insurer in relation to these records.
In the claim form completed by the claimant on 30 October 2012 he recorded that he had been known by another name and nominated the surname “[BRW]”. The Panel is satisfied that the additional Centrelink records relied on by the insurer relate to the claimant and has conducted the review on that basis.
A Centrelink “Job Capacity Assessment Report” dated 29 November 2007 records that the claimant suffers from diabetes. The claimant had been “studying at Taxi College for the last three months and would like to sit for the exam and then enter Taxi Driving profession”. The report refers to various “barriers”, including loss of temper, difficulty concentrating and remaining focused, restricted mobility due to obesity, and having a poor relationship with close family members affecting him psychologically. The findings about the claimant’s work capacity have been considered.
A Centrelink file assessment conducted on 13 June 2008 refers to diabetes, morbid obesity, and depression. It is recorded that the depression had been treated with anti-depressant medication and counselling. The various “barriers” recorded have been considered. A Job Capacity Assessment Report also refers to depression. “Barriers” included “Client reported an inability to concentrate on and recall information. This has made re-skilling difficult as he has been unable to pass Taxi licence exam”. The report states:
“The client has one permanent condition which has been fully diagnosed treated and stabilised: Diabetes. This condition is generally controlled with medication and lifestyle and in itself has minimal impact on functional capacity.
The client is morbidly obese and is currently suffering from moderate to severe symptoms of depression. Client has limited mobility and endurance and has low mood and poor concentration. He is unfit for work until 13.2.08 as stated in his medical certificate and it is anticipated that his work capacity will be reduced to 15-22 hours per week for the next 12 months as he needs to lose a considrable [sic] amount of weight and alter his lifestyle. His work capacity is expected to increase as his physical condition improves with weight loss and improved lifestyle.”
Under the heading “additional comments”, the following is recorded:
“The client is a 32 year old male who was born and educated in Australia. He left school in Year 9 due to problems and later attended TAFE. The client held several unskilled positions since leaving school mainly in construction and delivery. The client last worked in 2005 when his last employer was unable to retain his services due to declining business. The client has been attempting to obtain a Taxi licence however he has not been able to pass the exam.
The client was diagnosed with diabetes 2 years ago although he has been obese since his teenage years. His condition is complicated by obesity. He finds mobility difficult and has little endurance. The client reported a troubled childhood with several unresolved issues which continue to impact on his mood. He has a temporary diagnosis of depression which is affecting his mood, attitude and ability to concentrate. He is compliant with medication and his GP has referred him to psychiatric counselling. He will remain unfit for work until 13.2.08 as per his medical certificate. The client has commenced an intense diet and exercise programme and has lost a considerable amount of weight however he is unlikely to sustain full work capacity until he loses significantly more weight. He is likely to maintain a work capacity of 15-22 Hours per week for the next 12 months to allow him to work on his diet and exercise plan and to recover from the depressive symptoms. It is anticipated that the client's work capacity will increase as thse [sic] issues are addressed as he may have a better variety of employment options.”

SUBMISSIONS

Insurer’s submissions

The insurer relies on written submissions dated 27 January 2025. The insurer disputes that the claimant’s accident-related psychiatric injury gives rise to a permanent impairment which is greater than 10%.
The insurer submits that the claimant’s pre-accident records illustrate a history of post-traumatic stress disorder and depression, and that he complained of significant back pain, including in the days prior to the accident. The Panel has considered the evidence referred to by the insurer at [2.1] in support of this submission.
At [2.2] the insurer addresses post-accident records, including hospital notes, radiological reports, the clinical notes from the claimant’s GP, and Dr Singer, psychiatrist. This evidence includes reference to:
(a)    the claimant not wearing a seatbelt when the accident occurred;
(b)    the claimant attending hospital on the day of the accident and being discharged the same day;
(c)    the claimant presenting to his GP on 25 February 2020 reporting that he could not sleep, had insomnia, and was anxious about the accident;
(d)
no complaints of psychological symptoms were recorded by the GP from

29 February 2020 to 30 March 2021;
(e)    on 27 April 2021 the claimant presented to Dr Lam reporting that he was mentally feeling down with lots of flashbacks and nightmares;
(f)    the various matters recorded by Ms Yu on 27 September 2021;
(g)    the claimant reporting on 27 September 2021 that he was involved in a car accident the week prior, and the day prior to that had a fall after his daughter pushed him;
(h)    a report by the claimant on 14 February 2022 of issues at work;
(i)    the history and findings made by Dr Singer in his various reports;
(j)    the history recorded by Mc McLennan RN on 15 December 2022;
(k)    Dr Higgs’ reference to the claimant having “many psychological stressors”, and
(l)    physical conditions unrelated to the accident.
The insurer’s submissions record that it relies on the reports of Dr McIntosh, biomechanical engineer, A/Prof Shatwell, orthopaedic surgeon, and Dr Kneebone, psychiatrist.
With respect to Dr McIntosh’s reports, the insurer notes that while he “felt it was plausible” the claimant suffered injury to his neck and left knee as a result of the accident, in

Dr McIntosh’s opinion “the mechanics of the collision could not have reasonably led to the totality of the injuries of which the claimant was now complaining”.
The insurer relies on A/Professor Shatwell’s opinion that: the claimant suffered soft tissue injuries to the left knee, forehead, neck and lower back as a result of the accident, that he had a number of musculoskeletal problems involving his lower lumbar spine and knees not related to the accident, that any soft tissue injuries caused by the accident described would have resolved within a few days of the accident, or two to three weeks at most, and the accident did not result in any physical injuries that would lead to any permanent disability or an aggravation of the claimant’s underlying degenerative musculoskeletal conditions.
As to Dr Kneebone, the insurer refers to the history he recorded of various pre-and post- accident events and unrelated medical problems that include type II diabetes. The insurer specifically refers to the doctor’s opinion that the claimant had a pre-existing complex post-traumatic stress disorder, and his diagnosis of an accident-related psychiatric injury as an adjustment disorder with mixed anxiety and depressed mood. Reference is also made to the doctor’s opinion that the claimant’s capacity for employment was not restricted as a result of his psychological injuries and that, in the absence of pain, he was capable of working in various full-time roles. The insurer also refers to the doctor’s opinion that the claimant was at high risk of developing significant vascular disease and developing future symptoms of anxiety, depressed mood and adjustment difficulties in response to the associated loss of physical functioning even if the accident had not occurred.
Finally, the insurer notes that Dr Kneebone was unable to determine whether or not the claimant had reached maximum medical improvement to enable an assessment of impairment to be made.
At [4] of its written submissions the insurer refers to various matters it argues establish that the assessment under review was incorrect in a material respect. In this regard, the insurer refers to a purported failure by the Medical Assessor to consider various documents [4.1], a failure to identify inconsistences in the history provided by the claimant [4.2], a failure to engage with its submissions in relation to causation [4.3], and incorrect assessment in accordance with the Guidelines.
The insurer puts causation of injury in issue. It refers to evidence of a pre-accident psychological condition, pre-accident gambling, “intervening events” said to be: COVID-19 and associated lockdowns, issues at work, and family circumstances.
The insurer’s submissions address the various psychiatric impairment rating scale (PIRS) categories. The insurer argues that:
(a) based on his functional capacity the claimant has either no deficit or impairment (class 1) or mild impairment (class 2) in concentration, persistence and pace, and
(b) the claimant’s inability to work is partly due to pain, and his inability to work is not related to his psychological condition. Based on his functional capacity the claimant should have been assessed as class 1 for adaptation.

Claimant’s submissions

The claimant relies on written submissions dated 4 January 2023. These submissions were filed in response to the directions made by the Panel on 22 January 2025 and focus on reasons why the dispute should not be referred for review to a panel, and why the claimant submits Medical Assessor Nagesh’s assessment was not incorrect in a material respect. The Panel notes that these are matters for the President to consider before an assessment is referred to a review panel: s 7.26(5). The Panel further notes that s 7.26(6) states that a review of a medical assessment 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. That is why the directions made by the Panel on 12 November 2024 and 22 January 2025 were framed as they were.
The claimant argues that:
(a)    while he returned to work after the accident, he was no longer working the same duties at the time of the assessment;
(b)    although he still operates his business, he was not undertaking the same duties as he was prior to the accident;
(c)    he had no prior history of mental illness at the time of the accident;
(d)    there is no evidence that “warrants Dr Kneebone’s medical report to prevail over Medical Assessor Nagesh’s ‘determination and certificate’”, and
(e)    Medical Assessor Nagesh appropriately conducted his assessment and determined the claimant’s psychological injury permanent impairment.
The claimant submits that Medical Assessor Nagesh’s finding that he has a permanent impairment of 15% as a result of an accident caused major depressive disorder is correct.

RE-EXAMINATION REPORT

What follows is the report prepared by Senior Medical Assessor Mason and Medical Assessor Doris (Medical Assessors) after their re-examination of the claimant on

14 April 2025.

Brief personal details

The claimant lives with his wife and daughter in rental accommodation in a South Western Sydney suburb. He has been in receipt of the disability support pension since February 2025. Prior to that he received the Centrelink Jobseeker allowance. His wife receives a carer's allowance for providing him with physical care. He said the family had been homeless for four months after being evicted from their previous private rental in October 2023 and were living in emergency motel accommodation supported by Department of Housing payments. He said the Department of Housing subsidises their current rent by 50%.

Psychosocial history

The claimant was born in the women's Hospital Darlinghurst and described a normal birth and development. His 70-year-old father worked as a taxi driver and his 68-year-old mother worked in take away food shops. He is the oldest of three children with a 44-year-old sister and a 39-year-old brother. His parents separated when he was 13 years of age because his father found someone else and went on to have three more children. He said prior to the separation his parents were always fighting and his father physically punished him by beating him with a broom stick.
At age 9 or 10 years he was sexually abused by a 14-year-old cousin. The claimant said he had shut that event out of consciousness for many years and it resurfaced approximately 10 years ago when his stepmother mentioned his cousin's name. When he informed his parents, his mother told him to "get over it" and his father responded "what you expect me to do about it?" The claimant said this made him angry and he wanted to seek revenge but he dealt with it by not talking to his cousin. He said it did not really disturb his mental equilibrium even though he saw his cousin at family gatherings.
Schooling was at Bennett Road primary school Colyton and then Colyton high school where he was bullied because he was a “wog” and also because he was overweight. He said he was mucked up by the parental separation and misbehaved. He became angry and aggressive and was expelled at age 15 or 16 years for punching his mathematics teacher in the face. He moved to a high school at Mount Druitt but was expelled from there the following year because of an incident involving a staple gun. He then attended Mt Druitt TAFE in an attempt to obtain his year 10 school certificate. He became involved in a scuffle with a 45-year-old fellow student and was expelled from there.
He moved onto working in a take away food shop in St Clair where he remained for four or five years but he cannot remember exactly how long. He recalled working in a furniture factory for three or four years and then being encouraged to train in metal fabrication at Granville TAFE in 2012. He also stated he worked as a storeman in an insulation facility in Leichhardt for two years before working for two years as a welder in Blacktown.
He said he started his own cleaning business in 2016 which was going well at the time of the accident. He said he had a large developer as a client and would work 12 to 14 hours/day doing site clean ups of newly erected apartments and town houses. He described being so busy at times he needed to hire other staff. He said his wife had worked as a club manager and because of her accounting expertise she did the book work for him. He said he was able to start this business because of a settlement he received from a motor vehicle accident in 2012.
Leisure activities prior to the motor accident consisted of going fishing. He said his stepfather had bought him a boat which he would use in Botany Bay.
The claimant was asked about past motor accidents. He initially said the only accident was in 2012 which resulted in a claim and settlement. He was asked about a motor accident in 1996 he initially said he could not remember. When further pressed he acknowledged he had been driving a Mitsubishi Sigma when he was rear ended and the car was written off. He denied suffering any injury and said he received $6,000 to replace the car. His father had provided him with a spare standby taxi which he eventually gave him. He said there were no other motor accidents or work injuries.
Forensic history consisted of charges of resist arrest and assault police in his late adolescence while hanging around Blacktown with other people. He said he received fines and good behaviour bonds but did not spend time in Juvenile Justice institutions. He said at age 23 or 24 years he was involved in robbery in company when he stole a case containing money. He said he was arrested and spent two days in jail. He was convicted of theft and was required to attend weekend detention for three years.

Pre-accident history

With regard to medical history, he developed diabetes at approximately 21 years of age. He was initially using oral medication and has been on insulin for the last 18 years. He has developed a number of the serious complications of diabetes including diabetic retinopathy, peripheral neuropathy, diabetic nephropathy and vascular disease which has resulted in extremely debilitating ulcers on both feet. Attempts to treat the ulcer on his right foot in Concord Hospital in April 2024 resulted in an extensive ICU admission. He currently has an ulcer on the left foot which will not heal. In addition, he has been morbidly obese for many years and had recently used Ozempic. He currently weighs 145kg and is in discussions with a bariatric surgeon regarding gastric bypass or gastric sleeve in an effort to lose weight. He also suffers from OSA and is unable to sleep without CPAP. His current walking tolerance is less than 100m due to shortness of breath. In addition, he suffers from hypertension and hypercholesterolaemia.

Past psychiatric history consisted of five or six sessions with a psychologist when he became aware of the memory of childhood sexual abuse. He said there were no other problems in the past. He was asked about a June 2008 Centrelink report which described him as suffering from depression and needing antidepressant medication. He denied this was ever the case. He said at that time he was living in Leichhardt and delivering pizzas. His employer was pushing him to work harder and was not paying him. With regard to family psychiatric history, he said his father had a gambling problem and his sister had postnatal depression.
Current medications consist of insulin, furosemide 40 mg, aspirin 100 mg, Exforge HCT (amlodipine 10 mg, valsartan 320 mg and hydrochlorothiazide 25 mg), Jardiance (empagliflozin) 10 mg, metformin XR 1000 mg, rosuvastatin 40 mg, and Trajenta (linagliptin) 5 mg. The claimant confirmed that he has not used antidepressant medication for quite some time. In addition, he currently uses Mersyndol Forte and Panadeine Forte for pain.
With regard to substance use the claimant was smoking 20 cigarettes/day until April 2024 when he stopped. He said he has had no alcohol for 20 years. He used cannabis as a teenager but not since then. He also used cocaine in his teens and said that has been stopped. He said he was addicted to painkillers and used OxyContin 40 mg twice daily for quite a long time but was able to stop without external assistance. There was a gambling problem involving poker machines which has stopped.

The claimant said he was physically active prior to the accident. He was living with his wife and daughter and said his business was going very well. He enjoyed going fishing in his boat on Botany Bay and going on outings with his wife and young daughter. He said he weighed less at that time (120kg) and was more physically active. He enjoyed seeing friends and getting together with relatives. He was able to drive and use public transport. He had flown to Hamilton Island with his wife for their honeymoon. He said his concentration was not impaired and he could persist with tasks.

History of the motor accident

On 24 February 2020 the claimant was travelling at approximately 40kmph behind a bus which was turning left; he was proceeding straight ahead. He said a car pulled out from his left with the intention of making a right-hand turn. He reflexively swerved to avoid a T-bone collision with the driver's front door. The left front side of his van clipped the right front corner of the other vehicle. He said his vehicle was fitted with a bull bar and it came to a stop on the other side of the road. He was not wearing a seatbelt for which he had a medical exemption. Airbags did not deploy. He was able to self-extricate to make sure everyone was okay. He said he was asked by the driver of the other vehicle to lie about who was driving the car, which he refused to do. Because of this he obtained a couple of witness statements from bystanders and then drove off. Neither police nor ambulance attended. He continued on to a job and installed a roller door in a shower screen.

History of symptoms and treatment following the accident

The claimant said he developed neck pain and lower back pain. He said he head butted the wind screen and landed on the floor of the front passenger side of the vehicle. His left knee had struck the dashboard and was painful.
He attended his GP who advised him to attend Canterbury Hospital because of neck pain. At the hospital X-rays and CT scans were taken, a neck brace applied and he was sent home with simple analgesia to be followed up by his GP. He said he was subsequently called back to check a tear in his ACL. Treatment consisted of physiotherapy three times weekly for his knee and his back. He said he was able to do a little bit of work but he also had to bring in other employees because of the pain from his physical injuries. He believes he worked approximately three or four hours/day for one year following the accident. He said he subsequently lost his big client, the home unit developer, because he was physically unable to manage the work being made available. He said he was able to continue doing small bits and pieces of work until late 2022 or early 2023 just before he became homeless.

He was asked about psychiatric symptoms and said these developed when the insurer stopped paying him. He said they were pushing him too hard to make him go to the gymnasium and his physical condition declined. He said he did not receive any income payments as he should have done and he had to commence using unemployment benefits in 2023. He said when the insurer stopped paying he began to get upset and angry. The situation became somewhat complicated because his daughter reported being sexually abused while she was in preschool. He said he tried to take legal action about this but the police took eight months to investigate and he did not receive any satisfaction. There was a further complication that his landlord ended the lease and he had to move out. He said around this time he had been prescribed antidepressant medication but he was always reluctant to take it.
He went on to describe his symptoms as having sleep difficulties and constantly being woken up through the night. He said he has not been intimate with his wife for a long time and he was particularly worried about finances. He had been having treatment with GP Dr Islam but he told him to find somebody else when the insurer stopped paying. The claimant then began to consult GP Dr Angela Lam. He acknowledged he did not report any psychological symptoms until he commenced seeing Dr Lam. He was not really able to explain why this was the case.
Treatment consisted of referral to psychologist Ms Keisha Yu between September 2021 and June 2022. He said he did not find this particularly helpful. He had also been referred to the pain clinic at Royal North Shore Hospital where he consulted pain management specialists, a psychiatrist and a psychologist but did not find it to be particularly helpful and did not persist with the appointments or with their advice. Dr Andrew Singer prescribed fluoxetine, duloxetine, and reboxetine, but he did not continue to take them.

Injuries or conditions since the accident

During his attendance with Dr Angela Lam his physical condition deteriorated. His weight increased and he developed infected ulcers on his feet, initially the right foot and subsequently the left foot. He had required hospitalisation which included an intensive care unit admission for life threatening respiratory and kidney failure problems. Subsequent to his discharge he has developed an infected non-healing diabetic ulcer on his left foot which prevents him from walking; he requires physical assistance from his wife to shower. He said he spends most of his day in his bed. In addition his physical capacity has been further reduced by increased weight gain and respiratory difficulties. He currently ambulates with the assistance of a mobility scooter and is contemplating gastric surgery for weight reduction.
The claimant described the distressing experience of learning his daughter had been sexually abused in preschool. This has resulted in increased separation anxiety and inability to separate from her mother. He has been angered and distressed by the event and the failure of his attempts to obtain legal satisfaction as a consequence.
He was asked by his landlord to vacate their previous long-term home. This resulted in a four month period of homelessness in which he relied on Department of Housing emergency accommodation until they found the current rental. He has applied for Department of Housing long-term accommodation. This has added to his anxiety and frustration.
In April 2021 he fell backwards at a worksite when he tripped on a piece of wood. He said this did not result in any long-term physical problem.
He acknowledged he fell when his daughter pulled a chair away from behind him as he was about to sit down. He injured his coccyx but said that has resolved.
He was involved in a motor accident in September 2021 while driving a Subaru Outback on Belmore Road. He said another driver did a U-turn and collided with the driver's side front and back doors which were repaired through the other driver’s insurance. He denied physical and psychological injury from that event.

Current symptoms

The claimant has difficulty sleeping and cannot do so without CPAP. He said he is very anxious about bills and is grateful for assistance from the Department of Housing and the other government assistance he receives. He worries about paying gas and water bills. He believes the insurer should make-up for his loss of income subsequent to the motor accident. He said the sleep technicians monitor his sleep at night via his CPAP machine and call him up to remind him if he is not using it. He rhetorically asked "how will I survive?"
He said his daughter is now attending kindergarten but his wife has to go with her because she has not been able to separate from her since the sexual abuse. His daughter and wife sleep together in another room. He said his daughter is afraid of him because he is always angry, depressed and screaming. He reiterated that he has no interest in his intimate life. He said he does not shower anymore. He did acknowledge he was able to drive, adding no one else in the family has a license.

Current and proposed treatment

The claimant said he had a first consultation with psychologist Ms Angela Ong at Complete Allied Health during the previous week. He said he completed the DASS 21 and the PCL-5 instruments and hopes to attend regular consultations in the future. He is not using any psychotropic medication. The Medical Assessors note he has not attended psychological consultations since June 2022 and has not complied with the use of prescribed antidepressant medication since early 2023.

Mental state examination

The claimant was located alone in a room in his home in a South Western Sydney suburb. His wife and daughter were present elsewhere in the house. He was identified from his photograph on his NSW driver license. He was interviewed using the Microsoft Teams application with a good internet connection. The re-examination commenced at 10.00am and concluded at 12 noon.
The claimant was cooperative with the interview and spoke politely throughout. His greying hair and beard were neatly trimmed. He was visible from the chest up, appeared to be wearing a stained brown T-shirt and was significantly overweight. His speech was normal in form, rate and prosody. He displayed a full range of appropriate affect. He was mildly depressed in appearance but denied suicidal ideation or intention. He displayed some degree of irritability and anger which was directed mainly at the insurer for failure to compensate him for lost income since the motor accident. He was significantly stressed by financial problems.
His thinking was dominated by themes of injustice and unfair treatment. He described symptoms of anger, irritability, insomnia and social withdrawal. He did not describe trauma related symptoms arising from the subject motor accident.
The claimant was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.

Current functioning

When asked to describe a normal day the claimant said he spends all of his time in front of the computer on Facebook or social media and also watching video clips. He said he often sleeps for a couple of hours in front of the computer while sitting up. He said he normally goes to bed at 10.00pm, gets to sleep at 1.00am and then is awake every hour for 10 minutes or longer. He said he spends all his time in his room away from his wife and child because he does not want to upset them with his anger.
Self-care and personal hygiene: The claimant said he showers once or twice weekly and when he does, he needs assistance from his wife because of his diabetic ulcer. He said he changes his clothing weekly at the urging of his wife. He goes to the barber every few months to have his haircut and beard trimmed. He also attends the dentist and has been to the dental hospital for a tooth extraction. He said his nutrition is not the best and he will often have a Subway roll or takeaway food but can cook chicken soup or spaghetti Bolognese. His wife cooks for his daughter. He said he has recently reduced his intake of Coca-Cola. The claimant is significantly impaired in this area by his metabolic and physical problems. From a psychiatric point of view he is mildly impaired.
Social and recreational activities: The claimant said he will sit and watch television and chat with his wife. He sees his mother every month and his brother every two months. He said he does not contact his father and sister because they are "control freaks". He does not go fishing because of physical problems. He sees less of his friends but will visit them when he needs them to do work on his car and will then spend the day with them. He said in the past he enjoyed working on cars and could totally strip and reassemble a Ford falcon when he was younger. He has plans to take his wife and daughter to the Family Fun Fair at Moorebank over Easter where he will be able to ambulate using his mobility scooter. He said he will avoid the Royal Easter Show because of crowds and his mobility issues. He is mildly impaired.
Travel: The claimant is able to drive but is limited to about 30 minutes because of lower back pain and his legs going numb. He is able to use public transport but has not travelled by air since the motor accident. He is unimpaired from a psychological perspective.
Social functioning: The claimant said his marriage is stable and his wife is committed to him. He regretted the absence of libido which is in all likelihood a diabetic complication. He does his best to support his wife and child but is distressed at times because he becomes angry with them and frightens them. He maintains contact with his mother and brother. He had difficulties with his father and sister prior to the motor accident. He maintains some friendships but sees them less frequently. He is mildly impaired.
Concentration, persistence and pace: The claimant said he has trouble with concentration and memory. He said he is able to watch videos on YouTube and does watch television with his wife. Family finances are managed jointly with his wife. He did not appear to have impaired concentration throughout the two hour interview. Persistence and pace were impaired by physical problems. From a psychiatric point of view he is mildly impaired.

Adaptation: The claimant pointed out he was unable to work because of (1) the ulcer on his left foot, (2) his shortness of breath, and (3) health problems arising from his admission to Concord Hospital when he required ICU admission. From a psychiatric point of view he is mildly impaired.

Consistency of presentation

The claimant was reluctant to provide historical information which was not favourable to him. However, when directly questioned he was forthcoming. He initially denied motor accidents in 1996 and subsequent to the subject motor accident. However, when directly questioned he was able to provide details. With these exceptions, the claimant’s presentation was internally consistent, consistent with the documentation provided and consistent with the diagnosis made.

Diagnosis and reasons

There is no evidence that the claimant developed a psychiatric condition as a direct consequence of the accident. He acknowledged he continued to work but he was doing limited hours because of physical problems and pain. He became depressed because of the loss of income when compared with pre-accident earnings. He did not describe trauma related symptoms arising from the accident. He did describe the development of depressed mood, irritability and social withdrawal secondary to physical disability and pain. These symptoms were exacerbated when the insurer determined threshold injury. He then changed his GP from Dr Islam to Dr Angela Lam. He developed a psychiatric condition best described as an adjustment disorder with depressed mood. This condition has been exacerbated by subsequent events including deterioration of his diabetic condition, loss of housing, and the reported sexual abuse of his daughter while attending daycare.
Having considered the evidence, including the history provided by the claimant when he was re-examined, it is the clinical judgement of the Medical Assessors that the exacerbation of the claimant’s adjustment disorder by subsequent events has not had a material impact on his functioning and has not resulted in subsequent impairment.
The Medical Assessors were not satisfied that the claimant suffered from a pre-existing post-traumatic stress disorder caused by an episode of sexual abuse as a 9 or 10-year-old boy. While he described some history of problems with the law in his teens and early 20s there is no evidence of ongoing antisocial personality issues.
Following a thorough examination of his pre-existing functioning the Medical Assessors were satisfied there was no pre-existing psychiatric condition or psychological impairment at the time of the accident.
The claimant meets DSM-5-TR criteria for persistent adjustment disorder with depressed mood as follows:
Criterion A. He developed emotional and behavioural symptoms within 3 months of the accident.

Criterion B. He described distress that was out of proportion to the severity and intensity of the accident. He did suffer significant impairment in occupational and social functioning.

Criterion C. The condition does not meet criteria for another mental disorder and is not merely the exacerbation of a pre-existing mental disorder.

Criterion D. The condition and its consequences have continued beyond 6 months so the condition is present in persistent form.
The Medical Assessors did not diagnose post-traumatic stress disorder arising from the accident because the accident itself did not satisfy DSM-5-TR criterion A of being a life-threatening event.
Major depressive disorder or persistent depressive disorder were not diagnosed because the claimant denied suicidal ideation and anhedonia.

Causation and reasons

The claimant was involved in a motor accident on 24 February 2020 in which he suffered physical injury and pain which impaired his ability to earn an income at pre-accident level. While the accident was not life-threatening it did interfere with his life to a significant extent. The Medical Assessors are satisfied the accident was capable of having this impact and finds that it did so.

Whole person impairment

Psychiatric diagnoses

1. Persistent adjustment disorder with depressed mood

Psychiatric treatment description

Psychological counselling

Inconsistent antidepressant use

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	2	The claimant said he showers once or twice weekly and when he does, he needs assistance from his wife because of his diabetic ulcer. He said he changes his clothing weekly at the urging of his wife. He goes to the barber every few months to have his haircut and beard trimmed. He also attends the dentist and has been to the dental hospital for a tooth extraction. He said his nutrition is not the best and he will often have a Subway roll or takeaway food but can cook chicken soup or spaghetti Bolognese. His wife cooks for his daughter. He said he has recently reduced his intake of Coca-Cola. The claimant is significantly impaired in this area by his metabolic and physical problems. From a psychiatric point of view he is mildly impaired.
2. Social and Recreational Activities	2	The claimant said he will sit and watch television and chat with his wife. He sees his mother every month and his brother every 2 months. He said he does not contact his father and sister because they are "control freaks". He does not go fishing because of physical problems. He sees less of his friends but will visit when he needs them to do work on his car and will then spend the day with them. He said in the past he enjoyed working on cars and could totally strip and reassemble a Ford Falcon when he was younger. He has plans to take his wife and daughter to the Family Fun Fair at Moorebank over Easter where he will be able to ambulate using his mobility scooter. He said he will avoid the Royal Easter Show because of crowds and his mobility issues. He is mildly impaired.
3. Travel	1	The claimant is able to drive but is limited to about 30 minutes because of lower back pain and his legs going numb. He is able to use public transport but has not travelled by air since the motor accident. He is unimpaired from a psychological perspective.
4. Social Functioning	2	The claimant said his marriage is stable and his wife is committed to him. He regretted the absence of libido which is in all likelihood a diabetic complication. He does his best to support his wife and child but is distressed at times because he becomes angry with them and frightens them. He maintains contact with his mother and brother. He had difficulties with his father and sister prior to the motor accident. He maintains some friendships but sees them less frequently. He is mildly impaired.
5. Concentration, Persistence and Pace	2	The claimant said he has trouble with concentration and memory. He then said he is able to watch videos on YouTube and does watch television with his wife. Family finances are managed jointly with his wife. He did not appear to have impaired concentration throughout the 2-hour interview. Persistence and pace were impaired by physical problems. From a psychiatric point of view he is mildly impaired.
6. Adaptation	2	The claimant pointed out he was unable to work because of (1) the ulcer on his left foot, (2) shortness of breath, and (3) health problems arising from his admission to Concord Hospital when he required ICU admission. From a psychiatric point of view he is mildly impaired.
List classes in ascending order: 1 2 2 2 2 2
Median Class Value: 2
Aggregate Score: 11
% Whole Person Impairment: 5%

Conclusion

The Medical Assessors diagnosed a persistent adjustment disorder with depressed mood and assessed a whole person impairment of 5%. No allowance was made for treatment effect. There was no pre-existing or subsequent impairment.

DETERMINATION

The Panel has considered the evidence relating to the claimant’s pre-accident psychological history that included: developmental trauma; family psychiatric history; physical and sexual abuse as a child, and gambling. The Panel has also considered: Dr Kneebone’s opinion that the claimant had a pre-existing post-traumatic stress disorder; the Centrelink documents from 2007/2008 that refer to depression, and Dr Davis’ opinion that the claimant had an adjustment to injury disorder as a result of the 2012 accident.
The Panel is not satisfied the claimant suffered from a pre-existing post-traumatic stress disorder caused by an episode of sexual abuse. While he described some history of problems with the law in his teens and early 20s there is no evidence of ongoing antisocial personality issues.
The Panel is satisfied the claimant had recovered from the impact of the 2012 motor accident because of his description of his work and family life prior to the subject accident.
The claimant stated that his life was going well immediately prior to the accident. He was employed and his business was in good shape; he was working up to 14 hours/day and earning good money. He said his weight was lower than it is now and he was managing his diabetes without problems. He was happy in his relationship with his wife and daughter. He had come to terms with the episode of sexual abuse in his childhood and he was not in any trouble with the law. There were no ongoing conditions as a result of the 2012 accident.
The Panel has given weight to the opinion of its medical members who, following a thorough examination of the claimant’s pre-existing functioning, were satisfied there was no pre-existing psychiatric condition at the time of the accident. The Panel finds that immediately prior to the accident the claimant was not suffering from a psychological condition.
Given its finding that the claimant was not suffering a psychological condition immediately before the accident the Panel is satisfied there was no pre-existing impairment.
The Panel is satisfied that the claimant suffered physical injury as a result of the accident, in particular to his low back and left knee, and that he continues to experience pain as a result of these injuries. The Panel rejects Dr McIntosh’s opinion and prefers the opinion of Medical Assessor Home.
The Panel gives weight to the opinion of its medical members that as a result of the accident the claimant developed an adjustment disorder with depressed mood. The Panel agrees with and adopts the reasons given by its medical members in their re-examination report in support of this finding.
The Panel is satisfied that the accident made a material contribution to the development of the adjustment disorder, and that but for the accident the claimant would not have developed this condition.
The Panel has considered the class descriptors for each category of functioning in the PIRS and has evaluated the history provided by the claimant when he was re-examined by the medical members of the Panel.
The Panel notes that the clinical judgement of its medical members, both of whom are psychiatrists, is the most important tool in the application of the PIRS: cl 1.217 Impairment Guidelines. The Panel has given weight to the findings of its medical members with respect to the class they assigned for each PIRS area of functioning, and agrees with and adopts their findings, and the reasons they have given in support of those findings.
The Panel finds that the degree of permanent impairment of the claimant that has resulted from the adjustment disorder caused by the accident is 5%.
The Panel finds that the degree of permanent impairment of the claimant that has resulted from the adjustment disorder caused by the accident is not greater than 10%.

The Panel is satisfied that the adjustment disorder caused by the accident was exacerbated by the deterioration in his diabetic condition, loss of housing and the distress associated with the reported sexual abuse of his daughter while attending daycare. The Panel finds that the impact of these events was relatively minor in comparison to the impact of the accident, does not contribute to the functional deficits he experiences in each of the PIRS areas of functioning, and has not resulted in subsequent impairment.
The Panel has found that the degree of permanent impairment of the claimant that has resulted from the adjustment disorder caused by the accident is 5%, and that the permanent impairment is not greater than 10%. Given those findings, the Panel revokes the certificate of Medical Assessor Nagesh dated 28 November 2023 and issues a new certificate certifying that the degree of permanent impairment of the claimant that has resulted from the adjustment disorder caused by the accident is not greater than 10%.

DE-IDENTIFICATION OF THE DECISION

These reasons contain sensitive personal information. Having weighed the matters referred to in rule 132(4) of the Personal Injury Commission Rules, including the safety, health and wellbeing of the claimant, and whether the public interest in giving the direction significantly outweighs the public interest in open justice, the Panel is satisfied that its decision should be de-identified before it is published.
The Panel directs that, pursuant to Rule 132 of the Rules, the decision be de-identified prior to publication.

The insurer was directed to file the submissions it relied on for the purposes of the Review on or before

7 February 2025. The claimant was directed to file the submissions he relied on for the purposes of the Review on or before 20 February 2025.

[2025] NSWPICMP 296

30 April 2025