Insurance Australia Limited t/as NRMA Insurance v Huang
[2024] NSWPICMP 749
•1 November 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Huang [2024] NSWPICMP 749 |
CLAIMANT: | Ssu-Chien Huang |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
SENIOR MEMBER: | Brett Williams |
MEDICAL ASSESSOR: | Paul Friend |
MEDICAL ASSESSOR: | Gerald Chew |
DATE OF DECISION: | 1 November 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of medical assessment under section 7.26 of the Motor Accident Injuries Act 2017; Medical Assessor certified that post-traumatic stress disorder caused by the accident gave rise to a permanent impairment of 15%, and that the impairment is greater than 10%; Held – as a result of the accident the claimant developed post-traumatic stress disorder that gave rise to a permanent impairment of 15%; assessment confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION
|
STATEMENT OF REASONS
BACKGROUND
Ms Ssu-Chien Huang (claimant) was injured in a motor accident at Caringbah on
14 September 2019 (accident). Following the accident she made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer).
There is a dispute between the claimant and the insurer about whether her permanent impairment as a result of a psychological injury caused by the accident is greater than 10%. The dispute is about a medical assessment matter and is a medical dispute.
The medical dispute was referred to Medical Assessor Nagesh for assessment. The Medical Assessor gave a certificate dated 19 June 2023 in which he certified that post-traumatic stress disorder caused by the accident gave rise to a permanent impairment that is greater than 10% (Assessment).
The insurer sought a review of the Assessment under s 7.26 of the MAI Act. The President’s delegate subsequently determined that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. The review application was accepted and referred to a review panel.
This Review Panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the review of the Assessment.
THE REVIEW
The Panel is to conduct the review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the panel is to be constituted by two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). The Panel determines how it conducts and determines the proceedings: Rule 128.
DIRECTIONS
On 7 June 2024 the Panel directed the parties to lodge a joint bundle that contained all material relied on for the purposes of the Review together with the written submissions they relied on.
LEGAL 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 of the 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) of the 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.”
Version 9.2 of the Motor Accident Guidelines (Guidelines), effective from 10 November 2023, applies to the review. The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with ‘Mental and behavioural disorders’ within the Guidelines, namely cls [6.201]-[6.228] of the Guidelines.
ASSESSMENT UNDER REVIEW
Medical Assessor Nagesh gave a certificate and reasons dated 19 June 2023. The Medical Assessor certified that post-traumatic stress disorder caused by the accident gave rise to a permanent impairment of 15%, and that the impairment is greater than 10%.
The Medical Assessor’s reasons record that the claimant’s symptoms included nightmares. She remained anxious, and reported that: her mood was low, her sleep was poor, she had flashbacks, panic attacks, sounds make her anxious, and at traffic lights she is fearful. She worries about meeting with another accident, has mood swings, irritability, and experiences pain which affects her mood. She reported that her appetite is ok, that she had a diminished ability to concentrate, poor memory, and her energy remains low. She reported that she has no motivation to do anything. She also felt withdrawn, and nothing makes her happy. She had been seeing a psychiatrist and psychologist, and remained on antidepressant medication (fluoxetine). There was no previous history of mental illness.
In the Medical Assessor’s opinion, the diagnostic criteria for a diagnosis of post-traumatic stress disorder were met, including criteria A: the collision was significant and the claimant was exposed to actual or threatened death. The reasons address each of the psychiatric impairment rating scale (PIRS) categories, and include the Medical Assessor’s reasons for the class assessed for each category in the scale.
EVIDENCE
The evidence relied on by the parties for the purposes of the Review is contained in a joint bundle lodged by the insurer. All the material in the bundle has been considered by the Panel.
Medical Assessments
In addition to the assessment of Medical Assessor Nagesh, the joint bundle contains a certificate and reasons given by Medical Assessor McGrath. The Medical Assessor certified that as a result of the accident, the claimant suffered soft tissue injury to her left shoulder, cervical spine, and lumbar spine that gave rise to a permanent impairment that is not greater than 10% (7%).
In his reasons, the Medical Assessor recorded that the claimant had received “regular psychology which was stopped by the insurer after a period”, and that the claimant:
“…appeared distressed and frustrated by her ongoing pains. She lacked insight and tended to catastrophise, consistent with a chronic adjustment reaction as observed by others. Physical examination was made difficult by widespread pain and tenderness, but objective findings were believed to be valid indicators of impairment…”
The Medical Assessor recorded that the claimant:
“…is psychologically distressed by the chronicity of her problem and impact on her life. She has received counselling for this disorder. The claimant has been diagnosed with a somatoform disorder or adjustment reaction by psychiatry.”
In the Medical Assessor’s opinion the claimant “most likely” did sustain a left shoulder injury from the seatbelt restraint and possibly soft tissue injuries to the neck and lower back.
The Medical Assessor determined that injuries to the claimant’s ears, right shoulder, right elbow, right arm, left elbow, left arm, left hip, left leg, right hip and right leg were not caused by the accident. The lumbar spine injury attracted a 5% impairment and the left shoulder injury a 2% impairment.
Records from treatment providers
The various certificates of capacity have been considered. The first certificate is dated 23 September 2019, and includes a diagnosis of “insomnia from anxiety from the MVA”. The claimant was certified as having capacity for some type of work for normal hours and normal days from 14 September 2019.
The next certificate is dated 30 September 2019. The claimant was certified as having no work capacity for any employment between 1 October 2019 and 28 October 2019. In subsequent certificates dated 2 October 2019, 12 October 2019, 26 October 2019,
6 November 2019, 25 November 2019, and 16 December 2019 she was certified as having no work capacity for any employment. She was certified as having capacity for some type of work eight hours a day four days a week from 13 January 2020, and from 20 January 2020 to 6 May 2020 as having no work capacity. A certificate dated 10 September 2020 records that the claimant had no capacity for work from 10 September 2020 to 15 October 2020.
Certificates from Dr Lim commence on 1 April 2020. From that time the certificates refer to a diagnosis of “?PTSD”. The earlier certificates were from Dr Li at a different practice.[1]
[1] Hurstville Medical Practice.
In a progress note entry on 7 April 2020, Dr Singh recorded that the claimant had suffered a C5/6 disc injury and an L5/S1 annular tear and disc bulging following a motor accident on
14 September 2019, and that she was experiencing neck pain with radiation in the left arm and low back pain with left leg radiculopathy. These injuries resulted in significant restriction of function and difficulty in carrying out activities of daily living. The claimant was taking 50 mg of Lyrica twice a day which makes her excessively sleepy but she continues to have pain.
The Panel has considered the radiological reports dated 1 October 2019 (MRI cervical spine x 2), 7 February 2020 (MRI left shoulder), 24 February 2020 (MRI lumbar spine and MRI right shoulder), 20 July 2020 (MR arthrogram left shoulder), 15 October 2020 (Bone Scan), and 15 October 2020 (lumbar spine X-ray).
Dr Soo, orthopaedic surgeon, reported to Dr Lim on 22 June 2020. The claimant reported that she continued to be debilitated by ongoing neck and bilateral shoulder pains (the left worse than the right) which have not improved with treatment. Further investigations were recommended.
Dr St George, psychiatrist, reported to Dr Lim on 19 August 2020. The claimant reported that her pain had improved with warmer weather. She reported that she avoided driving and was hypervigilant. She had nightmares and nocturnal flashbacks. She is triggered by beeping or screeching, and reported freezing when she is crossing the road due to fear that the cars won’t stop. She was taking fluoxetine. In his opinion psychological therapy should continue.
Reports from Dr Singh, orthopaedic and spinal surgeon, to Dr Lim dated 7 April 2020,
28 April 2020, 26 May 2020, 23 June 2020, 22 September 2020, and 27 October 2020 have been considered. The doctor treated the claimant for her neck and back injuries. She reported significant symptoms. The back and leg pain was attributable to the L5/S1 disc bulge and annular tear. She experienced neck pain from the injury to the C5/6 disc. Various investigations were recommended. The claimant was treated conservatively and discharged to Dr Lim’s care in October 2020.
The multiple sets of records from Hurstville Medical Practice have been considered. The first entry in the records is dated 22 October 2012. There is an entry in the notes relating to a consultation on 23 September 2019. Those notes record that the claimant had a motor vehicle accident on 14 September 2019, and that she reported:
“…L neck/lower back pain and has insomnia from anxiety and poor concentration and now has headache last 4-5 days and no ph[2] of injury and no ph of anxiety from insomnia…”
[2] Prior history.
On 2 October 2019 Dr Li recorded that he had referred the claimant to a psychologist. On 5 October 2019 it was recorded that she was “still anxious”. On 12 October 2019 it was recorded that “anxiety still has problem”. Prozac was prescribed. On 26 October 2019 it was recorded that “Prozac…has no much help for her mood…and had [p]sychologist assessment”. On 25 November 2019 the doctor recorded “Patient has been taking Prozac…but has [p]sychologist and helped”. On 16 December 2019 the doctor recorded that counselling once a month helped her anxiety. Similar entries were recorded on 13 January 2020, and 20 January 2020.
The Panel has considered the records from Myhealth Miranda. Those records span 2017 – 2020. Dr Law’s records have also been considered.
There is a referral from Dr Li to Ms Li for opinion and management of her anxiety “from MVA”. There are various documents that are not in English,[3] and have not been interpreted into English. Some of the documents ask questions that, while not in English, have been answered in English. In one document the claimant stated, “I have pain almost everywhere in my body”.[4] In another she stated:
“I am feeling disappointed all the time. Doesn’t want to meet up with friends unless ask them for helps for carrying grocery shopping”[5]
[3] Possibly Mandarin; the claimant was born in Taiwan.
[4] Joint Bundle page 251.
[5] Joint bundle page 252.
Ms Li’s handwritten client notes have been considered. The first note is dated
14 November 2019, and records that “her anx is high so taking anti-dep” and that she “easily got angry”. She was “frozen when [she] saw similar car in accident across road”. She reported feeling anxious or scared if she hears “ambulance/fire engines”. On
6 February 2020 it was recorded that “psychological no improve”, that she still has nightmares and “flashing re accident”. She was “stressed out when [she] crossed road worried car didn’t stop”. On 4 April 2020 she “still have flashing of accident, still not willing to sit in uber, prefer train rather than car...”. On 11 June 2020 it was recorded that the claimant was still scared when she sees a car not stopping, is intolerant of noise, “still had pieces of the accident flashing” and has “excessive” worries about an accident when crossing the road.
On 16 July 2020 Ms Li recorded that the claimant “only want to lay in bed”, that she had low motivation, and referred to “chronic pain + chronic injury”. She was scared by a car’s horn and noise. On 17 November 2020 Ms Li recorded that the claimant was reluctant to sit in “car/uber/bus” and that she was “ok with public transport”. It is recorded that:
“…she witness someone sit in the train track to do suicide, emotional can’t cope. Luckily the girl was saved.”
Ms Li went on to record that “after MVA she is very sensitive to sound like car braking outside, kids cried next door”. Similar complaints were recorded in the notes relating to subsequent attendances in 2021. In January 2022 the claimant reported being scared after a car beeped. On 26 April 2022 it was recorded that she still had “PTSD symptoms”, that she was intolerant to loud noises, easily forgets things and easily wakes up.
An initial assessment prepared by Dr Lim dated 2 April 2020 includes reference to “trouble sleeping, anxious to drive, nightmare, flashbacks, stressed”. The diagnosis recorded was “?PTSD”.
Medico-legal evidence
Dr Gertler, psychiatrist, reported on 23 August 2021. He described the claimant as being “somewhat dishevelled” in her appearance. The doctor diagnosed post-traumatic stress disorder that had developed as a result of the accident. The claimant’s prognosis was guarded. She should resume psychological treatment. The doctor assessed a 19% permanent impairment.
Dr Conrad reported on 21 October 2021. The doctor diagnosed whiplash injury of the neck associated with annular tear at C5/6, injury to the left shoulder associated with avulsion tear of the supraspinatus tendon, and an injury to the right shoulder associated with supraspinatus tendinopathy. In his opinion, the claimant will not be able to return to work as a teacher in a child care facility. At most, she may be able to do some light administrative work or light support work. Her prognosis was guarded. The doctor assessed a 19% permanent impairment (neck 5%, back 5%, left shoulder 7% and right shoulder 4%).
Dr Porteous, occupational physician, reported on 14 July 2022. The claimant reported significant psychological sequelae. In the doctor’s opinion, as a result of the accident the claimant suffered musculoligamentous injury to her cervical and lumbar spine, and soft tissue injury to her shoulder. She experienced chronic pain, and appeared to have “some type of generalised Pain Disorder…”. In the doctor’s opinion, it was unusual for an accident “of this type” to cause such lasting substantial disability. He thought that the claimant presented as a “very genuine person” and that there was no evidence of inconsistency.
Dr Panjratan, orthopaedic surgeon, reported on 2 February 2021. In his opinion the claimant suffered multiple musculoligamentous injuries as a result of the accident. Her condition was “not necessarily stable because of pain and disabilities out of proportion to the injuries”. In the doctor’s opinion, the claimant “seems to have been overtreated and over investigated”. She was unfit for her pre-injury work as she has difficulty bending, twisting, and prolonged postures. She was also unfit for the proposed alternative vocational options.
Dr Allen, orthopaedic surgeon, reported on 22 February 2022. The doctor thought that the claimant presented with “marked stigmata of abnormal illness behaviour”. She claimed to have a level of symptoms which “far outreach” any objective evidence of musculoskeletal pathology. The doctor could find no objective evidence of any significant or residual musculoskeletal injury that was sustained by the claimant in the accident. Although she complained of ongoing symptoms the symptoms were not substantiated by any objective clinical findings.
In Dr Allen’s opinion, this raised the strong possibility of a non-organic basis for her presentation. He considered that assessment by a psychiatrist would be appropriate. In the doctor’s opinion, there does not exist in the claimant any objectively verifiable musculoskeletal pathology sustained as a consequence of the accident over and above some possible soft tissue strains which were considered to have long since passed.
Dr Vickery, psychiatrist, reported on 6 January 2021. The doctor diagnosed post-traumatic stress disorder and somatic symptom disorder. In his opinion, the post-traumatic stress disorder was due to the accident. The somatic symptoms disorder was not directly related to the accident. Dr Vickery thought that the claimant required continuing psychiatric counselling and antidepressant medication. In his opinion, she had no current work capacity. Her future capacity was dependent upon the response to treatment. She had not reached maximum medical improvement.
Dr Vickery reported again on 14 April 2022. The claimant reported that she was undergoing monthly psychological counselling. The doctor diagnosed somatoform chronic pain disorder “or malingering”, as there was no apparent medical basis for the claimant’s incapacitating pain or significantly restricted functionality and she was documented to have an “extensive level of self-limitation” in the orthopaedic assessment. The diagnosis of post-traumatic stress disorder was not made “as the accident was reported to have been relatively minor”. In Dr Vickery’s opinion there was no psychiatric incapacity for any form of employment directly due to the accident.
The Vocational Capacity Centre report dated 25 February 2022 has been considered. The report records that the claimant presented as pain focused. There were inconsistencies noted in her physical performance level, including inconsistency in between test items and in the lack of application of maximum voluntary effort with several of the tests. The claimant’s performance was said to have been “self-limiting”. Her performance on testing was well below expected levels and strongly suggested deliberate suboptimal performance, and her overall presentation impressed as extremely pain focused.
The findings of Dr Farag, that are contained in a functional capacity evaluation report have been considered, as has the vocational assessment report of Mr Raue.
Other material
The application for personal injury benefits dated 25 September 2019 contains a description of the accident and lists a range of physical injuries, together with shock, anxiety and depression.
A NSW Police report dated 20 December 2019 records the time, date, location and details of the accident. It is recorded that police attended the accident scene, and that both vehicles were towed.
The Ambulance Electronic Medical Record relates to her husband. The case description records:
“…Pts wife and son were also in the vehicle who denie [sic] any pain or injury. Both also transported to hospital and triaged Sutherland Hpspital [sic].”
The particulars provided by the claimant’s solicitor on 8 September 2021 have been considered.
In correspondence to the claimant dated 9 August 2022 the insurer affirmed its original decision that the claimant’s permanent impairment does not exceed 10%, and provided its reasons for doing so.
SUBMISSIONS
Insurer’s submissions
The insurer relies on written submissions dated 1 September 2022. The submissions address the claimant’s physical and psychological injuries, and refer to pre-accident records relating to psychological counselling following the birth of the claimant’s son.
The insurer’s submissions refer to the notes recorded by Dr Li on 23 September 2019,
nine days post-accident, in which reference was made to the claimant’s involvement in a motor vehicle accident and that she had developed “neck/lower back pain and insomnia from anxiety and poor concentration”. Reference is also made to notes recorded by Dr Li on
16 December 2019 that the claimant had numbness and insomnia, but that psychological treatment once a month helped with her anxiety.
The insurer notes that on 17 October 2020 the claimant first attended Lois Li, psychologist, and her notes reveal that: the claimant’s husband’s temper is affecting her; she feels guilty because her son is helping with cooking and cleaning; her sleep was not impacted much; she did not tell her mother about the accident because her mother has depression. The insurer also refers to a questionnaire completed by the claimant in which she stated that it was “only the general check for me”.
The submissions canvas the opinions of Drs Panjratan, Allen and Vickery. There is also reference to the Functional and Vocational Capacity Report of Dr Farag, physiotherapist, and Mr Raue, psychologist, dated 25 February 2022.
The insurer relies on Dr Vickery’s opinion, including the opinion expressed in his second report, in which the doctor diagnosed a somatoform chronic pain disorder and explicitly did not make a diagnosis of post-traumatic stress disorder on the basis that the accident was reported as having been relatively minor.
The insurer submits that, in accordance with cl 6.40 of the Guidelines, the inconsistencies, variability and reliability of the assessments of the claimant both with respect to her physical and psychological condition are such that any measurements or tests demonstrating an impairment are not plausible. In its submission, the medical evidence verifies that an impairment in excess of 10% does not exist. The insurer argues that the claimant’s alleged physical and psychological injuries will not result in an assessment of permanent impairment exceeding 10%.
In its submissions dated 17 July 2023 the insurer argues that Medical Assessor Nagesh erred in assessing that the claimant’s post-traumatic stress disorder gives rise to a permanent impairment of 15% WPI and in his assessment on the PIRS. The insurer argues that the Medical Assessor’s assessment is incorrect in a material respect and that a correct determination by the Medical Assessor would have resulted in a finding of impairment less than 10%.
The insurer submits Medical Assessor Nagesh failed to take into account the physical aspect of the claimant’s alleged injuries in his assessment, and that he did not “properly” take into account all the medical records and the claimant’s physical injuries and symptoms that, in its submission, were not consistent with the records.
The insurer’s submissions refer to “the claimant’s focus on pain”, and in this regard point to the records of Ms Li and the reasons of Medical Assessor McGrath.
The insurer also refers to the opinion of Dr Allen, who found that the claimant presented with marked stigmata of abnormal illness behaviour and claimed to have a level of symptoms which far outreach any objective evidence of musculoskeletal pathology.
The insurer noted that, on the basis of his assessment, Dr Allen could find no objective evidence of any significant or residual musculoskeletal injury that was sustained by the claimant in the accident. The insurer also relied on the doctor’s opinion that the claimant’s complaints of ongoing symptoms were not substantiated by any objective clinical findings, and that this raised the strong possibility of a non-organic basis for her presentation.
The insurer’s submissions at [3.2] address each category in the PIRS. The insurer submits that the claimant is class 1 for self-care and personal hygiene, and class 2 for social and recreational activities. It argues that there is no deficit for travel, that “it is not possible to assess the claimant’s social functioning because [Medical] Assessor Nagesh has failed to take a proper history of the claimant’s social functioning”, that the claimant would fall into “no more than” class 2 for concentration, persistence and pace, and that there is no adequate basis for Medical Assessor Nagesh assessing the claimant with moderate impairment for adaptation. The insurer argues that a correct determination on the PIRS would result in an assessment under the 10% whole person impairment threshold.
Claimant’s submissions
The claimant relies on written submissions dated 25 July 2023. The claimant argues that Medical Assessor Nagesh did not fail to take into account the physical aspects of her injuries, and that the Medical Assessor’s assessment in accordance with the PIRS was correct.
The claimant submits that the Medical Assessor has not erred in any of his assessment of whole person impairment, and that the insurer’s application for review should be dismissed as it lacks merit.
RE-EXAMINATION
The claimant was re-examined by the medical members of the Panel by video conference on 16 October 2024. A Mandarin interpreter was present throughout the examination.
Psychosocial and pre-accident history
Personal history
The claimant was born in Taipei in Taiwan. She completed secondary school in Taiwan and came to Australia on a student visa. She initially completed an English Language course over one year. She next enrolled in a pre-university course at Sydney University but dropped out part way through because it contained too much science. She enrolled in a Child Care Certificate and later completed a Diploma of Childcare apparently at a private college which she referred to as “MEGT”.
The claimant next enrolled at Macquarie University in Early Childhood Education but left halfway through that course and enrolled at Western Sydney University where she completed a Bachelor of Childhood Education and a Masters of Early Childhood Education. She completed the Masters Degree in 2014.
The claimant commenced working casually and part time after completing the Diploma of Childcare. She married in early 2011, and her son was born in December 2011. She continued to work in childcare and at the time of the accident was working 3-4 days per week eight hours each day for three different childcare providers.
Previous medical history
The claimant has not been involved in any previous motor accidents. She was previously diagnosed with a prolactinoma of the pituitary gland and was treated with medication which she took on and off. She cannot remember whether she was taking the medication at the time of the accident.
The clinical records of the Hurstville Medical Centre contain letters from Dr Law who stated that on 11 May 2017 and 18 June 2018 Cabergoline was ceased because the claimant had a non-functioning pituitary microadenoma.
The claimant also had mild asthma and used a puffer from time to time. She is a non-smoker, does not consume alcohol, and has never used illegal substances.
She has one cup of coffee each day and an occasional cup of tea but no other caffeine intake. The claimant currently lives with her husband and son.
History of the motor accident
The accident occurred when the claimant was a front seat passenger in a vehicle driven by her husband. A vehicle approaching from a side street on the left collided with the front of their vehicle. The claimant reported that their vehicle was damaged more than the other vehicle. Her son was travelling in the back seat.
She got out of the vehicle to check on her son but subsequently felt dizzy and had to sit down. Passers-by came to help. They helped her husband get out of the vehicle. He was apparently stuck between the airbag and the seat. Their vehicle was later written off and has not been replaced. The police and ambulance were notified. The claimant, her husband, and son were taken to Sutherland Hospital. She was examined but had no X-rays or scans at Sutherland Hospital and was discharged home the same day.
History of symptoms and treatment
Following the accident the claimant had pain in the whole of her body, especially her neck and lower back. She had pain in both shoulders, the left more than the right. She developed mental symptoms within a month. These symptoms included difficulties falling asleep and staying asleep, and having repeated mental images of seeing her husband stuck in the vehicle. She was afraid of being involved in a further motor accident.
The claimant reported nightmares of events related to the accident every 1-2 months. She became very sensitive to sound of any kind, but particularly of motor vehicles. The claimant ceased driving after the accident because of a fear of being involved in further motor accidents. She drove without difficulty prior to the accident.
The claimant subsequently consulted her doctor, Dr Li, at the Hurstville Medical Practice. She later transferred to the Workers Medical Centre and was treated by Dr Eric Lim. She was referred to a psychologist, Ms Lois Li, apparently first attending on 17 October 2019.
Dr Jiang Li prescribed strong painkillers. She was also prescribed Lyrica and Mobic although it was unclear at what stage and later Prozac and gabapentin.
The claimant was referred to Dr Nirenjen St George, psychiatrist, by Dr Eric Lim. Dr St George’s letter of 19 August 2020 states that she was taking fluoxetine 20mg daily and gabapentin 300mg at night.
She was referred to Dr Gavin Soo regarding her shoulder injuries. She had an injection into her left shoulder. The claimant was referred to Dr Bhisham Singh, orthopaedic and spine surgeon, who organised an injection into her lower back and recommended she have various investigations including a bone scan and MRI scan. She was referred for physiotherapy.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant has not been involved in any subsequent motor accidents. Three weeks ago she twisted her ankle walking down the stairs at her apartment. This was diagnosed by her general practitioner as a soft tissue injury. She reported that it is improving but is uncomfortable from time to time. She has cut her fingers and also suffered a mild burn on her hand whilst cooking. She attributed these injuries to being distracted.
Current symptoms
The claimant continues to have pain in her left shoulder and cannot lift with her left arm. This is exacerbated when trying to lift items with her left arm and with onset of cold weather. She takes hot baths during the winter to alleviate this pain.
Her lower back continues to be painful. She can sit or stand for a maximum of 30 minutes, before her back becomes painful.
The claimant has very similar current psychiatric/psychological symptoms. She is always forgetful and cannot concentrate. She struggles to do the housework or grocery shopping, often forgetting what she needs to buy at the supermarket. She struggles with looking after her son. She describes herself as not being able to accomplish even small activities. She is always anxious.
She is very sensitive to sound. This can be the sound of the washing machine, particularly when it makes a thumping noise because they are washing heavy garments or objects. The sound of neighbours slamming a door or opening or closing a window “shocks” her. She cannot tolerate the sounds of dogs barking or children screaming, and asks her son to reduce the volume if he is using a computer or using a mobile telephone or even talking to her.
The claimant reported that she is distressed by the sound of motor vehicles rumbling down a busy road. She describes these sounds, which she referred to as sudden unexpected sounds, as making her “shocked”. Such sounds cause a racing heart, feeling short of breath, thinking that something will happen and will trigger a mental image of the accident, in her mind which can include her husband being stuck in the motor vehicle.
She has ceased all social activities and prefers to stay at home. She now only cooks simple meals. She feels bad and that she is a bad mother. Her sleep is disturbed. It takes 40-60 minutes to fall asleep and she wakes after 2-3 hours, sometimes because she has heard a noise and sometimes for no reason. It takes 30-40 minutes to fall asleep, after waking. She has nightmares of events related to the accident every 3-4 months.
The claimant reported that she is distressed walking on the footpath beside a road if she hears a bicycle sound its bell, the sound of a motorbike or the sound of a car. She is fearful of crossing the road, even at pedestrian crossings, being scared that a vehicle will collide with her. Crossing the road and walking beside the road appear to trigger images of the accident and/or her husband being trapped in the motor vehicle.
Current treatment
The claimant ceased medication in about January 2024. She was previously taking gabapentin and fluoxetine. She ceased because the insurer declined to reimburse her for the cost of the medication. She ceased consulting the psychologist at the end of 2022 because the insurer declined to pay for further treatment.
She no longer consults Dr Gavin Soo or Dr Bhisham Singh and has ceased physiotherapy.
No new treatment is proposed.
Mental state examination
The claimant was on time but struggled during the examination. She sometimes covered her face with her hands. She frequently rubbed her forehead and rubbed and ran her hands through her hair. At times she looked away. She appeared to find it very difficult to talk about the accident.
Her answers to questions were imprecise. She often replied using generic terms. For example, when asked “Why don’t you drive?” she responded “Because of the accident”, rather than explaining why she did not drive. She described having poor concentration without explaining it further when asked about her ability to think and remember.
She repeatedly referred to flashbacks and had to be specifically asked what she meant by flashbacks.
It required repeated direct questioning to clarify her initial answers to questions. This resulted in the examination continuing for 2 hours and 20 minutes.
There also appeared to be difficulty between the interpreter and the claimant understanding each other. At times the interpreter talked over the claimant and at times the claimant talked over the interpreter. The interpreter sometimes appeared to not understand what the claimant was saying.
The Medical Assessors are satisfied that they obtained an accurate history and account of the symptoms from the claimant, but it required a lengthy examination and clarifying questioning.
The claimant described ongoing pain in her left shoulder and lower back which interferes with many activities day to day.
The claimant reported that she is generally anxious, has little motivation or drive or interest in doing activities. She has poor concentration and a poor memory. She has repeated recurring mental images of the accident, particularly of the accident itself and of her husband being trapped in the vehicle and having to be helped out by others. She has initial insomnia, wakes after 2-3 hours and then struggles to get back to sleep. She has nightmares of the accident, currently occurring about every 3-4 months but originally occurring every 1-2 months. She avoids driving for fear of being involved in further motor accidents. She avoids leaving because she cannot tolerate the sounds of various vehicles when walking beside a road. She has ceased all social activities, having no interest in participating in social activities.
She is easily upset by noise and generally intolerant of noise, whether that be of her son, other children, opening and closing of doors or opening and closing of windows. She finds the sound of the washing machine and walking beside a road distressing.
Current functioning
The claimant has difficulty getting up in the morning which she attributes to a bad mood and her disturbed sleep. She showers 4-5 days each week but it appears in Summer she will shower every day. She gets dressed every day. She can cook simple meals like soup, steamed rice, and noodles. She buys more takeaway food and can walk to local shops to purchase takeaway food. Her husband does the laundry because she physically struggles to do it.
She can walk to the local supermarket but tends to forget what she wants to buy and sometimes forgets to take a shopping bag. She stated it was easier for her husband to do the grocery shopping on his way home from work.
She avoids leaving home and does not go out to meet others. She occasionally will go to the local café. She no longer has contact with friends and does not undertake any social activities. The local shopping centre is five minutes away which is where she goes to the café. She gets home delivery of takeaway food, using the Uber app.
The claimant walks to the train station about 10 minutes from her apartment which involves crossing several roads. She catches the train from Miranda to Hurstville to see consult various specialists. She consults specialists in Hurstville or Riverwood because she previously lived in Hurstville.
She no longer drives because she is scared of being involved in a further motor accident. She struggles to tolerate the sound of other vehicles. She could previously drive in the Hurstville area and to Riverwood and to and from work. She feels scared crossing the road but can do so when required. She avoids walking on the footpath beside a road because she is startled by the noise of motorbikes and motor vehicles and even the bell from a bicycle.
The claimant has arguments with her husband several times each week, usually about the housework such as not cleaning the floor or washing the dishes properly. She sometimes has arguments with her son but mostly he listens to her.
She sleeps separately from her husband. She stated, when asked, that this was because she did not want to argue with her husband and sleeping separately reduced the chances of having an argument as they have poor communication.
The claimant forgets the school activities that her son needs to undertake. She forgets what is required for his school assignments and to prepare food for him. He needs to remind her several times before she remembers. She stated at this time that she is a terrible mother.
The claimant reads books on childcare but only reads 1-2 pages at a time before she is distracted by something, needs to take a nap or go to the bathroom. She watches YouTube but for no more than 1-2 minutes, because she could not tolerate the noise. She has sometimes caught the wrong train going in the wrong direction when she needed to travel by train.
The claimant stated that she ceased working because of the pain in her whole body and because of her “mental stresses”. She stated that she is no longer been able to meet the requirements from her managers, the parents of the children, the children themselves, and would struggle to tolerate the noise from the children at a childcare centre. She has not attempted to return to work.
The claimant appears to spend her day reading as described above and doing some simple cooking and some housework. She talks to her son when he comes home from school. She might fold and put away some of the laundered items.
She stated that she feels terrible, that she is a bad mother, and is losing hope about living in her life.
Comments on consistency
The claimant’s presentation and account was consistent throughout the examination. She generally struggled, frequently rubbed her forehead and sometimes put her hands over her face, looked away and repeatedly ran her hands through her hair in what appeared to be a very anguished manner.
As stated previously, she had to be asked many clarifying questions to obtain the account described above.
The Medical Assessors found that the claimant’s presentation was generally consistent with that reported by Medical Assessor Nagesh and Dr Nirenjen St George.
Diagnosis and reasons
The Medical Assessors are satisfied that the claimant satisfies the criterion for a diagnosis of post-traumatic stress disorder as follows:
Category A - the claimant was involved in a motor accident in which she felt shocked. Although she got out of the vehicle to check on her son, she then struggled, felt dizzy and had to sit down.
Category B -the claimant has recurrent involuntary and triggered distressing memories of the motor accident and of her husband being stuck or trapped in the motor vehicle. She has recurrent and distressing nightmares of content related to the accident. She is distressed by hearing the sound of motor vehicles, motorbikes and even the sound of a bicycle bell.
Category C - the claimant minimises going out so she can avoid the sound of motor vehicles, motorbikes and bicycles as described above.
Category D - the claimant feels guilty stating that she is a bad person and a bad mother. She does not describe any positive feelings. She has lost interest in social activities and other activities. She has generally withdrawn from contact with others and avoids others. The claimant has problems with concentration and has significant sleep disturbance. She is easily irritated and has repeated arguments with her husband. She is shocked by sounds and has an intolerance of sounds of various types.
Category F - the symptoms have been present for more than a month. The disturbance causes distress and impairment in her social and occupational and day to day functioning.
Category H - the disturbance is not attributable to the physiological effects of a substance or another medical condition.
In his report dated 6 January 2021 Dr Vickery diagnosed “posttraumatic stress disorder” and “somatic symptom disorder”. In his report dated 14 April 2022 Dr Vickery diagnoses a “somatoform chronic pain disorder or malingering”. Dr Vickery stated that the somatic symptom disorder diagnosis is not directly related to the accident.
Dr Vickery’s diagnosis of somatoform chronic pain disorder or malingering appears to have been influenced, at least in part, by the findings in the report of Dr Allen, orthopaedic surgeon, dated 8 February 2022 and the Vocational Assessment dated 25 February 2022.
The Medical assessors considered whether there was somatoform disorder and determined that there was insufficient evidence to support such a diagnosis. The Medical Assessors did not agree with the diagnosis of malingering.
Causation and reasons
The claimant had no symptoms of mental illness at the time of the accident and was working 3-4 days each week as a childcare worker. She undertook social activities, was able to drive and coped with her son. She suffered minor injuries subsequently, and has not been involved in any subsequent motor accidents.
There is no other reason for her to develop the post-traumatic stress disorder other than the motor accident.
Permanency of impairment
The claimant has had symptoms since the motor accident. She has been treated by a psychiatrist, a psychologist, and taken psychiatric medication. All that treatment has ceased and she has ceased the medications which appears to have led to a deterioration of her symptoms. Her condition is not improving nor deteriorating and is unlikely to change in the future with or without medical treatment and by not more than three percent in the next 12 months.
Permanent Impairment Rating Scale
Psychiatric diagnosis
1. Posttraumatic Stress Disorder
2.
Psychiatric treatment description
Previous treatment with fluoxetine.
Previous treatment with gabapentin, Lyrica, painkillers and Mobic.
Previous treatment by a psychiatrist.
Previous treatment by a psychologist.
Category
Class
Reason for Decision
1. Self Care and Personal Hygiene
2
Mild impairment. The claimant does undertake some cooking, can walk to the local shops and can buy takeaway food or order it on the Uber app.
She gets out of bed each day but does not necessarily shower each day in winter, but does get dressed every day.
If she lived independently, she would probably look unkempt and may miss meals and would be likely to rely on takeaway food, at least from time to time.
2. Social and Recreational Activities
3
Moderate impairment. The claimant has ceased all social activities apart from occasionally going out to a local café.
She has no interest in social activities and struggles to tolerate noise in all situations.
3. Travel
2
Mild impairment. The claimant can walk five minutes to the local supermarket and ten minutes to the local train station.
She catches the train from Miranda to Hurstville for medical appointments. She has occasionally caught the wrong train going in the wrong direction. She minimises leaving home. The medical assessors considered that she had travelled to Taiwan for her father-in-law’s funeral in December 2022, but were not satisfied that she could travel unaccompanied outside familiar areas.
4. Social Functioning
2
Mild impairment. The claimant has arguments with her husband several times each week and sometimes with her son. They sleep in separate bedrooms to minimise the risk of arguments and have poor interpersonal communications. She did not say that she was separated from her husband.
5. Concentration, Persistence and Pace
3
Moderate impairment. The claimant reads one to two pages at a time in childcare books and watches YouTube videos or movies for perhaps one to two minutes.
She struggled throughout the examination, that lasted for over two hours. She took a break when it was offered after about one hour. It was a difficult examination requiring repeated direct questioning to clarify her answers.
The Vocational Assessment Report made reference to her lack of effort and an inconsistency with her physical performance level including between test items and making effort on various tests.
It was particularly noted this was not consistent with the lack of objective physical signs.
This lack of effort, slow pace and difficulties with testing could be explained by the diagnosed psychiatric/psychological conditions.
6. Adaptation
3
Moderate impairment. The claimant has not returned to work and stated this was because of a combination of her mental state, poor concentration, not being able to meet the standards required, and feeling unable to deal with the parents and unable to cope with the children in childcare, particularly the noise that they made.
She also felt that the pain that she was experiencing particularly in the left shoulder and lower back and her inability to stand or sit for more than half an hour would impact on her ability to resume work.
The Medical Assessors determined that the post-traumatic stress disorder caused by the accident resulted in an impairment such that the claimant could not work the equivalent of 50 % of her previous hours of work and in the same position as previously. The Medical Assessors determined that considering this condition, and particularly her sensitivity to noise, that she could not return to working in the childcare environment.
List classes in ascending order: 2, 2, 2, 3, 3, 3
Median Class Value: 2.5 = 3
Aggregate Score: 15
% Whole Person Impairment: 15 %
*%WPI = Percentage Whole Person Impairment
Apportionment – pre-existing/subsequent impairment
The Medical Assessors took into consideration that the claimant had counselling following the birth of her son. The Medical Assessors were satisfied that the claimant had no psychiatric/psychological symptoms at the time of the motor accident. She was working 3-4 days each week as a childcare worker at three different childcare centres. She undertook social activities, was able to drive and coped with her son.
The Medical Assessors determined that there was no pre-existing psychological condition or impairment at the time of the accident.
Ms Huang has not been involved in any subsequent motor accidents or developed any new medical conditions that would impact on her ability to function.
Neither a pre nor post-accident apportionment is required.
Effects of treatment
The claimant is not undergoing any treatment. No allowance is made for the effect of treatment. It is not clear whether taking medication did improve her ability to function.
Impairment
Current whole person impairment 15 %
Apportionment 0 %
Effects of Treatment 0 %
Final whole person impairment 15 %
DETERMINATION
The Panel is satisfied on the evidence, including the findings made by the medical members of the Panel following their re-examination of the claimant, that she satisfies the DSM-5-TR diagnostic criteria for post-traumatic stress disorder.
The claimant had no symptoms of mental illness at the time of the accident and was working 3-4 days each week as a childcare worker. She undertook social activities, was able to drive and coped with her son. She suffered minor injuries subsequently, and has not been involved in any subsequent motor accidents. There is no other reason for her to develop the post-traumatic stress disorder other than the accident. The Panel is satisfied that as a result of the accident the claimant developed post-traumatic stress disorder and that but for the accident the claimant would not have developed that condition.
The Panel finds that there was no pre-existing psychological condition or impairment at the time of the accident.
The Panel is satisfied, for the reasons given earlier by the medical members of the Panel, that the claimant does not have a somatoform disorder.
With respect to accident caused impairment, the Panel notes that the PIRS must be used by a properly trained Medical Assessor. Further, the clinical judgement of the Medical Assessors on the Panel, both of whom are psychiatrists, is the most important tool in the application of the PIRS: cl 6.217 Guidelines. The Panel is, accordingly, particularly reliant on the clinical expertise of the medical members of the Panel in the assessment of the claimant’s psychological injury.
The medical members of the Panel have evaluated the claimant’s impairment as it was at the time of the assessment: cl 6.21 Guidelines. The Panel agrees with and adopts the precise examination findings and conclusions of the Medical Assessors based on their examination of the claimant, and their specific findings pertaining to PIRS ratings, and permanent impairment.
The Panel finds that the post-traumatic stress disorder caused by the accident gives rise to a permanent impairment of 15%. Accordingly, the claimant’s permanent impairment as a result of the post-traumatic stress disorder caused by the accident is greater than 10%.
The Panel’s assessment of the claimant’s impairment is the same as that made by Medical Assessor Nagesh. Accordingly, the Panel confirms the certificate of assessment of the Medical Assessor dated 19 June 2023.
0
2
0