Insurance Australia Limited t/as NRMA Insurance v Karisik
[2022] NSWPICMP 235
•24 May 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Karisik [2022] NSWPICMP 235 |
| CLAIMANT: | Radenko Karisik |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel: | Member Ray Plibersek Dr Matthew Jones Dr Michael Li Ying Hong |
| DATE OF DECISION: | 24 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Motor Accident Compensation Act 1999; medical review panel; psychological injury; whole person impairment (WPI); permanent impairment; Posttraumatic Stress Disorder (PTSD); medical review panel; dispute related to assessment of permanent impairment; previous motor accident; previously suffered from a number of psychological issues; previous psychological issues resolved; subsequent motor accident; initial complaints of PTSD; development of psychological symptoms; no remission of symptoms at any time after the accident; subsequent to the motor accident claimant experienced further life stressors; further life stressors increased claimant’s anxiety and depression, but did not produce new psychological injury. Held: diagnosis of PTSD; original certificate of Medical Assessor who assessed a 15% WPI revoked; new certificate issued; assessment of 7% whole person impairment. |
| DETERMINATIONS MADE: | The Review Panel revokes the certificate dated 1 July 2021 and issues a new certificate determining that: The following injuries caused by the motor accident give rise to a whole person impairment of 7 % and IS NOT GREATER THAN 10%: • Posttraumatic Stress Disorder |
REASONS
Background
Mr Radenko Karisik (the claimant) suffered injury in a motor accident on 3 July 2018. His van was stationary at traffic lights and a car collided with the rear of his van. He experienced immediate pain to the neck and shoulders and had a few weeks of work after the accident.
The owner and driver of the other motor vehicle was insured by the NRMA Ltd (the insurer) who had liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The present issue is whether the degree of permanent impairment of the claimant has resulted from the injury caused by the motor accident within the meaning of the MAI Act. Under Schedule 2, clause 2(a) of the MAI Act, the definition of a medical assessment matter includes whether “the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage)”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to section 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
Under sub-section 7.26 (6) the review of a medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. It is a new assessment of all the matters with which the medical assessment is concerned.
The dispute was initially determined by Medical Assessor Allnutt who issued a Medical Assessment Certificate dated 1 July 2021. Assessor Allnutt’s certificate concluded that the claimant sustained a Chronic Posttraumatic Stress Disorder which was caused by the motor accident which gave rise to a permanent impairment of and greater than10 %. Assessor Allnutt’s reasons concluded that the claimant’s whole person impairment(WPI) was15 %.[2]
[2] Insurer bundle R1 page 25.
The review
In this application for review the insurer is the applicant.
The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[3]
[3] Section 7.26(10) of the MAI Act.
On 15 July 2021, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[5] that a review panel consists of two Mmedical Assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[5] Section 7.26(5A) of the MAI Act.
Part 5 of 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.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
On 24 February 2022 the Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered. The parties were subsequently advised that the claimant would be examined by the Medical Assessors on the Panel on 22 April 2022.
Statutory provisions
The Motor Accidents Guidelines (the Guidelines) are made pursuant to section 10.2 of the MAI Act. Part 6 of the Guidelines contain the procedure for assessing psychiatric impairment for the purposes of the MAI Act. Version 8.2 of the Guidelines commenced on 8 April 2022 and applies to motor accidents occurring on or after 1 December 2017.
In respect of the medical assessment for assessing psychiatric impairment, the Guidelines relevantly provide:
“6.35 Psychiatric impairment is assessed in accordance with 'Mental and behavioural disorders' within this part of the Motor Accident Guidelines.
6.203 The assessment of mental and behavioural disorders must be undertaken in accordance with the psychiatric impairment rating scale (PIRS) as set out in these Guidelines. Chapter 14 of the AMA4 Guides (pages 291-302) is to be used for background or reference only.
6.213 The impairment must be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic & Statistical Manual of Mental Disorders (DSM) or the current edition of the International Statistical Classification of Diseases & Related Health Problems (ICD). The impairment evaluation report must specify the diagnostic criteria on which the diagnosis is based.
6.217 The scale must be used by a properly trained medical assessor. The psychiatrist's clinical judgement is the most important tool in the application of the scale. The impairment rating must be consistent with a recognised psychiatric diagnosis and based on the psychiatrist's clinical experience.
6.218 In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.
6.219 Behavioural consequences of psychiatric disorders are assessed on six areas of function, each of which evaluates an area of functional impairment:
(a) self-care and personal hygiene (Table 6.11)
(b) social and recreational activities (Table 6.12)
(c) travel (Table 6.13)
(d) social functioning (relationships) (Table 6.14)
(e) concentration, persistence and pace (Table 6.15)
(f) adaptation (Table 6.16).
6.217 The scale must be used by a properly trained medical assessor. The psychiatrist's clinical judgement is the most important tool in the application of the scale. The impairment rating must be consistent with a recognised psychiatric diagnosis and based on the psychiatrist's clinical experience.
6.218 In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act[9].
[9] See section 3B(2) of the Civil Liability Act, 2002.
Part 6 of the Guidelines have been developed for the purpose of assessing the degree of permanent impairment[10] arising from the injury caused by a motor accident, in accordance with Division 7.5, section 7.21, and clause 2 of Schedule 2 of the MAI Act.
[10] See clauses 6.5 - 6.7 of the Guidelines.
Part 6 is specified as applying only to the assessment of permanent impairment.[11]
[11] See clause 6.3 of the Guidelines.
Under subsection 7.26(6) of the MAI Act, a review of a medical assessment is not limited to a review of only what is alleged to be incorrect. It is a new assessment of all the matters with which the medical assessment is concerned. A review should also generally involve a re-examination of the claimant. See the decision of the Court of Appeal in Sydney Trains v Batshon [2021] NSWCA 143 where Leeming JA (with White JA and McCallum JA agreeing) stated at [41]:
“Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review ‘should generally include a re-examination of the claimant’, especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings: see cl 4(a)(i) and (ii) of the ‘Review Panel Practice Note 3/2005’, reproduced in Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127 at [36]. Importantly, the review ‘is not limited to a review only of that aspect of the assessment that is alleged to be incorrect’, but rather ‘is to be by way of a new assessment of all the matters with which the medical assessment is concerned’: Motor Accidents Compensation Act 1999 (NSW), s 63(3A); Motor Accident Injuries Act 2017 (NSW), s 7.26(6).”
Psychiatric Impairment Rating Scale (PIRS)
Part 6 of the Guidelines deals with the assessment of the degree of permanent impairment arising from the injury caused by a motor accident, in accordance with Division 7.5, section 7.21, and clause 2 of Schedule 2 of the MA I Act.
The assessment of mental and behavioural disorders must be undertaken in accordance with the PIRS set out in the Guidelines.
The two categories disputed by the insurer in this case are “Travel” and “Adaptation”.
The table for assessing “Travel” is 6.13 and is as follows:
“Table 6.13: Psychiatric impairment rating scale (PIRS) Travel
Class 1 No deficit, or minor deficit attributable to normal variation in the general population. Able to travel to new environments without supervision.
Class 2 Mild impairment. Able to travel without support person, but only in a familiar area such as local shops or visiting a neighbour.
Class 3 Moderate impairment. Unable to travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
Class 4 Severe impairment. Finds it extremely uncomfortable to leave own residence even with a trusted person.
Class 5 Totally impaired. Cannot be left unsupervised, even at home. May require two or more persons to supervise when travelling.”
The table for assessing “Adaptation” is 6.16 and is as follows:
“Table 6.16: Psychiatric impairment rating scale (PIRS) Adaptation
Class 1 No deficit, or minor deficit attributable to normal variation in the general population. Able to work full time. Duties and performance are consistent with injured person’s education and training. The injured person is able to cope with the normal demands of the job.
Class 2 Mild impairment. Able to work full time in a different environment. The duties require comparable skill and intellect. Can work in the same position, but no more than 20 hours per week; for example, no longer happy to work with specific persons, work in a specific location due to travel required.
Class 3 Moderate impairment. Cannot work at all in same position as previously. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different; for example, less stressful.
Class 4 Severe impairment. Cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5 Totally impaired. Cannot work at all.”
Assessment under review
Medical Assessor Allnutt certified that the claimant sustained a Chronic Posttraumatic Stress Disorder (PTSD) which was caused by the motor accident which gave rise to an assessment of a 15% whole person impairment.
Assessor Allnutt examined the claimant on 31 May 2021 and found his current symptoms on examination to be as follows [12]:
“When I saw him, he said his mood was depressed and he could not get happy. His sleep was poor, and he woke up every night with dreams, some of which would be about his son, his wife and the car accident. Nightmares occurred two to three times a night. His sleep was light, and his appetite varied, but there was no weight loss. His energy levels were such that he woke up feeling tired, but his energy seemed to improve through the day until midday, when he would feel tired again for the rest of the day. Other than caring for his child, his motivation was diminished. He thought he was a good person but doubted his decision-making and found it hard to be confident. He had limited interests and it was difficult for him to find pleasure in things other than perhaps doing something with his son.
He had suicidal ideation, sometimes with a ‘strange feeling’. His last suicidal thought occurred the day before I saw him. He was unaware of his psychologist monitoring these thoughts, although the psychologist had previously asked about them when he saw him initially. He denied current suicidal plan or intent and said the last time such thoughts were associated with an urge was one month ago.
Panic attacks continued to occur at a variable rate, once a week up to every two days. They lasted 10 to 15 minutes, with associated increased heart rate and shortness of breath. Triggers could be crowds of people, other people (socially) and driving a car, and they could occur out of the blue. His preference was not to drive a car, to avoid crowds. He said when he spoke or thought about the accident, he felt increased stress and he preferred to avoid that. Other motor vehicle accidents created stress for him. He was irritable and short-tempered but the intensity of this varied. He could not get emotionally close to people because he did not feel he could trust people. Sudden bangs and sounds caused him to be jumpy. He was hypervigilant when driving.
There were no perceptual disturbances such as voices, visions, tastes or smells, messages from the TV, radio or newspaper, thoughts of being controlled by external forces or paranoid thoughts.”
[12] Insurer bundle R1 page 18.
In regard to diagnosis and causation Assessor Allnutt concluded [13]:
“He manifests post-traumatic stress disorder, according to the criteria of the DSM-V.
He was involved in a motor vehicle accident and experiences intrusive, distressing nightmares, some of which are related to the accident. He prefers not to speak or think about the accident and therefore is avoidant of them. He is triggered by cues that remind him of the accident, such as driving and speaking or thinking about it. At times he experiences panic attacks (characterised by shortness of breath and palpitations). He is more withdrawn socially from others, has a generally negative mood and difficulty experiencing joy. He has lost interest in his usual activities and there is a tendency to variable irritability and hypervigilance (particularly when driving). He has poor concentration and sleep disturbance. These symptoms impact on his functioning.
While the complainant has a prior history of panic attacks, there is insufficient evidence to conclude that he was suffering a diagnosable psychiatric condition at the material time of the index injury, and in particular there is no evidence of a pre-existing trauma and stressor-related disorder such as a chronic adjustment disorder or PTSD.
His symptoms are the kinds of symptoms that a motor vehicle accident could trigger. The content of the symptoms relates to the motor vehicle accident (such as being triggered by driving or having nightmares about driving).
There have been other post-injury stressors, some of which are unrelated to the index injury but others, in my view, do have a relationship to the injury. Stressors include aggravation in the marital relationship with his wife as a consequence of reduced libido (arising from depressive symptoms associated with the index injury), the subsequent absence of support in managing his psychosocial stressors from his father’s death, his mother’s injury and his son’s operation, and increased demands being placed on him to care for his son. I believe the breakdown in his relationship with his wife was associated with the index injury.
Overall, while there have been aggravating factors unrelated to the injury, I regard the index injury as making a substantial contribution to his current mental state.”
[13] Insurer bundle R1 pages 21 and 22.
Assessor Allnutt used the PIRS to assess the category and class for the claimant’s PTSD. He assessed the claimant in the category of “Travel” to be in Class 3. The reasons the Assessor gave for his classification were:
“He felt confident driving a car until he was triggered, for example, if he saw an accident a thought came into his head that he might also have an accident, and he would then feel fearful. This might be associated with a panic attack, and he would then need to stop and get a coffee to recover before he could drive anymore. His preference was to avoid driving as much as he could, but he could drive alone to unfamiliar places if needed. He preferred to drive than take public transport but avoided public transport because he could not stand being around large groups of people. Triggers could be crowds of people, other people (socially) and driving a car, and they could occur out of the blue. His preference was not to drive a car, to avoid crowds.”[14]
[14] Insurer bundle, AD 3, R1 page 23.
Assessor Allnutt used the PIRS to assess the category and class for the claimant’s PTSD. He assessed the claimant in the category of “Adaptation” to be in Class 3. The reasons the Assessor gave for his classification were:
“He was now working about 20 to 25 hours a week, and when he did work there was “something different”. He said, “I find it difficult to be in the safe spot all the time” because “I feel weird, like I’m not going to finish the job, like I don’t want to be in the same place doing this”. He then added, “I feel like I’m getting anxiety and panic attacks again”. He described that at work he got shortness of breath, and this seemed to worsen the more people were around him - shortness of breath, increased heart rate and pain in his chest occurred. a result he felt he wanted to leave the work needed to leave. He also felt tired and exhausted, as though he did not want to do anything. Due to this, the quality of his work varied (despite working about 20 to 25 hours a week). He then added, “If I’m not supervising full-time something always goes wrong at work” but he would leave the workplace despite that because he could not cope with his feelings of anxiety at work.”[15]
[15] Insurer bundle, AD 3, R1 page 24.
Assessor Allnutt also assessed the claimant in the categories of: Self Care and Personal Hygiene; Social and Recreational Activities; Concentration, Persistence and Pace; all to be in Class 2.
Assessor Allnutt also assessed the claimant in the category of Social Functioning to be in Class 3.
Assessor Allnutt concluded with his assessment that claimant had a whole person impairment of 15%.
Submissions
In this review the insurer submits that Medical Assessor Allnutt has erred in his assessment of the claimant as a Class 3 rating for “Travel” and “Adaptation”. The insurer further submits that this error is material to the outcome.[16]
[16] Insurer’s submissions – A1 dated 2 August 2021.
In its written submissions in reply to the DRS dispute[17], the insurer notes that both Dr Khan and Dr Synnott have diagnosed Mr Karisik with a recognised psychiatric disorder. The results of those assessments were a median Class of 2, with an aggregate score of 14, which equates to 7% whole person impairment.
[17] Insurer bundle, AD 3, R 1 page 14.
The insurer refers to evidence that the claimant “felt confident in driving” and is able to “drive alone to unfamiliar places”. Although the claimant reports symptoms associated with panic attack if triggered by particular events, he is able to recover and continue driving after taking break.
The insurer notes that at the time of accident claimant worked as a full-time painter. The insurer then refers to evidence that the claimant is able to perform his pre-injury duties of more than 20 hours a week and continue to provide supervision. The insurer refers to evidence that the claimant had feelings of exhaustion and anxiety which interrupts his work at times. However he is still able to work 20-25 hours a week in the same job.
The insurer submits that considering claimant’s functions and the evidence for the “Travel” and “Adaptation” categories, the claimant’s best fit in both categories is the class descriptor of Class 2, instead of Class 3.
The claimant’s solicitors’ submissions refer to section 7.26 of the MAI Act and clauses 6.217 and 6.220 of the Guidelines describing how the Medical Assessor should undertake the examination and classification process.[18]
[18] Claimant’s bundle, AD 4 dated 2 September 2021 page 2.
The claimant’s solicitors’ submissions then refer to the claimant’s medical history as recited by Assessor Allnutt. The submissions set out the descriptors for the “Travel” and “Adaptation” categories in Class 2 and Class 3.
Regarding the descriptor for “Travel”, the claimant’s solicitors submit that he did drive but preferred not to. Driving gave him anxiety. They submit that the finding by Assessor Allnutt of Class 3 was not incorrect in a material respect.
Regarding the descriptor for “Adaptation”, the claimant’s solicitors submit that prior to the accident the claimant worked 60 to 80 hours per week and after the accident he worked 20 to 25 hours per week. He also suffered from panic attacks, shortness of breath and anxiety. The solicitors submit that the finding by Assessor Allnutt of Class 3 was not incorrect in a material respect.
MATERIAL BEFORE THE REVIEW PANEL
Both parties filed bundle of documents in accordance with the initial Direction dated 24 February 2022.
A diagnosis of PTSD was first made by Dr Eric Lim in the Certificate of Capacity/Certificate of Fitness dated 14 August 2018 [19]. Apart from changes to physical injury notations, the PTSD diagnosis remained unchanged for the remainder of the Certificate of Capacity/Certificates of Fitness [20] .
[19] Insurer bundle, AD 3 R 25 page 210.
[20] Insurer bundle, AD 3 R 13 to 40 pages 171-272.
A Medical Assessment of Minor Injury – psychological or psychiatric injury was made by Medical Assessor Shannon Paisley who issued a Medical Assessment Certificate dated 29 October 2019.[21] Assessor Paisley’s certificate concluded that the claimant sustained a Posttraumatic Stress Disorder which is not a minor injury for the purposes of the MAI Act. Assessor Paisley noted that the claimant had said that he experienced some anxiety approximately 10 years ago which had resolved some five months later.
[21] Insurer bundle, AD 3 R 43 page 299.
An Allied Health Recovery Request from the psychologist Carl Nielsen dated 2 December 2019[22] diagnosed the claimant with PTSD. Current signs and symptoms noted as being low mood, irritability, sleep disturbance, anxious cognitions, flashbacks, impaired memory, impaired concentration and avoidance.
[22] Insurer bundle, AD 3 R 46 page 318.
Dr Abdal Khan is the claimant’s treating psychiatrist. In a report dated 27 April 2020, Dr Khan diagnosed the claimant with a post-traumatic stress disorder and a major depressive disorder.[23] He assessed the claimant as being in Class 2 for the descriptor for “Travel”. He assessed the claimant as being in Class 3 for the descriptor for “Employability”. Dr Khan assessed the claimant as having 16% whole person impairment.
[23] Claimant’s bundle, AD 4 dated 27 April 2020 page 8.
A report dated 22 September 2020 was made by Dr Inglis Howe Synnott, consultant psychiatrist [24]. Dr Synnott’s opinion was that in relation to the subject motor vehicle accident (MVA) described by the claimant he was experiencing sufficient psychiatric symptoms to meet the diagnostic criteria of a Major Depressive Disorder with prominent anxiety. Dr Synnott assessed the claimant with a whole person impairment of 7% with a class 2 rating for both “Travel” and “Adaptation”.[25]
[24] Insurer bundle, AD 3 R 41 page 273.
[25] Insurer bundle, AD 3 R 41 page 287.
RE-EXAMINATION
The Panel determined that the claimant be re-examined by both Medical Assessors given the factual issues in dispute.[26] The claimant was re-examined by both Medical Assessors on 22 April 2022.
[26] See also the discussion by Leeming JA in Sydney Trains v Batshon [2021] NSWCA 143 at [41], White and McCallum JJA agreeing.
The re-examination report by Assessor Jones and Assessor Hong is as follows:
1. “Who attended the assessment
Video assessment.
Mr Karisik was at his lawyer’s office during the assessment.
Mr Dejan Grahovac was the interpreter.
Assessor Jones was in his Sydney rooms.
Assessor Hong was in his Sydney rooms.
The assessment took 1 hour 25 minutes.
History
2. Psychosocial history and pre-accident history
Mr Karisik was born in the former Yugoslavia and came to Australia in 1998. There was no developmental trauma identified. He does not have epilepsy, cardiac, thyroid or liver disease.
Mr Karisik suffered depression and anxiety attacks in 2007 due to worries related to his parents’ health. He recalled he took an antidepressant for about five months and he said that it was so long ago he does not have a clear memory about the history at that time anymore. He recovered after a few months and said there were no subsequent issues with his mental health.
He confirmed that his wife took out an Apprehended Violence Order due to verbal aggression. He was drinking alcohol, he did not think he was drinking excessively and he said suddenly the police turned up and charged him, this was about two or three years before the accident. The AVO has since lapsed. He said the marriage then improved and they were closer and no longer having arguments, and he was not drinking alcohol anymore.
After coming to Australia, he studied languages and has been a painter for about 12 years. He started a painting business with his wife, and at the time of the accident he said he worked 60 to 80 hours per week, mostly doing the painting job, but he also spent time purchasing material and organising staff.
3. History of the motor accident
On 3 July 2018, Mr Karisik was driving home from work in his van. He had stopped at the traffic light and was stationary when he was rear-ended. He recalled the female driver came out and exchanged details with him, he then went home. His airbag was not deployed. His car has been repaired. There was no loss of consciousness. He suffered neck pain and shoulder pain and saw his GP. He had scans and there was no fracture.
Mr Karisik’ neck is the main physical problem recently, and he said that he has some back pain as well. He had some injection and has not had other treatment for his physical injuries. He has not had surgical treatment.
4. History of symptoms and treatment following the motor accident
He recalled during the accident there was a loud bang which frightened him. He said he was relaxed in his car and unaware what was going to happen, and it was very dramatic, and immediately he worried he would suffer major injuries because he experienced pain, which came from the seatbelt. He then developed re-experiencing symptoms after the subject accident.
5.Details of any relevant injuries or conditions sustained since the motor accident
After the accident, Mr Karisik said that he only drinks occasionally and only one beer at a time, because he does not want to mix alcohol with medications. He said he became irritable with his wife. His wife went overseas and then called him and said that she was not coming back and left his son with him in Australia. He thinks that because he had no libido and was not sleeping with her after the subject accident, she therefore ended the marriage.
He has not had another partner since.
There have been subsequent stressors after Mr Karisik's wife left him. He recalled he struggled to look after his son and then about two years ago, in a similar period of time, his father passed away and his son needed emergency surgery. His son has recovered well and is going to school. He stated he has tried to be both the mother and father for him.
His mother had moved in to help with his son after his wife left, and unfortunately she had a fall and suffered a hip and leg fracture and was in hospital for about three months. She is doing better now, but her leg is not perfect and he worries about her and said she is old now.
The Panel asked Mr Karisik how these issues impacted on him psychologically. He said he become worse and he does not feel like himself, and that he wants to help his mother and his son, but he cannot do it like he could do in the past. The Panel has not identified new psychological symptoms from these subsequent life stressors.
6. Current symptoms
Since the accident, Mr Karisik has had treatment but not improved substantially. He said he feels horrible, one day he would be very low in mood, the next day he might have shortness of breath and anxiety attacks. At night he still has bad dreams. He feels like he is in a tunnel and there is no way out and he has contemplated suicide.
Mr Karisik reported having intrusive memories related to the car accident, especially when he watches the news or sees an accident on the road. His nightmares have improved, recently occurring 2 to 3 times per week.
He has panic attacks and shortness of breath from anxiety.
He is irritable.
He reported having gained weight after the subject accident and is not sure how much weight. His weight has been stable during 2022.
He reported having sleep problems.
He reported having depressed mood and suicidal ideation. He has not self-harmed.
He described having reduced concentration.
7. Current and proposed treatment
Mr Karisik is not sure of the names of the clinicians he consulted, and reported his current psychologist is “Carl”. He has consulted a psychiatrist previously and is not sure how long ago.
Mr Karisik is currently taking:
·Melatonin
·Avanza
·An analgesic medication
There are no proposed new treatments.
Clinical Examination
8. Mental State examination
Mr Karisik was a casually attired and had short greying hair and a stubble beard. He presented as tense and did not smile. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and reactivity. He spoke spontaneously. He was not thought disordered.
Mr Karisik provided a coherent history and provided a reasonable amount of detail, although he could not recall some history from 10 years ago. There were no difficulties in alternating between topics and staying within a topic. He maintained a normal processing speed. There was no overt cognitive impairment.
9. Current functioning
Mr Karisik is living with his mother and 13-year-old son.
Physically, Mr Karisik finds it hard to walk sometimes due to problems with his balance. He stated he can walk more than half an hour and would struggle with one hour. He does not know how much he is allowed to carry and said there is no problem lifting a 2 kg milk carton. He can use his arms above horizontal level.
When Mr Karisik is not working he said he spends time with his son, but he is worried because his son has been spending too much time playing videogames. His mother does most of the housework.
He said he does not eat regularly, sometimes he would not eat all day, other times he might only have one meal a day.
He does not see the point and said he only showers every two or three days. He does not need prompting to eat or shower.
Before the subject accident, Mr Karisik would see his friends and would go out regularly, but he said that since the accident he is not having contact with his friends like he used to. He only remains in contact with one person. The last time he saw that friend in person was two months ago and before that, six months prior.
He is not going to social functions such as birthday parties and weddings anymore, and has not been to any functions in the last one year.
He said he does not go anywhere when he is not working.
In the past he liked to go fishing and in the last one year, he has only gone twice with his son, and he reported he finds it hard to enjoy activities he normally would enjoy.
He does not exercise or take walks.
He said he avoids driving and prefers for the workers from his business to drive him because he is anxious on the road. When he has to he can drive on his own, but he finds that he has had panic attack symptoms and had to pull over to calm himself. He said it helps if he brings a bottle of water when he drives. He can drive for about 30 minutes and can drive on the highway, but he becomes very nervous if he sees an accident on the road or if there is build-up of traffic.
After the accident, Mr Karisik took a few weeks off work. He then continued work in the same business, and is able to maintain 20 to 25 hours per week. He said that he would go on site to supervise workers and to make sure the project goes smoothly. He finds it hard to paint because of his neck pain, and he would apply finishing touches to the painting job to ensure it is done properly, but does not do the whole painting job as it would aggravate his neck pain. He finds that he has anxiety while he is working, especially when he has to climb a ladder.
10.Comments of consistency
There was no inconsistency identified.
Permanency of Impairment
Mr Karisik's psychological impairment is permanent and stabilised, with or without medical treatment, and is not likely to remit or change more than 3% with further medical treatment.
11.Diagnosis and reasons
Mr Karisik's psychological symptoms have fulfilled all of the DSM-5 diagnostic criteria for PTSD. The subject incident is consistent with a criterion A stressor as it was a minor but frightening experience. He has developed flashbacks, nightmares, persistent avoidance of situations and anxiety when exposed to reminders of the subject MVA, persistent negative cognitions and mood, and physiological hyper-arousal with disturbed sleep. His symptoms have persisted longer than 4 weeks and are associated with functional impairment. There is no other medical or psychiatric condition that better explains his current psychological symptoms.
12.Causation and reasons
Mr Karisik has suffered depression and anxiety around 2007 and this resolved completely. He described his wife took out an AVO against him in the context of an argument and having drank alcohol. He reported that after that incident, he no longer drank alcohol and there was no problem in the marriage anymore, and he was in good psychological health before the subject accident.
After the subject accident, Mr Karisik described the onset of depression and anxiety, and this evolved into PTSD. His psychological condition has not remitted over time.
He encountered further life stressors and these did not sever the chain of causation, his psychological symptoms from the subject MVA have continued and therefore the subject MVA is a major causal factor of his current psychological injury.
13.Psychiatric Impairment Rating Scale
Current PIRS
Psychiatric diagnoses
1. PTSD with anxiety and depressive symptoms
2.
3.
4.
Psychiatric treatment description
Antidepressant medications
Psychiatrist
Psychologist
Category
Class
Reason for Decision
1. Self Care and Personal Hygiene (current)
2
Mr Karisik reported neglecting his self-care, and does not shower or eat regularly.
He is capable of independent living without regular support.
2. Social and Recreational Activities
3
He used to go fishing with his friends, and went out with his friends regularly, and attended parties.
He stopped attending social gatherings. He does not eat out with his friends or go to family functions anymore as he is socially anxious.
3. Travel
2
Mr Karisik avoids driving and has to pull over from panic attacks at times on the road. He can drive 30 minutes on his own.
4. Social Functioning
2
The Panel noted Mr Karisik's marital history and a previous Apprehended Violence Order, and one of the reasons for the marriage not remaining intact was his changed behaviour after the subject accident. The Panel also noted she abandoned her husband and her son when she was overseas.
Mr Karisik is able to maintain a long-term friendship but let other friendships go. The relationships with his family and son is good and he looks after his son.
He has a reasonable relationship with his workers.
Utilising clinical judgement there is a class 2 impairment here.
5. Concentration, Persistence and Pace
2
Mr Karisik reported having reduced concentration.
He supervises other workers to ensure the painting job is performed at an adequate level, and does this a few hours a day. His mental state examination during the 1 hour 25 minutes assessment is consistent with class 2.
6. Adaptation
3
Mr Karisik cannot work in same role and cannot manage stressful roles. He can manage a less stressful role around 25 hours per week.
His physical injuries and pain are not assessable in the PIRS and therefore set aside.
List classes in ascending order: 222 233
Median Class Value: 2
Aggregate Score: 14
% Whole Person Impairment: 7 %
*%WPI = Percentage Whole Person Impairment
14.Apportionment
Pre-existing/subsequent impairment
Mr Karisik had recovered from his previous psychological injury.
There have been several subsequent stressful events, including issues with his son, his mother and his father. These are causally unrelated events and very difficult to apportion. There is no additional impairment and therefore no apportionment.
15.Effects of Treatment
0% - Mr Karisik has not gained significant improvement in his psychological symptoms or functioning with treatment.
Conclusion
Degree of permanent impairment caused by the motor accident
7 %
PANELS REASONS AND FINDINGS
52.The review is a new assessment of all matters with which the medical assessment is concerned.
Findings
The Panel adopts the examination findings and conclusions of the Medical Assessors re-examined by both Medical Assessors on 22 April 2022. The examination and report is based on the thorough examination and specific findings pertaining to procedures for assessing psychiatric impairment as set out in the MAI Act and the Gudielines. We add the following further reasons.
The Panel is satisfied that the claimant was healthy prior to the motor accident with no relevant psychological issues. The claimant’s pre-accident history showed he had previously suffered from a number of psychological issues. In 1998 he was involved in a motor vehicle accident and a CTP claim was made for physical injuries. He recovered well from these injuries and denied any psychological symptoms arising from that accident. In 2007 he suffered depression and anxiety attacks in due to worries related to his parents’ health. The claimant said he was prescribed some tablets for anxiety. He said that his symptoms fully resolved after approximately five months. In about 2015 the claimant was the subject of an AVO for threating his wife and was drinking excessive alcohol. He then reported that he stopped drinking alcohol and his marriage improved.
Since the motor accident the claimant has suffered from psychological issues and has been receiving psychological treatment and medication.
After the motor accident the claimant experienced a number of further stressors in his life. These included the claimant’s wife left him to live overseas, illness experienced by his mother and son and the death of his father. The Panel asked the claimant how these issues impacted on him psychologically. He said he become worse and he does not feel like himself. He wants to help his mother and his son, but he cannot do it like he could do in the past. The Panel has not identified new psychological symptoms from these subsequent life stressors.
The claimant has provided consistent complaints of psychological symptoms to his treating psychologist, treating GP, the original Medical Assessor, and the Medical Assessors on the Panel. We consider the claimant to a reliable and accurate historian.
We accept that the psychiatric injury was caused by the motor accident. There was a prior history of pre-existing condition which resolved some 15 years ago. In the Panel’s view, there are no other factors identified as causative of his psychiatric injury. After the motor accident, the claimant described the onset of depression and anxiety, and this developed into PTSD. His psychological condition has not remitted over time. The claimant experienced further life stressors subsequent to the motor accident. In the Panel’s opinion these further life stressors are stressful and increased his anxiety and depression, but they have not produced a new psychological injury. These subsequent events have not severed the chain of causation from the subject injury or produced additional unrelated impairment. Therefore the Panel finds that the subject MVA is a major causal factor of his current psychological injury. The nature of the motor accident, the effect it has on the claimant and the timing of the onset of symptoms are all consistent with the motor accident causing the psychiatric injury.
The Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen.[27] The reasons of the Medical Assessors show that we have adopted that approach in reaching our own conclusion as to diagnosis. In any event, the Medical Assessors on the Panel have explained why their expert opinion differs from other opinions.
[27] [2021] NSWCA 287 at [40], [41], [45].
For these additional reasons, the Panel concludes that the claimant suffers from a psychological injury described as Posttraumatic Stress Disorder within the meaning of DSM-5.
Conclusion
The Panel concludes that the claimant suffers from a psychological injury described as Posttraumatic Stress Disorder within the meaning of DSM-5. The Panel concludes that the degree of permanent impairment caused by the motor accident is 7%. The replacement certificate is contained at the commencement of these Reasons.
0
3
2