Insurance Australia Limited t/as NRMA Insurance v CMK
[2025] NSWPICMP 145
•6 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v CMK [2025] NSWPICMP 145 |
CLAIMANT: | CMK |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Brett Williams |
MEDICAL ASSESSOR: | Christopher Canaris |
MEDICAL ASSESSOR: | Matthew Jones |
DATE OF DECISION: | 6 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment under 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%; where Medical Assessor certified that post-traumatic stress disorder (PTSD) and persistent depressive disorder caused by the accident gave rise to a permanent impairment of 15%; Held – the claimant developed PTSD as a result of the accident; the PTSD gave rise to a 5% permanent impairment; certificate of assessment revoked and new certificate issued certifying that the degree of permanent impairment of the claimant that has resulted from the psychological injury caused by the accident is not greater than 10%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Nagesh dated 8 September 2023. 2. Certifies that the degree of permanent impairment of the claimant as a result of the post-traumatic stress disorder caused by the motor accident on 11 January 2019 is not greater than 10%. |
STATEMENT OF REASONS
BACKGROUND
The Panel is conducting a review of the assessment of Medical Assessor Nagesh dated
8 September 2023 (Review). Medical Assessor Nagesh’s assessment related to a dispute between CMK (claimant) and Insurance Australia Limited t/as NRMA Insurance (insurer) about the degree of permanent impairment that has resulted from psychological injury caused by a motor accident on 11 January 2019 (accident), including whether the degree of permanent impairment is greater than 10%.
The dispute arises in the context of a claim made under the Motor Accident Injuries Act 2017 (MAI Act). The dispute is about a medical assessment matter and is a medical dispute: Sch 2 cl 2(a) and s 7.17 MAI Act.
The dispute was referred to Medical Assessor Nagesh for assessment. The Medical Assessor certified that post-traumatic stress disorder and persistent depressive disorder that were caused by the accident gave rise to a permanent impairment of 15%, and that the permanent impairment was greater than 10% (Assessment).
The insurer subsequently made an application under s 7.26 of the MAI Act for referral of the Assessment to a review panel. The President’s delegate subsequently found that there was reasonable cause to suspect that the Assessment was incorrect in a material respect, and referred the application to a review panel. The Panel was 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: Rule 128.
Version 9.3 of the Motor Accident Guidelines (Guidelines), effective from 6 December 2024, apply to the Review.
DIRECTIONS
On 3 September 2024 the Panel directed the parties to provide a joint agreed indexed bundle that contained all material relied on by the parties for the purposes of the Review, together with the written submissions relied on for the purposes of the Review. The joint bundle was provided. Written submissions were not provided as directed.
On 12 November 2024 the Panel informed the parties that re-examination of the claimant was required, that the examination would be conducted by Medical Assessors Canaris and Jones on behalf of the Panel, and would take place by MS Teams on 12 February 2025.
The Panel noted that neither party had complied with the directions it made on
3 September 2024 for the provision of written submissions for the purposes of the Review, and made further directions for the provision of written submissions.
The Panel gave the parties notice that it would not consider the submissions included in the joint bundle.
STATUTORY FRAMEWORK
No damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%: s 4.11 MAI Act.
If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2) Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Psychiatric impairment caused by mental and behavioural disorders is assessed in accordance with cls [6.201]-[6.228] of the Guidelines: cl 6.35.
ASSESSMENT UNDER REVIEW
Medical Assessor Nagesh gave a certificate and reasons dated 8 September 2023. As recorded earlier, the Medical Assessor certified that: post-traumatic stress disorder and persistent depressive disorder that were caused by the accident gave rise to a permanent impairment of 15%, and that the permanent impairment was greater than 10%.
The claimant reported no pre-accident history of mental illness and that prior to the accident her life was fine. The claimant said she was working five days per week; had a good social life; was able to independently attend big group social events; was independent with self-care; and had no problems driving or travelling. Her attention and concentration was good, and her relationship with her partner was good.
In terms of the circumstances of the accident, the claimant reported that she was at a pedestrian crossing, waiting for the green light. She looked to her left and started walking, and a car came through and hit her. She reported being hit at a speed of 50kmph, that she flew in the air, lost consciousness briefly, and woke up with people around her trying to help. An ambulance was called, and she was taken to St George Hospital where she was admitted for three days. She sustained nine rib fractures.
The claimant reported that six months to a year later she noticed psychological symptoms, loss of confidence, and being anxious when she saw cars. She could not drive, her sleep was affected, she had nightmares reliving the accident, and flashbacks. Pain affected her mood. She was irritable, would have mood swings, her self-esteem was low, she was angry towards the person who caused the accident, and felt the world is an unsafe place. She reported being hypervigilant when waiting for the traffic signal, that she has avoided the accident site completely, her appetite was affected, she has gained weight, and could not start her family because of the accident. She has no interest in anything, feels tired, has no energy to do anything, can’t do much walking, doesn’t enjoy going to bars or listening to music, is angry all the time, worries about death, and thinks how life can be taken so easily.
The claimant reported that she has seen her general practitioner (GP) where she was provided with supportive counselling. She was referred to a psychologist and saw the psychologist in 2019 for 12 sessions.
The claimant reported that her current symptoms included that her mood is low, she is irritable, anxious, numb, and emotionally detached. Her sleep was better. Her appetite was okay, her energy levels remained low, she lacked confidence, had low self-esteem, anhedonia, flashbacks, relived the trauma, worried a lot, had nightmares, hypervigilance while walking, and avoided going past the accident scene. Little things annoyed her, she was on edge all the time, had poor frustration tolerance, struggled to watch TV, lacked energy and motivation and remained socially withdrawn.
The Medical Assessor also recorded details of the claimant’s functioning at the time of the assessment. He did not identify any inconsistency at the time of assessment. The Medical Assessor was satisfied that the diagnostic criteria for both post-traumatic stress disorder and persistent depressive disorder were met. He found that these conditions had been caused by the accident.
Medical Assessor Nagesh provided his reasons for assigning the various classes to each psychiatric impairment rating scale (PIRS) category, and assessed a 15% permanent impairment.
EVIDENCE
The evidence relied on by the parties in the Review is contained in a joint bundle. The Panel has considered all the material in the bundle.
Medico-legal evidence
Dr Robin Mitchell, occupational physician, reported to the insurer on 10 June 2020. The claimant gave a history that she was struck by a vehicle when she was on a pedestrian crossing, and was thrown 4 or 5m onto the ground, landing on her right side. She reported that she had pain in her neck, right shoulder, right ribs, both legs, right eyebrow and subsequently developed psychological issues, following the accident.
The doctor recorded a history of post-accident symptoms, treatment, and progress. The claimant reported that she continued to work on a full-time basis, and was “managing her pre-injury duties”. The claimant gave a history that she had been able to manage her pre-injury duties after remaining off work for a period of approximately four weeks immediately following the accident. She resumed on a restricted duties basis for a period of time.
In the doctor’s opinion the claimant had made a good recovery from fracture injuries to a number of ribs and her clavicle, as well as soft tissue lacerations to the left forehead and both legs. She has a degree of significant scarring over the anterior aspect of the left knee joint and the proximal left lower leg. The clavicle fracture has healed, and she retains a full range of movement of the right shoulder joint in all directions. The rib fractures have fully healed by bony union.
In Dr Mitchell’s opinion the claimant retains the capacity to carry out full-time administrative work including her pre-injury duties. He recorded that there was no evidence of any obvious psychological symptoms at the time of assessment. The only impairment assessed related to scarring. There was 0% impairment of the cervical spine and right shoulder.
Dr Mitchell reported again on 26 July 2022. The claimant reported that she continued to experience pain and reduced movement in the right shoulder, aggravated by any arduous right hand activities, as well as pain over the left upper leg and hip region, aggravated with any prolonged walking. The neck and chest fracture symptoms previously experienced have resolved. She is fully independent with respect to her personal activities of daily living. The doctor reported that there had been no significant changes since his prior assessment, apart from a mild improvement in her physical condition with respect to the left hip and her functional capacities. She continued to manage her pre-injury duties on a full-time basis.
In the doctor’s opinion the claimant retained the capacity to carry out full-time administrative work including her pre-injury duties. Her prognosis “judged by her further significant recovery” was good. The doctor assessed impairment as a result of the right shoulder injury and scarring.
Dr James Bodel, orthopaedic surgeon, reported to the claimant’s solicitor on
11 September 2020. The doctor noted that the claimant worked full time as a sales and service consultant for NRMA Insurance. The doctor recorded a history of the accident, post-accident progress and treatment. The claimant reported ongoing neck, right shoulder, lower back, and left hip pain. He diagnosed a fracture of the clavicle, rib fractures on the right hand side and soft tissue contusions and lacerations, together with greater trochanteric bursitis in the left hip.
In Dr Bodel’s opinion the claimant’s prognosis was reasonable. She was off work for a number of weeks, slowly upgraded over 3-4 months, and had then returned to her pre-injury work. The doctor assessed impairments of the right shoulder, cervical spine, left hip and scarring.
Records from treatment providers
Clinical reports from St George Hospital confirm that the claimant was taken to the hospital by ambulance following the accident. She was admitted and discharged on 13 January 2019. The emergency department assessment records that the claimant was a pedestrian who had been hit by a car while crossing the road, and was thrown 5m. She reported right shoulder pain, bilateral lower limb pain and had a right eyebrow laceration. A right clavicle X-ray identified a closed distal fracture. X-rays of the knees were performed and there were “NAD”.[1] The progress notes record that there was “no LOC”.[2] The discharge referral records that the claimant’s major injuries included left rib fractures in ribs 3-6 and a right clavicular fracture.
[1] No Abnormality Detected.
[2] Loss Of Consciousness.
Records from Randwick Doctors Medical Centre were printed on 24 November 2020. An entry in the progress notes on 13 August 2018 records that the claimant was a new patient. She attended the practice on 7 February 2019 an gave a history of having been hit by a car while crossing a road. She suffered a right distal 1/3 clavicle fracture, right multiple rib fractures, lacerations to her right arm, left knee, and leg. The claimant reported pain and discomfort in her right clavicle and shoulder. Her sleep was disrupted at times due to pain. The progress notes also include reference to the following:
(a) 14 February 2018 – “working 2 days a week currently going well…keen to increase her hours at work…”
(b) 19 February 2019 – “trialled return this week but it aggravated her right arm/clavicle pain so wants to re-trial return in 2 wks”
(c) 4 March 2019 – “Has been at work 2 days per week Had ergonomics desk/chair assessment and was advised to try use her left hand- finding this difficult Mild discomfort on days she is working with no residual pain following day…”
(d) 16 March 2019 – “Intermittent right upper chest pain, right upper back pain, right upper arm pain…”
(e) 1 April 2019 – “…Working 3 days/week not driving to work…”
(f) 15 April 2019 – “…Ongoing left deep hip pain worse with flexion and movements eg getting up from chair…”
(g) 2 May 2019 – “…Keen to increase work to 4 days/week…”
(h) 20 May 2019 – “…Returned to full work hours…”
(i) 27 May 2019 - “…Avoidance behaviours at site of MVA Irritability at home with husband Discussed for psychological counselling Referral provided…”
(j) 20 June 2019 – “…working 4 dys 8 hours but next 2 wks would like to trial 5 dys 8 hrs…”
(k) 8 July 2019 – “…Has returned to full time work for the last 2 weeks and manging [sic] OK No limitations at work - desk job at NRMA Given certificate for further 2 weeks until review 18/7/19 Can consider return to pre injury duties at next visit…”
(l) 13 July 2019 – “…Busy with full time work this is an issue with attending appointments…”
(m) 27 July 2019 - "… Right shoulder much improvement in ROM Doing home exercises in shower Left hip pain also improved Able to walk regularly no significant issues Only issue is sitting down or with crossed legs Will return for physio and Endermologie Keen to return to work 5/7 driving to work no issues…”
(n) 7 August 2019 – “…3 weeks ago returned full hours and full duties. Suction quads with Maria Veracruz. Pt reports good effect on hips. Still can't sleep properly…”
(o) 20 August 2019 – “…Doing regular walking for exercise Keen to get back to the gym Keeping active where possible No issues with work Some mild low back pain for 2/7 after period recently ended For usual hours at work 8 hours per day/5 days per week…”
(p) 10 September 2019 – “…No issues with work…”
(q) 29 October 2019 – “…Right shoulder much improved ROM… Ongoing left hip pain worse with certain seated positions… Working from home 3-4 days/week 5 days total Next review in 3/52 time on 19/11/19 consider for 4 days/week then in order to allow for regular allied health appointments…”
(r) 28 December 2019 – “…Psychologist review 17/1/20…”
(s) 28 January 2020 – “…Psychologist review 5/2/20…”
(t) 25 February 2020 – “…Next psychologist review 25/3/20…”
(u) 24 March 2020 – “…Next psychologist review 25/3/20…”
(v) 21 April 2020 – “…Working from home 5/7 per week due to Covid-19 risk …Next review with psychologist 22 April 2020 via phone consult…”
(w) 21 May 2020 – “…Ongoing left hip pain which limits her walking distance Otherwise good recovery and back to full time work - currently working from home…”
(x) 14 July 2020 – “…No significant change from last review or anything new to report Right shoulder close to full ROM except for mildly restricted internal rotation Deep left hip pain no clicking Exercises daily 45-60 mins walking, occasional stretching at home …Working all pre-injury hours with no significant issues Feels she is at 80% of usual function compared with pre-injury No recent contact with case managet [sic] … Psychologist- monthly sessions, next due 29/7/20 face to face…”
(y) 11 August 2020 – “…No significant pain or functional impairment Able to work full-time 5/7 per week currently at home due to Covid-19 restrictions Exercising daily by walking Harbours concerns and fears of injury occasioning death affecting her family members Denies depression/anxiety or significant psychological distress… Discussed maximum medical management which has reached ceiling of treatment Close CTP claim today To continue psychological counselling with Peter Cox for 2 further sessions then cease…”
The records from Randwick Doctors Medical Centre also include various test results, referrals, radiological reports, and certificates (including certificates of capacity/fitness).
There is a referral to Beverly Tow dated 27 May 2019 for psychological counselling and mental health assessment. Another referral was made on the same date to Peter Cox for “psychological counselling for possible PTSD following an MVA”.
Records from Peter Cox, psychologist, confirm that the claimant had been referred for treatment by Dr Lim. The notes include references to: anger and irritation with driver; fear of death, and hypervigilance and avoidance in the context of traffic and roads.
In a report to Dr Lim dated 31 July 2019, Mr Cox recorded that the claimant presented with moderate severe anxiety and stress symptoms following the accident. She reported becoming more angry and intolerant, and was hypervigilant and reactive to people doing the wrong things. She tended to feel stressed more easily. Her DASS21 score suggested that she experiences anxiety in some situations. Therapy involved CBT. The provisional diagnosis was an adjustment disorder with anxious mood.
The DASS21 scores, as recorded on 26 June 2019, have been considered by the Panel.
The NSW Ambulance report created on 11 January 2019 records that the claimant was taken by ambulance from the scene to St George Hospital. The case description included the following:
“…pt states was crossing road when hit by a car., pt has full reall [sic] of event – no LOC. pt thrown through the air per witness approx. 4-5 meters…”
The reports include reference to injuries to the claimant’s right elbow, left eyebrow, left knee and shin, right scapula and right shoulder.
The various radiological reports contained in the joint bundle have been considered by the Panel.
Other evidence
An application for personal injury benefits dated 19 January 2019 contains a description of the accident and records the injuries that were sustained as a result. The injuries described are all physical.
The liability notice dated 23 November 2020 records that the insurer admitted liability for the damages claim. Correspondence from the insurer’s solicitor dated 19 August 2021 states that the insurer denied the claimant was entitled to damages for non-economic loss. By correspondence dated 26 May 2022 the insurer confirmed that a review of its decision in relation to the claimant’s entitlement to non-economic loss damages had been conducted and the decision had been affirmed.
Particulars provided by the claimant’s solicitors on 11 February 2021 refer to physical injuries. There is also reference to the claimant’s intention to rely on reports from a psychiatrist.
SUBMISSIONS
Insurer’s submissions
The insurer’s written submissions provided for the purposes of the Review dated 27 November 2024 address the various PIRS categories and the classes it submits should be assigned to each category.
The insurer submits that:
(a) there is “no evidence to suggest” Medical Assessor Nagesh’s assessment of class 2 impairment for self care and personal hygiene, travel, and social functioning is incorrect, and
(b) there should be “no issues beyond class 2 impairment” for concentration, persistence and pace.
With respect to adaptation, the insurer argues that as the claimant was able to return to work in her full pre-accident capacity by at least July 2019, some six months post-accident, and was able to “maintain this for a long period of time (until, at least, the birth of her daughter when she took maternity leave)”, a finding of class 1, or “at the most” class 2, impairment should be assigned to this category.
Claimant’s submissions
The claimant’s submissions dated 5 May 2022 record that in addition to various physical injuries, she suffered “psychological sequalae” as a result of the accident, and that she experienced pain, sleep disturbance and was anxious. Her submissions dated 8 June 2022 are in similar terms.
In submissions dated 15 November 2023 the claimant argued that the insurer’s submissions in support of the review are “misconceived”, and that there is no error in Medical Assessor Nagesh’s assessment. In her submission, the material on which the insurer relies does not support the proposition that she “was able to return to work on a full time basis and maintain this until she went on maternity leave”. She argues that there is “no such evidence”, and that there is no error in the Assessment. She submits that the insurer’s application for review should be rejected.
In response to the Panel’s directions the claimant refiled her submissions dated
15 November 2023.
RE-EXAMINATION
The claimant was re-examined by Medical Assessors Canaris and Jones (Medical Assessors) on 12 February 2025. The report prepared by the Medical Assessors following the re-examination follows.
The Medical Assessors interviewed the claimant via audio-visual link through the MS Teams platform. The quality of the connection was sufficient to complete the assessment.
The claimant was informed that the examination was for the purpose of assessment and not for treatment. She was also informed that the contents of the examination would not remain confidential. She indicated she understood the limits of confidentiality and consented to continue with the examination.
Introduction
The claimant has lived in her current accommodation for approximately two years. She lives there with her partner and their daughter. The claimant reported she is currently in employment, working in Sales and Service for NRMA. She has been working from home, however the week after the assessment she is due to return to one day a week in the office.
The claimant’s employment is permanent. She has worked for NRMA for approximately 20 years. She has a part-time arrangement. On days she works, she works from approximately 8.00am to 5.00pm. She reported that she enjoys the work that she does.
Current treatment
The claimant reported she takes Nurofen occasionally for pain. She has suffered from endometriosis, which is particularly bad during her menstrual cycle. She is not seeing anyone regularly for treatment of this. She reported that she is not currently seeing any psychologists or psychiatrists for treatment and is not taking any psychiatric medications.
History of the motor accident
The claimant confirmed the date of accident was 11 January 2019. She said the accident occurred during her first week back at work after the Christmas holidays. She reported she was walking to her parked car, had stopped at the pedestrian crossing at traffic lights, where there was a red indicator. The indicator turned green, she looked to her left and started walking. A car struck her, and this car had gone through a red light. She reported being thrown a few metres. She remembers that she was unsure of what had happened until she landed on the ground. The car hit the right side of her body and she fell to the ground on her left side. When she landed she realised she had been hit by a car and she immediately felt pain around her abdomen.
The claimant reported that an ambulance was called to the scene, and she was assessed, placed in the ambulance and transported to St George Hospital. She believes the accident occurred on a Friday and she was discharged from hospital on the Monday, having spent about three days there.
History of symptoms and treatment following the accident
The claimant reported that she fractured her collarbone and also had fractured ribs. She later developed a frozen shoulder. From the accident she had soft tissue tears in her shoulder, and also had various bruises and cuts, as well as a dent in her head. She also developed bursitis in her hip.
The claimant has undergone no surgery related to her injuries. She underwent physiotherapy on a weekly basis for many months. Her frozen shoulder developed a couple of months after the accident. She said that her hip and shoulder gave her the most problems as she was unable to move or shower for a long period. She reported she still has decreased mobility and her shoulder hurts when she moves her arm and she can feel the pain inside her shoulder. She can sometimes improve her experience of pain by finding a certain position of her shoulder. She finds that her hip causes her pain when it is in an unusual position or when she walks for a long period. The claimant reported she has received no injections related to her pain.
The claimant said that her ribs have healed, however she can feel something unusual in her collarbone. With respect to specific limitations that her shoulder and hip injuries cause, the claimant reported that she cannot hang laundry on her large clothesline and needs to use a small portable line. She said she can feel her shoulder hurting when she shakes clothes. She also feels pain when she turns in certain positions on the couch or turns over in bed. If she stands at the sink or is cooking for too long she also experiences pain. She said she has particular difficulties when reaching and carrying things overhead. She reported she is able to walk, but not long distances.
The claimant reported that she has some problems putting on cardigans or jackets but does not have specific difficulty brushing or washing her hair. She has noticed that it is particularly challenging putting her daughter in the car seat, and removing her from the car seat. She has difficulties when carrying her daughter for too long.
The claimant noted that she had developed bursitis in her left shoulder which she believes is from compensating from not using her right arm as much.
When the claimant was asked what specific mental health problems she noticed following the accident, she said that at first she felt angry, and gradually over time her mental health got worse. She started to ruminate about the fact that an accident such as that could happen and that she could die “any second” or her child could die. She found herself in a constant state of fear, which she said has gotten worse over the last couple of years. She has persistent thoughts such as, “any time or any day someone could die.”
The claimant reported she also noticed that she started thinking about how she had been meant to start the IVF process to have children earlier, however the accident and her injuries “delayed everything” and she feels that she has been “robbed of a second child.” She said she is now no longer able to have a second child as she is almost 45 years old and has had problems with endometriosis.
The claimant reported that she started feeling numb and she felt as if she was “just here.” She was asked about any re-experiencing phenomena and reported that she experienced flashbacks of the accident and said she had not been able to go back to where the accident occurred. The claimant reported she has been near the accident site, but has not been on the side of the road where the accident occurred. She reported the accident site is not far from her workplace. She described the flashbacks as the experience of something hitting her and her body jolting and not knowing what was coming. She reported she has visual replays of the accident, from her point of view, and when this happens, she feels as though she is standing there and feeling pressure on her body. She said this has occurred whenever she thought about the accident and these symptoms became prominent about a year after the accident. She said the frequency of these symptoms has decreased; however she still has that feeling of pressure on her body and flashbacks, but no longer daily. She reported she no longer spends a lot of time remembering the accident, but does have flashbacks from time-to-time.
The claimant reported that soon after the accident she had problems driving, however these problems have not persisted. She is now happy to drive anywhere, however not long distances. She commented that she does not like going up and down hills or on winding roads, and she gave an example of the roads near Kiama. She said she can drive for approximately one and a half hours. She reported she has been able to occasionally use public transport but does not need to currently. She said she can tolerate being a passenger in a car.
The claimant reported she saw a psychologist, Peter Cox, for six to ten sessions, which she did not find helpful. When asked why she thought the psychological therapy was not helpful, she stated that the treatment occurred soon after the accident and she thinks she was not taking things in as best as she could. Around that time, she was seeing multiple doctors for other reasons. She said that if she went now, things might be different. She has not seen anyone since for psychological treatment. She thought she was unable to see anyone because this treatment was not approved. She reported that she now believes she does need to see someone. She reported she has a new regular GP since moving.
When asked whether she thought she needed specific medications for her mental health problems, she said she does not like the idea of taking them.
Psychiatric history
The claimant denied any history of mental health problems. She specifically had never been diagnosed with anxiety, depression, psychosis, obsessive compulsive disorder or ADD/ADHD. She had never been admitted to a psychiatric hospital and had never seen a psychologist or psychiatrist for treatment. She denied any family history of significant mental health problems.
Substance use
The claimant reported she will drink alcohol, but not every week. She likes to drink a shandy or red wine. She will have a maximum of two or three drinks in a session. She denied any gambling problems or any addiction to prescription medication. She does not ingest excessive caffeine, having only one coffee per day.
Current functioning
The claimant reported she has good relationships with her mother and her sister. She reported she does not visit them very often. The claimant’s father died 12 years ago, and she was very close with him. Her parents separated when she was 18 years old and she continued relationships with both her father and her mother.
The claimant reported she has friends who include workmates, but also friends she has kept from school. She reported that, socially, she goes out occasionally for dinner, or out for a meal with her workmates. She reported she does not entertain at home.
The claimant reported she has no particular interests or hobbies and to pass time she will watch Netflix, for example, The Housewives of Beverley Hills, but finds that she gets up and down a lot when watching. She said this is not due to physical discomfort. She reported she is not much of a reader anymore.
The claimant reported she is getting on with her partner, however they “fight sometimes.” She said these arguments may be about things not being done in a certain way, or when either of them feels the other one is angry. She said she does not like being shouted at. She reported she feels “on edge” when someone raises their voice, or someone has a demeanour indicative of anger. She said she does not have particular intolerance to loud noises.
The claimant attended a mother’s group every month after her daughter was born, however she now no longer goes to that group, but meets up with one of the other mothers every two months or so.
The claimant is currently working permanent, part-time, approximately 56 hours per fortnight. She reported her work involves following-up on client enquiries and taking inbound calls. Her work covers all of Australia except Victoria. The claimant was asked why she was not working more hours. She said that she was working full-time prior to the accident, and for a few months following the accident she did not work. She returned to part-time work, approximately half hours, and then returned to full-time work approximately a year after the accident. After her daughter was born, she took 12 months maternity leave and returned to work on the hours that she is currently performing. She reported she needs to work more for financial reasons, but would like to work less and spend more time with her daughter. She reported she does not want to go back to full-time work currently and does not feel like working full-time at present. She reported that she feels generally too tired, thinking about everything that she is feeling.
Current symptoms
When asked about her mood, the claimant reported she feels like she is not herself. She feels in a constant state of panic and feels like she is “just here” and not enjoying her daughter as much as she would like. She denied the experience of panic attacks. She reported she feels sad sometimes that she is not more present than she used to be. She finds that she is not taking her daughter out and doing things with her, and she feels like she just wants to stay home. She said that they do go out sometimes, however it feels like it is a huge effort to get everything ready.
The claimant reported her sleep is “not too bad”, however she will wake occasionally. Her sleep was, overall, “pretty good.” She does not experience nightmares about the accident, however can sometimes have nightmares about earthquakes or a tsunami approaching. She said these do not occur every month, perhaps every two months. She reported she has an appetite and weighed 58kg prior to the accident and now weighs 73kg. She reported her weight was “creeping up” slightly prior to the accident.
When asked, the claimant said she has sufficient energy to get through the day. She does not sleep in the daytime. She reported that her memory “could be better” and she may have problems remembering some things, for example what happened a month ago. She described her concentration subjectively as “not too bad.”
Mental state examination
The claimant’s appearance was consistent with her stated age. She was engaging in the process and there were no signs of neglect. There was no abnormality of speech and no evidence of formal thought disorder or delusional thought processes. There was no evidence of any thoughts of self-harm or thoughts of harm to others. Her mood was mildly depressed and her affect (expressed emotion) was reactive, congruent and appropriate. She came across as generally euthymic, although slightly depleted. There was no evidence of any psychotic phenomena. The claimant’s cognition, insight and judgement appeared intact in the context of the assessment. Rapport was established and the claimant spoke openly and freely. She came across as a genuine historian. The re-examination had a duration of approximately 60 minutes.
Diagnosis
The claimant reported a narrative and presented at assessment as consistent with having a DSM 5 psychiatric diagnosis of post-traumatic stress disorder, in partial remission. This diagnosis is not inconsistent with her early presentation to psychologist, Peter Cox. It is also consistent with the diagnostic findings of Medical Assessor Nagesh, who diagnosed post-traumatic stress disorder and persistent depressive disorder.
The claimant reported a history of having experienced a traumatic and potentially life-threatening accident (criterion A). She reported a history of developing re-experiencing phenomena, perhaps as late as a year after the accident, including dissociative reactions such as flashbacks, whereby she felt and saw the accident occurring again. She also reported distressing nightmares that were not specifically about the accident but had an affect of being threatened or impending doom (criterion B). The claimant reported that initially she avoided driving, but worked her way back to being able to do this. She has also avoided the scene of the accident and has never been back to the exact site of the accident, despite it being near her workplace (criterion C). The claimant reported that she has had diminished interest in participation in activities, has not wanted to leave the home at times, has been less involved with caring for her daughter (at least reduced activities), and often feels detached and not present experiencing a persistent negative emotional state, particularly of anger, following the accident (criterion D). The claimant, although she may now be in partial remission (she does have ongoing symptoms that have reduced somewhat), from the information available, experienced full diagnostic criteria for post-traumatic stress disorder for a period of significantly more than one month (criterion F). The claimant’s symptoms caused significant distress as well as impairment in social and other important areas of functioning, including with respect to strain in her relationship with her husband and her reduced ability to parent as she had expected (criterion G). The claimant’s symptoms are not attributable to the physiological effects of a substance or another medical condition (criterion H). Her post-traumatic stress disorder would be considered to be with delayed expression given that the full diagnostic criteria were likely not met for a period of at least six months after the accident, although she developed some key symptoms soon after the accident.
Causation
The timing, nature and development of symptoms is entirely consistent with the motor vehicle accident being the cause of the claimant’s post-traumatic stress disorder. She was previously psychiatrically well and there were no other unrelated events that would explain her symptomatology.
DEGREE OF PERMANENT IMPAIRMENT
| Psychiatric diagnoses | 1. Post Traumatic Stress Disorder (in partial remission) | 2. |
| 3. | 4. | |
| Psychiatric treatment description | Nil currently | |
| Category | Class | Reason for Decision |
| 1. Self-Care and Personal Hygiene | 1 | No deficit The claimant reported she is independent with respect to her self-care and personal hygiene. She also is able to care for, and provide for, her young child. There were no signs of neglect at assessment. Utilising clinical judgement, there is a class 1, no deficit in this category. |
| 2. Social and Recreational Activities | 2 | The claimant reported she maintains regular (two monthly) meetings with a mother from her mother’s group. She will also socialise with workmates and old friends, for example going out for a meal. She will still take her daughter out on occasion for activities and can enjoy watching Netflix programs at home. There has been a reported reduction in social and recreational activities, and she is less inclined to go out. The claimant’s level of current functioning is consistent with a mild impairment, class 2. |
| 3. Travel | 1 | The claimant reported she has returned to driving and said she can drive anywhere without too much difficulty. She has problems with lengthy trips (for example over an hour and a half) and in certain circumstances, such as winding and hilly roads. Her reported functioning is consistent with a class 1, minor deficit. |
| 4. Social Functioning | 2 | The claimant reported that there is some strain in her marital relationship with occasional fights with her partner. She may be somewhat more distanced from her workmates, longstanding friends and close family members; however, she maintains relationships with all of these people. Utilising clinical judgement, there is a class 2, mild impairment. |
| 5. Concentration, Persistence and Pace | 2 | The claimant reported that her concentration was reasonable and indeed it appeared to be so during the re-examination. She is maintaining permanent part-time work, up to eight hours at a time. Outside of this, the Medical Assessors considered that her persistence and pace are somewhat reduced given her lack of motivation, her feelings of anxiety, her general worry about safety and her lack of enthusiasm and energy for tasks she would previously enjoy. Utilising clinical judgement, there was a class 2, mild impairment. |
| 6. Adaptation | 2 | The claimant reported she is working permanent part-time in her previous employment role. The Medical Assessors were satisfied that given her ongoing psychiatric symptoms, she would not have full adaptive capacity such as she had prior to the accident. She also continues to perform her roles as mother of a young child and as a partner, however there is a mild impairment in this area, utilising clinical judgement. Taking into account all information available to the Medical Assessors, it was concluded that a class 2, mild impairment, would be most appropriate. |
| List classes in ascending order: 1 1 2 2 2 2 | ||
| Median Class Value: 2 | ||
| Aggregate Score: 10 | ||
| % Whole Person Impairment: 5% | ||
*%WPI = Percentage Whole Person Impairment
Apportionment
There is no evidence for any pre-existing or subsequent impairment.
Effects of treatment
The claimant is not currently receiving any psychological or psychiatric treatment; therefore, no adjustment is warranted.
Final whole person impairment
The claimant’s permanent impairment that has resulted from the post-traumatic stress disorder caused by the accident is 5%.
DETERMINATION
The Panel as a whole agrees with and adopts the reasons given by its medical members in their re-examination report in support of their finding that the claimant meets the diagnostic criteria in the DSM 5TR for post-traumatic stress disorder. The Panel is satisfied the claimant suffers from post-traumatic stress disorder.
The Panel accepts that the claimant experienced the post-accident psychological symptoms she reported to the medical members of the Panel when she was re-examined. The Panel also gives weight to the following matters:
(a) the claimant did not have a psychological condition, or a psychological impairment, prior to the accident;
(b)
the clinical notes from Randwick Doctor’s Medical Centre record that on
27 May 2019, approximately four months after the accident, the claimant reported avoidance behaviours at the site of the accident, and irritability at home;
(c)
the claimant was referred by her GP to Beverly Tow and Peter Cox on
27 May 2019 for psychological counselling and mental health assessment;
(d) Mr Cox’s notes include references to the claimant reporting anger and irritation with the other driver, fear of death, hypervigilance, and avoidance in the context of traffic and roads;
(e) in a report to Dr Lim dated 31 July 2019, Mr Cox recorded that the claimant presented with moderate severe anxiety and stress symptoms following the accident, and
(f) the clinical judgement of the medical members of the Panel.
The Panel is satisfied that the accident could have and did cause both the post-traumatic stress disorder and the impairment assessed by its medical members. The Panel finds that the accident was a necessary condition of the occurrence of the post-traumatic stress disorder.
The clinical judgement of the medical members of the Panel, both of whom are psychiatrists, is the most important tool in the application of the PIRS: cl 1.217 Impairment Guidelines. The Panel has had regard to the class descriptors provided for each category of functioning in the PIRS, and agrees with and adopts the precise examination findings and conclusions of its medical members with respect to each PIRS category.
The Panel is satisfied that the accident was a necessary condition of the occurrence of the impairment assessed by the medical members of the Panel. The impairment was caused by the accident. But for the accident the impairment would not have occurred.
The Panel finds that the claimant has a permanent impairment of 5% as a result of the accident caused post-traumatic stress disorder. It follows that the Panel finds that the degree of permanent impairment of the claimant as a result of the accident caused psychological injury is not greater than 10%.
Given the findings it has made, the Panel revokes the certificate of Medical Assessor Nagesh dated 8 September 2023, and certifies that the degree of permanent impairment of the claimant as a result of the post-traumatic stress 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 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 the 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.
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