Insurance Australia Limited t/as NRMA Insurance v Costantino

[2025] NSWPICMP 272

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Costantino [2025] NSWPICMP 272

CLAIMANT:

Sarah Costantino

INSURER:

Insurance Australia Limited t/as NRMA Insurance

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

Gerald Chew

MEDICAL ASSESSOR:

John Baker

DATE OF DECISION:

22 April 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); degree of permanent impairment disputes; claimant was in a motor vehicle accident; insurer admitted liability for the claim; claimant sustained physical injuries; Medical Assessor diagnosed persistent depressive disorder caused by the subject accident and found 19% whole person impairment (WPI) on the psychiatric impairment rating scale (PIRS); Held – Review Panel made the same diagnosis (Dysthymia) and assessed 8% WPI; no issues of principle; MAC revoked and new certificate issued.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act)

1.     The Review Panel revokes the certificate dated 16 February 2023 and issues a new certificate determinng that:

(a)    the following injuries caused by the motor accident give rise to a permanent impairment of 8% and is not greater than 10%:

(i)     Persistent Depressive Disorder (Dysthymia).

·

STATEMENT OF REASONS

INTRODUCTION

1. Sarah Costantino (claimant) was involved in a motor vehicle accident on 7 April 2019 about 1.30pm at Hinchinbrook (the accident). The claimant was the seat-belted driver of a Holden Barina vehicle proceeding along Hinchinbrook Drive. The insured vehicle stopped at the intersection of Hinchinbrook Drive and Magnetic Avenue. As it attempted to turn left onto Hinchinbrook Drive, it collided with the left passenger’s side of the claimant’s vehicle. The claimant immediately experienced chest pain from her seatbelt. The claimant was unable to open the driver’s side door. A family member assisted her to extricate from the wreckage. The airbag in the claimant’s vehicle did not deploy.

2. The claimant sustained physical injuries in the accident. They are the subject of a number of certificates by other Medical Assessors. The claimant reports her primary difficulties were multi-site physical pain and associated paraesthesia, generalised anxiety symptoms, sleep disturbance, travel anxiety, variable neurovegetative disturbance, vague suicidal ideation and non-sustained post-traumatic stress disorder symptoms.

3. NRMA (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory compensation benefits under the Motor Accident Injuries Act 2017 (the Act). The insurer admitted statutory benefits beyond 26 weeks and for the damages claim but does not concede that the claimant exceeds the 10% whole person impairment (WPI) threshold for an award of damages for non-economic loss.

ASSESSMENT UNDER REVIEW

1. As there is a dispute between the parties about the degree of WPI under Schedule 2, cl 2(a) of the Act. The claimant was referred to Medical Assessor Michael Robertson for assessment.

2. Medical Assessor Michael Robertson certified on 16 February 2023 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 19% and IS GREATER THAN 10%:

• Persistent Depressive Disorder

Medical Assessor Robertson states that the observed WPI is entirely related to the subject motor accident. He made no adjustment for treatment effects as no treatment has been provided.

1. Medical Assessor Robertson stated there was a previously observed adjustment disorder related to the subject accident which has since progressed into a chronic depressive illness consistent with a persistent depressive disorder.

THE REVIEW

1. The insurer sought a review of Medical Assessor Robertson’s certificate on the grounds that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The insurer relied on the particulars set out in the application and supporting documentation.

2. The insurer brought the application within the time prescribed by s 7.26(10)(a) of the Act, and cl 34 of Procedural Direction PIC 7 (28 days).

3. The insurer’s submissions cite various authorities relating to the need to take into account relevant consideration/denial of procedural fairness and the need to provide adequate reasons. None of that is controversial.

4. The insurer then submitted that Medical Assessor Robertson failed to:

   (a)respond to a number of arguments which were expressly addressed by the insurer in its written submission;

   (b)provide adequate reasons, and

   (c)put inconsistencies to the claimant.

   The insurer then lists various events in the claimant’s life, since the subject accident, which the insurer says may have been stressors that Medical Assessor Robertson did not consider.

5. The insurer then submitted that the claimant reported to Medical Assessor Robertson that a significant aspect of her clinical presentation was her anxiety in relation to her self-appearance and that her condition significantly worsened in 2022 due in particular to her weight gain. It was the insurer’s submission that the claimant’s weight gain was unrelated to the subject accident. That submission was supported by Dr Chow, the insurer's qualified psychiatrist. The insurer submitted that Medical Assessor Robertson failed to address that aspect of the insurer’s case.

6. The insurer further submitted that Medical Assessor Robertson failed to put to the claimant inconsistencies between the medical evidence and the claimant’s reported history, and ask the claimant, why she thought her weight gain was the result of the accident, when the evidence suggested otherwise.

7. The insurer then addressed various alleged errors in relation to the permanent impairment rating scale (PIRS). The insurer submitted that Medical Assessor Robertson:

   (a)    assessed the claimant’s condition in the incorrect PIRS classes in a number of categories;

   (b)    failed to consider other stressors which would have impacted each of the PIRS categories;

   (c)    failed to put significant inconsistencies to the claimant, and

   (d)    failed to address significant aspects of the insurer’s case.

   The insurer further submitted that, without these alleged errors, it would have been open to assess the claimant’s permanent impairment below the 10% threshold.

8. The insurer’s submissions then particularised alleged errors under each of the five PIRS categories which it is not necessary to summarise in detail.

9. The insurer’s review application was opposed by the claimant on all grounds. The claimant denied that any of the subsequent life events, to which the insurer refers, amount to a psychological injury which resulted in psychological impairment. The claimant submitted that her significant weight gain was a result of the accident. The claimant responded to the insurer’s submissions relating to each of the PIRS categories. The claimant denied that Medical Assessor Robertson failed to consider certain evidence or submissions made by the insurer, when such matters were before the Medical Assessor, prior to issuing his completed certificate.

10. President’s delegate Tajan Baba issued a Determination of an Application for Review of a Medical Assessment on 6 December 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated as follows:

    “The insurer’s ground for review and particulars in respect to the Medical Assessor’s assessment of the PIRS category of Self-care and Personal Hygiene and Social and Recreational Activities, satisfies me of reasonable cause to suspect that the medical assessment was incorrect in a material respect.”

    Accordingly, the review application was accepted and was referred to the Review Panel, which is to reassess the following psychiatric conditions:

    (a)    Major Depressive Disorder;

    (b)    Adjustment Disorder, and

    (c)    depression and anxiety

    which are the same conditions that were referred to Medical Assessor Robertson for assessment.

OTHER ASSESSMENTS

1. Medical Assessor Sophia Lahz certified on 20 December 2019 as follows:

The following injury caused by the motor accident:

• Cervical spine – soft tissue injury
• Thoracic spine – soft tissue injury
• Sternum – soft tissue injury

is a MINOR INJURY for the purposes of the Act.

The following injury caused by the motor accident:

• Lumbar spine – focal leftward L4/L5 disc bulge

is not a MINOR INJURY for the purposes of the Act.

The following injuries referred to me for assessment have been assessed and determined to be not caused by the motor accident:

• Pelvis
• Left hip
• Internal bruising

A decision as to whether these injuries are a minor or non-minor injury is not required for the purposes of the Act.

Medical Assessor Lahz found that the soft tissue sternum injury has resolved. The Review Panel does not know if those certificates were the subject of a review application.

1. Medical Assessor Anthony Samuels certified on 9 January 2020 as follows:

The following injury caused by the motor accident:

• Adjustment Disorder with Mixed Anxiety and Depressed Mood

is a MINOR INJURY for the purposes of the Act.

Under the heading Diagnosis and Reasons, Medical Assessor Samuels stated as follows:

“Sarah Costantino is a 27 year old woman who was injured in an accident on 7 April 2019. Since that time, she has had neck and back pain. She feels that the accident has aggravated her scoliosis. She has now become very focussed on the issue that she may not be able to manage a pregnancy and cope with children. She feels that her arthritis is going to get worse. She feels she is going to need spinal surgery in the future…. because of this she became depressed and has seen a counsellor twice. She has not had any anti-depressants. She reports some sleep disturbance and she has put on weight and is taking Duromine. She said she is anxious driving, anxious at other times, anxious about relationships and anxious about life. It is worth noting that she has started to socialise more and has just started a new relationship. Ms Costantino is anxious about the prospect of going back to work, but feels the main reason she cannot go back to work is because of her lifting restrictions.

The main focus of Ms Costantino’s presentation today was pain, but her worries about her back and future prospects, particularly in relation to child birth and managing a young infant, has led to the development of an Adjustment Disorder with Mixed Anxiety and Depressed Mood, which is a minor injury for the purposes of the Act.

As to Causation and Reasons, she has no prior history of psychological problems and her depressive symptoms came on after she become concerned that the accident had affected her spine and that it could impact on reproduction.”

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with Division 7.5. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

2. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]

   [1] Section 41(2) of the PIC Act.

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]

   [2] Rule 128 of the PIC Rules.

4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]

   [3] Section 7.26(6) of the Act.

5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

CAUSATION OF INJURY

1. Causation of injury is addressed in the Guidelines as follows:

   “6.5   An assessment of the degree of permanent impairment is a medical assessment matter under cl 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 AMA 4 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 AMA 4 Guides as follows:

   Causation means that a physical, chemical or biological 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 contributed to the worsening of the impairment, which is a non-medical determination.

   This, therefore, involves a medical decision and non-medical informed judgment.

   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.”

2. In Briggs v IAG Limited t/as NRMA Limited,[4] see also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] his Honour Justice Wright stated at [35]:

   “The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”

   [4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.

   [5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.

3. Wright J then described the Review Panel’s role in a medical review which is to:

   “Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Medical Assessors, including all relevant findings derived from:

   (1)a comprehensive, accurate history, including pre-accident history and pre-existing conditions;

   (2)a review of all relevant records available at the assessment;

   (3)a comprehensive description of the injured person’s current symptoms;

   (4)a careful and thorough physical examination;

   (5)diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following material which the Review Panel has considered:

Doc No.	Document Description	Date	Page No.
A1	Claimant’s submissions to President’s delegate in reply to insurer’s Commission’s review application	20/09/2023	1

Previously summarised.

A2	Claimant’s Commission application for medical assessment (permanent impairment – WPI) (Application form and attached documents)	20/01/2022	18
A3	Commission Medical Assessment Certificate of Medical Assessor Michael Robertson	16/02/2023	320
A4	Clinical records of Prestons Medical Centre	18/09/2020	330
A5	Clinical records of Carnes Hill Medical Centre	Various	331
A8	Medico-legal report of Dr Uthum Dias, occupational physician, for the claimant’s lawyers	4/02/2021	74

1. Dr Dias provided the following diagnosis:

   ·     A persistent aggravation of previously asymptomatic generative lumbar spondylosis, with an associated L4/L5 disc protrusion and associated bilateral sacroiliac joint dysfunction, secondary to an acute musculoligamentous strain.

   ·     Chronic left hip pain, stiffness and discomfort, with associated possible labral pathology, secondary to an acute soft tissue injury. Diagnostic clarity would be aided by a MRI scan of Ms Constantino’s left hip region.

   ·     Acute soft tissue injuries to her neck and thoracic spine, as well as an acute seatbelt distribution injury to her sternum and chest wall, as a result of the accident.

2. Dr Dias commented that the claimant’s injuries to her neck, thoracic spine, sternum and chest wall had resolved clinically by the time of his assessment. Dr Dias provided a separate WPI assessment which is not in evidence.

A9 Report by Dr Ben Hooi-Beng Teoh, Psychiatrist and Physician in Addiction Medicine, to the claimant’s lawyers 19/08/2021 93

1. Dr Teoh diagnosed a Major Depressive Disorder which is a non-minor psychological injury for the purposes of the Act. Dr Teoh calculated WPI using the PIRS as follows:

“Category	Class	Reason for Decision
Self-care and personal hygiene	1	She has been lacking motivation to care for herself
Social and recreational activities	3	She reported significant loss of interest in her usual activities and social isolation. She has been lacking motivation and interest in her usual activities.
Travel	2	She has been anxious and worried about further accidents. She has avoided driving long distances, or in the area where the accident happened.
Social functioning	3	She has a estrange relationship due to irritability and lacking communication. Ms Constantino met her partner after the accident. She reported that she has difficulty in her relationship. There has been a lack of intimacy, she has not been communicative.
Concentration, persistence and phase	3	She has poor concentration and persistent pre-occupation with negative thoughts. She has been worrying about her future and her physical condition. She reported that she has no purpose in her life. She as insomnia and she has been socially isolated. She has been pre-occupied with chronic pain and physical disability.
Employability	3	She is fit for suitable duties.

List Classes in Ascending Order

1, 2, 3, 3, 3, 3

Median Class Value

3

Aggregate Score: = 15% WPI”

1. Dr Teoh found no pre-existing impairment.

A10	X-ray cervical, thoracic and lumbar spine	15/04/2019	73
A11	Whole body scan with SPECT CT	30/07/2019	75
A12	MRI lumbar spine	06/08/2019	76
A13	Ambulance report	07/04/2019	78
A14	Discharge referral of Westmead Hospital	07/04/2019	79
A15	Momentum Rehab – rehabilitation needs assessment report	22/07/2019	81
A16	Clinical records of Cumberland Physiotherapy, Sport and Rehabilitation Centre	Various	96
A17	Clinical records of Fairfield Chase Medical and Dental Centre	Various	118
A18	Allied Health Recovery Requests (AHRR)	2/07/2019 24/07/2019 27/08/2019	213
A19	Certificates of Capacity/Fitness	Various	225

1. The insurer relied upon the following material which the Review Panel has considered:

Doc No.	Document Name	Date of Document
R1	Insurer’s PIC application for review submissions	August 2023

Previously summarised.

R2 Insurer’s PIC reply submissions 14 February 2022

Psychological injuries

1. Relevant to the assessment of the claimant’s permanent impairment on the PIRS, the insurer notes the following:

   ·        in relation to self-care and hygiene, according to Medical Assessor Samuels, the claimant presented well at the assessment and she attends to her self-care which is consistent with no deficit or a minor deficit. Dr Teoh agree the claimant belongs in Class 1 for this category.

   ·        In terms of social and recreational activities, the claimant met her current partner and father of her twins six months following the accident, which the insurer submits, is consistent with normal social engagement. The claimant reportedly going out less and seeing less ‘sic’ friends may be due to her becoming a mother and having to care for her newborn twins in the context of the pandemic. Clearly, the claimant belongs in Class 1.

   ·        In terms of travel, the claimant reported to Medical Assessor Samuels being able to drive but being anxious. The Medical Assessor noted the claimant had been able to attend his assessment on her own using the train. Similarly, the claimant attended assessments with Medical Assessor Lahz and Dr Dias without the need for a support person. The claimant is therefore capable of travelling in areas which are unfamiliar to her. Her reported anxiety is a minor deficit. The insurer submits that the claimant belongs in Class 1 for this category.

   ·        In terms of social functioning, Medical Assessor Samuels noted that the claimant gets on well with her mother, is seeing friends and had started a new relationship. The claimant reported difficulties in her relationships and lack of intimacy to Dr Teoh. This must be considered in the context of the demands of newborn twins. Again, the claimant belongs in Class 1.

   ·        In terms of concentration, persistence and pace, the claimant reported to Medical Assessor Samuels that she was not as good as before the accident. The claimant, who was caring for newborn twins when assessed in August 2021, reported to Dr Teoh she had insomnia, was socially isolated and worried about her future. The disability described by the claimant does not go as far as her being unable to read the newspaper or follow complex instructions. Dr Teoh does not appear to have taken into account the impact of the claimant’s family circumstances on her presentation. In any event, the claimant’s ability to continue to care for her twins suggests at most a mild impairment for this PIRS category.

   ·        Finally, in relation to adaption, the insurer notes that, according to the claimant’s Certificate of Fitness, she is unable to work due to her physical injuries as well as her family commitments. Her inability to work is therefore not related to her psychological condition. The insurer further submits that the claimant’s psychological capacity to manage her significant family commitments is not consistent with any significant impairment of her capacity to work in her usual occupation.

2. In the result, the claimant’s psychological impairment ought to be assessed below 10% WPI.

R3 Certificate DRS Minor Injury – Medical Assessor Anthony Samuels 9 January 2020

See previously.

R4 Medico-legal report prepared for the insurer’s lawyers by Dr Kai Tai (Frank) Chow, consultant psychiatrist 30 March 2022

1. Dr Chow records that the claimant reported ongoing mild to moderate psychological difficulties as a consequence of the subject injury especially from her back pain. She refuses to take anti-depressants. She saw a psychologist from early to mid 2020 for a number of sessions and since then has had no further psychological treatment. As the claimant did not find psychological treatment beneficial, Dr Chow had no further treatment recommendation. He found that her psychological condition is related to her back condition and that her ability to resume normal life is more affected by her back condition. He assessed WPI under the PIRS as follows:

“Category	Class	Reason for Decision
Self-care and personal hygiene	2	She is showering regularly, wearing clean clothes. Partner helps her in and out of the bath. She does cook and do dishes. Partner and her mother help her especially with any heavy lifting or grocery shopping.
Social and recreational activities	3	She is not engaging in any hobbies and activities.
Travel	2	She can drive locally but mostly goes out with her partner. She resumed the driving a few weeks after the accident.
Social functioning	2	She has some contact with one friend. Family is visiting weekly. Relationship with her partner is good and he remains supportive. She has regular contact with family and has good support.
Concentration	2	She has some mild concentration and focus difficulties. She is frustrated easily.
Employability	1	She is fit for work from a psychiatric perspective.

List Classes in Ascending Order: 1, 2, 2, 2, 3

Medium class value: 2

Aggregate score: 12

Whole person impairment: 6% WPI”

R5 Medico-legal report to the insurer’s lawyers by Dr Bidyasagar Casikar, neurosurgeon 10 March 2022

1. Under the heading “OPINION”, Dr Casikar says as follows:

   “Ms Costantino seems to have had a minor injury following the road traffic accident. This was a soft tissue injury to the back. In my opinion this recovered. However, her attention now is towards the scoliosis. I believe that the thoracic scoliosis has stabilised and is not progressive. However, the lumbar scoliosis has probably progressed. This is a normal problem with the long segment scoliosis correction. The road traffic accident is not responsible for the acceleration of her current lumbar scoliosis. This is a nature phenomenon. In my opinion Ms Costantino has recovered from the road traffic accident which appears to be a minor accident. However, her present complaints are predominantly due to the congenital thoracolumbar scoliosis and significant pain related issue. Ms Costantino has a congenital thoracolumbar scoliosis. This was corrected when she was 15 years old.

   At this stage, I do not believe she would be able to get back to any kind of work. After she has stabilised her twins, she may have to look for a suitable job. In my opinion, Ms Costantino is fit to resume her pre-injury duties as an Assistant Manager of a pharmacy as she has not impairment as a consequence of the accident. Her impairment is mainly due to pain focus issues and physical problems due to increased in her weight. This has produced an emotional issue and therefore she does not want to go back to work. She is fit to work in any other position as far as her accident is concerned. The accident itself has not produced any restrictions.”

2. As to WPI, Dr Casikar says that the claimant is in diagnostic related estimate (DRE) lumbar category 1 with 0% WPI. He opines that the claimant’s present complaints of back pain are unrelated to the road traffic accident.

R6	Supplementary report of Dr Casikar	6 October 2022
R7	Medico-legal report to the insurer’s lawyers by Dr Robin Mitchel, occupational physician	14 March 2022

“DIAGNOSIS:

Ms Costantino reports ongoing pain in the lower back following the subject accident with no objective clinical evidence of any underlying injury and the radiological studies only identifying the known scoliosis condition that was subject to previous surgical treatment.

PROGNOSIS:

The prognosis, based on the findings of this assessment, are for possibly ongoing back symptoms due to the underlying scoliosis condition that was present prior to the subject motor vehicle accident.

CURRENT CAPACITY FOR WORK:

Ms Costantino has, in my opinion, a current capacity for suitable work that would avoid any aggravation of the reported symptoms and, providing the following precautions (listed) were available, she should be able to manage such work on a full-time basis.

Dr Mitchel opined that there are no ongoing disabilities as a consequence of the subject accident, no further treatment is indicated, and the claimant has the ability to resume normal life activities. Dr Mitchel specifically disagreed with Dr Dias’ finding of stabilisation of her injuries and earning capacity restrictions. Dr Mitchel assessed 0% WPI arising from injury to her lumbar spine.”

R8 Vocational, Functional and Job Market report of I Farag and A Hartley of the Vocational Capacity Centre 1 July 2022

Not relevant for the consideration of the Review Panel.

R9	Clinical records of Fairfield Chase Medical and Dental Centre	21 February 2020
R10	Clinical records of Glenmore Park Mediclinic	19 May 2023
R11	Clinical records of Prestons Medical Centre	22 September 2023
R12	Clinical records of Carnes Hill Medical Centre	25 August 2022
R13	Momentum Rehab	Various dates

Not relevant for consideration of the Review Panel.

R14 Medicare records from 22 February 2016 to 7 October 2021 Various dates

Not relevant for consideration of the Review Panel.

R15	Employment records of Priceline Pharmacy	25 May 2022
R16	Centrelink records	16 October 2024

EXAMINATION REPORT

1. The report of Medical Assessor John Baker and Medical Assessor Gerald Chew is as follows:

   “PIC PANEL REPORT

   Sarah Constantino

   1.     Psychosocial history and pre-accident history

   The claimant is a 32 year old woman who lives in Green Valley with her mother and 2 children- a boy and a girl twin who are 3 years old. She reported that she had lived in Green Valley at home her whole life.

   She said that she has ‘100% care’ of the children however says that she has a supportive relationship with her ex-partner, the father of her children with whom she has an informal agreement regarding care and support. She said that he tried to be very involved in their lives and came over around 5 days a week. He spends time with the children and bathes and feeds them. He also pays child support. She said that she was in a relationship with him for around 10 months but they broke up close to delivery of the children. She said that there were issues as he could not commit to moving in with her. She said that the pregnancy was unexpected and she was taking the contraceptive pill.

   She reported that her children attend pre-school since October 2024. She usually transports them to and from this service each day they attend.

   The claimant as a school student attended a Catholic school however does not go to Church regularly since school. She observes some traditions and her children are baptised.

   The claimant said that prior to the accident she worked full time as a manager in a pharmacy where she worked since the age of 18. She said that since the accident she has relied on other sources of income. She has been in receipt of family tax benefit A and B since 2022 and since late last year has also received the single parent payment. She said that she also works unpaid for her brother and sister-in-law’s business washing and fixing costumes approximately 4 hours a day, 2 days a week.

   She said that she lives rent free at home and only in the last 6 months has begun contributing to household bills such as power and water.

   The claimant reported that her father remains supportive and owns the family house where she lives with her mother and her twins. Her parents separated when she was 17 however her father wanted his children to have a stable home and the family stayed on there after he left. She is the third youngest of 4 siblings. She said that there is no family history of mental health issues.

   She is close to a sister who visits generally twice a week and helps out. Her sister also has a daughter. She said that it brings her joy seeing her sister and niece.

   The claimant has pre-existing scoliosis of her spine diagnosed at about 12 years of age and surgically treated age 15. The surgical fixatures remained in situ both before and after the motor accident.

   2.     History of the motor accident

   The accident occurred on 7 April 2019 at around 1pm. She was driving her Holden Barina unaccompanied, wearing a seatbelt. She had noticed a car waiting at a cross street ahead. She continued to drive straight at around 50km/hr. As she drove into the intersection, the other car pulled out in front of her car. She had not time to stop, the other car hit the front left of her vehicle. Both cars came to a stop. The claimant’s airbags were not deployed. She said that neighbours heard the accident and came out to help and called police and ambulance. She said that she was in shock as it happened so quickly and felt her limbs, fingers and toes stiffening up. She said that the car behind her was her sister-in-law who called her brother who lived a few minutes away. He came to the scene. She said that she couldn’t open the passenger door by herself. Her brother opened the passenger door and told her to stay still. The stiffening of her limbs, fingers and toes resolved. She was then worried about the driver of the other vehicle who she described as an old man. She ran out of the car to check on him. She said that he was angry and upset with her even though it wasn’t her fault. An ambulance arrived and it was decided that the older gentleman would go first to hospital.

   The claimant attended Westmead Hospital on the same day and was discharged after a few hours. On the way home she had been called by the hospital asking her to come back because her potassium levels were high on the blood tests. She returned to the hospital and was discharged again after a few hours. The high potassium was presumed to be an artifact.

   3.     History of symptoms and treatment following the motor accident

   The claimant attended her GP the following day as recommended and was bruised and sore and was given 10 days off work. She had injured her cervical-spine, thoracic-spine, sternum, soft tissues and lumbar spine. The physical injuries all gradually improved except for the lumbar spine issue which has persisted. The claimant said that she was concerned that her lumbar spine surgical fixatures treating her scoliosis might have moved.

   The claimant initially struggled to drive for the first 10 days after the motor accident. She became able to drive normally albeit with increased anxiety.

   She said that she attempted psychological therapy and sought help on a few occasions in early 2020 but did not find this useful. She said that she was offered medication which she declined and is not keen to take. She explained that she preferred not to use psychiatric pharmacotherapy.

   In terms of physical treatments for her injury she has attended her neurosurgeon and a pain clinic after the motor accident and prior to this re-examination. She has also seen a chiropractor for a few sessions to assist with her back pain.

   She reported that she had to have banding of haemorrhoids in 2019 after the accident. She attributes this to a physiotherapy session that she described as mismanaged in terms of her capabilities to perform the physical tasks.

   The claimant described weight gain, her pre-accident she weighed around 76kg. She gained weight with her maximum weight reported as nearly 100kg. She described a combination of decrease in physical activity and overconsumption of calories as contributing to her weight gain. The claimant attended a weight clinic and was treated with a gastric balloon procedure which was initially booked pre-pregnancy but was deferred until after the birth of the children in February 2022. Her weight dropped significantly. She said that the balloon was removed in 2023. She currently reports she weighs about ‘80’ kgs and said that she actively reduces her calorie intake to manage her weight at the time of this re-examination.

   4.     Details of any relevant injuries or conditions sustained since the motor accident

   The claimant described a motor accident in 2022 which was about 3 years after the subject motor accident in 2019. She was driving on the M4 highway at the speed limit. She said that a car ahead of her braked then reversed to get into the turn off. This car then drove off. It resulted in a 3 car pile up- a Mercedes AMG, a Honda Accord and then her car. She said that she was able to drive the vehicle home however it was leaking ‘green fluid’. She said that insurance decided that it was not worth repairing and the car was written off and she was paid out. She said that she became more anxious for a while driving after this accident but described no other physical or psychological symptoms. She did not seek any medical attention for this accident.

   5.     Current symptoms

   The claimant reports depressed mood every day. Her mood can be irritable, agitated and labile when agitated. She is tearful at times. She struggles to sleep. She says she is nothing like her ‘old self’ and is less motivated with reduced energy. She said that she tries to put on a ‘happy face’ for her children so they do not experience her depression. She feels down and guilty about ‘where my life is’ and her life’s trajectory. She spoke about having been left behind by her friends as she was still living at home and not working.

   The claimant reports ongoing pain and aching in her lower back and gluteal muscular area of her body.

   6.     Current and proposed treatment

   The claimant currently receives no psychological or psychiatric treatment. She is not interested in any specific psychiatric or psychological treatment.

   She currently receives no formal treatment for her physical condition however her ex-partner has physiotherapy and massage therapy training. He helps her a few days each week. She says that in the summer months she does hydrotherapy in the pool 3 days per week.

   MENTAL STATE EXAMINATION

   Ms Constantino was assessed using MS Teams, the connection was good with no technological difficulties. She appeared reasonably groomed. She engaged freely and was talkative and expansive at times in response to questions asked. She reported her mood as depressed and anxious. Her affect was labile and at times dysphoric. She was agitated and irritable at times during the re-examination, she was pacing in her house whilst talking. She was tearful and crying at times when she was talking about her losses since the motor accident. She provided relevant answers to questions asked. She did not present with a formal thought disorder and did not display any aberrant thinking patterns. She was orientated to time, person and place, and her cognition appeared clinically intact. She was able to concentrate for the duration of the re-examination that was for approximately 75 minute interview. She had not suicidal thoughts or thoughts of harm to others.

   CURRENT FUNCTIONING

   Self-care and personal hygiene. Ms Constantino stated that she is responsible for the meal preparation particularly for her young children. She said that she actively cares for them in all regards. She indicated that she experienced both a reduced level of motivation and reduced pleasure with daily activities although she ‘put on a brave face’ for the children. She said that she participates in part of the washing. She is able to do small grocery shops. She stated that she will, on occasion, neglect to shower due to a lack of motivation and is also less fastidious about applying makeup. The Medical Assessors formed the view that she displayed a mild level of impairment in this category.

   Social and recreational activities. Ms Constantino’s social activities are restricted mostly to her family. Her sister visits around twice a week. She reported a 5-day holiday with her brother and sister-in-law in Terrigal at the beginning of this year (2025). She had a baby shower before the birth of her twins. She had a celebration after the Baptism of her children. She reported not attending a mother’s group or social events at the pre-school. The claimant did not socialise with her friends from the past. She reported having feelings of shame and guilt that she would not be able to contribute or participate with her old friends as they had moved on in their lives and careers and she remained at home a single mother. The Medical Assessors formed the view that she displayed a moderate impairment.

   Travel. Ms Constantino stated that she is able to drive but feels more uncomfortable doing so as a result of her symptoms. She drives her children to pre-school. She is able to drive on her own but does this infrequently. She restricted her driving only to familiar places such as known shops and the children’s pre-school. The Medical Assessors formed the view that she displayed a mild impairment in this category.

   Social functioning. Ms Constantino indicated that her relationship with her ex-partner remains supportive. She maintains close relationship with her mother and sister. She also maintains relationships with her children. She reports that she has withdrawn from friends. The Medical Assessors formed the view that she displayed a mild impairment in this category.

   Concentration, persistence and pace. Ms Constantino reported subjectively reduced concentration. She demonstrated adequate concentration to participate in the assessment She is able to concentrate to fix sequins on costumes. She watches television and enjoys the show Brooklyn 99 and was able to watch full episodes. The Medical Assessors formed the view that she presented with a mild impairment affecting this category.

   Adaptation, Ms Constantino reports unpaid work with her sister’s business in entertainment. She works approximately 4 hours a day, 2 days a week. She washes costumes and also does some repairs such as fixing sequins. Her psychiatric symptoms contribute to her reduced capacity to work. The Medical Assessors formed the view that she presented with a severe impairment affecting this category.

   DIAGNOSIS

   The Medical Assessors identified that Ms Constantino continued to suffer from Persistent Depressive Disorder (Dysthymia). The Medical Assessors are of the view that the subject motor vehicle accident is causally related to her current presentation. She suffered significant psychological symptoms after the accident, which led to the development of her psychiatric injury.

   For a period of over 2 years Ms Constantino has experienced depressed mood most days with periods of overeating, low energy and low self-esteem. There has never been a manic or hypomanic episode. There have been no psychotic symptoms. The symptoms are not attributable to substances or another medical condition. The symptoms have caused clinically significant distress.

1. The Medical Assessors determined Ms Constantino’s current WPI as per the table below.

“Psychiatric diagnoses	1.	Persistent Depressive Disorder (Dysthymia)
Psychiatric treatment description	Ms Constantino had received no psychological or psychiatric treatment. She is not interested in any specific psychiatric or psychological treatment.
Category	Class	Reason for Decision
1.   Self-Care and Personal Hygiene	2	Ms Constantino stated that she is responsible for the meal preparation particularly for her children. She said that she actively cares for them in all regards she can. She indicated that she experienced both a reduced level of motivation and reduced pleasure with daily activities although she ‘put on a brave face’ for the children. She said that she participates in part of the washing. She is able to do small grocery shops. She stated that she will, on occasion, neglect to shower due to a lack of motivation and is also less fastidious about applying makeup. The Medical Assessors formed the view that she displayed a mild level of impairment in this category.
2.   Social and Recreational Activities	3	Ms Constantino’s social activities are restricted mostly to her family. Her sister visits around twice a week. She reported a 5-day holiday with her brother and sister-in-law in Terrigal at the beginning of this year (2025). She had a baby shower before the birth of her twins. She had a celebration after the Baptism of her children. She reported not attending a mother’s group or social events at the pre-school. The claimant did not socialise with her friends from the past. She reported having feelings of shame and guilt that she would not be able to contribute or participate with her old friends as they had moved on in their lives and careers and she remained at home a single mother. The Medical Assessors formed the view that she displayed a moderate impairment.
3.   Travel	2	Ms Constantino stated that she is able to drive but feels more uncomfortable doing so as a result of her symptoms. She drives her children to pre-school. She is able to drive on her own but does this infrequently. She restricted her driving only to familiar places such as known shops and the children’s pre-school. The Medical Assessors formed the view that she displayed a mild impairment in this category.
4.   Social Functioning	2	Ms Constantino indicated that her relationship with her ex-partner remains supportive. She maintains close relationship with her mother and sister. She also maintains relationships with her children. She reports that she has withdrawn from friends. The Medical Assessors formed the view that she displayed a mild impairment in this category.
5.   Concentration, Persistence and Pace	2	Ms Constantino reported subjectively reduced concentration. She demonstrated adequate concentration to participate in the assessment She is able to concentrate to fix sequins on costumes. She watches television and enjoys the show Brooklyn 99 and is able to watch full episodes. The Medical Assessors formed the view that she presented with a mild impairment affecting this category.
6. Adaptation	4	Ms Constantino reports unpaid work with her sister’s business in entertainment. She works approximately 4 hours a day, 2 days a week. She washes costumes and also does some repairs such as fixing sequins. Her psychiatric symptoms contribute to her reduced capacity to work. The Medical Assessors formed the view that she presented with a severe impairment affecting this category.
List classes in ascending order: 2, 2, 2, 2, 3, 4
Median Class Value:  2
Aggregate Score:   15
% Whole Person Impairment: 8 %”

1. The Medical Assessors noted that there is no significant pre-existing condition. An adjustment to her WPI was therefore not indicated.

2. The Medical Assessors assessed the subsequent motor accident in 2022. She did not seek specific treatment for this as she did not report any exacerbation, aggravation of her psychological injury due to the subject motor accident or new psychological injury because of this motor accident in 2022. She reported a mild intercurrent increase in anxiety whilst driving soon after the accident with no other symptoms. Ms Constantino’s capacity to drive whilst anxious did not become more impaired. The Medical Assessors found that no adjustment to her assessment of whole person impairment was indicated.

3. The Medical Assessors were of the view that Ms Constantino’s treatment had not resulted in any significant impact on her psychiatric injuries and note she is currently not in treatment. The Medical Assessors did not make any adjustment for treatment due to these reasons.

FINDINGS

1. The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned. The Review Panel adopts the examination findings and reasons of the Medical Assessors.

2. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6] The medical assessment of permanent impairment, utilising the PIRS, is made at the time of the examination. In that respect, the previous psychiatric assessments are outdated, and do not reflect the claimant’s current symptomology found upon examination.

   [6] Allianz Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Allianz Insurance Australia Limited v Marsh [2021] NSWCA 31.

3. The Review Panel notes that Dr Teoh’s assessment was made some years ago and that the findings of Dr Chow are not dissimilar to those of the Review Panel. The findings made by the Review Panel for the categories of Self-Care and Personal Hygiene (2) and Concentration, Persistence and Pace (2), differ from those of Medical Assessor Robertson (3) and (3) respectively, which explains the different result.

CONCLUSION

1. For the above reasons, the Review Panel considers that the certificate issued by Medical Assessor Michael Robertson on 16 February 2023 should be revoked. The new certificate appears at the commencement of these reasons.