Insurance Australia Limited t/as NRMA Insurance v McCarthy

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v McCarthy [2023] NSWPICMP 235
CLAIMANT:	Dean Chase McCarthy
INSURER:	Insurance Australia Limited t/as NRMA
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Paul Friend
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	1 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of treatment (permanent impairment) and insurer’s review under section 7.26; claimant involved in accident on 11 April 2019; knocked off his motor bike by car reversing at an intersection; original whole person impairment (WPI) assessment as 19%; further assessment undertaken by Medical Assessor Lim as 14% WPI; claimant had pre-existing mental health issues and significant issue about pre-accident functioning and calculation of impairment; Held – Panel was satisfied that claimant developed post-traumatic stress disorder and aggravated two pre-existing disorders (obsessive compulsive disorder and generalised anxiety disorder); current impairment assessed as 18% WPI and pre-existing impairment assessed as 7% WPI caused by the accident 11%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Lim dated 2 August 2022. 2. Certifies that the degree of Dean McCarthy’s permanent impairment resulting from the psychological injuries caused by the motor accident on 11 April 2019 is greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Dean McCarthy was involved in a motor accident on 11 April 2019. He says he was riding his motor bike and pulled up behind a car at a stop sign, the car then reversed into him and knocked him off his bike and continued reversing over Mr McCarthy’s motor bike although Mr McCarthy was not run over.
The claimant says he was injured in the accident and made a claim for damages against NRMA, the third-party insurer of the vehicle that hit him.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim. That dispute was referred to the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA).
On 12 January 2021, DRS Medical Assessor Samuell determined the claimant had a WPI of 19% in respect of post-traumatic stress disorder caused by the accident.
Upon receipt of additional information about the injury, the insurer applied for a further assessment of the claimant’s WPI. Due to the abolition of the DRS the dispute was referred to the Personal Injury Commission (Commission).
A delegate of the President of the Commission allowed the further assessment and on 2 August 2022, Medical Assessor Lim determined that Mr McCarthy had a WPI of 14% in respect of post-traumatic stress disorder caused by the accident.
The insurer then lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 2 August 2022, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 7 February 2023 the President convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

General overview

Mr McCarthy’s claim and his entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2022 is $605,000.
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[2] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[2] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[3]
[3] See s 4.12 of the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Samuell’s, further medical assessments such as Medical Assessor Lim’s and the Review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.

Assessment of mental and behavioural disorders

The Guidelines include a chapter entitled “Mental and behavioural disorders” and require the assessment to be undertaking in accordance with the psychiatric impairment rating scale (PIRS) and that the AMA4 Guides are to be used as “background or reference only.”[5]
[5] Clause 6.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with whatever the current edition of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD)[6].
[6] Clause 6.213 of the Guidelines.
The PIRS provides[7] for the consideration of any psychiatric condition present before the accident in question:
“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.”
[7] Clause 6.218 of the Guidelines.
The PIRS provides in clause 6.219 for six areas of function:
1.219.1    self-care and personal hygiene;
1.219.2    social and recreational activities;
1.219.3    travel;
1.219.4    social functioning (relationships);
1.219.5    concentration persistence and pace, and
1.219.6    adaptation.
The PIRS then provides at 6.220 for five classes with a descriptor for each which is “illustrative rather than literal criteria” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury.”
The impairment may be adjusted for treatment[8] that is treatment such as medication prescribed to treat the psychiatric condition.
[8] See clauses 6.222 – 6.223 of the guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage.[9]
[9] See clauses 6.225 – 6.228 and table 17.

ASSESSMENT UNDER REVIEW

Medical Assessor Lim examined the claimant on 22 July 2022 and issued his certificate on 2 August 2022. He was asked to assess the claimant’s “psychiatric condition – Psychological injury – Post-traumatic Stress Disorder, Major Depressive Disorder and Generalised Anxiety Disorder”.
The Medical Assessor took a pre accident history from the claimant of physical injuries (knee reconstruction and fractured scaphoid) and the development of anxiety from the age of about 8 or 9 which worsened at around the age of 17 or 18. He reported seeing a counsellor and having been prescribed Fluoxetine.[10]
[10] Sold under the brand name Prozac, this is an antidepressant.
The last time Mr McCarthy said he saw a counsellor was in 2017 which was when he became a parent for the first time (he and his wife had apparently been trying for a baby for about 10 years). The claimant was questioned about this, as Medical Assessor Lim noted that he saw a psychologist in February 2019 and his Fluoxetine dose had been increased. The claimant could not recall the reason for this.
The claimant was questioned about his symptoms of obsessive compulsive disorder (OCD) and attention deficit hyperactivity disorder (ADHD).
The claimant reported his marriage had broken up at the end of 2019 which he said was due to the accident and he lives with his mother, younger brother and older brother’s son. Before the accident he was living with his mother, and his partner lived with her mother and their son, but he was planning on buying them their own home so they could live together.
The claimant had not worked since the accident.
The claimant gave a history of the accident, his thoughts of impending death and then the exchange of details with the other driver. He went home but developed various physical complaints and took himself to hospital but then decided to go and see his own general practitioner (GP).
The claimant reported to Dr Lim that a few weeks after the accident his anxiety levels increased particularly while driving and he developed intrusive recollections about being dragged under the car. He developed nightmares and was referred to a psychologist but this treatment was interrupted by the first wave of COVID-19.
He saw a different psychologist and had further appointments disrupted by the second wave of COVID-19.
He saw a psychiatrist and his medication was changed from Fluoxetine to Mirtazapine. He did not recall being prescribed Olanzapine but did recall Seroquel which he said made him drowsy. He is now taking medicinal cannabis.
The claimant’s current complaints were nightmares at least three times a week, intrusive recollections of the accident, poor sleep, impacts on his relationship with his ex-wife and disrupted appetite.
The claimant is in receipt of the disability support pension.
Medical Assessor Lim diagnosed a post-traumatic stress disorder which he said was caused by the accident. While the Medical Assessor acknowledged the pre-existing generalised anxiety disorder and the ADHD diagnosis with prior depressive episodes, he was of the view that the current symptoms would be subsumed under the post-traumatic stress disorder diagnosis rather than being an aggravation of pre-existing conditions.
He assessed the claimant in the six categories of functions as class 2, 2, 3, 3, 3, 4 with a median class value of 3 and an aggregate score of 17 which translated to a WPI of 19%. To this was added 1% for medication.
Medical Assessor Lim assessed the claimant’s pre-accident psychiatric condition at 6% which meant his existing impairment as a result of the accident was 14%.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer submits[11] that Medical Assessor Lim failed to adequately consider certain material, namely a report from Dr Rikard-Bell and records from Spectrum Health,

Dr Van der Walt, Latitude Insurance, Medicare and Centrelink. The insurer says that while Medical Assessor Lim referred to documents from the claimant’s bundle, he has not referred at all to any of the insurer’s documents.
[11] Document A1 dated 22 August 2022.
The insurer also argues that cl 6.40 and cl 6.41 of the Guidelines require the Medical Assessor to put inconsistencies to the claimant. While the claimant put some inconsistencies to the claimant (his medication increase, and psychological consultation before the accident in February 2019) he did not test them with reference to the objective evidence (in the medical records).
The insurer also submits that the Medical Assessor failed to address the insurer’s argument in its (13 page) submissions summarising the relevant material which evidenced the claimant’s pre-accident psychological state.
The insurer says the claimant was an unreliable historian whose account was “grossly inconsistent with the objective records”.
The insurer then provides submissions as to three of the six impairment categories and argues for a lesser class in each with reference to the records suggesting an impairment of 7%.

Claimant’s submissions

The claimant submits[12] that there was no obligation on Medical Assessor Lim to refer to every piece of evidence in the matter and that he did address the substance of the matters raised by the insurer.
[12] Document R1 dated 12 September 2022.
The claimant submits that the Medical Assessor did raise a number of inconsistencies with the claimant including him seeing a psychologist in February 2019 and his medication increase and that the Medical Assessor also raised with him his OCD and ADHD and the impact of those conditions on the claimant’s ability to function.
The claimant submits that the Medical Assessor did engage with the insurer’s arguments saying he had considered the documents in the reply and noted that the insurer was saying the claimant had anxiety issues immediately before the accident. The claimant says the Medical Assessor engaged with the substance of the arguments and was not required to address all of the submissions and arguments raised.
The claimant addresses each of the categories of impairments and class of impairment arguments from the insurer.

Procedural matters

Noting there had been an original assessment, a further assessment and the current Review proceedings, on 8 February 2023 the Panel directed both parties to produce an indexed and paginated bundle of documents relevant to the matters in dispute. The claimant was directed to provide his bundle by 22 February 2023 and the insurer by

14 March 2023. The insurer was directed to avoid “as far as possible duplication of documents relied on by the claimant”.
The claimant provided his bundle of documents (document AD2 in the Commission’s file comprising almost 300 pages) which was relayed to the Panel on 8 March 2023. The insurer did not comply with the directions lodging only an index of documents with submissions dated 8 March 2023 (document AD3). The Panel issued a further direction to the insurer and on 28 March 2023 the insurer uploaded a bundle of documents (document AD4) of 438 pages which correspond with the index previously provided.
The Panel met on 29 March 2023 and reported to the parties. The Panel noted that the guiding principle of the Commission as set out in the s 42 of the Personal Injury Commission Act 2020, s 7.25 of the MAI Act and the finding of Justice Wright in Wood v Insurance Australia Group Limited trading as NRMA Insurance[13] support an approach that Medical Assessors (and by extension Review Panels) need only assess matters that are disputed between the parties.
[13] [2022] NSWSC 1290 at [50]
Having read the submissions of the parties, the insurer was asked to confirm whether there was a dispute that the claimant has sustained some psychiatric or psychological injury caused by the accident. The Panel expressed the preliminary view that the real issue in dispute between the parties appeared to be the assessment of the claimant’s current WPI, the assessment of the claimant’s pre-existing WPI and therefore the degree WPI resulting from the psychological or psychiatric injury caused by the accident.
On 8 May 2023 a message was relayed to the Panel from the insurer that there was no issue that the clamant sustained some psychiatric or psychological injury but that there is a dispute between the parties as to the degree of impairment relating from the injury caused by the accident.

REVIEW OF THE EVIDENCE

The parties have, between them provided over 750 pages of documents. The Panel is mindful of the words of Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[14] who said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation … Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[14] [2022] NSWSC 1079.
The Panel has undertaken a review of all the documentation provided in the matter but has summarised below those documents relevant and significant to the issues in dispute.

Claim form and claim documents

Mr McCarthy completed an application for personal injury benefits on 30 April 2019[15] identifying the injuries he sustained as “lower back – neck / whiplash, increased anxiety / PTSD.” He says he was taken to Wyong Hospital and discharged the same day. He denies suffering from an illness or injury affecting the same or similar parts of his body at the time of the accident. He gives the following version of events:[16]
“I was stopped behind the car at a stop sign with a car length space. The car in fornt of me started reversing and hit my motorbike and continued revesing after hitting me. I panicked and jumped off my bike and by the time I got up I turned around and saw the car on top of my bike.”
[15] Page 317 of the insurer’s bundle.
[16] Typographical errors have been corrected.
Certificates of capacity/certificates of fitness have been provided as follows:
(a)    12 April 2019 - lists the injuries as low back pain and whiplash neck injury;
(b)    13 May 2019 - lists the injuries as low back pain and anxiety[17], and
(c)    3 September 2020[18] – completed by Dr Lloyd on 3 September 2020 with injuries noted as “low back pain with neuralgia and anxiety with PTSD”.
[17] Dr Lloyd page 145 of the claimant’s bundle.
[18] Page 341 of the insurer’s bundle.
A police report was created on 18 April 2019 at the request of the claimant for insurance purposes:[19]
“Unit 2 was stopped at the set of light of the intersection, as was unit 1. Unit 1 attempted to turn, not seeing unit 2 and collided into the nearside causing the bike to fall. Both parties exchanged details, however unit 2 required towing. Driver 2 did enter Wyong Hospital, however did not wish to wait to be treated … and instead sought medical treatment form his GP a week later. Driver 2 entered the Entrance Police Station where he was required to report this matter for insurance reasons.”
[19] The claimant and his bike are unit 2, the driver of the car and his vehicle are unit 1.
The driver of the car was not interviewed in order for this report to be created.
The claim was accepted, and benefits paid however benefits were terminated on the basis of the claimant’s injuries being “minor” injuries.[20] NRMA informed the claimant he was not wholly or mostly at fault.
[20] The first liability notice is dated 13 May 2019 and found at page 328 of the insurer’s bundle. The second liability notice is dated 31 July 2019 and is found at page 330.
Mr McCarthy provided a “statement” in these proceedings.[21] The statement is unsigned and undated and is therefore of limited assistance. The psychiatric symptoms listed in this document include:
[21] Page 119 of the claimant’s bundle
(a)    breakdown and separation from his partner;
(b)    impaired familial relationships;
(c)    reliance on family for home support;
(d)    unable to drive outside his local area;
(e)    hypervigilance when driving or as a passenger;
(f)    suicidal ideation;
(g)    depressed mood, panic attacks;
(h)    stress;
(i)    anxiety;
(j)    headaches;
(k)    mood swings;
(l)    rumination on accident;
(m)     irritability;
(n)    bouts of anger;
(o)    crying;
(p)    disrupted sleep;
(q)    fatigue;
(r)    flashbacks of the accident;
(s)    nightmares;
(t)    impaired concentration and memory;
(u)    reclusive behaviour;
(v)    decreased confidence and self-esteem, and
(w)   weight loss of 10 kg but then weight gain of 12 kg after taking medication.

Mr McCarthy says he is stressed, anxious and depressed and no longer enjoys his time with his three-year-old son and worries he cannot do anything with him. He is also worried about work and his own and his son’s future.

Treating medical records

There are several discharge summaries from Wyong Hospital in the claimant’s treatment records.
On 30 November 2017 the claimant presented with chest pain which was bilateral radiating to his neck. He was said to have a lot of stresses and has been having daily chest, shoulder and neck pains. This came on whilst he was walking at the shops and lasted approximately one hour before resolving spontaneously. Investigations including troponin, ECG and chest X-ray which were unremarkable.
On 7 March 2018[22] Mr McCarthy presented with pain in his upper limb and shoulder. He was said to be an ex-boxer and had no recent gym activity but hit a punching bag twice the day before. He was noted to have anxiety and takes Clonazepam.
[22] Page 193 of the insurer’s bundle.
The claimant presented on 29 September 2018[23] with chest pain. The discharge summary states that he had lower chest pain and other symptoms in keeping with an acute anxiety attack that occurred whilst at work that day. He had been getting daily lower chest pain about an hour after waking, every day, for “weeks to months now”.
[23] Page 197 of the insurer’s bundle.
He has had a normal ECG and stress test recently and no abnormalities have shown up on previous X-rays or blood test. It states he was becoming focussed on his breathing and shortly afterwards his arms felt heavy with pins and needles.
The chest pains settled before arriving in hospital after taking some of his own Clonazepam. He reported ongoing life stresses include a lack of understanding by his partner and work colleagues about his anxiety state.
Mr McCarthy reported having been on medication for six months which he self-ceased and that he now only takes only Clonazepam to manage his symptoms.
A discharge report addressed to the claimant’s GP[24] from Wyong Hospital regarding a presentation on 21 January 2019 states he presented with anxiety with associated sensation of his throat closing over.
[24] Page 200 of the insurer’s bundle.
Mr McCarthy denied difficulty with breathing, stridor or upper airway sounds and did not have lip or tongue swelling. He took his own Lorazepam on presentation to the emergency department which had been prescribed two days earlier. He appeared much improved and was also feeling improved. He was reported to have no suicidal thoughts and was discharged home on the basis his symptoms were anxiety related.
The discharge referral from Wyong Hospital after the accident on 12 April 2019[25] states that Mr McCarthy presented after a motor vehicle accident when a vehicle reversed over Mr McCarthy’s motorbike and he leapt out of the way. His left leg was clipped by the vehicle. He was wearing a helmet and full leather protective jacket but only track suit pants. Mr McCarthy did not wait for medical review or imaging of his spine or legs after receiving paracetamol and ibuprofen. The claimant had attended the hospital at 9.26pm and left the hospital shortly before 1.00am on 12 April 2019.
[25] Page 206 of the insurer’s bundle and page 89 of the claimant’s bundle.
On 25 October 2019 the claimant presented to Wyong Hospital with:[26]
“… various symptoms like tightness of throat, sensation of choking, shortness of breath and hot flushes. He reported that he gets these symptoms when anxious. He was not on respiratory distress and systemic examination was normal. He was advised to follow up with you. Kindly consider referring him to a Psychiatrist and Psychologist.”
[26] Page 208 of the insurer’s bundle.

General practitioner records

The claimant has attended two medical practices before and after the accident:
(a) Mingara Better Health, Tumbi Umbi (Dr Lloyd), and
(b) The Elden Street Medical Centre (Dr Van der Walt).
The claimant commenced seeing Dr Van Der Walt and others at the Elden Street Medical Centre. Mr McCarthy has attended there on 56 occasions from

15 December 2016 to 14 October 2021:
(a)    22 October 2016 – Dr Lloyd states Mr McCarthy has a history of anxiety and has been on and off Lovan for two years. He is anxious all the time and his mother has noted OCD tendencies. He had an assessment at work the previous day and he had epigastric pain on and off, hot and cold flushes and vomited. The record states his partner is having a baby;
(b)    15 December 2016 – Elden Street - states he has had anxiety and depression and panic attacks all his life. The panic attacks can happen every day. He works as a truck driver and drinks up to 15 cups of coffee each day. He is not eating much and losing weight. He wakes up tired after a long sleep and has a supportive partner. His mother was diagnosed with Hashimoto’s thyroiditis.
He had been taking Lovan 20 mg for the last six months which is somewhat helpful and has no suicidal thoughts.
His height is recorded as 162.5 cm and his weight was 56. 4 kg which gives him a body mass index of 21.4;
(c)    22 December 2016 – Elden Street - after being discharged from hospital and states he is still anxious and is taking two Lovan. He had epigastric pain which resolved with Mylanta and medication. He was prescribed Somac on leaving the emergency department;
(d)    24 January 2017- Elden Street – the claimant was said to have injured himself while operating a jack and lifting and twisting heavy boxes. He felt pain in his right shoulder and has ongoing pain and feels crunching with his arm above his head. He was certified unfit for work for two weeks and advised he can do activities which do not involve his right shoulder;
(e)    7 February 2017 – Elden Street - the claimant said he felt Lovan was not helping. He gets very anxious. He was to be weaned off Lovan and commenced on Pristiq 50 mg;
(f)    14 March 2017- Elden Street - states that he is feeling mentally well especially after having new baby. He was working casually as a truck driver. He is asking about Peptide to build muscles about which the doctor gave no advice;
(g)    27 March 2017 – Elden Street - the claimant said he felt anxious on Pristiq and ran out on Friday. He is anxious when leaving home and feels it is affecting his job. He does not feel like going to work and was looking for a referral to a psychologist;
(h)    4 April 2017 – Elden Street - the claimant was reporting epigastric pain and feels anxious with shortness of breath, has palpitations on and off. He sleeps well but wakes up feeling exhausted and angry and is not currently working;
(i)    28 April 2017 – Dr Lloyd states his baby is eight weeks old and recommends the claimant be referred to a psychologist;
(j)
a mental health assessment by Dr Lloyd, which appears to be dated

28 April 2017, lists the diagnoses as a long history of anxiety and somatising with chest pain, nausea, abdominal pains, shortness of breath. It states he has a family history of depression in his mother and bipolar disorder in his aunt. He currently lives with his wife and son. He is a truck driver;
(k)    1 May 2017 – Elden Street – there is an entry concerning continued anxiety and medication issued. The claimant also reported being hit from behind in his car and that his car was a write off. He had neck and back pain;
(l)    4 May 2017 – Dr Lloyd - states he had a bad day yesterday and wondered if it relates to ADHD which was previously diagnosed and he improved with Ritalin. It is difficult to hold down long-term employment;
(m)     19 and 26 May 2017 – Dr Lloyd states he has persistent pain which is suspected to be anxiety driven. He has taken various antidepressants previously and has started consulting a psychologist. He is prescribed Valium as required. The CT scan is reassuring;
(n)    19 June 2017 – Dr Lloyd states he remains anxious and was changed from Valium to clonazepam. It states he will change psychologist to Stella;
(o)    29 August 2017 – Elden Street - states he has anxiety and depression and recommends a trial of Buspar. The entry on 13 September 2017 states he is prescribed Paxam (clonazepam) 0.5 mg;
(p)    5 October 2017 – Elden Street - it was said he remains anxious. Buspar was ceased. He was commenced on nortriptyline 25 mg at night and referred to Dr Morice psychiatrist. He was also prescribed Inderal 10 mg one daily. The referral to Dr Morice, psychiatrist, which states he has panic disorder and anxiety and that help was required to optimise his medication the medications are:
(i)Lovan 20 mg one daily;
(ii)nortriptyline 25 mg one at night;
(iii)Pariet 20 mg daily, and
(iv)Maxam 0.5 mg tablet.
An identical referral was written to the psychiatric department of Brisbane Waters Private Hospital.
On 13 November 2017 the claimant was reported to have “severe anxiety” and his dose of nortriptyline was increased to two at night. When he attended on 28 November 2017 the record suggests the claimant remains anxious and is not driving at present. He takes Lovan 20 mg one daily. A further referral was provided to Dr Pearson at Brisbane Waters Private Hospital.
On 7 December 2017 there is a reference to lower back pain with spasm and the earlier car accident.
The entry dated 4 January 2018 states that Mr McCarthy remains very anxious and was unable to work. It states the dose of nortriptyline was increased to three 25 mg tablets at night. It also refers to him taking Paxam and awaiting an appointment with a psychiatrist.
There is a referral to Mr Ian Kilpatrick of Best Practice Psychological services for cognitive behavioural therapy “for gripping anxiety-generalised and panic disorder” and a bulk bill request was made “due to financial hardship”.
The entry dated 16 February 2018 states that insurance forms were completed and z

Mr McCarthy was referred to Dr Iyer, psychiatrist. The referral states he is being referred for “severe anxiety and panic disorder” and “for optimising meds” and that his medications are;
(a)    Inderal 10 mg one twice daily;
(b)    Lovan 20 mg one twice daily;
(c)    Pariet 20 mg one daily;
(d)    Paxam 0.5 mg tablets, and
(e)    Nortriptyline 50 mg at night.
When the claimant attended on 13 April 2018, the mental health care plan was reviewed, and his medications adjusted. There is a note “home situation not good”. A referral to Dr Miller, psychiatrist in similar terms to that addressed to Dr Iyer.
On 31 May 2018 the claimant was referred to Dr Lim of the Hills clinic at Hornsby for psychiatric treatment again in similar terms to previous referrals.
The claimant attended for a review on 7 June 2018 in the light of the letter from the psychiatrist. His Nortriptyline and Inderal were ceased as was Lovan. He was commenced on clomipramine 25 mg at night. The dose of clomipramine was increased to two tablets in the evening on 17 June 2018 and medication was adjusted again on 2 August 2018 when his clomipramine was ceased. He continued to take Paxam 0.5 mg.
The entry dated 1 November 2018 states that Mr McCarthy had stopped counselling but that his mood was stable. He was taking Paxam because “nothing else works”.
The entry dated 3 January 2019 – Dr Lloyd - states he is prescribed Lovan 20 mg which was previously reported as being helpful.
The entry dated 17 January 2019 – Dr Lloyd states he somatises with significant anxiety and worries about health. He has chest pains from time to time. He is very fit. He is non-compliant with Fluoxetine. It makes a reference to psychology but does not specifically say he is consulting a psychologist. Clonazepam was ceased and he was commenced on lorazepam.
The entry dated 19 February 2019 – Dr Lloyd states he has OCD type symptoms with anxiety, worries, fidgets despite exercise. He will soon be seeing a psychologist. The dose of Fluoxetine was increased to 40 mg daily. He was also prescribed Diazepam 5 mg ½-1 tablet as needed.
A patient summary dated 7 March 2019 which Dr Lloyd appears to have provided to Latitude Insurance notes that as at that time the claimant’s current problem was anxiety.
The entry dated 12 April 2019 – Dr Lloyd - states he had a motorcycle accident yesterday when a vehicle reversed at a stop sign and his motorbike was behind that.
He has numbness on the left sole of his left foot.
On 8 May 2019 the claimant attended Dr Lloyd and his note indicated “low back pain and anxiety”.[27]
[27] Page 185 of the claimant’s bundle.
The entry dated 13 May 2019 - Dr Lloyd states he has ongoing muscular pains and is disabled by it and unable to work. He has pain and stiffness in his lower back. He is taking Diazepam 5 mg ½-1 as needed and Norflex 100 mg tablets one tablet twice daily.
There are no further notes from Dr Lloyd. There is also a gap of 12 months in the records of Dr Van der Walt (Elden Street) before attendances on 7 and 29 November 2019 when the claimant was prescribed Diazepam 2 mg;
(a)
16 December 2019 states the reason for the visit was his OCD and Paxam 0.5 mg was ceased. He was prescribed Diazepam 5 mg one daily which was repeated on 13 January, 3 February, 25 February 2020 (PTSD),

17 March and then 6 April 2020 when the dose of Valium 5 mg was changed to one 5mg tablet twice daily;
(b)    24 April 2020 states the Lovan dose was changed from three to two daily. He maintained Diazepam one twice daily. Diazepam was prescribed again on 7 May 2020. The entry dated 29 May 2020 states he has OCD, that he is still anxious and he has a 22% total body impairment. He is prescribed Diazepam 5 mg twice daily;
(c)    16 June 2020 again refers to OCD and the Diazepam was ceased and medication changed to Paxam 0.5 mg twice daily. On 16 July 2020 a further prescription of Paxam 0.5 mg was given because the chemist has lost the prescriptions. There were further attendances on 10 December 2020 and 20 May 2021 to pick up scripts of Paxam 0.5 mg twice daily and Lovan 20 mg, two daily, and
(d)    14 October 2021 Mr McCarthy was requesting all notes be sent to his lawyers. It states he has “PTSD post RTA has not had this diagnosis in the past”.
Within the records of the Elden Street practice is a Centrelink medical certificate by
Dr Van der Walt, dated 4 January 2018 states that Mr McCarthy has suffered exacerbation of an existing condition of anxiety and panic disorder on
13 November 2017. He was said to have severe anxiety, somatic symptoms and that he is unable to concentrate. He was unfit to do his usual work or study and unfit to do any other work for eight hours or more per week.

Psychiatrists and psychologists

Spectrum health and training

The claimant has had treatment form psychologists at Spectrum Health and Training and their records have been produced. In the client intake form dated 18 May 2017[28] is a note “suicidal thoughts about taking pain away years ago. Gets tired and cranky and verbal at partner”.
[28] Page 63 of the insurer’s bundle.
The entry dated 18 May 2017 states he has had anxiety all his life and has bad thoughts that something bad will happen and thinks he will have a heart attack. He is not working for fear of anxiety and something bad will happen. He left his last job as he needed to be close to a hospital.
He reported his baby brother died from cot death when he was three.
He thinks he will have a heart attack if he has palpitations. He has pains in his body and catastrophises. He has a lack of concentration, moves about a lot, is easily angry and snaps at his wife and fears something will happen to his 12-week-old baby.
The depression, anxiety and stress scale (DASS) completed on 18 May 2017 shows that Mr McCarthy scored 8 for depression, 13 for anxiety and 11 for stress. The notes categorise this as follows:
(a)    depression – moderate;
(b)    anxiety – extremely severe, and
(c)    stress – moderate.
The initial typed notes of 24 May 2017 states that until two years ago he was confident but that he was under pressure to provide for his family. He refers to a panic attack when doing a driving test and he had a physiological response and felt he was stuck in Sydney and could not drive back to the “safety of a hospital on” the central coast. His triggers were said to be when away from help or with no access to help and bodily pain. He has a new baby and is concerned about providing for him. He reported “he may wake up in the morning with a pain and worry all day and feel anxious all day”. He is concerned that no one can look after his son as well as he can and “the only day his mother left Taylor … was on the day she died”.
The handwritten notes include the following:
(a)    two years ago he was waterproofing bathrooms, driving to Sydney;
(b)    he lost his job because of time keeping, and
(c)    he was confident he could get another job.
The notes from the attendance on 1 June 2017 reference his panic attacks, ADHD and his need to reduce his diazepam dose. The claimant said he wanted to be a boxer at the Commonwealth games.
Psychologist Mr Kilpatrick, Best Practice Consultants sent an email to the claimant’s GP dated 18 January 2018[29] stating that Mr McCarthy has a complex history. His mother apparently had an affair with his father and some years later his father denied that he was the father.
[29] Insurer’s bundle page 190.
He moved to the Central Coast with his mother and halfsiblings, struggled at school and left in Year 9.
His mother has children to three different men, and he has older and younger half-brothers but has little contact with them. His mother’s current partner has been a stable influence but is in gaol.
The claimant was married with an 11 month old son.
The reported history was of anxiety having been an issue for a long time and there appears to be a genetic predisposition with the family history on both sides.
His DASS score showed:
(a)    depression – severe
(b)    anxiety – extremely severe
(c)    stress – moderate.
Mr Kilpatrick was to continue his treatment and report again.
The claimant has then seen Dr Yenson, a psychiatrist at Hornsby and his letter dated
[30] Page 195 of the insurer’s bundle.
4 June 2018[30] states Mr McCarthy has been living with his mother for at least four months. His son and wife live with his mother-in-law. He has conflict with his mother-in-law “which has been exacerbated by his mental health”.
He has a family history of bipolar disorder in one of his aunts and ADHD in his mother and one of his brothers.
He was diagnosed with ADHD by Dr Duffy at age 9 years and was managed with Ritalin until aged 15 years when he ceased all medication.
He worked as a tow truck driver for three years and before that a water proofing business.
Both the claimant and his mother reported he was always an anxious person and that he:
“… suffered separation anxiety at preschool and he recalled preferring to stay at home. He generally coped with this until his son was born. His mother recognised that following the first of his son, his anxiety worsened.”
He has daily worries as soon as he awakes with multiple somatic complaints including pain in the chest, shortness of breath, light headedness and tingling in his hands. He worries he is having a heart attack. He was for a period of time attending Wyong Hospital Emergency Department every day.
He has been taking clonazepam up to eight tablets daily.
Dr Yenson expressed the view the claimant suffers from a panic disorder. It states that he commenced clomipramine 25 mg at night increasing the dose to as much as 150 mg if needed.
He was advised to maintain some regular exercise and see a clinical psychologist in the local area.
Within the Centrelink records is an employment services assessment report dated

14 August 2018[31] completed by Ruth (her full name has not been disclosed), a registered psychologist. This was a video conference assessment noting the report from Dr Van der Walt and the diagnosis of conditions of anxiety and panic disorder with an onset of 13 November 2017. He reported anxiety for much of his life in the context of domestic violence and not previously accessed support or intervention.
[31] Page 2786 of the insurer’s bundle.

His symptoms have increased recently including stress in the workplace, chest pains, shortness of breath, negative thinking, disrupted sleep, and routines, reduced motivation and confidence and worry. He was said to be inconsistent with daily routines of life and has few supports but has regular access to his son.
The condition is permanent and symptoms are likely to continue to persist across the next 24 months.

Latitude Insurance

The claimant made a claim against Latitude Insurance pursuant to what appears to be a disability insurance policy on 29 January 2019. He has anxiety and depression which has stopped him from working. He says he ceased working on 15 January 2019. The onset of symptoms was said to be 1 January 2018. He says he was last certified unfit to work until 15 February 2019.
A mental health assessment completed by Dr Lloyd dated 17 January 2019 states he was diagnosed with GAD (generalised anxiety disorder) and panic disorder. It states
Mr McCarthy has a long history of anxiety and post-traumatic stress disorder following a traumatic experience four years ago.
His medication was stated to be Fluoxetine 20 mg daily and Lorazepam ½-1 tablet daily as needed for severe anxiety.
The doctor’s declaration by Dr Lloyd dated 4 February 2019 states that Mr McCarthy has generalised anxiety disorder and panic disorder and first consulted Dr Lloyd on

22 October 2016.
The report by Dr Chris Lloyd dated 18 February 2019, in answer to questions posed by the insurance company, says that this is a new episode of anxiety and depression as the previous episode had subsided and Mr McCarthy had ceased treatment and was treated elsewhere. Mr McCarthy was stated to have a panic disorder, anxiety and depression. He was treated with medication and psychotherapy.
Dr Verma, psychiatrist wrote to Dr Llyod on 11 August 2019[32] stating that Mr McCarthy is currently separated and documents his living arrangements and family matters.
[32] Page 372 of the insurer’s bundle and page 116 of the claimant’s bundle.
Dr Verma has a history that following the motor accident he wakes multiple times during the night with pain and has nightmares about getting hit by a car. He said he had lost 6.5 kg of weight. His concentration was OK but he was reporting getting angry and frustrated because he cannot do activities including play with his son. He has had suicidal ideation and thinks of never waking after taking extra diazepam. These are fleeting in nature.
He said his anxiety is terrible, he is easily startled and has daytime flashbacks and daily and unpredictable panic attacks sometimes at night.
He can drive his vehicle.
The claimant reported that he had anxiety most of his life. He experienced separation anxiety at age six and a panic attacks at a cinema at age eight and this continued into his teenage years. He came home early from work at age 16 years after suffering a panic attack during a flooring job. He was bed wetter until age 17 years. He left school in year 9 due to concentration issues.
He reported falling from a moving vehicle at age 20 years and suffered a scaphoid fracture which required surgical treatment and he was out of work for five years at which time his anxiety increased and never settled.
Dr Verma diagnosed a generalised anxiety disorder, panic disorder, post-traumatic stress disorder and cluster C personality traits.
Dr Verma recommended increasing Fluoxetine to 60 mg daily, introduced Olanzapine 2.5 mg at night and recommended he consult a psychologist. He advised the claimant of the interrelationship of pain with anxiety.
Dr Verma reviewed the claimant on 17 February 2020[33] noting that he failed to attend an appointment on 26 August 2019.
[33] The letter to Dr Lloyd is dated 1 March 2020 and is at page 375 of the insurer’s bundle.
Dr Verma states that Mr McCarthy self-ceased Fluoxetine a week ago and has been prescribed Olanzapine 5 mg twice daily. He had ceased Diazepam six months ago after being warned of the dangers of addiction.
He uses a morphine patch which he changes every day. He says that he feels terrible wants to die and has thoughts of hurting the driver of the vehicle that hit him.
He has nightmares and can experience a choking sensation due to his anxiety.
His pain doctor, Dr Russo, wants him to have a steroid injection but he has resisted this suggestion.
He reported his sleep was poor, he has lost 4 kg of weight and his energy is low. He says he separated from his partner six months ago. He is unable to have an erection despite ceasing Fluoxetine. He was seeing a psychologist.
He continues to have post-traumatic stress disorder, anxiety-based symptoms and cluster C personality traits.
Dr Verma recommended that he wean off olanzapine, start mirtazapine and increase to 15 mg one week later and start prazosin 1 mg increasing to 3 mg in weekly increments for the nightmares and start quetiapine 12.5 mg. He was advised to reconsider the steroid injections and exercise and attempt to return to some form of work.
Dr Cocks, psychiatrist provided a report to the claimant’s lawyers dated 5 May 2020.[34] Dr Cocks had been provided with records all of which post-date the accident. It is not clear he had any pre-accident history. Dr Cocks diagnosed a post-traumatic stress disorder assigns a WPI of 22%, assigning class 2 to Self Care and Personal Hygiene; Travel, class 3 to Social and Recreational Activities; Social Functioning; Concentration, Persistence and Pace and class 5 to Adaptation. Despite acknowledging the previous anxiety state, Dr Cocks did not make any deduction for any pre accident conditions.
[34] Page 45 of the insurer’s bundle.
Dr Cocks, has a history of the claimant attending Wyong Hospital on the evening of the motor accident. He left before he could be properly assessed. Dr Cocks records that “prior to the claimed injury his anxiety was in remission secondary to treatment with the antidepressant medication.” Mr McCarthy said he was “between jobs” having last worked as a tow-truck driver one month before the accident and was about to get a new job working on Sydney infrastructure projects.
He gradually developed distressing nightmares which continue. He has dreams about being killed in motor accidents. He also has nightmares about being crushed under a motor vehicle. He wakes in distress, sweating and anxious.
He finds it difficult to get back to sleep.
He has not returned to riding a motorbike because it causes him distress. He can travel in a motor vehicle but is anxious on roads, particularly when a vehicle is reversing towards him.
He experiences intense anxiety with palpitation and only travels in familiar local areas.
He is more irritable and there have been problems in his relationship. His partner of 10 years separated from him in late 2019 which he related to his irritability and loss of self-confidence. He is more irritable with his mother. His level of energy is depleted. He no longer exercises or enjoys boxing. He struggles with energy, motivation and drive.
He initially lost 12 kg but has regained weight secondary to psychotropic medication.
His mood is depressed and he has a sense of hopelessness for the future.
He feels worthless and has non-specific suicidal thoughts. He is struggling to find a way forward. He no longer has a passion for motorbike riding and no longer boxes and his social activities are restricted.
He has difficulty focussing on tasks and cannot read complex manuals. It is difficult to read the newspaper. He cannot read a recipe and rarely cooks.
It states that he was previously diagnosed as having ADHD as a child and treated with methylphenidate.
In his early twenties he was diagnosed with an anxiety disorder.
He was commenced on Fluoxetine and states his anxiety was relatively well controlled on this medication. He says he was not referred to a psychologist or psychiatrist and that his anxiety was managed by his GP.
His medications are Mirtazapine 15 mg at night, Quetiapine 25 mg at night and Prazosin 1 mg at night.
Dr Andepalli, psychiatrist provided a report to the claimant’s treating GP psychiatrist, dated 1 June 2021.[35] The claimant reports that he was not working and lives with his mother, younger brother and 14-year-old nephew. He has been depressed, has a lack of interest and is irritable and angry. His sleep is disturbed, and he has feelings of worthlessness.
[35] Page 228 of the claimant’s bundle.
He has panic attacks with palpitations, decreased breathing, dry throat, sweaty palms and feels he is going to die. He relives the experience of the motorcycle accident when he visits the site of the accident which is not far from his house. He has not ridden a motorbike since the accident.
He is taking Mirtazapine 15 mg at night.
He trialled CBD oil, but it increased his anxiety and he ceased.
He presents with symptoms of major depression and anxiety disorder previously and possible post-traumatic stress disorder symptoms following the motor accident. It recommends he commence taking Venlafaxine 37.5 mg and increase to 75 mg after four days.
He should commence Quetiapine 25 mg at night.
He refers to an independent medical assessment assessing Mr McCarthy at 19% (Medical Assessor Samuell it would appear) but that the insurer was unwilling to concede.
Dr Rikard-Bell, psychiatrist provided a report to the insurer’s solicitors dated

6 October 2021.[36] The claimant provides a consistent history of the accident and states he was able to push himself off his bike and avoid being crushed and was able to hobble home which was a short distance away. He noticed a lot of pain and attended Wyong Hospital where he was kept and where they did some assessments of him, but he decided to leave because there were a lot of people unwell. The medical discharge doctor tries to persuade him to stay at the hospital until he was reviewed by a more senior doctor.
[36] Page 33 of the insurer’s bundle.
His current symptoms are difficulty initiating sleep and middle insomnia. He has nightmares of the motor accident and of the vehicle rolling over his motorbike. He has lost 10 kg of weight which was muscle and has regained 12 kg of fat.
He is anxious, scared and gets angry and very snappy and irritable. He is fearful of the future and worried about how he is going to provide for his son. He has recurrent panic attacks with shortness of breath, palpitations, chest pain and tightness.
He is not comfortable with driving, has recurrent nightmares and is fearful of a further motor accident.
It notes he has a previous history of ADHD. He was involved in a workers compensation claim in 2000 and there was a further claim in 2018 for anxiety. He moved in to live with his mother in 2017 soon after his son was born because he did not relate well to his wife’s parents.
He previously worked as a tow truck driver and limousine driver. Several months prior to the accident he tried to change to work for North Connect because he found it difficult to be on call for two truck driving roles with a small son. He suffered the motorbike accident between the two roles.
Dr Rickard-Bell expressed doubt as to the accuracy of the history provided by the claimant in relation to work.
Dr Rickard-Bell notes the claimant wakes early in the morning, showers, has coffee and gets himself ready. He watches the news and collects his son from his wife’s home where he feeds his son and takes care of him until his wife comes home from work.
Dr Rikard-Bell makes a diagnosis of post-traumatic stress disorder, arising from the injuries sustained in the motor accident. Dr Rikard-Bell makes pre-existing diagnoses of generalised anxiety disorder and panic disorder.
In a separate report, Dr Rickard-Bell assesses WPI as 6% for pre-existing impairment, assigning class 1 to Self-Care and Personal Hygiene; and Travel, class to Social and Recreational Activities; Concentration, Persistence and Pace, and class 3 to Social Functioning; Adaptation.
The current WPI was assessed at 15% with 1% added for the effect of treatment. Having found the pre-existing impairment of 6% this left a WPI of 9% due to the accident.
Dr Goripati, psychiatrist wrote a letter to Dr Lloyd dated 12 May 2022.[37] He states that Mr McCarthy was diagnosed as having post-traumatic stress disorder by Dr Verma. He has suffered anxiety most of his life. He says he “was never admitted to a mental health unit and never saw a psychiatrist prior to the accident as he couldn’t afford to see one.” This report states that Mr McCarthy feared in the motor accident that he would be crushed by the reversing vehicle and would die or get seriously injured. He has not been able to ride his motorbike since. He started experiencing nightmares and flashbacks one week later and continues to experience the accident with images and memories of the accident.
[37] Page 225 of the claimant’s bundle.
He wakes from sleep after a nightmare with panic attacks, with palpitations, anxiety, sweating and in a state of arousal.
He avoids riding a motorbike and is more anxious when he is on the road. He is hypervigilant and more anxious if he sees a vehicle reversing. He only travels within a 10 km radius of his mother’s house.
He is more irritable and angry compared to previously and this led to a separation from Amanda.
He has secondary depressive symptoms of anhedonia, pervasive low mood, decreased energy and motivation, depressive cognitions of worthlessness and hopelessness and passive suicidal thoughts.
He has been trialled on various medications including Fluoxetine, Olanzapine, Prazosin, Duloxetine and recently Mirtazapine. He has had side effects from all these medications. The claimant said “he turned to medicinal cannabis to manage his symptoms” and that Dr Lloyd prescribes this. He has consulted two different psychiatrists but did not connect with either of them and ceased treatment a few weeks ago.
Dr Goriparti makes a diagnosis of post-traumatic stress disorder, mixed anxiety and depression and recommends he commence Venlafaxine 75 mg daily.
The subsequent report of Dr Goriparti dated 1 September 2022 says that the claimant was struggling. The claimant expressed frustration with the claims process of mixed anxiety and depression and post-traumatic stress disorder. He is prescribed medication including medicinal cannabis. He continued to have residual symptoms of post-traumatic stress disorder.

Other relevant records

Medicare records

The Medicare records show that Mr McCarthy was dispensed diazepam on 1 October 2014, 9 October 2014, 8 April 2015, 8 May 2015, and 23 May 2016.
He was dispensed duloxetine on 3 October 2014, 9 October 2014, 8 April 2015,

15 May 2015, 11 August 2015, 23 May 2016, 22 October 2016 up until 15 December 2016.
They also show that in 2017 he was prescribed Nortriptyline, Fluoxetine, Diazepam, Desvenlafaxine, Prazosin and in 2020 Mirtazapine and Diazepam.
Apart from his known and local doctors, in 2018, the claimant saw Drs Gabriel and Lukic in Sydney in 2016, and Dr Bromberger in Woolloomooloo in June and July 2018.
The claimant attended medical practitioners paid for under the Medicare System, 19 times in 2016, 24 times in 2017, 21 times in 2018, 4 times in 2019 before the accident.

Centrelink records

The report produced by Centrelink shows the claimant was certified unfit for work from 20 November 2017 for depression and anxiety up to and including 3 June 2018 by

Dr Leon Van der Walt.
He was certified unfit for work by Dr Chris Lloyd because of anxiety on 8 February 2019. He was subsequently certified unfit for work by Dr Chris Lloyd from 27 April 2019 for multiple conditions including spinal disorder, neck disorder up to 9 December 2019.[38]
[38] Dr Lloyd’s medical certificate dated 6 June 2019 at page 111 of the claimant’s bundle.
He appears to have been certified unfit to work up to 25 Match 2021 by a medical practitioner identified as SC0948.

Physical records and reports

There are three allied health requests for physiotherapy for the claimant’s whiplash and “non-specific” low back pain.[39]
[39] Page 347 of the insurer’s bundle and page 93 of the claimant’s bundle.
Mr McCarthy was referred to Dr Russo of the Hunter Pain clinic on 24 June 2019.[40] The referral notes the claimant was reversed into and despite physiotherapy and analgesia “Dean reports worsening pain and impaired functioning”.
[40] The referral is at page 363 of the insurer’s bundle (upside down in the bundle).
Dr Russo, pain management specialist, wrote to Dr Lloyd on 14 August 2019[41] states the claimant, a tow truck driver, was involved in a motorbike crash in April 2019 when his motorbike went under the wheels of a car and was written off. He has “chronic widespread pain involving most of his entire body” and has post-traumatic stress disorder. He was said to be under the care of a psychiatrist (Dr Verma) and scored in the extremely severe range for depression and stress and the severe range for anxiety on the DASS 21. He had a high level of fear of movement and re-injury. He has severe catastrophising.
[41] Page 364 of the insurer’s bundle.
The results of testing were:
(a)    8.1 on the brief pain interference score;
(b)    68% - Oswestry, and
(c)    18 - Roland Morris.
All of these scores indicated a high level of disability.
He had widespread pain which is essentially myofascial pain with central sensitisation. He has anxiety, depression and post-traumatic stress disorder.
The claimant was advised to consult one of the Innervate pain management team for cognitive and behavioural therapy, cease smoking, continue physiotherapy and should commence Norflex 100 mg twice daily. He should also be trialled on a Norspan patch. He should avoid morphine, oxycodone and hydromorphone.
Mr McCarthy was reviewed by Dr Russo on 28 August 2019.[42] The claimant had ceased Norspan because of side effects and his back pain and occipital neuralgia were continuing. The Norspan dose was adjusted.
[42] The report is at page 369 of the insurer’s bundle.
The claimant consulted with Ms King, clinical psychologist at the Innervate pain management practice. On 3 October 2019[43] she reported to Dr Lloyd that the claimant was struggling with severe symptoms of port-traumatic stress disorder which was “exacerbating his pain experience”. She requested the insurer fund eight sessions as well as other items.
[43] Page 378 of the insurer’s bundle.
On 6 February 2020 Ms King[44] again reported to Dr Lloyd noting many missed appointments and that he was having feelings of “anger, revenge, paranoia and injustice”. She says she made it clear to Mr McCarthy that he needed to attend consistently and suggested he may be a candidate for inpatient treatment.
[44] Page 384 of the insurer’s bundle.
On 17 June 2020[45] Ms King reported that the claimant had been unable to return to work due to “persistent all of body chronic pain and post-traumatic stress disorder”. She noted he was taking medication and had ceased physiotherapy and was unable to complete treatment with Dr Russo “due to high anxiety and the fear of detrimental outcomes”. Ms King requested a further eight psychological treatment sessions, report writing and case conferencing.
[45] Page 137 of the claimant’s bundle.
Dr Bodel, orthopaedic surgeon provided a report dated 9 April 2020 to Mr McCarthy’s lawyers.[46] Dr Bodel undertook his assessment by video-link and diagnosed the following injuries:
(a)    soft tissue whiplash associated disorder to the neck;
(b)    rotator cuff injury to the left shoulder;
(c)    aggravation of previous scaphoid fracture in the region of the left wrist;
(d)    soft tissue musculo-ligamentous injury to the lower part of the back, and
(e)    laceration and abrasions to the upper part of the left calf.
[46] Page 124 of the claimant’s bundle.
Dr Bodel assigns an 18% WPI for the injuries to the left upper extremity, cervical spine and lumbar spine. He said there was no evidence of any pre-existing impairment.

Radiology

The report of Dr Kiera Shelz, radiologist, of an MRI scan of the cervical spine states there is no disc herniation or canal stenosis. There are soft tissue changes and paravertebral soft tissue injuries at C3. There is no underlying fracture.

25 June 2019 (R7) – X-ray right shoulder and scapula – no fracture or avulsion, no rotator cuff calcification.
19 August 2019 (R8) – MRI lumbar spine due to “pain post MVA” minor circumferential bulges (indicating degeneration) at all levels but “A focal cause for pain has not been detected”.

Other assessments

Medical Assessor Samuell’s certificate of 12 January 2021 states that Mr McCarthy has between six and eight hours of broken sleep each night, that he never gets a solid sleep and is taking prazosin but continues to have nightmares.
He sometimes will not eat for days and has lost 12 kg since the motor accident although he has increased that with taking medication.
His mood was zombie-like and depressed. He is easily irritated and can lose his temper with his son.
He is not suicidal.
He experiences symptoms like his throat closing, chest pain, shallow breathing and has sweaty hands. He had similar but mild symptoms before the motor accident. He has nightmares about the motor accident at least four times each week. He now dreams about a vehicle reversing over him.
Medical Assessor Samuell makes a diagnosis of post-traumatic stress disorder arising from the injuries sustained in the motor accident.
He assesses WPI as 19% as follows:
(a)    self-care and personal hygiene – class 2;
(b)    social and recreational activities – class 3;
(c)    travel – class 2;
(d)    social functioning (relationships) – class 4;
(e)    concentration persistence and pace – class 2, and
(f)    adaptation – class 5.

RE-EXAMINATION FINDINGS

The claimant attended an audio-visual medical examination with Medical Assessors Friend and Hong on 8 May 2019.

History of the motor accident

Mr McCarthy said that on 11 April 2019 he was riding his motorbike when he pulled up behind a utility. The utility suddenly started reversing. It grabbed the front of his motorbike and pulled the motorbike under the utility. He was thrown off to the side. The motorbike ended up underneath the utility and Mr McCarthy believes he would have been killed if he had not been thrown off the bike. He was able to stand up. He was shaking. He exchanged details with the other driver who apparently had not seen him.
He contacted a former employer’s tow truck company, to have his motorbike collected and Mr McCarthy walked home which was nearby.

History of symptoms and treatment following the motor accident

Mr McCarthy said after he arrived home, he noticed increasing physical pain and he attended Wyong Hospital. He said he was assessed and administered analgesic medication which made him feel better and so he decided to leave the hospital because it was very busy and there lots of trauma calls.
He consulted Dr Chris Lloyd the next day whose clinical entry dated 12 April 2019 records him having numbness in the sole of his foot on the left. Dr Lloyd arranged for him to have some scans and referred him for physiotherapy. The scans showed bulging discs in his neck.
Mr McCarthy was referred to a pain management specialist, Dr Russo who in turn referred him to Ms Suzanne King. He believes that he was consulting her every two weeks until the onset of COVID-19 restrictions the following year.
Mr McCarthy says that within one to two months he started to become scared of driving and his anxiety “went through the roof”. He had repeated nightmares of the motor accident and of fictitious accidents such as standing on the road, being struck by a vehicle and being unable to avoid it. These nightmares caused him to wake up in a panic and experience physical symptoms of anxiety including shortness of breath, hot and cold sweats, his throat closing over and feeling like he was going to die. He would not want to go back to sleep.
He had difficulty falling asleep because he would toss and turn and could not stop thinking. He thought about his son, work and his life, in general. He usually woke after about two hours from falling asleep.
He became irritable and angry and would lose his temper with his son, with his mother and his wife.
He was no longer happy or outgoing.
He ceased riding a motorbike being too scared to do so.
He thought about the motor accident when he drove a motor vehicle.
The anxiety symptoms caused him to lose his routine. He got out of bed at a variable time. He ceased going to the gym. He was very fit and exercised in the gym six days each week, one and a half hours each day, before the motor accident.
He felt unable to “get back into the gym”, feeling that he did not want to do it, after the motor accident. He had no enthusiasm or motivation. He lost 10-15 kg of weight, but has regained some weight, which he says is fat.
He had little tolerance for his son and becomes irritated with him. He continued to spend every day with his son but could not sit still and play with his son because he wanted to be able to leave his son’s presence. He felt that he needed to keep physically moving.
He has pain in his neck, back and left shoulder.
Mr McCarthy said that before the motor accident, probably since 2018 he had been living separately from his wife because his mother-in-law repeatedly intruded into the relationship with his wife. This had commenced about a month before his son was born. She would particularly intrude into their conversations.

Previous medical history

Mr McCarthy suffered a ruptured cruciate ligament in his right knee at a school disco when a large girl fell on his knee, at age 9 years. He had a reconstruction of the knee.
He fell off a truck at age 18 years when he was working at a flower farm. He fractured the scaphoid bone in his left hand which required insertion of two pins and a bone graft. It was a workers compensation injury.
He was a passenger in a car which his now ex-wife was driving, in May 2017. They were involved in a minor accident which he described as “a tap” and did not suffer any injuries.
Mr McCarthy has been anxious and had symptoms of OCD for many years. He needed to check light switches were turned off and doors were locked approximately twice each time. He generally worried about everything and struggled to breathe at least from time to time.
The clinical records of Dr Chris Lloyd, general practitioner, from 22 October 2016 state that he has been anxious and taken Lovan on and off. The entry dated 26 May 2017 states that he was taking Valium as required and is currently prescribed Valium 5 mg.
He was prescribed Clonazepam 0.5 mg half tablet twice daily on 19 June 2017. He has continued this medication until 17 January 2019. He was prescribed Fluoxetine 20 mg daily in addition to clonazepam on 3 January 2019. On 17 January 2019 the clonazepam was ceased and he was commenced on Lorazepam 1 mg ½-1 tablet as needed. On 4 February 2019 lorazepam was ceased and he was prescribed Diazepam 5 mg ½-1 tablet as needed.
There was a further prescription for Diazepam, on 19 February 2019.
Mr McCarthy was diagnosed as having ADHD at age 8 - 9 years and took Ritalin until aged 16-17 years.
Mr McCarthy remembered that he was prescribed Cymbalta before Fluoxetine and consulted a counsellor soon after his son was born in February 2017 because he was struggling to be a new dad.
Mr McCarthy was asked why he ceased work on 25 January 2019. Mr McCarthy was advised about the letter of Dr Lloyd dated 7 March 2019, the entries in Dr Lloyd’s notes dated 25 January 2019 and 25 February 2019, the Mental Health Assessment dated

19 January 2019 and of Dr Lloyd certifying unfit for work on 25 January 2019, because of anxiety.
Mr McCarthy replied that he had previous periods of anxiety, because he was still adjusting to being “a brand new dad”, about two years after his son was born in February 2017. Mr McCarthy also acknowledged that he was anxious, at least from time to time, prior to the birth of his son. He did not otherwise address the records the Panel had put to him.

Substance use

Mr McCarthy smokes 20 cigarettes each day but is abstinent of alcohol and illegal substances.
He does not use bodybuilding enhancing substances although he had tried anabolic steroids for a week, about 15 years ago.
He has two cups of tea but avoids coffee because it causes anxiety. He occasionally has cola drinks but does not consume energy drinks.

Personal history

Mr McCarthy was born in “Camperdown Hospital”, presumably Royal Prince Alfred Hospital. He is the second in a sibship of five having three brothers (one of whom died aged 6-8 weeks) and a sister who was the twin of one of his brothers who died at age 2½ years apparently from congenital conditions.
He believes that his mother has depression, but he denies that his grandmother has bipolar disorder.
He and his siblings all have different fathers.
He described his developmental years as good. There was lots of love and no adverse events apart from one night after his twin sister died when his mother became drunk and smashed some plates.
His mother worked part time. He left school at age 16 years and initially worked in kitchens in cafés as a kitchenhand. He later worked laying floors for about a year.
He worked on the flower farm at age 18 years for about six months.
He had his own waterproofing business from 2008 to 2015. He ceased doing waterproofing because he wanted a change and subsequently did truck, limousine and chauffeur driving. He later worked as a tow truck driver.
Mr McCarthy said he last worked in January 2019 at which time he was working for Wyong Towing. The company had a contract with the police to tow vehicles damaged in motor accidents and stolen vehicles. This required him to be on call and potentially work anytime day or night. He stated that he ceased work at that time because he wanted a job with more regular hours.
Mr McCarthy, as noted above, was advised about the medical records and that

Dr Lloyd had certified him unfit for work on 25 January 2019 because of anxiety.

Mr McCarthy did not address this directly and said he felt able to resume working before the motor accident. He had applied for a job with a company called Scott Civil which apparently had a contract to work on North Connex. He was scheduled to have a medical examination the day after the motor accident on 11 April 2019 which he did not attend because of the motor accident.
He subsequently did one week of work in November 2019 waterproofing and flooring, but this was limited by pain and anxiety. He last attempted to do some waterproofing work about 18 months ago but lasted only one day, again because of his anxiety and pain.

Current symptoms

Mr McCarthy states that he has very similar psychiatric/psychological symptoms as described previously. He has nightmares which wake him from sleep and he does not want to go back to sleep. He has difficulty falling asleep and wakes after two hours. When he lies down to go to bed he is thinking about his life.
He continues to struggle to get up in the morning and has no routine.
He has ceased attending the gym not having the motivation to do so. He is easily irritated and angry and finds it difficult to sit still.
Mr McCarthy stated that the OCD symptoms had markedly increased since the motor accident. He now checks that light switches are turned off and that doors are closed at least 20 times each time. He also needs to repeatedly check that his blinker is turned off when driving.
He now needs to repeatedly check that his bag has everything that he requires before he leaves home. It can take him 30 minutes to get out of the house each time. Prior to the motor accident it would only take him five minutes.
He has back spasms now and then, his neck is stiff and sore and his left shoulder clicks when he lifts it up and down.

Current treatment

Mr McCarthy is currently taking Panadol and Nurofen for the pain. He used one Norspan patch only and did not like the effect.
He was having psychological treatment with Ms Suzanne King. That ceased in 2020 with the COVID-19 restrictions.
He is taking Mirtazapine 30 mg at night.
He is taking medical cannabis flower which helps to relax him and to some extent helps with nightmares. The medical cannabis is prescribed by Dr Chris Lloyd. He originally took CBD oil which made him more anxious.
He takes Diazepam, 2 tablets each day but can be abstinent for two to three days at a time.
He consulted another psychologist at Steps 4 Success. There was a further COVID-19 pandemic lockdown in 2021 and he could not cope with the telephone consultations.

Current functioning

Mr McCarthy stated that he has “to drag” himself out of bed and has a lack of motivation. He wakes between 7.00 and 10.00 am. He can get himself breakfast and lunch and can heat a frozen meal for dinner. His mother cooks evening meals, for everyone in the house.
He does not do his laundry regularly, saying he does not know why. He cleans his room.
He can go to the supermarket and buy items such as preheated meals and cereal but no longer buys vegetables because he no longer cooks vegetables.
He continues to see his son every day. His son lives 20 minutes away with his now ex-wife. He typically collects him after school and takes him to his home. He will remain with his son until his ex-wife comes home from work which is usually about 6.00 pm.
His son usually plays on a Sony Play Station. He says he can tolerate his mother-in-law, for that period of time.
He will see his older brother who lives in Terrigal mostly because his older brother visits him (and their mother), but he can drive to Terrigal. He sees the brother with whom he lives and his mother and reports there are mostly no difficulties with these relationships.
He has ceased attending the gym which he previously attended six days each week.
Mr McCarthy has ceased riding a motorbike since the motor accident. He was offered a replacement motorbike by the insurance company, but declined, being too scared to resume riding.
He can drive about 20 minutes which enables him to visit his son every day. The supermarket is about five minutes’ drive from home.
He has driven for an hour with his mother or brother in the vehicle.
Mr McCarthy states that he has good relationship with his brothers and his mother.
He separated from his wife in about November 2019 in the sense that the relationship ended at that stage. His wife stated that he was too much, that he was very snappy and that when she rang him each morning, as she continues to do to wake him up, he would become very angry. His ex-wife rang him every day before the motor accident, but Mr McCarthy would set his own alarm, to get up.
Mr McCarthy states that his memory is terrible, and he cannot remember names or what he is doing or what he is meant to do next. He can watch television. He no longer watches drag, car or motorbike racing. He does not necessarily avoid watching anything else on television.
Mr McCarthy has not worked for about one and a half years and at that stage only worked for a day and previously worked in November 2019 for about a week laying floors.

Pre-accident functioning

Mr McCarthy stated that before the motor accident he would have little difficulty getting up in the morning even though his wife would telephone him each morning. She telephoned him seven days each week including on non-working days. He would get up and make his bed, shower, have breakfast and decide what he was going to do. He would eat lunch at home or purchase it if he was away from home. He could eat out for dinner, but also cooked meals for himself, commonly steak and vegetables.
He saw his son every day, seven days each week. He remained with his son for many hours each day, before the motor accident. His wife had returned to work part time nine months after his son was born and full time after his son was aged 2½ years and attending day care. Mr McCarthy would then pick up his son after day care and take him to his home.
He stated he was doing boxing and weightlifting and attending motorbike, drag and car racing events.
Mr McCarthy reported no difficulties with driving and liked to drive a lot. He stated he could drive to Queensland without giving it a second thought.
He stated the relationship with his wife was fine even though they lived separately and the only reason he did not live with his wife was because of his mother-in-law as previously described. He had good relationships with his own family.
He stated his ability to think and concentrate and undertake mechanical work was unimpaired before the accident.
He was advised about the report by Ruth to Centrelink dated 13 September 2018 which states that he reported severe anxiety, somatic symptoms and inability to concentrate. His condition was considered permanent and his symptoms were likely to persist across the next 24 months. It states he has a temporary work capacity of 8-14 hours per week. This consultation appeared to coincide with him being certified unfit for work from 13 November 2017 up to and including 3 June 2018 and possibly longer. It also notes he has experienced anxiety much of his life in the context of domestic violence. His symptoms have increased recently including stress within the workplace, chest pain, shortness of breath, negative thinking, disrupted sleep routine. He has reduced motivation and confidence and worry.
Mr McCarthy stated that he was able to work but when he was not working, as occurred from 25 January to 25 February 2019, it was because of difficulty adjusting to being a new father.

Other matters

Mr McCarthy was asked about the various discrepancies noted above, particularly the Centrelink records and the reports of being prescribed benzodiazepines prior to the motor accident. He was asked specifically about Dr Lloyd prescribing benzodiazepines in 2019 and agreed that that occurred in addition to the increased dose of Fluoxetine in February 2019.
He was asked why there was no mention in any of the clinical notes of Dr Van der Walt of the motor accident. Mr McCarthy stated that he had told Dr Van der Walt about the motor accident and could not explain why it was not mentioned in his notes.

Diagnosis and reasons

Mr McCarthy reaches criterion for a diagnosis of pre-existing OCD exacerbated by the injuries sustained in the motor accident.
According to him, his checking has increased from 2 times to 20 times. He is also checking the blinker on his car when he drives. He checks his bag now before he leaves home and he is very embarrassed about these symptoms.
He has a diagnosis of pre-existing generalised anxiety disorder which has been exacerbated by the injuries sustained in the motor accident. Mr McCarthy says he is now more worried and more anxious and has panic attacks from time to time. At times he has been diagnosed with panic disorder, but he did not describe sufficient panic attacks to reach criterion for that condition.
Mr McCarthy does reach criterion for a diagnosis of post-traumatic stress disorder arising from the injuries sustained in the motor accident. He reaches the criterion listed in DSM-V as follows:
(a)    Category A - he was exposed to a serious motor accident in which he believes he could have been killed if he had not been thrown off his motorbike;
(b)    Category B - he has recurrent involuntary and intrusive memories of the accident and nightmares of the motor accident which wake him from sleep;
(c)    Category C - he minimises his driving because he feels so anxious and fearful of a further motor accident. He ceased riding a motorbike because of the motor accident;
(d)    Category D - Mr McCarthy describes being forgetful. He no longer feels positive or confident. He is generally very negative in his outlook. He has lost interest in previously enjoyed activities, particularly going to the gym;
(e)    Category E - Mr McCarthy is irritable and has angry outbursts which his wife complained of leading to their separation. He has problems with his concentration and difficulty falling asleep and staying asleep;
(f)    Category F - the disturbance has lasted for more than a month;
(g)    Category G - the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning, and
(h)    Category H - the disturbance is not attributable to physiological effects of a substance or other medical condition.

Causation

Mr McCarthy had anxiety symptoms before the motor accident and had pre-existing conditions of OCD and generalised anxiety disorder and probably panic disorder.
However, Mr McCarthy clearly reported that although he had difficulties with some areas of functioning, he mostly functioned to the point of going to the gym each day and was able to work although not immediately before the motor accident. He was able to collect his son from day care and look after him for several hours at a time.
Following the motor accident, he has developed post-traumatic stress disorder and the pre-existing generalised anxiety disorder and OCD have become more intense.
Mr McCarthy told the medical members of the Panel that his psychological symptoms set in a couple of months after the accident. This history is confirmed in the notes and by the certificates of fitness (the first two not mentioning any anxiety or depressive symptoms). The claimant’s initial symptoms related to physical matters and the psychological effects of the accident did not develop until later.
His pre-existing level of anxiety increased in intensity before the motor accident as evidenced by the increased use of benzodiazepine medication and the doubling of the dose of Fluoxetine.
The evidence does not reveal any other reason for Mr McCarthy to develop post-traumatic stress disorder or an exacerbation of the pre-existing OCD and generalised anxiety disorder and it is the clinical judgment of the medical members of the Panel that his symptoms arose within a reasonable time frame after the accident.
The Panel notes the insurer’s concession that the claimant has sustained a psychological or psychiatric injury as a result of the accident and the Panel is satisfied that the claimant has sustained a post-traumatic stress disorder and the aggravation of two pre-existing conditions, OCD and generalised anxiety disorder.

ASSESSMENT OF WHOLE PERSON IMPAIRMENT

Current whole person impairment assessment

In the light of the above diagnoses, the Panel notes Mr McCarthy has been treated by two psychologists and has been prescribed the following medication:
(a)    Fluoxetine;
(b)    Diazepam;
(c)    Clonazepam, and
(d)    Mirtazapine.

AREA OF FUNCTION	CLASS	REASON FOR DECISION
Self Care and Personal Hygiene	2	Mild impairment. Mr McCarthy finds it difficult to get out of bed and lacks motivation. He does not have a set routine. He can get himself breakfast and lunch and reheat a frozen meal for the evening meal although his mother cooks. He sometimes does not do his laundry. He does keep his room clean and he can go to a local supermarket to buy items although he no longer buys vegetables.
Social and Recreational Activities	3	Moderate impairment. The claimant can go out for example when he collects his son from school each day as described above. However, he has ceased going to the gym which he says he did six days each week before the accident and he no longer attends drag, motorbike or car racing events. Although he still enjoys contact with his older brother who lives at Terrigal, he finds it more difficult to tolerate his son or enjoy activities together. The Panel notes the insurer’s submissions, but it is the clinical judgment of the Medical Assessors that a class 3 impairment is more appropriate.
Travel	2	Mild impairment. Mr McCarthy has ceased riding his motorbike being too scared to do so. He can drive for up to 20 minutes which includes going to the supermarket as well as seeing his son.
Social Functioning	3	Moderate impairment. Mr McCarthy has separated from his ex-wife in the sense that their relationship has ended, as distinct from living separately because of the reported intrusiveness of his former mother-in-law. This was said to be because of his anxiety and irritability. His ex-wife continues to telephone him in the morning to help him wake up as he does not necessarily get up as he did previously. He continues to have a good relationship with his immediate family.
Concentration, Persistence and Pace	2	Mild impairment. Mr Lloyd described his memory as terrible, that he would forget things, what he is going to and what he intended to do next, but he can watch television. He avoids watching drag racing, car shows and motorbike racing. He sat through an examination which lasted almost two hours and although at times he struggled to answer questions he was able to concentrate throughout that time.
Adaptation	4	Severe impairment. Mr McCarthy last worked about a year and a half ago when he did one day’s work. He did about a week’s work in November 2019. He is unable to resume work because of a mixture of anxiety and physical symptoms as described above, and from a psychological perspective, he can work but his productivity would be less than 20 hours per fortnight.
List classes in ascending order: 2, 2, 2, 3, 3, 4
Median class value: 2.5 rounds up 3
Aggregate score: 16
Whole person impairment: 17 %

The Panel is of the view that 1% should be added to the impairment pursuant to cl 6.222 for the effect of treatment. The medical members of the Panel are of the view that the treatment has been appropriate and effective and if Mr McCarthy ceased his medication, this would likely lead to an increase the intensity of his symptoms.
The claimant’s current WPI is therefore calculated at 18% (17% plus 1% for the effect of treatment).

Pre-accident whole person impairment assessment

The Panel is satisfied that, on the medical and other evidence currently before the Panel Mr McCarthy had, at the time of the accident, pre-existing symptomatic and treated psychiatric conditions as follows:
(a)    OCD;
(b)    generalised anxiety disorder, and
(c)    a probable panic disorder.
The Panel notes that before the accident, the claimant had received treatment from a counsellor and had been prescribed:
(a)    Cymbalta;
(b)    Fluoxetine;
(c)    Clonazepam, and
(d)    Diazepam.

AREA OF FUNCTION	CLASS	REASON FOR DECISION
Self Care and Personal Hygiene	1	No impairment. In the months before the accident, Mr McCarthy stated he had no difficulty getting up. He set his alarm each day. He was able to shower, get out of bed, have breakfast. His wife did ring him which he described as triggering him to get up. He was able to get breakfast and lunch and cook himself an evening meal if required.
Social and Recreational Activities	2	Mild impairment. Mr McCarthy stated that he did go to the gym and did enjoy seeing his son each day. The panel noted that from 25 January 2019, his anxiety increased, and he was using increased quantities of medication. Mr McCarthy stated there was no impairment of his ability to function, but the Panel found it difficult to see how he could function fully when he had significant anxiety symptoms and increased use of medication and concluded his anxiety symptoms were significant and would mildly interfere with his social and recreational activities.
Travel	1	No impairment. Mr McCarthy stated he had no difficulty with travelling before the accident.
Social Functioning	1	No impairment. Mr McCarthy was in a relationship although he lived separately from his wife as previously explained, this was, as he said not due to a psychological injury. He had no difficulties in relationships with his family.
Concentration, Persistence and Pace	2	Mild impairment. Mr McCarthy stated he had no difficulty with concentration and was able to fix anything. However, the Panel discussed the assessment for Centrelink by registered psychologist Ruth on 13 September 2018 which states that Mr McCarthy has severe anxiety, somatic symptoms and inability to concentrate. It also states that these symptoms would last across the next 24 months. The baseline work capacity was assessed at 15-22 hours each week but currently he was assessed as being able to work only 8-14 hours each week until 14 November 2018. The Panel concluded that before the motor accident, particularly bearing in mind the increased use of medication from January 2019 onwards, his ability to focus and concentrate was impaired, but not to the level that he could not follow complex instructions as he said he could focus on mechanical work.
Adaptation	4	Severe impairment. Mr McCarthy had ceased work in January 2019. He did state that he had applied for another job in that time, but it is also noted that he was taking increased quantities of medication and there was also the previous assessment in September 2018 where Centrelink assessed him as being fit for 18-14 hours per week of work. The Panel concluded his pre-MVA psychological work capacity was less than 20 hours per fortnight and he was not totally impaired.
List classes in ascending order: 1, 1, 1, 2, 2, 4
Median class value: 1.5 rounds up to 2
Aggregate score: 11
Whole person impairment: 5%

The claimant was a difficult historian, and the Panel has had difficulty correlating some of his history with the records in particular the evidence concerning his work and employment immediately before the accident. However, what appears clear from the records is that the claimant has had anxiety symptoms for many years before the accident. He had a particularly intense episode of increased anxiety in 2017 caused by him becoming a father for the first time. These symptoms, while present in 2018 appear to have diminished somewhat. In early 2019, before the accident, the claimant appears to have experienced another episode which left him unable to work and for which he made a claim in respect of a disability policy. Dr Lloyd identified this as a new and separate exacerbation. The Panel has therefore found a similar impairment to concentration persistence and pace and adaptation both before and after the accident.
However, there is limited evidence in the records in respect of the other areas of function. For example, in 2017, during his most intense pre-accident phase of anxiety there are records suggesting the claimant could not or would not travel other than locally or possibly even leave the house. These symptoms do not appear later in 2018 or in early 2019. The Panel notes the claimant was able to travel to attend medical practitioners in Sydney in 2018 and 2019 and therefore it is the Panel’s view there was no significant impairment to the claimant’s ability to travel shortly before the accident.
In terms of social functioning, there is a suggestion in the records that the claimant may have had issues with his wife and his mother-in-law before the accident due to his mental health issues and a limited relationship with his brother before the accident but these are not regular features of his pre-accident presentation and appear to the Panel to be connected to the 2017 episode.
The insurer has suggested that the claimant should have been assessed as class 2 for self-care and personal hygiene on the basis of a single entry in the Centrelink record of 13 September 2018 “generally manages self-care however is inconsistent with daily routines of life”. There are no other records to suggest a class 2 impairment in the months before the accident and the Panel has therefore determined a class 1 impairment is appropriate.
The Panel determined that it would be appropriate to add 2% impairment for the effect of treatment. About three months before the accident Mr McCarthy had doubled the dose of Fluoxetine and was taking more benzodiazepine medications averaging at least one tablet each day and he reported his treatment was more effective before the accident.
The claimant’s pre-accident WPI is calculated therefore at 7% (5% plus 2% for the effect of treatment).

Final whole person impairment

Mr McCarthy’s total WPI resulting from the psychiatric and psychological injuries sustained in the accident is 11% (18% current impairment less 7% for the pre-existing impairment).

CONCLUSION

The Panel has come to the same conclusion as Medical Assessor Lim, that is that

Mr McCarthy has a WPI of greater than 10%.
However, because the Panel has come to a different figure (11% as opposed to 14%), and Medical Assessor Lim included that figure in the certificate, the Panel revokes the certificate of Medical Assessor Lim.

[2023] NSWPICMP 235

1 June 2023