Insurance Australia Limited t/as NRMA Insurance v Bui
[2024] NSWPICMP 56
•5 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Bui [2024] NSWPICMP 56 |
| CLAIMANT: | Li (Nguyen) Bui |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Glen Smith |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 5 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Assessment of permanent impairment; on 3 August 2022 Medical Assessor (MA) Barrett certified a 13% whole person impairment (WPI) after reduction for pre-existing condition; Held – accident caused a worsening of the impairment; accident caused persistent depressive disorder; pre accident adjustment disorder with mixed anxiety and depressed mood, cannabis use disorder and major depressive disorder in full remission; current WPI 24%; pre-existing WPI of 7%; certificate of MA Barrett revoked; new certificate issued; assessment of 17% WPI caused by accident. |
| DETERMINATIONS MADE: | 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% 1. The Review Panel revokes the certificate of Medical Assessor Barrett dated 3 August 2022 and issues a new certificate determining that the following injuries were caused by the accident and give rise to a whole person impairment of 17%: · persistent depressive disorder. |
REASONS FOR DECISION
INTRODUCTION
On 12 April 2016 Li (Nguyen) Bui (the claimant) was a passenger in a vehicle which was turning right when it was T boned on the passenger side by another vehicle travelling at speed in the opposite direction (the accident). She alleges she sustained the following injuries:
· whiplash neck injury;
· back injury;
· left shoulder injury;
· migraines;
· bruising to the left arm and leg, and
· psychological injury.
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Ms Bui under the Motor Accident Compensation Act 1999 (the MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by Ms Bui as a result of psychological injury caused by the 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.
RELEVANT LEGAL AUTHORITY
Causation of injury is addressed in the Motor Accident Permanent Impairment Guidelines (the Guidelines):
“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.”
DOCUMENTS CONSIDERED BY THE REVIEW PANEL
The Review Panel issued a Direction to the parties on 31 May 2023 (the first Direction) which required each party to upload an indexed, paginated bundle of documents.
In response to this Direction the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 625 and marked as insurer’s bundle. The solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 950 and marked as claimant’s bundle.
MEDICAL ASSESSMENTS
Medical Assessor Gliksman, 1 February 2019
Medical Assessor Gliksman issued a certificate dated 1 February 2019 in which he certified the claimant had sustained soft tissue injuries to her cervical spine, thoracic spine, left shoulder and a musculoligamentous strain to the right shoulder. He assessed a total whole person impairment (WPI) of 4%.[2]
[2] Insurer’s bundle p 180.
Medical Assessor Barrett, 5 February 2019
Medical Assessor Barrett issued a certificate dated 5 February 2019.[3] She certified the claimant had sustained a persistent depressive disorder due to the accident but declined to assess permanent impairment.
[3] Insurer’s bundle p 187.
She reported the following pre-accident history:
· deliberate self-harm from about 16-years-old in context of conflict, father’s domestic violence and parent’s expectations;
· her involvement in a motor accident as a child after which her father “lost his shit” and started “beating” the other driver. She subsequently became anxious about driving;
· chronic symptoms of depression since her teens;
· behaviour issues as a child including truanting from 13 years of age;
· she was a victim of stalking when she was 12 years old and sexual harassment on the train in her 20’s;
· she regularly used marijuana from 2005, one to two joints per day and then from 2014 to February 2018 eight cones each day on the weekend only;
· she studied a Bachelor of Arts and Psychology up to the final year before dropping out;
· she was found guilty of defrauding Centrelink over a $7,200 debt in 2008 or 2009;
· conflict with her then partner and with her mother-in-law which began in about October 2014 when she returned to live at her ex-partner’s family home;
· a stressful work environment, working 80 hours a week despite giving birth to a son in 2014, although she reported she was doing well at work;
· in the period prior to the accident, she was receiving mirtazapine 15mg and seeing a psychologist via EAP (Employee Assistance Programme);
· estrangement from her own family, and
· prior to the accident she was experiencing symptoms of stress, irritability, insomnia and weight loss.
Medical Assessor Barrett reported at the time of the accident on 12 April 2016 she thought it was a minor accident but an hour or two later she experienced significant pain. She reported injuries to her neck, back, both shoulders and “hand paralysis”.
Medical Assessor Barrett reported after the accident Ms Bui became more anxious when she got into a car, and she became more depressed. Her relationship with her former partner broke up in October 2016 when she moved to Campsie, living with her brother and her son. Subsequently Ms Bui described some improvement in her condition, she became more social and in January 2017 reconciled with her family.
She returned to work until her resignation in June 2017.She stated she resigned because she dropped a 5kg book due to weakness in her arms which she attributes to the accident. She said her employer was not prepared to support her leave so she could engage in rehabilitation, so she resigned. Subsequently she described a worsening of her symptoms, loss of self-esteem, weight gain, poor energy and concentration and suicidal thoughts. She described an overdose in late October 2018 and stated she called Lifeline every few days to manage her suicidal thoughts. She had seen psychiatrist Dr Chan since mid-2017 and had also consulted a psychologist Natalia Yee regularly.
Medical Assessor Barrett stated she agreed with Dr Chan, psychologist Ms Yee and Dr Leonard Lee that Ms Bui had significant pre-existing personality vulnerabilities impacting affective regulation and causing some dysfunction. However, after maturing into adulthood she had established long-term employment, completed most of her university degree and established a long-term relationship so she felt she would not have met the criteria for a personality disorder.
She concluded following a deterioration in her condition after she quit her job in mid-2017 there was “significant exacerbation of symptoms of anxiety and depression, withdrawal and there has been period of increased marijuana use”. Medical Assessor Barrett found the claimant’s symptoms had persisted and she met the criteria for a persistent depressive disorder to which the accident had contributed.
However, noting the claimant’s intention to attend a pain clinic, her intention to gradually reduce her dose of Lyrica and her changed living circumstances, including her son moving to live with her full time, she found the claimant’s condition was not stable and she should be reassessed in one year.
Medical Assessor Barrett, 24 August 2020
Medical Assessor Barrett issued a certificate dated 24 August 2020.[4] At that time she was living in a rental home with her brother and her 5-year-old son. She had not worked since June 2017.
[4] Insurer’s bundle p 226.
Ms Bui stated she attended an outpatient pain program five days a week at St George Hospital Pain Clinic between March and April 2019. She described multiple presentations to Campbelltown Hospital with suicidal thoughts in 2019. She had a five week admission to the Northside Clinic Macarthur between October and November 2019. She saw a psychiatrist Dr Bharadwaj who diagnosed her with complex post-traumatic stress disorder and borderline personality disorder. She was under the care of Dr Khan, psychiatrist and a psychologist. She continued on mirtazapine, and was prescribed Melatonin, Belsomra and Diazepam. She was due to commence a one year DBT (Dialectical Behavioural Therapy) programme at Northside Clinic one day per week.
Ms Bui said her anxiety travelling as a passenger is unchanged. She said her mood is “managed” better. However, she only sleeps four hours a night, has lost weight and her appetite is poor. Her energy is low, and her concentration reduced. She described chronic suicidal ideation and in early 2019 she started to report some dissociative symptoms. Because of her hospital presentations FACS (Family and Community Services) initiated family therapy to address her son’s needs.
Medical Assessor Barrett resiled from her earlier opinion stating:
“On review and noting the history of pre-existing longstanding marijuana use, likely used to assist modulating negative affective states, as well as the pre-accident difficulties in the workplace, the pre-accident relationship difficulties, and her subsequent diagnosis of borderline personality disorder which is considered to have its origin from traumatic events during development and onset in early adulthood, I now consider that her pre-accident personality vulnerabilities were such that she would have met criteria for a borderline personality disorder in the period prior to the subject accident”.
In relation to causation Medical Assessor Barrett stated:
“Based on her resignation letter, there were a range of issues that led to her resignation, and although I do not think the accident related issues are the most significant issues, there [sic] were a more than negligible contribution to her decision to resign and it has been this resignation, and the resultant loss of role and loss of self-esteem, in an already vulnerable woman, which led to a subsequent worsening of depressive symptomatology and exacerbation of the maladaptive behaviour as a result of her borderline personality disorder, resulting in frequent presentations to hospital with suicidality in 2019, involvement of the community mental health team, involvement of the department of community services in regard to her attachment and relationship with her child, and period of hospitalisation in late 2019 at a private psychiatric hospital”.
Medical Assessor Barrett concluded the pre-existing adjustment disorder with depressed and anxious mood was exacerbated after the accident and given the persistence of symptoms of adjustment disorder now for over four years found Ms Bui would meet the criteria for persistent depressive disorder. She found a bidirectional interaction between her persisting pre-existing borderline personality disorder and the persistent depressive disorder in regard to functional impairments.
Given the claimant was due to commence an intensive DBT programme, which is an evidence based treatment for borderline personality disorder and given her impairment is impacted by the pre-existing borderline personality disorder Medical Assessor Barrett again concluded the claimants condition was not stable and permanent impairment could not be assessed.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Barrett reviewed Ms Bui on 25 July 2022.[5] She issued a certificate dated 3 August 2022, the subject of this review.
[5] Insurer’s bundle p 202.
She noted the claimant was now living alone, with her 7-year-old son in the care of his father.
Medical Assessor Barrett reviewed the history recorded at the earlier assessment. She reported Ms Bui was using one joint of marijuana twice a day for pain which she stated had been severe.
Ms Bui confirmed she completed the DBT programme via Northside Macarthur between September 2020 and September 2021 and continued to see a psychologist between once a week and once a month.
Medical Assessor Barret diagnosed a
“…persistent depressive disorder with anxious distress, with the pre-existing adjustment disorder due to workplace and relationship stressors, on the background of the pre-existing personality vulnerabilities, having then been exacerbated by non-accident related stressors, the progression of the relationship stressors to relationship breakdown, as well as accident related stressors, the emotional trauma of the accident made more salient by her childhood exposure to a motor accident, as well as the psychological stress of chronic pain. In people with personality vulnerability, it would be expected that stressor related to breakdown of attachment relationships and self-esteem losses would be particularly salient. Therefore, although I consider the accident related stressor are not the only, or most significant, contribution to her chronic adjustment disorder, now defined as a persistent depressive disorder, I consider the accident related stressors are a more than negligible cause of her condition.
Subsequent to quitting her job she reports an increase in marijuana use which she states she uses to manage pain. I consider it likely that she also uses marijuana for its calming and sedative effects and to manage affective dysregulation as a result of the psychiatric symptomatology. She would therefore also meet criteria for a marijuana use disorder.”
Medical Assessor Barrett provided the following assessment under the psychiatric impairment rating scale (the PIRS):
Category
Class
Reason for Decision
1.
Self-care and Personal Hygiene
2
Excluding effects of pain as is required under Guideline 1.214 and 1.215, there are restrictions to her engagement in cooking to avoid opportunities for deliberate self-harm, and reduction in changing her clothes and engagement in household chores, contributed to by lack of motivation and fatigue, which I accept relate to her psychiatric condition. Noting she lives alone with some assistance and excluding the effects of the physical condition there is a class 2, mild impairment.
2.
Social and Recreational Activities
3
She reports significant reduction in social and recreational activities compared to prior to the accident. She requires encouragement to go out in the presence of a support person who she regards as “safe” and who is understanding her triggers. Noting the requirement of a support person to go out and reduction in frequency of socialising, this is consistent with a moderate impairment.
3.
Travel
3
She does not drive and has not made any effort to obtain her driver’s licence since the accident. She is only able to travel as a passenger, and despite this still experiences some anxiety.
Due to the requirement for a support person when she travels, this is consistent with a moderate impairment.
4.
Social Functioning
3
She maintains a positive relationship with her mother, brother and some friends. She has not had any intimate relationships since the subject accident. She is no longer the primary carer for her son as she did not want him to have the burden of responsibility for her emotional wellbeing and there were restrictions and her avoidance of triggers, as well as fatigue and concentration difficulties, impacted her ability to help him with his homework, prepare his lunch or take him to extracurricular activities.
Noting that her son is now under care of family member and that she has not been able to form any new relationships this is consistent with a moderate impairment.
5.
Concentration, Persistence and Pace
2
She reports her concentration is limited to periods of 10 to 20 minutes and then she experiences headaches. She also reports episodes of dissociation. Objectively she was able to concentrate for the duration of the assessment although she needed redirection to the point of question as she tended to become preoccupied with certain issues. Therefore, I consider there is some objective evidence of difficulties persisting with a particular task, consistent with a mild impairment.
6.
Adaptation
4
She has not returned to any work since the subject accident, and she has now given up her non-work role of caring for her son. She needs some assistance with household chores. This is consistent with a severe, class 4 impairment.
Medical Assessor Barrett provided the following assessment of the claimant’s pre-existing adjustment disorder with depressed and anxious mood under the PIRS:
Category
Class
Reason for Decision
1.
Self-care and Personal Hygiene
1
Although she was experiencing symptoms of adjustment disorder, she reported that she was performing all the chores in the household. She showered daily and wore makeup to work. This is consistent with no impairment.
2.
Social and Recreational Activities
1
She could enjoy taking her dog out for a walk daily with her son. She completed a calligraphy course in January 2016. She enjoyed watching TV. Considering she was the parent of a young child, I consider this pre-accident functioning is not indicative of any impairment.
3.
Travel
1
As a result of the accident as a child, she had experienced anxiety when attempting to learn to drive. However, she states that she tried to get her P’s before the accident but failed by a few points. She could travel as a passenger without difficulty. Nevertheless, he [sic] was able to travel independently to work.
Her ability to travel independently, to travel as a passenger without distress, and to learn to drive, this was consistent with a class 1 impairment according to the PIRS definition of the capacity for independent travel outside of the local area.
4.
Social Functioning
2
She has maintained a long-term relationship with her former partner from 2003 or 2004 but there had been conflict from October 2014 after they had moved in with her former partner’s family. There had been a period of estrangement from her own family. Although these circumstances were the cause of her adjustment disorder, rather than resulting from it, I consider that in a person with pre-existing personality vulnerabilities impacting the nature of interpersonal relationships, the development of an adjustment disorder with depressed and anxious mood would have exacerbated her pre-existing challenges to manage conflict in interpersonal relationships.
5.
Concentration, Persistence and Pace
1
She denied any difficulties concentrating. Therefore, there was no impairment, class 1.
6.
Adaptation
3
In the period just prior to the accident, she was on stress leave as a result of symptoms of adjustment disorder. The GP notes from two months prior to the accident, entry 10 February 2016, indicated that she had put in to resign but was convinced to continue and had been promised a promotion. Nevertheless, although there had been long term employment, in the context of stress in August 2015 she had made an error.
Noting she had maintained long term employment, but in the context of the development of adjustment disorder she was on stress leave, she previously made an error and had considered resigning, this is consistent with a class 3 impairment, noting that she had later been able to return to work for a period after the accident up until she quit in June 2017.
Medical Assessor Barrett found there was no subsequent impairment on the basis the accident contributed to her quitting her job after which her condition worsened.
However, she considered there was a 1% treatment effect. Whilst the claimant remained highly symptomatic, she had utilised the tools learnt in the DBT programme with some reduction in symptomatology and in frequency of suicidal ideation as well as an improved ability to manage her symptoms.
Medical Assessor Barrett’s assessment of permanent impairment was the current impairment of 13%, minus the pre-existing impairment of 1% plus the treatment effect of 1% resulting in a final assessment of 13% WPI.
REVIEW PROCEDURE
The application for review of the assessment of Medical Assessor Barrett was lodged on behalf of the insurer on 12 September 2022.
On 17 October 2022 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 Review Panel (the Panel).[6]
[6] 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 cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under cl 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 states 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 Guidelines were issued pursuant to s 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, 4th 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 should be followed.[7]
[7] Clause 1.2 of the Guidelines.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to 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.[8]
[8] 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.[9]
[9] Section 63(3A) of the MAC Act.
On 17 October 2023 the Panel decided a medical examination was required.
MATERIAL BEFORE THE REVIEW PANEL
Treating medical records
Bonnyrigg Family Medical Centre
A Patient Assessment form dated 8 September 2015 describes the presenting issue as “depression” and the history as “work/social issues, not coping, ↓ mood …”.[10]
Fairfield Central Medical Centre
[10] Claimant’s bundle p 441.
On 10 February 2016 Dr Leanne Girgis, general practitioner (GP) recorded:
“Under stress, for personal reasons and also related to work situations, suffers from
anxiety experienced anxiety yesterday at work…. at the time of the error she was doing a lot of overtime work rostered to work 4 weeks in a row was also on call felt bullied … issues with partners mother …
moved in with partners parents
felt undermined
felt her partners mother was controlling everything …
has separated from her partner …
moved out 2 weeks ago…
suffers from anxiety
feels fidgety
clammy
sweaty hands
tachycardia
throat feels dry and shakey
feels emotional all the time at work
poor sleep
poor appetite
feels down and low
feels she has not motivation
feels burnt out
has been feeling like this since August 2015
put in to resign but was convinced to continue on and promised that she is going to be promoted…”[11][11] Insurer’s bundle p 270.
On 12 April 2016 Dr Ben Lau, GP reported:
“MVA this am, front seat passenger
Car hit on her side
O/E movement in neck full but slow”.[12]
[12] Insurer’s bundle p 271.
Ms Bui consulted Dr Lau again on 14 April 2016 and 18 April 2016 complaining of pain in the neck and the left shoulder and headaches. On 27 May 2016 Dr Lau reported Ms Bui was still depressed, she still had migraine and left shoulder/chest ache.[13] He prescribed Valium. On 1 June 2016 Dr Lau discussed with the claimant a graduated return to work plan and on 25 June 2016 he reported Ms Bui was fit to return to full duties. He noted Avanza continued.
[13] Claimant’s bundle p 113.
Glenquarie Family Practice
On 8 March 2016 Dr Brenda La, GP certified the claimant was receiving treatment for “work related anxiety → clearance for work from 15/03/16”.[14]
[14] Insurer’s bundle p 622.
Bonnyrigg Family Medical Centre
The first consultation was with Dr Loi Lam, GP on 4 July 2016.[15] He reported the claimant’s involvement in the accident resulting in pain in the neck, thoracic region and both shoulders associated with headaches. He also reported the claimant felt a loss of confidence and safety, disrupted sleep, distress, was teary thinking about the accident, was fearful of being hit again, found it difficult to focus and concentrate, had flashbacks about the previous accident, was anxious and her relationships and social life were affected. She noted the childhood accident when the claimant’s head bled after hitting the dash followed by violence between her father and the other party. Dr Lam also completed a Medical Certificate which included “teary, anxious, hyperarousal, flashbacks” in the description of injuries. In relation to relevant medical history, he referred to “anxiety”.[16]
[15] Insurer’s bundle p 359.
[16] Insurer’s bundle p 367.
A similar history was reported by Dr Lam on 8 August 2016, on 8 November 2016 and on 20 February 2017.
Campsie Medical Practice
Ms Bui first consulted Dr Rosul, GP on 16 November 2016.[17] She recorded a detailed history including her parents dependence on her, wanting to buy her own house, stress-induced alopecia, weight reduced to 38kg, poor sleep hygiene, low mood, anxiety attacks, panic, during day okay as work provides distraction, MVA April 2016, suffered C4-5 injuries; deliberate self-harm, self-cutting as teenager, not now; denied suicidality; tried multiple anti-depressants, contracted hep B at age 18, age 4 MVA with head injury, witnessed father be violent to other driver, apprehensive of driving, seeing a psychologist, cannabis dependence, and recurrent depressive episodes.
[17] Claimant’s bundle p 273.
On 5 May 2017 Dr Irene Rosul reported the claimant’s anxiety was getting worse.[18] She reportedly was going through a stressful time at work and in her personal life and was not sleeping well due to radicular pain from the neck. On 31 May 2017 Dr Rosul reported the claimant had recently quit her job.
[18] Claimant’s bundle p 142.
On 29 June 2017 Dr Karen Pok, GP reported the claimant had difficulty sleeping due to pain.
On 1 February 2018 Dr Pok recorded issues included a difficult family dynamic, the accident and chronic pain and reported the claimant was self-medicating with cannabis, Lyrica, and Valium.[19]
[19] Claimant’s bundle p 165.
On 7 December 2017 Dr Cha, Dr Pok, Dr Tse, Dr Chu and Jason Zhou, nurse attended a case conference on the basis Dr Pok would take over the claimant’s care from Dr Rosul. It was noted the claimant had issues with drug seeking (diazepam).[20]
[20] Claimant’s bundle p 319.
The claimant attended Dr Pok on an ongoing regular basis.[21] Issues discussed included family discord, the claimant’s behaviour, self-harm, her cannabis use, accommodation, financial problems and arrangements for the care of her son.
Dr Chan, psychiatrist
[21] Claimant’s bundle p 294.
Dr Chan first saw the claimant on referral from Dr Rosul on 2 March 2017.[22] He reported Ms Bui was separated with a three year old son, she worked as a medical technical officer with Johnson & Johnson with unstable work hours. He reported she had depression and anxiety symptoms for a long time.
[22] Claimant’s bundle p 275.
In a report dated 16 March 2017 Dr Chan stated:
"she has long standing depressive and anxiety symptoms. She has a major depressive episode after conflicts over selling the family home and has since cut off ties with her families. She now presents overwhelmed with interpersonal and work related stressors".
He also states:
"she has a car accident in April 2016 and is currently under CTP for medical expenses. She has cannabis dependence".
On 20 April 2017 Dr Chan reported Ms Bui was preoccupied with work stressors. On 1 June 2017 Dr Chan reported the claimant had experienced domestic violence over at least the last two years.
On 28 September 2017 Dr Chan reported relationship stressors, chronic pain, worsening asthma, more anxiety and depressive symptoms and disrupted sleep. On 23 November 2017 Dr Chan reported the claimant was fixated and preoccupied with stress, particularly, relationship conflict with her ex-partner.
On 8 March 2018 Dr Chan reported she was actively looking for work, she had ceased taking THC (cannabis), she was taking diazepam at times of stress and gradually weaning herself off Lyrica.[23]
[23] Claimant’s bundle p 653.
On 11 January 2019 Dr Chan reported relationship stressors with her ex-partner.
Natalia Yee, psychologist
Ms Bui first consulted Ms Yee on 20 May 2017.She reported the claimant had quit her job the preceding week. She focused on interpersonal issues with ex-partner and his friends, noting she was living with her brother and smoked THC at home.
On 6 January 2018 Ms Yee reported multiple somatic complaints, parenting stress and increased THC (cannabis) usage.
Sydney Spine & Pain
On 5 December 2017 pain specialist Dr James Yu reported on psychometric screening tests there was extremely severe anxiety, depression, and stress. Other tests showed low self-efficacy, severe fear avoidance and severe catastrophizing.[24]Her sleep was disturbed. He recommended Ms Bui see a pain psychiatrist.
[24] Insurer’s bundle p 381.
St George Hospital Pain Management
On 4 February 2018 the claimant completed a St George Hospital Pan Management Unit questionnaire in which she stated she was using cannabis every day.[25] At that time the claimant was taking Avanza 30mg, two tabs daily, Endep 25mg, I tab daily, Imovane, 7.5mg 1 tab daily, Lyrica, 300 mg3 tabs daily, and Valium 5mg 1 tab daily.
[25] Insurer’s bundle p 397.
On 4 April 2018 Dr Anica Vasic, specialist in the Pain Management Unit reported Ms Bui had recently returned to live with her aunty and uncle and her mother from whom she had been estranged for five years.[26] She had recently signed a co-parenting agreement with her ex-partner. She reported the longstanding use of marijuana daily in moderate doses. She also reported her hair was falling out in clumps. In 2007 she had experienced alopecia secondary to stress.
Sutherland Hospital
[26] Insurer’s bundle p 496.
A discharge summary refers to an admission from 13 March 2018 to 16 March 2018 after presenting with suicidal ideation.[27] Her family suggested she was taking too many meds and smoking dope. Ms Bui reported she was using cannabis daily for nine years but stopped a month ago. She was living with her aunt, uncle, mother and four year old son. The claimant’s uncle reported she was verbally aggressive.
[27] Insurer’s bundle p 251.
On 20 March 2018 Ms Bui was transported by ambulance to Sutherland Hospital after taking excessive medication.[28]
[28] Claimant’s bundle pp 583 and 597.
Dr Clive Sun, rehabilitation and pain physician
Dr Sun saw Mr Bui on 2 October 2018. He reported since the accident the claimant had given up work in July 2017, separated from her partner of 14 years and become estranged from her family. She reported couch surfing for the last 2 months but had recently found a place of abode. He concluded she was under significant stress and was despondent and depressed.[29]
[29] Claimant’s bundle p 451.
Rehab Solutions
On 27 November 2018 Karolin Issavi, psychologist of Rehab Solutions Australia reported Ms Bui experienced severe stress, depression and anxiety symptoms following the accident in April 2016, a relationship breakdown and ongoing interfamilial issues.[30] Six to 10 weekly sessions of supportive counselling were recommended. On 1 June 2019 it was reported Ms Bui had completed six sessions of psychological counselling.
[30] Claimant’s bundle p 464.
In March/April 2019 the claimant completed the first phase of the ACTIVATE Pain Management Program at the St George Hospital Pain Management Unit.[31]
[31] Claimant’s bundle p 467.
Macarthur Aged and Mental Health Care
On 3 November 2018 Dr Samira Bhuiyan, psychiatry advance trainee for Macarthur COMHET reported the claimant:
“presented with an adjustment disorder, polysubstance dependence and emotional dysregulation, complicated further by multiple psychosocial stressors, chronic pain, maladaptive coping mechanisms (including self-harm and cannabis use) and a reliance on polypharmacy”.[32]
[32] Claimant’s bundle p 454.
Ms Bui presented to Campbelltown ED (Emergency Department) on 25 July 2019 following an overdose of medication.[33]
[33] Claimant’s bundle p 854.
Family & Community Services
In a letter dated 17 September 2019 Child Protection Caseworker Belinda Tsirekas reported the Department of Communities and Justice (DCJ) had become involved with the claimant in relation to child protection concerns for her son as a result of the impact of her mental health state on her parenting capacity and the well-being of her son.
It was reported the claimant was to enter the Northside Clinic in Campbelltown for treatment for her mental health issues on 8 October 2019.
Workers Doctors clinical notes
The first consultation was on 24 October 2019 with Dr Eric Lim when the reason for contact was “MVA” although a more detailed history of physical complaints was reported on 31 October 2019. On 6 November 2019 Dr Calvache-Rubio reported Ms Bui had been four weeks in the psychiatric hospital.
Ms Bui continued to consult various practitioners on a regular basis in respect of both her physical complaints, chronic pain and psychological symptoms. On 25 May 2020 Dr Khan psychiatrist reported the claimant was due to start DBT (dialectical behaviour therapy) at Northside Group MacArthur Clinic for post-traumatic stress disorder.
In a report dated 26 June 2020 Dr Peter Khong, GP reported the claimant continued to complain of neck pain and left arm pain.[34] He reported the past medical history was post-traumatic stress disorder post car accident and borderline personality.
[34] Insurer’s bundle p 256.
Dr Lim provided a report dated 27 June 2022 where he diagnosed cervical spine radiculopathy, lumbar spine radiculopathy, major depressive disorder with anxious distress and post-traumatic stress disorder caused by the accident.[35] He did not report any pre-existing injuries.
Medico-legal reports
Dr Uthum Dias, occupational physician
[35] Claimant’s bundle p 868.
Dr Dias assessed the claimant and provided a report dated 16 June 2017. He reported Ms Bui had a history of depression and anxiety dating back to approximately 2010 but reported her symptoms had been significantly aggravated and exacerbated by the accident. She was consulting a psychologist and a psychiatrist and taking Avanza.
He reported following the accident Ms Bui took one month off work and then returned to work initially four hours per day upgrading to her pre-injury hours of 7.5 hours four days per week until she resigned in May 2017.
Dr Dias diagnosed a cervical whiplash disorder, a chronic left shoulder impingement syndrome secondary to an acute rotator cuff tendon strain, an acute musculoligamentous strain of the thoracic spine and pain, stiffness and discomfort in the right shoulder referred from the cervical spine.
Dr Kim Hobbs, occupational physician
Dr Hobbs provided a report dated 19 September 2017 after assessing Ms Bui at the request of the insurer.[36]
[36] Insurer’s bundle p 57.
He diagnosed a whiplash associated disorder, soft tissue musculoligamentous sprain of both the cervical and thoracic spine and musculo-ligamentous sprains of both shoulders which he found occurred in the “presence of significant pre-existing depression and anxiety disorder”.
Dr Hobbs concluded based on the report of Dr Chan, psychiatrist that the psychiatric and psychological diagnoses were not causally related to the accident, and the major depressive disorder was fully attributable to personal and work related stressors. He stated:
“That is the attribution of her stress is to her long standing depression and anxiety conditions, the failures, in her personal relationships, and her work dissatisfaction and work performance issues, which all pre-dated the accident and which were ongoing”.
Dr John Albert Roberts, psychiatrist
Dr Roberts assessed the claimant for the insurer and provided a report dated 27 September 2017.[37] He reported Ms Bui denied non-prescription substance use.
[37] Insurer’s bundle p 93.
He concluded the accident was of minor degree and any contribution to the claimant’s presentation was so trivial as not be assessable. He stated:
“Her presentation is dominated by a history of longstanding pre-existing psychiatric illness, the ending of a relationship of 13 years duration, the responsibility of caring for a three year old child and the tensions arising from her having no contact with her family”.
Dr Roberts concluded he was unable to make a psychiatric diagnosis of any condition arising as a result of the accident.
Dr Roberts reviewed the claimant and provided a report dated 28 February 2020.[38] In relation to her physical health Dr Roberts reports Ms Bui stated she suffered from chronic neck pain which radiates into the arms with pain involving the left shoulder blade and aching in the lower back.
[38] Insurer’s bundle p 128.
He concluded the claimant’s current psychopathology was the result of longstanding pre-existing problems that predate the accident by many years. He accepted the diagnosis of personality disorder, a condition present since adolescence.
Dr Roberts reviewed the claimant and provided a report dated 16 November 2021.[39] On this occasion whilst Ms Bui reported a history of marijuana use, she said she had not used marijuana for two years and that it had been casual marijuana use. Dr Roberts described Ms Bui as an unreliable historian and noted that documentation indicated a long history of regular marijuana use.
[39] Insurer’s bundle p 165.
Dr Roberts reported the claimant’s medication were Avanza (Mirtazapine) 60mgms nocte, Mobic 15mgms, Melatonin 6mgms a night, Valium 5mgms as required, and Lyrica 75mgms as required.
Dr Roberts concluded the accident was of such a trivial degree that the claimant didn’t even realise the accident had occurred at the time and it would not have the capacity to produce any sequalae either psychiatric or physical. The claimant’s condition was due to longstanding pre-existing psychopathology, personality disorder, a substance use disorder and a possible diagnosis of episodes of depression. Whilst not related to the accident Dr Roberts thought the claimant’s condition was guarded.
Dr Leonard Lee, psychiatrist
Dr Lee assessed the claimant and provided a report dated 31 July 2018.[40]
[40] Claimant’s bundle p 124.
Dr Lee accepted the claimant had underlying personality traits which have led to interpersonal conflict and a mood disorder. He found the accident caused pain which exacerbated the mood disorder.
Dr Ron Muratore, sports physician
Dr Muratore assessed the claimant at the request of the insurer and provided a report dated 19 February 2020.[41]
[41] Insurer’s bundle p 110.
He reported Ms Bui recalled she was involved in a motor vehicle accident when she was 4 years of age resulting in her father having a physical altercation with the other driver. He reported she developed a major depressive disorder resulting in an admission to Northside Clinic at Campbelltown for a period of 5 weeks in October 2019. He reported Ms Bui had been diagnosed with a post-traumatic stress disorder.
Ms Bui initially denied any mental health issues prior to 2019 until Dr Muratore referred her to the documented evidence. She then agreed she may have had anxiety at the time alopecia was diagnosed. Dr Muratore reported Ms Bui said she had smoked marijuana in the past but had stopped.
Dr Muratore diagnosed a soft tissue injury of the neck which had resolved and possibly a soft tissue injury of the left shoulder which had also resolved. He found the left shoulder symptoms and restricted range of movement were probably referred from the cervical spine. Any soft tissue injury to the thoracic spine has also resolved. He concluded any current complaints were no longer related to the accident and noted she had pre-existing psychological/psychiatric problems which would impact on her reported symptoms.
Dr Ross Mellick, neurologist
Dr Mellick assessed the claimant at the request of the insurer and provided a report dated 4 March 2020.[42] He concluded the claimant had sustained mild superficial soft tissue trauma which he considered had resolved. He stated the existing symptoms should be regarded as representing a chronic pain syndrome without evidence of underlying pathology.
[42] Insurer’s bundle p 159.
Dr Abdal W Khan, psychiatrist
Dr Khan provided a report dated 6 June 2022.[43] At the time of an initial psychiatric consultation on 6 November 2019 he stated the claimant appeared sedated. He diagnosed post-traumatic stress disorder, major depressive disorder with anxious distress, cluster B personality vulnerabilities and chronic pain.
[43] Claimant’s bundle p 865.
Dr Khan stated at the time of his last consultation with Ms Bui on 23 August 2021 he considered she remained unlikely to return to her pre-accident employment and activities due on the ongoing impact of her psychiatric/psychological injuries.
Dr Khan concluded Ms Bui had developed post-traumatic stress disorder as a result of the accident and over time the symptoms of trauma in conjunction with her chronic pain caused her to develop a major depressive disorder with anxious distress. He also concluded she had underlying non-accident related cluster B personality vulnerabilities.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 9 September 2022.[44]
[44] Insurer’s bundle p 17.
The insurer submitted Medical Assessor Barrett in her assessment of a pre-existing disorder had not fully considered the claimant’s pre-existing marijuana use disorder and past psychiatric history. The insurer submits Medical Assessor Barrett did not consider on what basis the ongoing marijuana usage is causally related to the accident.
In relation to social functioning the insurer submits Medical Assessor Barrett failed to have regard to the claimant’s history including high parental expectations, her involvement in a motor vehicle accident as a child, behavioural difficulties at school, truancy, a period of estrangement from her own family, criticism from her mother-in-law and domestic violence.
In relation to travel the insurer submits Medical Assessor Barrett failed to consider the claimant’s pre-accident travel issues. The claimant was involved in an accident as a child, was subsequently anxious about driving and never gained her licence.
In respect of work and adaption the insurer submits Medical Assessor Barrett failed to have regard to the claimant’s pre accident history noting she experienced anxiety and depression in the period prior to the accident and had been on stress leave for three weeks prior to the accident. Significantly Medical Assessor Barrett also reported Ms Bui had significant workload stress due to management issues, interpersonal issues and long working hours. The insurer submits Medical Assessor Barrett erred in concluding the claimant did not return to work after the accident where it is clear she did not resign until May 2017 due to a combination of physical and psychological symptomology but related to the accident as well as specific workplace issues.
Claimant’s submissions
The claimant provided submissions dated 4 October 2022.[45]
[45] Claimant’s bundle p 936
The claimant summarised the relevant histories recorded by Medical Assessor Barrett in each of her three reports. Histories relevant to the question of causation of the claimant’s marijuana use disorder in the assessment the subject of this review are as follows:
· On page 5 – “She is using one joint of marijuana twice a day for pain. She complained ‘No one’s asking me ever why I smoke’ and states she does so for medicinal purposes to manage pain.”
· On page 10 – “She expressed dissatisfaction, considering that no one has asked her about the reasons for her marijuana use, which she regards as for medicinal purposes to manage her pain, and that her past successes have not been recognised.”
· On page 15 – referring to the report of Dr Roberts dated 16 November 2021 – “Dr Roberts noted the inconsistency between the history Ms Nguyen reported to him of having not used marijuana for two years with the history contained in the documentation”. “He considered that she had a personality disorder and substance abuse, but that those conditions were not caused by the subject accident”.
· On page 16 – referring to the report of Dr Muratore dated 19 February 2020 – “He described a number of falls since the subject accident which he considered may have been due to cannabis use”.
· On page 16 – referring to the report of Dr Vasic dated 4 August 2018 – “She was using marijuana daily in moderate doses”.
· On page 19 – “subsequent to quitting her job, she reports an increase in marijuana use which she uses to manage pain. I consider it likely that she also uses marijuana for its calming and sedative effects and to manage affective dysregulation as a result of the psychiatric symptomology. She would therefore also meet criteria for a marijuana use disorder.”
The claimant disputes the assertion Medical Assessor Barrett failed to adequately consider relevant material relating to the claimant’s marijuana use disorder in that she recorded the history provided by the claimant, she referred to clinical records and acknowledged the comments contained in medico-legal reports.
In relation to the alleged factual error pertaining to the claimant’s work history the claimant concedes the error in the PIRS table under the heading adaption where Medical Assessor Barrett stated the claimant had not returned to any work since the accident. However, the claimant notes Assessor Barrett also recorded the following history:
“It has been more than six years since the subject accident, and approximately five years since she resigned from her employment, and therefore the effects of these stressors could be considered to have become permanent”.
And further:
“It appears that she experienced the further loss of the breakdown of her relationship in October 2016 and then she quit her employment in mid-2017 …”.
The claimant submits Medical Assessor Barrett was aware the claimant had returned to work after the accident and clearly took that into account when assessing impairment.
The claimant disputed Medical Assessor Barrett failed to properly consider the claimant’s past psychiatric history when assessing permanent impairment.
MEDICAL ASSESSMENT
Who attended the assessment.
The claimant was re-examined through MS Teams on with the support of her brother Mr Kim Vo in her rented accommodation on 25 January 2024 by Medical Assessor John Baker. Mr Vo was present for the entire re-examination via videoconference.
Injuries referred for assessment.
The injuries referred to the Commission for assessment were as follows:
· psychiatric condition – persistent depressive disorder.
HISTORY
Psychosocial history and pre-accident history
Ms Bui was 39 years of age at the time of this assessment. She was identified by her NSW Government photographic identity card. She was 31 years of age at the time of the accident. Her son was born prior to the accident. He is nine years of age and had about 30% of his care provided by the claimant. The claimant provided care whilst her son was on school holidays.
Ms Bui stated that she was born in St Margaret’s Hospital (closed), Sydney. She reported she lived with her father, mother and brother during her childhood. She reported her parents separated when she was about 25 years of age. The claimant’s father retired at age 67 years. He suffers from advanced diabetes mellitus. The claimant’s mother was about 57 years of age. The claimant had one younger brother aged 32 years. Her brother worked as a peer support worker in the local region where the claimant lived. As Ms Bui was seen during the school holiday period her son was in her care although her son was cared for by a NDIS (National Disability Insurance Scheme) support worker during the assessment.
Whilst a school student Ms Bui reported having been educated in at least five public schools. She stated she attended Bossley Park, Bonnyrigg, Fairfield Heights, Fairfield West and Campbell Field primary schools. On direct questioning, the claimant reported that she was unable to provide any reasons for her frequent movements. She was able to confirm that the movements related to her parents and not due to her school behaviour. She progressed to Macquarie High School and attended between Year 7 to Year 12.
The claimant reported that whilst at school her sports were athletics, basketball and martial arts. She did not have any sporting injuries. Her family paid for private tuition in maths, physics, and English subjects.
Ms Bui reported that she was in a defacto relationship with the father of her son, prior to the accident. She reported she was also working for Johnson and Johnson as a medical representative. She was skilled in the products surgeons would use to treat spinal trauma patients and facial reconstruction patients. Prior to the accident Ms Bui was living with her partner’s mother and father. There was tension in the house as the claimant believed that she was not provided the necessary independence in caring for her infant son. The claimant reported that her son’s fraternal grandmother was insisting on taking “over the care of the baby”.
The claimant at 18 years of age was working part-time. She was required to estimate her income in advance. She had under-estimated her income. She was unable to adjust the estimate. She had a $7,200 debt to Centrelink. Ms Bui was convicted and fined after a brief court case. She was not represented at the Local Court during the trial.
Ms Bui had no outstanding legal matters, and other than the Centrelink offence referred to above she had never been the subject of any other legal complaint. This was her only reported personal injury claim.
Medical history
There is evidence of a pre-existing diagnosis of adjustment disorder with mixed anxiety and depressed mood, noting her symptoms from the “psychological domestic violence” and her prior diagnosis of major depressive disorder at 25 years of age.
The claimant provided a complex history.
Ms Bui described her primary relationship with the father of her son as a “DV [domestic violence] relationship”. When asked to describe this relationship she stated she was exposed to repeated, coercive control by her partner. Her partner engaged in financial abuse towards her, and he was also verbally and emotionally abusive towards her. Ms Bui provided the following examples of the abuse to which she was exposed:
· on one occasion following the accident the father of her son picked up the son early and then called the NSW Police Force requesting a “welfare check on the son” on the basis his son was “missing”. The police arrived at the claimant’s house, and she was left to explain that the boy’s father had care of her child prior to his notification to the police.
· Ms Bui was repeatedly questioned regarding her sanity (“gaslighting”) before and after the accident. Her ex-partner was threatening the claimant with intervention from law enforcement, vexatious legal complaints and permanent and complete removal of her son by the Department of Justice, Child and Family division; even though there was no evidence that this was to occur.
At 16 years of age Ms Bui would over exercise, punch plaster walls when having an outburst of frustration and anger as well as superficially cut the skin on her left arm. She explained that she had never injured herself with suicidal intent and that she did not seek medical advice. She never suffered from skin infection or raised disfiguring scaring. She did use skin cream to assist with healing.
Ms Bui’s behaviour had been documented as “Borderline personality disorder” by Dr Roberts. The Panel accepts the opinion of Medical Assessor Baker that the claimant does not meet the diagnostic criteria for Borderline personality disorder using Diagnostic and Statistical Manual of Mental Disorders (DSM) 5TR code F60.3 as she did not meet the following criteria at the re-examination:
· frantic efforts to avoid real or imagined abandonment;
· a pattern of unstable and intense interpersonal relationships characterised by alternating between extremes of idealization and devaluation;
· identity disturbance; marked by a persistently unstable self-image or sense of self;
· chronic feelings of emptiness, and
· transient, stress-related paranoid ideation or severe dissociative symptoms.
The natural history of borderline personality disorder is known to improve symptomatically with age.
Major depressive disorder was diagnosed for the first time at age 25 years in 2009. This episode of major depressive disorder was associated with alopecia totalis. Ms Bui reported having lost all the hair on her body during this episode of illness. Her hair recovered slowly after her first major depressive episode entered remission. Alopecia totalis is a known association with major depressive disorder.
The birth of the claimant’s son was via normal delivery but followed by the intervention of the fraternal grandmother insisting on increased care of the child.
Hepatitis B positive serology. Ms Bui reported that this was an unexpected finding on routine testing. She was managed by routine monitoring. She reported no vertical transmission of the virus to her son.
Cannabis use. Ms Bui reported that she had used cannabis prior to the accident. She reported she would smoke cannabis mixed with tobacco in the form of a “joint”. The cannabis she used she called “flowers”. This term has been recently popularised with the medicalisation of cannabis for chronic pain treatment. The claimant reported she bought small bags of cannabis flower heads. She usually smoked cannabis after work on the weekends.
Ms Bui said she was working as a senior surgical sales representative and she did not smoke cannabis during the work week as she was responsible for out of hours calls, and she did not wish to be intoxicated whilst talking about her employer’s product. She had worked for Johnson and Johnson in this role for five years prior to the accident. She was also a young mother with her first child prior to the accident and she was looking to change her work role to spend more time with her son.
Ms Bui reported she would smoke less than one small bag of “cannabis flowers” mixed with tobacco on the weekends. The history provided by the claimant was consistent with the history provided to Medical Assessor Barrett in her first report as follows:
“Was regularly using marijuana from 2005, one to two joints per day. Then, from 2014 to February 2018 she was using marijuana only on weekends, eight cones each day of the weekend”.
The Panel agreed that prior to the accident the claimant did meet the minimum necessary criteria for a Cannabis use disorder using DSM5TR code F12.10:
“A. A problematic pattern of cannabis use leading to clinically impairment or distress, as manifested by at least two of the following, occurring within a 12-month.
1. Cannabis is often taken in larger amounts or over a longer period than was intended.
This criterion is met because, prior to the accident the use of cannabis was associated with increased use up to 8 cones per session, at least two sessions per week.
2. There is a persistent desire or unsuccessful efforts to cut down or control cannabis.
This criterion is met because the claimant smoked the cannabis for the intoxicating effect and increased from a small amount in 2005 to an increased amount in 2014.
3. A great deal of time is spent in activities necessary to obtain cannabis, use cannabis, or recover from its effects.
This criterion is not met because the claimant was functioning in an important role for her employer fulltime.
4. Craving, or a strong desire or urge to use cannabis.
This criterion is not met because the claimant did not report this effect due to cannabis use.
5. Recurrent cannabis use resulting in a failure to fulfil major obligations at work, school, or home.
This criterion is met because the claimant reported the father of her child called her ‘crazy’ and that she was not able to be a capable mother. The fraternal grandmother had taken the child into her bedroom to care for the child whilst he slept.
6. Continued cannabis use despite having persistent or recurrent social or personal problems caused or exacerbated by the effects of cannabis.
This criterion is met because, the claimant was having problems with domestic violence prior to the accident and had increased her cannabis consumption.
7. Important social, occupational, or recreational activities are given up or reduced because of cannabis use.
This criterion is met because, the claimant reported the father of her son was caring for her son with the support of the child’s fraternal grandmother.
8. Recurrent cannabis use in situations in which it is physically hazardous.
This criterion is not met because, the claimant was using cannabis on the weekend at home.
9. Cannabis use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by cannabis.
This criterion is met because, the claimant had a history of cannabis causing or exacerbating her unsatisfactory relationship with the father of her son and the fraternal grandmother.
10. Tolerance, as defined by the following:
a. A need for markedly increased amounts of cannabis to achieve intoxication desired effect.
This criterion is met because of the increase in cannabis from 2005 at a small amount and from 2014 onwards the cannabis increased to 8 cones per session, at least twice per week.
11. Withdrawal, as manifested by the following:
b. Cannabis (or a closely related substance) is taken to relieve or avoid withdrawal symptoms.
This criterion is met because the claimant relied on cannabis to relieve her symptoms of distress, such as withdrawal symptoms.”
The Panel accepts that on the weekends when the claimant smoked cannabis at the level reported by Medical Assessor Barrett, it is more probable than not the claimant would have been intoxicated with cannabis during most of the weekend.
In summary the Panel finds:
· the claimant was a weekend smoker of cannabis immediately prior to the accident. She more probably than not met the criteria for Cannabis Use Disorder DSM5TR F12.10. She consumed “8 cones of cannabis in a single day”.
· The claimant did suffer from a pre-existing DSM5TR F32.1 major depressive disorder at about 25 years of age prior to the accident.
· The claimant did suffer from DSMTR5 Z91.411 Personal history (past history) of spouse or partner psychological abuse.
· The claimant did have a history of an adjustment disorder with mixed anxiety and depressed mood DSM5TR F43.33
Ms Bui reported that she was not exposed to any trauma, abuse or neglect as a child. She had never suffered from any sporting injuries or fractures. She had no medical conditions. She does not gamble. She reported her father having suffered from alcohol use disorder as he suffered posttraumatic stress disorder as a consequence of his service in the Vietnam war. Her brother was diagnosed with schizophrenia. He was well at the time of this assessment and worked as a peer support worker with lived experience of psychosis. She would use illicit substance when at music festivals.
The claimant reported that she was a middle seat passenger as a child when she was in her first motor accident. She sustained a cut to her head. She had no other injury. She has a memory of her father becoming very angry and “beating” the other driver. The claimant was avoidant of driving because of this motor accident.
History of the accident
Ms Bui was the front seat passenger in a Lexus SUV that was driven by her partner. Her partner was turning right. Unexpectedly the passenger side of the car was hit by the at fault driver’s “Mazda 3”. The claimant reported that she was “thrown around in her seat, like a ragdoll.” She restrained by her seatbelt. She was dazed but not knocked unconscious. She remembered spilling her morning coffee over herself due to the force of the crash. There was no-one else in her vehicle other than the driver. She tried to open her door, however the damage to the door was too great and the door would not open. The claimant climbed out of the car over the driver’s seat.
The claimant inspected their car. The footrest had been pushed under the frame of the car. The doors were severely damaged. The windows did not shatter, however the windows would not lower as there was too much damage to the door panels.
A verbal argument occurred with the other driver who claimed to have the accident recorded on her “dashcam”.
Ms Bui reported that she did not go to hospital as the car was drivable. She was driven to her GP by her partner.
The initial investigations for physical injury did not demonstrate any physical injuries and she was treated for “whiplash” by a physiotherapist. Ms Bui reported the following physical symptoms:
· fasciculation (muscle twitching) of the muscles in her forearms;
· altered sensation in both hands in the median nerve palmer distribution of her hands;
· pins and needles sensation (paraesthesia) in both hands;
· she also complained that her dominant right arm strength had become weak, and
· chronic pain due to her physical injury.
Ms Bui developed a relapse of her major depressive disorder and was treated by Dr Charles Chan in March 2017. The motor accident happened in April 2016. Her partner separated from her in October 2016. On 1 June 2017 the psychiatrist documented, “domestic violence over the past at least two years” by ex-partner. This places the onset of the domestic violence prior to the accident in 2016.
The claimant was referred to psychologist Ms Natalia Yee for treatment. She documented the claimant had been argumentative towards her employer during the first quarter of 2017. Her employer resolved the dispute after the claimant resigned and was then reinstated with an increased salary.
History of symptoms and treatment following the accident
Ms Bui reported that at the time of this assessment she had been offered cervical surgery to treat injuries to her cervical spine. She had declined the offer of surgery. She reported that she was fearful of having to undergo repeated surgical operations which she had witnessed other people endure whilst working as a surgical representative. She stated she was soon to have nerve conduction studies to measure the severity of her cervical nerve entrapment.
Ms Bui reported attending St George Pain Clinic. She was never admitted as an inpatient of a pain rehabilitation service. She attended the outpatient course for psychological treatment and management of her chronic physical pain. The claimant trialled opioid medication such as Endone. She had ceased Endone prior to this assessment. She had sought medical advice and was currently prescribed medicinal cannabis flowers. She smoked medicinal cannabis most days, although the pain was not relieved in full. Ms Bui also used traditional “cupping” to manage her pain. This process is undertaken by the claimant’s mother. The claimant was also prescribed Pregabalin between 75mg to 600mg without benefit. She had ceased this neuropathic pain treatment. She also used Mobic on occasion. In about 2018 she was provided with C5/6 CT guided cervical injections resulting in temporary amelioration of her pain.
Ms Bui attended her general practitioner who referred her to a psychiatrist. She was treated for recurrent major depressive disorder. She was prescribed Mirtazapine (Avanza) about 30mg at night. In 2020 she suffered from a deterioration in her mental state with increased severity of her depression.
Ms Bui attempted to commit suicide by overdose on medication. She reported multiple presentations to Campbelltown Hospital Emergency Department with suicidal ideation. The child and family team from the Department of Justice, NSW Government were notified. She was referred and treated at Northside Clinic Macquarie Unit, Campbelltown in 2019.
Family therapy was provided through Relationships Australia. She completed an outpatient psychological program for DBT provided by the hospital psychologist.
Ms Bui was treated with pharmacotherapy, Mirtazapine increased to 60mg at night, Belsomra 15mg at night, Melatonin 6mg at night and Diazepam 5mg if required for her recurrent major depressive disorder.
Her current medication regime is Mirtazapine 60mg, Clonidine 100mg at night and Diazepam 5mg if required.
Ms Bui continues to attend her psychiatrist, psychologist, and family therapist.
Ms Bui continued to have support from NDIS, her brother and her mother. There were no plans to increase the frequency or intensity of her psychiatric treatment.
Details of any relevant injuries or conditions sustained since the accident.
During 2022 the claimant fell at home and fractured her coccygeal bone. She has been conservatively managed for this new condition.
Ms Bui did not otherwise report any other relevant injuries or conditions sustained since the accident.
Mental state examination
Ms Bui was seated at home in the kitchen supported by her brother. Ms Bui was assessed by videoconference. Her hair was uncombed. The claimant’s right shoulder was marked with ecchymoses (blood staining under skin). Ms Bui stated her superficial skin bruising was caused by her mother performing traditional “cupping” to relieve pain.
Ms Bui was tearful during the re-examination. Rapport was difficult to establish and required active maintenance throughout the assessment to enable her to speak about her depression. She spoke slowly and deliberately with a normal volume of speech.
Ms Bui reported a depressed mood. She spoke about life being worthless and that she was not a good mother, as she wanted to be, to her son. Ms Bui produced a disorganised history. She had difficulty with her timeline of the onset of her symptoms. Ms Bui was angry that she did have a physical injury to her neck. She reported that she felt hopeless and ruminated that no surgical treatment could help. She stated her outlook was for further slow deterioration in her condition. She had lost her motivation and felt that she had little to offer her son. She was not interested in her future career or personal life. She had no plans to make new friends. She was not interested in exercise or attending the gym. She did not speak of anything providing her happiness or pleasure. She had lost interest in following popular music and movies. Her mother and brother’s attendance to her house did not provide her with happiness.
Ms Bui was orientated in time, place and person. She complained of difficulty concentrating for long periods. She did not prepare or cook meals. She did little in the house and felt too depressed to be able to recover from her injury.
Ms Bui was labile in her affect and repeatedly tearful during the assessment. She could re-compose herself when provided time. She did not report any psychotic symptoms or delusions. She was not suffering from any self-harm ideas or plans at the re-examination. Her judgment was normal. Her insight was normal.
Current symptoms
The claimant’s current symptoms of Persistent depressive disorder exacerbated by the accident are listed in bold:
“Persistent Depressive Disorder DSM5TR F34.1:
Diagnostic CriteriaA. Depressed mood for most of the day, for more days than not, as indicated by either her subjective account or the observation of others, for at least 2 years.
B. Presence, while depressed, of two (or more) of the following:
1. Poor appetite or overeating.
As evidenced by the claimant regularly missing meals due to loss of appetite.
At the re-examination the claimant had not eaten for two days.2. Insomnia or hypersomnia.
As evidenced by the claimant waking from sleep and difficulty initiating sleep.
At the time of the re-examination the claimant continued to use melatonin 6mg to help initiate sleep.3. Low energy or fatigue.
As evidenced by the claimant reporting daily low energy and fatigue.
At the time of the assessment the claimant had NDIS support for cleaning, her mother’s attendance for pre-cooked meals that were frozen and used as required, and the financial support of her brother who pays and contributes part of the cost of renting her house.4. Low self-esteem.
The claimant reported that she felt as if she had failed in her life and as a mother as she was only provided with ‘31% access to her son’ and only during school holidays.
5. Poor concentration or difficulty making decisions.
As evidenced by the claimant being unable to concentrate during the assessment with her wandering off topic and requiring prompting to remain on task. She reported loss of her ability to concentrate to perform the complex task of calligraphy and was unable to follow the narrative of television series.
6. Feelings of hopelessness.
As evidenced by the claimant declining surgical repair of her injury, as she was fearful of further failure of treatment and an inability to recover.
She said, ‘I have suffered for 7 years already, nothing can be done’.C. During the 2-year period (1 year for children or adolescents) of the disturbance, the individual has never been without the symptoms in Criteria A and B for more than 2 months at a time.
The claimant’s symptoms are chronic and she has not been without the symptoms for more than two months in the two year period.
D. Criteria for a major depressive disorder may be continuously present for 2 years.
As evidenced below.
E. There has never been a manic episode or a hypomanic episode, and criteria have never been met for cyclothymic disorder.
As evidenced by the absence of pre-existing manic, hypomanic or cyclothymic disorders recorded or reported as part of the claimant’s pre-existing psychiatric history.
F. The disturbance is not better explained by a persistent schizoaffective disorder, schizophrenia, delusional disorder, or other specified or unspecified schizophrenia spectrum and other psychotic disorder.
As evidenced by the absence of persistent schizoaffective disorder, schizophrenia, delusional disorder, or other specified or unspecified schizophrenia spectrum and other psychotic disorders in the claimant’s past psychiatric history.
G. The symptoms are not attributable to the physiological effects of a substance (e.g., a drug of abuse, a medication) or another medical condition (e.g. hypothyroidism).
(a)Whilst there is evidence of the use of cannabis by the claimant, there is no evidence that at any time the claimant’s use of cannabis was associated with further depression of her mood. The claimant’s use of cannabis was to relieve her distress and reduce her pain.
(b)The claimant is currently receiving treatment with medical cannabis.
(c)The Panel noted Medical Assessor Barrett’s reasons for her diagnosis of ‘marijuana use disorder’ were documented as ‘Subsequent to quitting her job, she reports an increase in marijuana use which she states she uses to manage pain. I consider it likely that she also uses marijuana for its calming and sedative effects and to manage affective dysregulation as a result of the psychiatric symptomatology. She would therefore also meet criteria for a marijuana use disorder.’”
The Panel noted that the current psychiatrist had diagnosed complex post-traumatic stress disorder. This diagnosis is not made as the claimant did not speak about her life being threatened by her ex-partner. She spoke about ongoing and persistent psychological abuse associated with vexatious complaints whilst claiming that the claimant is mentally ill, “gaslighting”. The Panel notes that these complaints by the claimant first presented before the accident and are part of her recognised pre-existing adjustment disorder with mixed anxiety and depressed mood.
Current functioning
Self-care and personal hygiene
Ms Bui relied on her mother to cook food for her most days. She reported that she could do small light cleaning such as vacuuming and tidying her room. She did not maintain her own laundry. She did not contribute to the garden, lawn or any other daily activities. She was able to shower and maintain her personal hygiene after prompting. The claimant was assessed as moderately impaired as she was unable to live independently without the support of her family and NDIS for the cleaning and maintenance of the house services.
Recreational and social activities
Ms Bui reported she had no interest in socialising outside of her family home. She reported that she wished for more time with her son. She reported she was less interested in watching television and listening to music as she no longer enjoyed these activities. She could play simple games and wanted to engage in more activities with her son when he was in her care. Ms Bui had ceased her art of calligraphy. She was assessed as moderately impaired for this table of functioning.
Travel
The claimant is not a licensed driver. She relies on the assistance of others to travel. She rarely leaves the house. She only travels as a passenger. She had not travelled overseas or interstate since the motor accident. The claimant was assessed as moderately impaired.
Social functioning
Ms Bui reported an ongoing supportive relationship with her mother and brother. She reported a strong bond with her son.
The claimant had separated permanently from her partner and father of her son. She was not talking to her ex-partner’s mother. Her son spent 69% of his time living in the home with his father and grandmother.
The claimant was assessed as moderately impaired for this table of functioning.
Concentration persistence and pace
Ms Bui reported she had stopped reading. She could not follow the character narratives and was not interested in movies or in television series. She could not concentrate to follow a recipe to cook. The claimant was assessed as moderately impaired for this table of functioning.
Adaptation
Ms Bui had not re-entered the workforce since this psychological injury led to her ceasing work in May 2017. Her initial attempt to continue her work role following her return to work after the accident failed. The claimant was provided with about 31% access to caring for her son. When caring for her son, she would provide many continuous days of care. She had been caring for her son throughout the current summer holiday season of 2023-2024. The claimant was erratic in her capacity to function in her primary role as mother. She received NDIS support. She had received family therapy. The claimant was assessed as severely impaired for this table of functioning.
Consistency
Ms Bui’s presentation was consistent with the available records.
The claimant’s concentration span was reduced. She progressed slowly and was able to re-compose herself after brief periods of tearfulness or distress throughout the re-examination.
DETERMINATION
Diagnosis and causation
The Panel concluded that the diagnosis that best provided a complete understanding of the claimant’s psychological injury caused by the accident was Persistent Depressive Disorder DSM5TR F34.1.
The claimant provided a full history of her life span, experience and memories both before and after the accident.
The claimant was able to accept that difficulties in her primary relationship with the father of her son and his mother began immediately after the birth of her son. The claimant had been assessed by her treating psychiatrist Dr Chan as having the onset of her domestic violence commencing in about 2015, about the time that the claimant was attempting to increase her time caring for her infant son. The claimant had a pre-existing history a major depressive disorder in 2009. The claimant developed an adjustment disorder with a reappearance of her anxiety and depressed mood caused by the domestic violence she was experiencing, prior to the accident in 2016.
In addition to the relationship difficulties the claimant had experienced a stressful work environment. Two months prior to the accident, on 10 February 2016 Dr Girgis reported she had been doing a lot of overtime, suffered from anxiety, felt burnt out, emotional at work, and whilst she had sought to resign she had been persuaded to continue and been promised promotion.
Following the accident the claimant had one month off work, before returning to work four hours a day upgrading to 7.5 hours a day.
The claimant suffered a relapse in her depressive disorder after the accident. On 5 May 2017 Dr Rosul reported the claimant’s anxiety was getting worse, she was going through a stressful time at work and in her personal life and not sleeping well due to radicular pain from the neck. The claimant resigned in May 2017 due to her physical injury and deteriorating psychological injury resulting from the accident.
She never recovered from that relapse. The claimant remained in psychiatric treatment. She was admitted to private psychiatric hospital for treatment of her persistent depressive disorder and her condition has failed to remit with extensive treatment and services provided by NDIS.
The claimant received multiple diagnostic statements from different treatment providers and assessors. The Panel undertook a close re-examination of the claimant’s condition.
The Panel accepts that the motor accident could cause persistent depressive disorder. The claimant’s experience was that her life was permanently changed by the accident in 2016. The pre-existing effects of the domestic violence via psychological abuse also increased. That is, the Panel finds, the pre-existing adjustment disorder with anxious and depressed mood contributed to the impairment assessed at the re-examination.
Whilst the claimant had consumed various amounts of cannabis in various settings she had met the necessary minimum criteria for cannabis use disorder prior to and after the accident.
Causation and reasons
In determining causation, the motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible.
The Panel finds not only could the accident have caused or contributed to the worsening of the impairment but given the claimant’s experience that her life was permanently changed by the accident in 2016 resulting in her increased used of cannabis the Panel is satisfied that it did contribute to a worsening of the impairment.
The claimant’s use of cannabis was to manage her ongoing pain resulting from the accident. At the time of the re-examination the claimant confirmed her use of medicinal cannabis for the ongoing treatment of chronic pain.
The Panel accepts that the use of medicinal cannabis by the claimant was with the intent of providing pain management. In this role medicinal cannabis is prescribed as pain management therapy. Under Guideline 1.215, the psychiatric assessment rating scale must not be used to measure impairment due to somatoform disorders or pain; for this reason, chronic pain is not assessable as part of this re-examination.
The claimant had a pre-existing psychiatric condition, namely a major depressive disorder in 2009. The major depressive disorder increased the risk of the claimant suffering from an adjustment disorder with mixed anxiety and depressed mood caused by her domestic violence. The prolonged psychological abuse suffered by the claimant commenced prior to the accident. The claimant developed a cannabis use disorder during the difficult time in her life.
At the time of the accident the claimant’s functioning was impaired. The Panel is satisfied there is objective evidence of a pre-existing symptomatic permanent impairment at the time of the accident.
INJURY
The following injury was caused by the accident:
· Persistent Depressive Disorder with persistent major depressive episode DSM5TR F34.1.
PERMANENT IMPAIRMENT
Permanent impairment is defined in the AMA 4 Guides (p 315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”The Panel agrees that the claimant’s psychological injury is now permanent. It is well stabilised and unlikely to change by more than 3% WPI within the next 12 months with or without medical treatment.
The Panel accepts that the psychological injury commenced more than seven years ago and that the claimant’s condition has not recovered.
The Panel accepts after this period of unresolved symptoms the claimant is unlikely ever to enter full remission at any time in the foreseeable future.
Degree of permanent impairment Psychiatric Impairment Rating Scale
The determination as to permanent impairment is made in accordance with the AMA 4 Guides and the Guidelines, version 1, effective from 1 June 2018.
Psychiatric diagnoses Persistent Depressive Disorder DSM5TR F34.1. Psychiatric treatment description The claimant had received psychiatric treatment from her general practitioner, psychologist, psychiatrist, family therapist, and as an inpatient of a private psychiatric hospital as well as making repeated presentations to the local public hospital with suicidal thoughts and overdosing on medication. She is compliant with her prescribed medication. She continues to use Mirtazapine 60mg, Clonidine 100mcg and Diazepam 5mg with Melatonin 6mg at bedtime.
Category Class Reason for Decision 1. Self-care and Personal Hygiene 3 The claimant relies on her mother to cook food for her most days. She reported that she could do small light cleaning such as vacuuming and tidying her room. She did not maintain her own laundry. She did not contribute to the garden, lawn or any other daily activities. She was able to shower and maintain her personal hygiene after prompting. The claimant was assessed as moderately impaired as she was unable to live independently without the support of her family and NDIS for the cleaning and maintenance of the house services. 2. Social and Recreational Activities 3 The claimant reported she had no interest in socialising outside of her family home. She reported that the wished for more time to be with her son. She reported she was less interested in watching television and listening to music as she no longer enjoyed these activities. She could play simple games and wanted to engage in more activities with her son when he was in her care. The claimant had ceased her art of calligraphy. The claimant was assessed as moderately impaired. 3. Travel
3 The claimant is not a licensed driver. She relies on the assistance of others to travel. She rarely leaves the house. She only travels as a passenger. She had not travelled overseas or interstate since the motor accident. The claimant was assessed as moderately impaired for this table of functioning. 4. Social Functioning
3 The claimant reported an ongoing supportive relationship with her mother and brother. She reported a strong bond with her son.
The claimant had separated permanently from her partner and father of her son. She was not talking to her ex-partner’s mother. Her son spent 79% of his time living in the home with his father and grandmother.
The claimant was assessed as moderately impaired for this table of functioning.5. Concentration, Persistence and Pace 3 The claimant reported she had stopped reading. She could not follow the character narratives and was not interested in movies or television series. She could not concentrate to follow a recipe to cook. She had ceased her hobby of calligraphy. The claimant was assessed as moderately impaired for this table of functioning. 6. Adaptation
4 The claimant had not re-entered the workforce since ceasing work as a result of this primary psychological injury. Her initial attempted to continue her work role failed. The claimant was provided with about 31% access to caring for her son. When caring for her son, she would provide many continuous days of care. She had been caring for her son throughout the current summer holiday season of 2023-2024. The claimant was erratic in her capacity to function in her primary role as mother. She received NDIS support. She had received family therapy. The claimant was assessed as severely impaired for this table of functioning. List classes in ascending order: 3, 3, 3, 3, 3, 4 Median Class Value: 3 Aggregate Score: 19 % Whole Person Impairment: 24% Assessment of pre-existing impairment
Psychiatric diagnoses Adjustment disorder with mixed anxiety and depressed mood DSM5TR F43.23.
Cannabis Use Disorder DSM5TR F12.10
Major Depressive Disorder in full remission DSM5TR F33.5Psychiatric treatment description The claimant had received psychiatric treatment from her general practitioner. She was prescribed mirtazapine 15mg at night. She was treated with the support of her employee assistant program, psychologist and had completed about 12 sessions of psychological treatment.
Category Class Reason for Decision 1. Self-care and Personal Hygiene 2 The claimant relied on her ex-partner’s mother to cook food for her most days. She reported that she could do some cleaning such as vacuuming and tidying her room. She did maintain her own laundry. She did not contribute to the garden, lawn or any other daily activities. She was able to shower and maintain her personal hygiene without prompting. The claimant was assessed as independent in her self-care and personal hygiene. This is a mild impairment. 2. Social and Recreational Activities 2 The claimant reported she had no interest in socialising with the members of her household where she lived. She was able to complete a calligraphy course as a recreational activity. The claimant was assessed as mildly impaired for this table of functioning. 3. Travel
1 The claimant attempted to learn to drive but had not completed this process prior to the motor accident. She was able to travel to new locations without a support person, alone. The claimant was assessed as having a minor impairment for this table of functioning. 4. Social Functioning
3 The claimant had experienced an extended period of psychological abuse. She stated she would be accused of being crazy. She had experienced domestic violence due to the psychological abuse and gaslighting she experienced after the birth of her son.
The claimant was assessed as moderately impaired for this table of functioning.5. Concentration, Persistence and Pace 2 The claimant reported she had made errors at work. She reported that her concentration was less as she was attempting to leave her employer. She could concentrate for up to 30 minutes’ before requiring breaks. The claimant was assessed as mildly impaired for this table of functioning. 6. Adaptation
4 The claimant’s capacity to function in her role as mother was affected by her cannabis use disorder. The father of her child, and fraternal grandmother, were providing increased and ongoing care for the child. The claimant was required to perform extended hours at work. On the weekends the claimant was smoking about 8 cones of cannabis each day. This would make her capacity to function as a mother erratic. The fraternal grandmother had taken the infant into her bedroom to supervise his sleep. The claimant was experiencing work stress prior to the accident and had even offered her resignation although she was persuaded to remain and offered promotion. The claimant was assessed as having a severe impairment for this table of Adaptation. List classes in ascending order: 1, 2, 2, 2, 3, 4 Median Class Value: 2 Aggregate Score: 14 % Whole Person Impairment: 7%
Apportionment – pre-existing
The apportionment for pre-existing impairment was assessed as 7% WPI.
Effects of treatment
Guideline 1.224 states the adjustment for the effects of treatment does not apply to the use of “pain management”. Accordingly, no adjustment will be made for the effects of the medicinal cannabis in assessing whole person impairment of the assessable psychological injury.
In any event the Panel concluded the effects of treatment experienced by the claimant was Nil. The claimant remained symptomatic at the time of the re-examination.
No adjustment is made for the effects of treatment.
CONCLUSION – PERMANENT IMPAIRMENT
The Panel noted an arithmetic error in the certificate of Medical Assessor Barrett where she had reported a 13% WPI. This is because the aggregate score of 17 converts to a 19% WPI and not 13% as recorded by Medical Assessor Barrett. The correct assessment reached by Medical Assessor Barrett was 19% WPI minus 1% WPI plus 1% WPI equals 19% WPI and not 13% as recorded in her certificate dated 3 August 2022.
The Panel certifies the claimant has a current assessment of 24% WPI and after adjusting the assessment by 7% for the pre-existing impairment Ms Bui has sustained a 17% WPI caused by the accident.
The Panel revokes the certificate of Medical Assessor Barret dated 3 August 2022 and issues a new certificate determining that the following injuries were caused by the accident and give rise to a WPI of 17%:
· persistent depressive disorder.
0
0
0