Insurance Australia Limited t/as NRMA Insurance v McPherson

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v McPherson [2025] NSWPICMP 376
CLAIMANT:	Morgan McPherson
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Melissa Barrett
MEDICAL ASSESSOR:	Sharon Reutens
DATE OF DECISION:	29 May 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); treatment and impairment disputes; insurer’s single application for review under section 7.26; Medical Assessor diagnosed post-traumatic stress disorder (PTSD); diagnosis challenged because claimant had no memory of accident; impairment for three of six functional areas challenged; Held – claimant has PTSD caused by accident on background of pre-existing conditions; current whole person impairment (WPI) 8%; pre-existing WPI 2%; WPI caused by accident 6%; all treatment allowed; WPI MAC revoked; treatment MAC confirmed; no matter of principle.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel: 1. Confirms the certificate of Medical Assessor Sidorov in respect of the disputed psychological treatment with Ms Gebert. 2. Revokes the certificate of Medical Assessor Sidorov in respect of the claimant’s whole person impairment. 3. Certifies that the degree of the claimant’s permanent impairment that has resulted from the injury caused by the motor accident on 26 May 2019 is not greater than 10%. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Morgan McPherson was involved in a motor accident on 26 May 2019. She was a rear seat passenger in a vehicle, the driver of which, apparently lost control of it. Ms McPherson has limited recall of the accident.
Ms McPherson says she injured her right leg in the accident, sustained a forehead laceration and trigeminal nerve injury and developed a psychiatric or psychological injury as a result. Ms McPherson made a claim for statutory benefits and a claim for damages against NRMA, the third-party insurer of the vehicle that she was travelling in at the time of the accident.
Two medical disputes have arisen in connection with her claims and Ms Morgan referred them to the Personal Injury Commission (the Commission) for assessment as follows:
(a) proceedings M10536742/22 – in her damages claim, a dispute about whole person impairment (WPI), and
(b) proceedings M10536760/22 – in her statutory benefits claim, a dispute about treatment and care.
Both disputes were allocated to Medical Assessor Sidorov for medical assessment and on 19 September 2023, the Medical Assessor issued a single document comprising:
(a)    certification that the claimant had a WPI of 13%;
(b)    certification that the treatment in dispute was related to the accident and was reasonable and necessary in the circumstances, and
(c)    a statement of his reasons for those findings.
The insurer lodged a single application with the Commission seeking a review of all of the Medical Assessor’s decisions.
On 29 November 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessments and allowed the Review and on 6 September 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.

LEGISLATIVE FRAMEWORK

Ms McPherson’s claim and her entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for statutory benefits, a claimant is entitled under Part 3 of the MAI Act to lost weekly income type benefits as well as the payment of expenses incurred in connection with treatment and care provided for accident-related injuries.[1] The entitlement to treatment and care is subject to a number of limits and restrictions, one of which is that the treatment and care must be “reasonable and necessary in the circumstances” and “[related] to the injury resulting from the motor accident …”[2]
[1] Section 3.24(1).
[2] Section 3.24(2).
In a claim for lump sum compensation, damages are assessed in accordance with common law principles as modified by the MAI Act. Under Part 4, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss. Damages for non-economic loss are limited and restricted by the provisions in 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[3] 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.
[3] The current maximum as of October 2024 is $654,000.
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.[4]
[4] See s 4.12 and Schedule 2(2)(a) of the MAI Act declares a dispute about WPI to be a medical assessment matter.

Dispute resolution

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 Sidorov’s, further medical assessments and the review of medical assessments by this Panel.[5]
[5] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two Medical Assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.263A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[6] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[6] Section 7.21. The current version of the Guidelines is Version 9.3.
Due to the nature of the injuries sustained by the claimant, chapter 13, the mental and behavioural chapter of the AMA 4 Guides is relevant, but the main considerations are the provisions of the Motor Accident Guidelines and the application of the Psychiatric Impairment Rating Scale (PIRS).

Treatment disputes

Disputes about whether treatment is reasonable and necessary or related to the injuries caused by the accident are a declared medical assessment matter under Schedule 2(2)(b) of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Sidorov examined the claimant on 5 September 2023. He issued his certificates and reasons on 19 September 2023.
At [2] and [3] he confirms the disputes he was asked to assess:
(a) in terms of WPI, the claimant’s psychiatric injury said to be posttraumatic stress disorder, major depressive disorder, exacerbation of pre-existing anxiety and stress, and
(b) whether the psychological treatment from Ms Gebert, psychologist proposed in the ninth Allied Health Recovery Request (AHRR) is related to the injuries caused by the accident and whether it is reasonable and necessary in the circumstances.
Medical Assessor Sidorov records at [9] a history of the claimant’s upbringing, education and employment noting the claimant had, just before the accident, decided to pursue acting and modelling on a freelance basis. The claimant said she had seen Ms Gebert in 2017 for anxiety but denied being prescribed an antidepressant or other medication or having time off work or study before the accident.
Medical Assessor Sidorov has at [10] a history of the accident. The claimant said she had been drinking, took some MDMA (ecstasy which the Panel notes is a stimulant) and a Xanax tablet (which the Panel notes is a tranquiliser) and “she has no memory of the motor vehicle accident itself” other than flashes of memory.
The Medical Assessor at [11] documents the claimant’s physical injuries (right ankle and knee), a laceration to her forehead (stitched and surgically repaired). He records that the claimant’s anxiety “became significantly worse” after the accident and she developed flashbacks, nightmares and experienced disturbed sleep. She said she was hypervigilant, triggered by lights and sirens and she has become more irritable. Ms McPherson said she had started seeing a psychiatrist in 2020, was diagnosed with post-traumatic stress disorder and was commenced on an antidepressant and other medication including Fluoxetine and Prazosin. Her symptoms have improved but not resolved.
Medical Assessor Sidorov diagnosed a post-traumatic stress disorder at [20], found it caused by the accident at [21] and that she also had a temporary exacerbation of her pre-existing psychological problems which had resolved.
In terms of impairment his findings for the six areas of function were:
(a)    self-care and personal hygiene  class 2;
(b)    social and recreational activities  class 3;
(c)    travel  class 2;
(d)    social relationship functioning  class 3;
(e)    concentration persistence and pace  class 3, and
(f)    adaptation/employability  class 4.
The Medical Assessor assessed the claimant’s WPI at 17%, her pre-accident impairment at 5% and her current impairment at 12% adding an additional 1% for the effect of treatment.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer submits at [3][7] that the Medical Assessor did not comply with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) or the AMA 4 Guides and Part 6 of the Guidelines. The insurer notes at [3.2] that the claimant had no recollection of the accident which Dr Vickery says suggests that a diagnosis of post-traumatic stress disorder cannot be made. The insurer notes at [3.4] that the history obtained by Dr Gates neuropsychologist was that the claimant had no flashbacks or instructive images thoughts or memories consistent with her lack of recall. The insurer relies on the diagnoses made by Dr Gates and the history of pre-accident trauma.
[7] The references in the square brackets are to the sections or paragraph numbers of the submissions.
The insurer argues the Medical Assessor’s diagnosis is therefore flawed.
The insurer submits from [4.3] that the assessment of a class 3 for social and recreational activities is wrong as the claimant’s restriction on leaving the house was due to Covid and that she has good relationships with her sister and her children and has a romantic relationship.
The insurer submits from [4.7] that the assessment of a class 4 for adaptation is incorrect on the basis of the claimant’s admitted pre-accident mental health issues, her employment after the accident and her ability to audition and seek acting work.
The insurer submits from [4.14] that the Medical Assessor erred in a class 3 impairment for concentration persistence and pace on the basis the claimant could spend a day preparing for auditions and should be assessed as a class 2.
The insurer takes issue at [5] with the lack of reasons for the treatment dispute findings noting that the insurer had submitted that the claimant had already had 48 psychological sessions with little to no improvement.

Claimant’s submissions

The claimant notes at [4] her accident took place when she was 22 years old, the medical assessment occurred four years after the accident [5] and that in additional to her psychiatric injuries she has some physical injuries including a scar which is relevant to her modelling career [6].
The claimant submits at [12]-[13] that her flashbacks and nightmares relate to her imagining of accidents not her recollection of the accident that caused her injury.
After quoting extensively from the decision of the Medical Assessor and the evidence, the claimant submits at [32] that the Medical Assessor diagnosed a post-traumatic stress disorder consistent with his analysis of the evidence and the claimant’s history which he accepted.
The claimant submits that the insurer’s expert (Dr Vickery) should not be accepted because he is no longer an Authorised Health Professional and cannot give evidence in proceedings before the Commission. The claimant notes that the insurer has not referred to any of the treating medical and allied health evidence.
The claimant cites from [44] the evidence of Dr Allan in respect of the diagnosis of post-traumatic stress disorder and from [46] the report of Ms Gebert.
The claimant submits in respect of each of the three challenged functionality assessments that the Medical Assessor has exercised his clinical judgment in reaching the various assessments.
In terms of the treatment the claimant notes the insurer submits the claimant has not, after 48 treatment sessions, been cured or improved. The claimant says she does not have to be cured but that she could be maintained at her current level with treatment and if her condition does not further deteriorate the treatment could therefore be allowed.

Procedural matters

On 11 September 2024 the Panel issued directions to the parties:
(a)    to confirm or not whether the Panel had all the documents relevant to the assessment;
(b)    if not, for the production of bundles of relevant documents, and
(c)    requesting the bundles be uploaded to the WPI Review proceedings.
On 3 October 2024 the insurer uploaded a bundle of documents comprising 388 pages and on 8 November 2024 the claimant uploaded her bundle of documents made up of 700 pages.
The Panel met on 27 November 2024 and reported to the parties on 29 November 2024. The Panel sought clarification about the treatment dispute, whether the treatment had taken place and whether it had been paid for. The insurer noted that five years had passed since the accident and NRMA was no longer liable to pay for any treatment but that the Lifetime Care and Support Authority was liable for treatment expenses after the fifth anniversary of the accident.
The Panel requested documents from the claimant’s treating psychologist from before the accident and details of tertiary training since leaving school.
The Panel set a date for the re-examination and advised the parties.

Responses

The insurer provided the claimant’s response concerning her tertiary training (page 29 of the supplementary bundle – results page 150) and uploaded a copy of the claimant’s general practitioner (GP) records including from before the accident.
The claimant’s response was that the claimant had consented to the release of Ms Gebert’s file to the insurer’s solicitor, but the claimant did not know whether the insurer had obtained the file or not.
In terms of the treatment dispute, the claimant says that Medical Assessor Sidorov had determined the claimant’s treatment was causally related and reasonable and necessary and that this had not been disputed by NRMA. The claimant also says:
“… after NRMA's past denial for treatment costs the claimant instructs that her psychologist Ms Gebert was concerned for her welfare and so while the treatment was denied, Ms Gebert kindly bulk billed the claimant so that the claimant was able to access psychological treatment. Should Ms Gebert wish to claim a gap retrospectively we would need to raise this with NRMA yet at present we do not believe it is being claimed by Ms Gebert.
Regardless, the claimant has instructed that [the LifeTime Care and Support Authority] are currently paying for her continued treatment with her psychologist Ms Klaudia Gebert, her GP and also her psychiatrist Dr Lucia Porta Cubas. The claimant is not out of pocket for these costs presently and they are being met in full by [the Authority]. There is no current treatment dispute.”
The re-examination scheduled for 5 March 2025 was cancelled due to Ms Gebert’s records being unavailable. Further directions were issued on 10 March 2025 after receipt of Ms Gebert’s records with a revised date for the assessment set for 14 May 2025.
The claimant attended the re-examination, and the Panel met on 28 May 2025 to discuss the re-examination findings.

Final submissions

Insurer

The insurer summarises at [2] the pre-existing history from the records of Ms Gebert and says at [3.1] “they highlight a history of pre-existing anxiety and avoidant behaviour.” The insurer notes at [3.2] that the claimant attended 44 sessions of counselling with Ms Gebert over the course of a year and a half. The insurer says the claimant has continued to demonstrate anxiety after the accident and would require long-term psychology even if the accident had not occurred.
The insurer submits at [3.3] that the claimant “has a history of disassociation, detachment and avoidant behaviour, self-harm, suicidal ideation and self-soothing with alcohol and recreational drugs.” The insurer says the claimant’s current symptoms and reports and consistent with her pre-existing condition.
The insurer submits at [4] that the pre-existing condition should be considered when the Review (of her accident caused impairment) is done.

Claimant

The claimant refers at [2]-[7] to Medical Assessor Sidarov’s record of the claimant’s pre-accident history and his finding that her anxiety increased after the accident.
The claimant at [8] refers to Medical Assessor Curtin’s certificate and his finding of 8% WPI for her scarring including the prominent scar on her forehead.
The claimant returns at [9]-[11] to Medical Assessor Sidarov’s assessment noting his WPI assessment of the pre-accident state refers to “likely evidence of mild impairment”. The claimant says at [12]-[14] the Panel must assess the claimant’s actual pre-existing impairment (if any) and not speculate, and the assessment must be based on the actual evidence.
The claimant accepts the accuracy of the pre-accident records at [15] and [17] and says at [16] that “NRMA have not taken the review panel to a single example from clinical notes of any actual pre-accident impairment across any of the six PIRS categories.” The claimant submits there is no evidence in the pre-accident reports of an impairment to the claimant’s pre-accident functioning.

REVIEW OF THE EVIDENCE

The claimant and insurer have provided over 1,000 pages of documents in support of the claimant’s WPI assessment. The claimant has alleged both physical and psychiatric injuries and the documents relate to both. While the physical injuries are relevant to the assessment (for example the claimant’s response to, or feelings about the scar on her forehead), the Panel is undertaking an assessment of psychiatric injury. In addition, there are multiple copies of AHRR about psychological sessions and letters from the claimant’s psychiatrist to the claimant’s GP updating medications. These have been read but not included in details in the summaries provided here.
The Panel considers the following material relevant to the matters before us and significant in terms of the disputes raised by the parties.

Claim form and claim documents

The claim form is dated 22 June 2019.[8] The claimant said she did not have any recall of the accident and identified her injuries as a face laceration and concussion.
[8] Page 133 of the insurer’s bundle.
The claimant provided a statement signed and dated 6 November 2024.[9] She refers at [2] to her physical head injury, injuries to her right knee and right ankle and a chipped front tooth as well as a posttraumatic stress disorder and exacerbation of a pre-existing major depressive disorder.
[9] Page 316 of the claimant’s bundle.

She says she is seeing Ms Gebert every three weeks and her psychiatrist every three months and that she continues to take Fluoxetine, Prazosin, Endep.
Ms McPherson says at [5] she has continuing sleep disturbance, pervasive feelings of depression, helplessness and hopelessness, nightmares, avoidance, intrusive experiences, dissociative symptoms and so on. She refers at [6] to her physical symptoms and details her employment history.
Ms McPherson says at [7] she was not working because of her psychological injuries and has been unemployed for four years [11]. She says at [15] she has been applying for (acting) roles about once every two months and only applies for roles where she self-tapes or tests (not auditions requiring travel and public performances). She does not believe [16] she could manage a job due to difficulty concentrating and due to disassociation along with heightened anxiety [17].
She says she rarely leaves the house, rarely attends social events, does not pursue hobbies and interests. She relies on her partner because Ms McPherson does not drive [24]. She has poor concentration, a lack of energy and motivation. She says she would struggle to learn new tasks if she got a job [25].
She says [27] she neglects her personal care, avoids washing her face because of her scar and showers once or twice a week. She says [28] she wakes up at 11.00am, scrolls social media on her phone and has to work up to doing some chores.
The claimant provided deals of her schooling and studies after school on 24 January 2025. She confirms completion of a Bachelor of Performance a Wollongong University graduating on 12 December 2017. She obtained two passes, 17 credits and four distinctions for the various components of her degree.
Photographs of the scarring on the claimant’s forehead were provided.[10]

Treating medical records and reports

[10] Pages 299-304 of the claimant’s bundle.

General practitioner records

The claimant’s GP notes[11] include the following pre-accident records:
(a)    9 October 2017 – the claimant was tired, with poor concentration, low mood, she was anxious with stress form university which “has been issue long term”;
(b)    11 October 2017 – a GP mental health care plan was completed, and the claimant was given a referral to Self Reflections. A medical certificate was also given for university and on 20 December 2017 the claimant returned in relation to the mental health care plan;
(c)    on 30 January 2018 claimant had been to hospital with numbness in the thigh, left arm, shoulder and neck. She felt it was anxiety related and was advised to talk to her psychologist. On 2 April 2018 she had spoken with her psychologist and was learning techniques to assist her;
(d)    on 17 January 2019 the claimant attended for a further mental health care plan and referral to Self Reflections;
(e)    the claimant attended on 26 March 2019 for a long discussion on sleep hygiene. The claimant was offered escitalopram for anxiety, but she stated will try melatonin first, and
(f)    on 23 April 2019 the claimant attended for a mental health care plan review.
[11] Provided in an agreed bundle on 12 February 2025.
The claimant first attendance after the accident occurred on 27 May 2019. Apart from her physical injuries (being treated with Panadol and Nurofen) it was noted that Ms McPherson “may need counselling as traumatic incident, has psychologist in place already.”

Ms Gebert, psychologist and Dr Porta Cubas, reports

The claimant’s pre and post-accident treating psychologist is Ms Gebert of Self-Reflections. She has sent a number of reports and letters upon which the claimant relies. She has also provided a separate bundle of all her records following the Panel’s directions to the parties.
On 3 November 2017 she wrote to the claimant’s GP Dr Dunkle:
(a)    the claimant had anxiety since her younger years but has only recently become aware of it;
(b)    she described period of “zoning out”;
(c)    she worried about her performance and what she will do when she finishes her course;
(d)    she was experiencing low moods, low motivation and low energy and used alcohol to help her feel better, and
(e)    she had fleeting suicidal thoughts twice as a result of a “come down” from recreational drugs.
In a report dated 23 December 2017, the claimant was reported to be making improvement but “she is very detached from the severity of her internal challenges due to her anxiety …”
On 16 February 2018 Ms Gebert reported at the conclusion of the claimant’s treatment sessions under the mental health plan (6 in 2017 and 4 in 2018). The claimant was said to have significant anxiety and low mood and she had a panic attack resulting in hospital admission and fleeting suicidal ideation.
On 14 June 2018, Ms Gebert wrote to Ms Dunkle after 19 sessions. She notes fleeting suicidal thoughts, self-harming behaviour, alcohol and Tetrahydrocannabinol (THC) use. The claimant had however improved in recent months had no further suicidal thoughts or self-harming episodes and was using alcohol and drugs in a social setting only. She had opened up to friends and they were supporting her. Progress continued as reported on 31 July 2018 but the claimant’s condition fluctuated.
On 30 March 2019 Ms Gebert wrote again to Ms Dunkle. The claimant had experienced distress and an unsupportive work environment. She had found other work and was pursing her acting career but the absence of a set structure was stressful and anxiety provoking and the claimant’s sleep had deteriorated.
In a letter dated 14 September 2019, Ms Gebert notes:
“Morgan practically was improving quite significantly. [After 10 sessions pursuant to the mental health treatment plan]. She was engaging more with friends and enjoying walks to the beach, practicing yoga daily, participating in cross stitching as well as actively applying for and attending contracting jobs in her industry. She has not reported any suicidal ideation nor had urges to self harm. Emotionally she was also making progress, not as quickly however she trusted the process enough to engage in treatment (cognitive, behavioural and experiential).”
Ms Gebert records a significant deterioration in the claimant’s anxiety and depressive symptoms after the accident with the development of a posttraumatic stress disorder. She also records:
(a)    significant issue with self-care;
(b)    cessation of socialising, leaving home only for work, no yoga;
(c)    sleep disturbance;
(d)    short term memory loss, inability to handle time well, and
(e)    worrying and detaching impacting her ability to look for work.
Ms Gebert wrote to NRMA on 26 October 2020[12] and Dr Porta Cubas on 10 November 2020.[13] She outlines the claimant’s pre-accident history referring to “a long history of emotional deprivation, underlying depressive mood as well as generalised anxiety which were further exacerbated by interpersonal difficulties, lack of future prospects and a poor sense of self.”
[12] Page 195 of the insurer’s bundle.
[13] Page 134 of the claimant’s bundle.
Ms Gebert had a history of the accident and the claimant’s acute symptoms “incapable of showering, did not eat more than one meal a day, was often bedridden in a state of depression and withdrawal.” She notes the claimant’s difficulties with work and the impact of Covid suggesting that she lost her position at IMB after the accident due to Covid related cutbacks “which relapsed some of her symptoms and maladaptive ways of coping.”
Ms Gebert sets out the claimant symptoms and diagnoses of depressive disorder, generalised anxiety disorder and post-traumatic stress disorder, made recommendations for further treatment and suggested Dr Porta Cubas consider medicating the claimant.
Dr Porta Cubas has provided a report to the claimant’s GP dated 11 November 2020.
She notes the claimant had teaching jobs, working at a stadium and in a bank but that they were affected by the pandemic. The claimant lived in a shared house with support from her friends and sister.
Dr Porta Cubas reports symptoms of post-traumatic stress disorder after a car accident and head injury. Her symptoms were improved but continued. There were daily dissociative episodes, depersonalisation and nightmares. There had been no flashbacks, but the claimant was hypervigilant and hyper-aroused. There was sleep disturbance (which she had for many years) but the claimant was now using melatonin.
The claimant reported family issues and bullying at school.
Dr Porta Cubas expressed the view that:
“Unfortunately she continues to have significant post-traumatic stress disorder symptoms realted to the car accident. She has tended to ineralise and avoid negative emoitions from an early age. She has experienced dissociation in the past which certainly is exacerbated following the car accident.”
In her letter to the insurer dated 8 June 2021,[14] Ms Gebert says the claimant meets the criteria for a post-traumatic stress disorder with dissociative symptoms, a depressive disorder and generalised anxiety disorder. She documents:
(a)    self – care – the claimant spends time in bed or on her lounge, showering only twice a seek, skipping meals and is no longer participating in yoga, mindfulness or breath work;
(b)    pre-injury social and recreational activities – the claimant does not go out much as her disassociation is triggered when she leaves home and she uses substances or disassociation to cope;
(c)    travel – the claimant has difficulty on any form of transport, experiences post-traumatic stress disorder symptoms, shuts down and disassociates in public transport or in a car;
(d)    change in relationships – the claimant’s symptoms have put strains on her relationships and she has difficulty engaging in social situations;
(e)    memory – the claimant continues to have difficulty concentrating, focusing or remembering things despite medication and treatment. She documents physical symptoms of numbness near the scar and queries nerve damage and raises the prospect of the claimant having had a brain injury;
(f)    employment – she notes the claimant had obtained a role in a music video and a voice over commercial but has anxiety, feels overwhelmed and avoids engagement, and
(g)    recovery – the claimant had not yet reached maximal medical improvement and it would be a further 12-18 months before this was reached, and
(h)    treatment – further psychological, psychiatric and physical treatment was flagged as was the need to explore the presence of a brain injury or nerve damage.
[14] Page 53 of the claimant’s bundle.
Dr Porta Cubas wrote a letter “to whom it may concern” dated 7 December 2021[15] addressing the criteria of posttraumatic stress disorder and explaining her diagnosis of the disorder.
[15] Page 197 of the claimant’s bundle.
In a report dated 23 December 2021,[16] Dr Porta Cubas documents her 11 sessions with the claimant. The claimant was at that time said to be struggling with motivation and being triggered by reminders of the accident including the claim. She had heightened anxiety and hypervigilance in cars. Pain in her forehead had improved.
[16] Page 59 of the claimant’s bundle.
Dr Porta Cubas notes the claimant’s pre-accident history noting the claimant had some self-harm and substance use to regulate her anxiety and borderline personality disorder but had never been medicated.
Dr Porta Cubas took a history of poor memory, but the claimant was not sure if this is from a head injury or from dissociation. The claimant reported word finding difficulty over the last two months and she had residual knee and ankle pain.
While Dr Porta Cubas documents the claimant’s improvement, she also noted a decline after the insurer declined to fund further treatment.
Dr Porta Cubas diagnosed a post-traumatic stress disorder setting out the criteria and how the claimant met them. She recommended neuropsychiatric testing to confirm the presence of a brain injury. She sets out details of the claimant’s medication history.
Ms Gebert provided a report to the claimant’s solicitors dated 29 March 2022.[17] This was primarily a report addressing the report of Dr Vickery and his diagnoses of Avoidant Personality Disorder, Generalised Anxiety disorder and his failure to diagnose post-traumatic stress disorder because of the claimant’s lack of memory of the accident.
[17] Pages 79 and 136 of the claimant’s bundle.
As the pre-accident treating psychologist, Ms Gebert had diagnosed before the accident symptoms consistent with a Generalised Anxiety Disorder and a Depressive Disorder. She says these were mild at the time of the accident with the claimant able to function and engage in work, home and community activities. While Ms Gebert noted the claimant presented after the accident with “avoidant personality style riddled with emotional inhibition” she had not diagnosed and did not qualify for an Avoidant Personality Disorder.
Ms Gebert sets out the DSM criteria for a post-traumatic stress disorder and notes that Dr Porta Cubas and Dr Allan have diagnosed this condition. Ms Gebert addresses Criterion A which does not require that “the victim needs to recall every aspect of the traumatic event for the traumatic event to have occurred or indicate post-traumatic stress disorder.”
Ms Gebert took issue with the insurer’s declinature of further treatment and that “little to no improvement” had occurred between the requests eight and nine for further treatment. She explains the reasons for this being the claimant’s severe disassociation and her inability to retain the psycho-education and strategies given to her. It was only once medication was introduced that there had been a noticeable change in her ability to engage and the claimant had improved. The treatment plan was outlined, the issue of causation was addressed with Ms Gebert stating that 90% of the time spent was on accident-related issues.
On 9 June 2023, Ms Gebert reported to the claimant’s GP[18] that while the claimant had some “good moments” she had not yet experienced a full functional day and her ability to function was impacted with anxiety so severe she could not leave the house. She expressed a view that the claimant was not employable without support, retraining and an understanding employer.
[18] Page 691 of the claimant’s bundle
Ms Gebert wrote to the claimant’s GP on 13 September 2023[19] at the completion of 10 sessions under a mental health treatment plan. Improvement was identified but the following challenges identified:
(a)    persistent nightmares, heightened alertness and hypervigilance;
(b)    occasionally neglecting to shower for extended periods and forgetting to brush her teeth;
(c)    experiencing triggers during transport, and
(d)    ongoing memory issues.
[19] Page 693 of the claimant’s bundle.
Dr Porta Cubas provided a letter to the claimant’s GP on 21 February 2024 providing an update noting that the insurance company had appealed the impairment assessment which had “stressed her” and there were issues with motivation. The claimant was encouraged to exercise, set routines and do a course of interest. The claimant’s medication was adjusted. On 19 June 2024 Dr Porta Cubas reported to the claimant’s GP that as the insurer would not pay for any further consultations, the claimant had cancelled her appointment.[20]
[20] Page 321 of the claimant’s bundle.
Ms Gebert wrote to the claimant’s GP on 25 July 2024.[21] While she documents improvement, she states “her condition is compounded by an ongoing CTP insurance claim, which awaits panel review.” The claimant was reporting moments of anxiety, panic, triggering in car rides, sudden stops or jolts leading to flashbacks, disassociation and avoidance. She supported a further five sessions under a mental health treatment plan.
[21] Page 695 of the claimant’s bundle.

Medico-legal reports

The claimant relies on a report from Dr Allan, psychiatrist dated 23 February 2021. He has a history of the claimant being intoxicated at the time of the accident and that as a result of that and the head injury sustained, she has no memory of the accident.
The claimant told Dr Allan she was working before the accident but left it to pursue acting and modelling. She has since returned to the call centre but this was “triggering” so she has been working in a branch. The claimant was doing some casual work and receiving Centrelink benefits.
The claimant outlined her treatment and started taking an antidepressant the week before (20mg of fluoxetine).
The claimant gave a history of the accident, noting her drug and alcohol consumption on the night of the accident, that she had flashes of the accident, that the front seat passenger was airlifted from the scene and that she had a significant laceration to her head and was concussed.
She gave a history of her anxiety disorder before the accident and that the call centre work triggered her anxiety which is why she left that work before the accident.
The claimant reported nightmares which are accident or trauma-related, she has become socially withdrawn, has experienced flashbacks, hypervigilance and recurrent dissociative periods. She was stressed with travel and travelling to the appointment by public transport was confronting due to the presence of motor vehicles. She does not drive currently but has never held a license.
Dr Allan was of the view the claimant has a posttraumatic stress disorder with an exacerbation of her pre-existent generalised anxiety disorder.
In an earlier report dated 9 February 2021, Dr Allan states the claimant’s condition had not stabilised and he did not assess her WPI.
The Panel notes that Ms Gebert wrote to the claimant’s solicitor providing some commentary on this report[22] correcting his summary of the claimant’s pre accident history. With emphasis, Ms Gebert said:
(a)    before the accident the claimant had symptoms of depression in the contest of Generalised Anxiety and traits of Borderline Personality Disorder;
(b)    she did not meet the criteria for Borderline Personality or Major Depressive disorder before the accident;
(c)    she has met the criteria for Major Depression after the accident;
(d)    her generalised Anxiety disorder was made worse by the accident, and
(e)    she developed a posttraumatic stress disorder after the accident.
[22] Page 685 of the claimant’s bundle.
Dr McGlynn, plastic surgeon, provided a joint report in the matter on 30 June 2021.[23] He diagnosed a laceration to the right forehead causing visible scarring and facial disfigurement, injury to the first division of the trigeminal nerve causing forehead and scalp sensory loss and damage to the right upper central incisor tooth. While he thought the tooth could be repaired he is of the view the scarring is permanent. He records she had lost work as a result of the scar. He assessed her WPI as 2% for the scarring and 4% for the nerve damage.
[23] Page 226 of the claimant’s bundle.
Dr Vickery provided a report dated 12 October 2021.[24] He has a report of the claimant’s pre-accident work in a call centre and resignation due to it “triggering” her anxiety. He notes the claimant was not employed but had three hair modelling jobs before the accident. The claimant told him she had worked as a bank teller after the accident and was looking to do casual modelling work and “voice overs”.
[24] While Dr Vickery was a practitioner authorised to give evidence in motor accident proceedings he is no longer authorised to do so.
The claimant reported a difficult family life and being bullied at school and that she had only one friend in high school who also bullied her and she had no friends.
The claimant told Dr Vickery of having nightmares, sleep disturbance, leaving the house less due to Covid and that catching the bus was stressful (sudden stops) and lots of people around stress her. She reported “zoning out” and having difficulty concentrating.
The claimant reported enjoying embroidery, she was doing the housework and shopping.
Dr Vickery diagnosed an Avoidant Personality Disorder and Generalised Anxiety Disorder which were pre-existing. He says because she “does not remember the motor vehicle accident so a diagnosis of posttraumatic stress disorder cannot be substantiated.” He therefore was of the view there was no injury caused by the accident. He assessed the claimant’s WPI in any event as 6% on the following basis:
(a)    self-care and personal hygiene  class 2;
(b)    social and recreational activities  class 2;
(c)    travel  class 2;
(d)    social relationship functioning  class 1;
(e)    concentration persistence and pace  class 2, and
(f)    adaptation/employability  class 3.

On 8 November 2021, Dr Allan provided another report updating on the claimant’s progress, she had a small acting role, had found a partner but otherwise did not socialise. She has had to apply for many jobs at Centrelink and had done no studies abut had applied to the National Institute of Dramatic Art (NIDA). Ms McPherson reported her medications including fluoxetine (60mg), melatonin (2mg) and prazosin (3.5mg in the morning and 4mg at night).
His opinions were much the same on diagnosis, causation and prognosis. He assessed her impairment as follows:
(a)    self-care and personal hygiene  class 2;
(b)    social and recreational activities  class 3;
(c)    travel  class 2;
(d)    social relationship functioning  class 2;
(e)    concentration persistence and pace  class 3, and
(f)    adaptation/employability  class 4.
The median of the scores was 3, the total was 16 which translated to 17% to which he added 2% for the previous depression.
Dr Allan provided a supplementary report dated 17 March 2022 responding to the report of Dr Vickery and in particular his opinion that because the claimant does not remember the accident, she cannot have posttraumatic stress in relation to it.
Dr Allan quoted the Criterion A which requires “exposure to actual or threatened death, serious injury or sexual violence …”. He notes this can be by “direct experience or witnessing the event.” He seems to be saying this is not just exposure to the moment of impact but to the aftermath and associated consequences.
The parties obtained a joint report from Dr Gates, neuropsychologist dated 12 August 2022.[25] She has a history of the claimant’s employment before the accident noting that Ms McPherson did not have an agent and was teaching, living in a shared house and with good health. She disclosed seeing a psychologist in 2017 “due to anxiety during rehearsals which were reportedly exhausting.” Dr Gates obtained a history of her illicit drug use.
[25] Insurer’s bundle page 44.
Dr Gates took a detailed history of the activity (including alcohol and drug use) before the car accident.
He has a history of the claimant’s post-accident employment and while the date is not specific he suggests the claimant “partnered and moved into her partner’s home sometime after her last employment.” He reports later they have five pets.
He has a history of the claimant drinking 12 standard drinks per day which she had ceased on the basis of her psychologist’s advice.
The claimant’s current concerns were dissociation and pain in her forehead. She described cognitive issues finding it difficult to comprehend things and her attention and concentration were affected.
Dr Gates administered tests to assess performance validity and was not satisfied her responses were valid on the basis of the results and her dissociative conditions.
She considered that at the time of the accident the claimant was having a “substance related blackout”. He considered she met the criteria of a substance misuse disorder and that this was likely to affect her psychological symptoms, her sleep and potential recovery.
Dr Gates also considered “at the most she sustained a brief concussion” but he expressed concerns at diagnosing a post-concussion disorder or syndrome due to the similarity between the symptoms of that and the symptoms of dissociation or drug use.
In terms of post-traumatic stress disorder, she did not support a diagnosis saying:
“Furthermore, Ms McPherson did not have any direct experience of the accident, because she reports no memory of the event and was most likely in substance use black out. Furthermore, interview indicates that when explicitly questioned she has no intrusive images, thoughts or memories of the accident, consistent with her amnesia of the event. She explicitly denies any flashback experiences at present and denies any nightmares of the accident. She does have nightmares of being under threat or immediate danger, and she reports physiological arousal when suddenly stopping in travel and being generally vigilant. My opinion is therefore consistent with that of Dr Vickery.”

Other assessments

Medical Assessor Curtin examined the claimant on 8 September 2023 and issued his certificate the same day. He was asked to assess the claimant’s scarring (skin) and a trigeminal nerve injury.
The claimant had limited recall of the accident and knew she had struck her head but did not know how (or on what). Medical Assessor Curtin notes the claimant had a laceration to her forehead and her Glasgow Coma Score (GCS) was recorded by ambulance personnel at 14 (out of 15). He notes Hospital records describe the forehead laceration as 5cm in length. The claimant reported surgical revision of the scar in January 2020, pain management treatment in June 2022, medication and physiotherapy.
The claimant said she was very self-conscious about the scar on her forehead which could not be adequately disguised by make-up and it had “brought her acting career to a halt.” She says “the scar regularly attracts unwelcome attention from the public.” She experiences pain, numbness and it is quite sensitive to knocks and bumps.
The claimant received no further treatment for the scar. Medical Assessor Curtin noted the scar was 6cm long, “a fine depressed line” from just below the hairline to just above the right eyebrow and was a good colour match with the surrounding skin, not adherent and a patch of skin had abnormal sensation.
Medical Assessor Curtin assessed the impairment for the scar at 4% and awarded 4% for the injury to the trigeminal nerve due to the loss of sensation and numbness.
Medical Assessor Home examined the claimant on 25 October 2023 and issued his certificate with regards to the WPI resulting from Ms McPherson’s physical injuries to her right ankle and her right knee.
The claimant reported her attention was focussed on her head injury and forehead laceration and that when she stood up at the hospital, she noticed pain in her right ankle and knee, mentioned it to the hospital and then to her GP two weeks after the accident.
The claimant said her right knee pain settled within three months but that she has ongoing pain in her right ankle. She said she went to the physiotherapist and had treatment.
The claimant complained of intermittent aching pain in the right ankle with prolonged activity.
On examination the right ankle range of motion was the same as the left and normal.
Medical Assessor Home assessed WPI at 0%.
On 8 November 2023 Medical Assessor Home issued a combined certificate to the parties in respect of the physical injuries noting the combined WPI was 8% which was not greater than 10%.

RE-EXAMINATION FINDINGS

The claimant attended the telehealth medical re-examination with Medical Assessors Reutens and Barrett on 14 May 2025.

History from the claimant

Ms McPherson is a 28-year-old woman who lives with her partner and their five pets.
She has been receiving the Jobseeker payment since 2020 and says that two years ago she was excused from looking for work on medical grounds.

Pre-accident medical history

Ms McPherson said she was generally healthy and did not have a history of any significant medical conditions.

Pre-accident psychiatric history

Ms McPherson denied symptoms of anxiety in early childhood. She denied features of eating disorders, obsessions, compulsions, mania, hypomania or psychosis.
A self-described worrier who had a tendency to be self-critical, she denied perfectionism and said that she managed stress by taking time out. Ms McPherson initially denied self-harming behaviour prior to the subject accident but conceded this occurred when the treating psychologist records were discussed. She said that this only occurred for a brief period after she had finished university. She also used alcohol and drugs to regulate and manage stress.
Ms McPherson reported before the accident she had a sensitivity to criticism and interpersonal sensitivity that she linked to her childhood experiences. She had a tendency to worry and reported long-standing insomnia that was treated with melatonin. She was anxious during her university years, primarily because one of the lecturers reminded her of her mother. Ms McPherson initially denied dissociation, but when the psychologist’s records were discussed with her, said that the dissociation took a different form prior to the accident:
“It was more like I would take a moment to leave the room and shut everyone out. Now it could be like I’m staring into space, my body is in place and my mind is not there, fading away or watching myself.”
In terms of her mood, she felt more anxious than depressed and reiterated that university was a stressful period because of her interactions with one teacher. Ms McPherson said that she sometimes thought of death from the perspective that she wanted to escape her situation.

Drug and alcohol history

Ms McPherson said her alcohol use began at the age of 17. She said that she was aware that she sometimes drank in excess in social situations when she was younger. She currently consumed alcohol between Friday to Sunday when she was with her partner or with friends.
She denied a history of tobacco use but had been vaping for 6-12 months.
During Ms McPherson’s university years, she tried cannabis on one or two occasions and noticed it triggered anxiety. She used MDMA, non-prescription benzodiazepines such as alprazolam and diazepam, ketamine and cocaine on weekends, with her consumption increasing after she graduated. She said the drugs “make you stop thinking and overanalysing”.

Family history

Two older sisters took antidepressant medication in adulthood. Ms McPherson’s mother was described as anxious, but Ms McPherson was not aware if she had a formal diagnosis. Her father used cannabis regularly.

Forensic history

Ms McPherson denied a history of criminal charges or previous compensation claims.

Personal history

Ms McPherson said she was premature but to the best of her knowledge achieved her developmental milestones within the appropriate age ranges. Her early childhood was spent in Queanbeyan with her two older sisters and younger brother.
She reported her early childhood as “fun and happy”, but when asked about her home life reported that her parents argued frequently, and the home atmosphere was tense. She did not recall witnessing physical violence in the home.
Her childhood impression of her mother was that she was often angry at the children and their father and tended to overreact. Her mother was not affectionate, nor did she display love towards Ms McPherson in other forms. She was not physically violent, but was critical and Ms McPherson avoided asking her mother for help with homework. She sought out her father or older sisters for succour. Ms McPherson’s father was “really loving”. Ms McPherson was aware that she was his favourite child.
Her parents separated when Ms McPherson was aged seven. She recalled feeling numb and sad because she had to leave the area where her father’s extended family lived and move to Wollongong with her mother and siblings, but, other than being “really quiet” did not show her emotions. Her father tried to visit every 6 to 12 months and they conversed on the telephone. He remarried and had three further children.
Her mother did not re-partner and her behaviour remained critical. The children had to do chores, which were prioritised above their schoolwork.
Ms McPherson said she was bullied in high school, and to a lesser extent in primary school. Ms McPherson changed primary schools in year 3 and was initially targeted as the “new kid” but became close friends with the instigator. The high school bullying had a greater impact – in year 10, her best friend abruptly ignored her without explanation. Ms McPherson spoke to her teachers who brokered the resumption of cordial relations, but the friendship did not resume. From an academic perspective, Ms McPherson was an average student who was well behaved.
She found her HSC years stressful and felt burnt out in year 12 but was fortunately given an early offer to study her chosen course, Performance, at Wollongong University, which ameliorated the stress. She managed the transition to tertiary studies and attended with her best friend from high school. Ms McPherson denied having any problems from an academic perspective. She worked in a call centre for a bank as a university student in 2016 and resigned in 2019. She was disappointed when her submission to study for honours was declined; she was the only student who had applied.

Pre-accident functioning

Ms McPherson moved out of home during university and was living in a share house with housemates. She participated in the cooking, cleaning. She showered regularly and was mindful of her skin care routine. She wore make up occasionally.
Ms McPherson had graduated from university and resigned from her job in the call centre in January 2019. She reported having problems with her team leader whom she perceived picked on her, for instance, if she logged in three minutes late. However, the team leader overlooked others who came in 10 minutes late. After resigning, she did some modelling and lived off her savings. Since 2018 she worked casually as a drama teacher’s assistant for three to five hours a week
During the day she practiced yoga and went for 30-40 minute walks. She read and listened to podcasts, and caught up with friends at least once a week for coffee or a meal. She went for walks with her housemates, and they sometimes went out. Ms McPherson said she enjoyed embroidery and sewing.
She had not obtained her driver’s licence but was able to travel independently on public transport without anxiety. She travelled to Shanghai in a student group as part of her university studies.
Ms McPherson had not had a relationship and said she had less family contact compared to currently. Her relationship with her mother had improved with psychological counselling and Ms McPherson was able to institute boundaries. She saw the psychologist fortnightly.

History of the motor accident

Ms McPherson was at her friend Jess’ boyfriend’s apartment with him, Jess and another friend. They played cards and drinking games, then took drugs. Her memory for events was foggy afterwards. At one point she was offered either Xanax (alprazolam) or Valium (diazepam) and took it to help her sleep when she returned home.
Her next recollection was of being in the back of an ambulance. She had a vague awareness that there had been an accident, but it felt like a dream. Ms McPherson was transported to Wollongong Hospital at about 3.00am. She called her sister, and both sisters came to the hospital. Her memory for this period was “in and out”. Ms McPherson was discharged that evening.
The following six months were somewhat hazy; during this time, she felt concussed and could not recall that period clearly.
Ms McPherson obtained details of the accident from the police but still did not know how she hit her head. She was informed that the driver, who was Jess’ boyfriend, was speeding, hit a sign and then a telegraph pole. Jess was in the front seat and had to be airlifted to hospital. Ms McPherson was seated behind Jess. The driver was charged by police.
After the accident, Jess was in brain rehabilitation for months. They remained in touch for one to two years, but Ms McPherson ceased contact because Jess did not tell her that she remained in touch with the driver and then she moved in with him. Ms McPherson did not want to have contact with him again.

History of symptoms and treatment after the accident

Physical

Ms McPherson sustained a laceration across her forehead that required sixteen stitches. She underwent scar revision surgery in 2020. She experiences a hot shooting pain in the scar and the top of head and decreased sensation on the right side of her forehead. The pain was triggered by movement, including facial expressions, and was rated at 6-7 out of 10 in severity, where 10 was the most severe pain possible. It interfered with her ability to focus and could last for a long time.
Her right knee and ankle were sore after the accident. The knee healed without treatment, but she experienced persistent ankle pain when doing yoga or walking. Ms McPherson consulted a physiotherapist for treatment, with good improvement. She occasionally felt pain, but this was not a barrier to activity.
Her front right tooth was chipped, and she had remedial dental work.

Emotional

The scar impacted Ms McPherson’s confidence. Before the revision surgery, people would stop and ask her about it. The appearance of the scar gradually improved in the year after the revision surgery and during this time she continued to audition for modelling and acting from home. Friends suggested getting a bangs haircut to hide the scar, but Ms McPherson did not want to, in part because she did not think they suited her. She was satisfied with the surgery but was aware that an indent remained that could be seen despite makeup.
In the aftermath of the accident, she felt very depressed. It was an effort to get out of bed and make food. She did not want to shower or wash her face because she did not want to look at the scar on her face. Friends visited and she made an effort to leave the house because she wanted to resume her pre-accident life. “But it caught up with me and I shut down about three to six months after”. Ms McPherson worked in a call centre at the end of 2019 but said she found it too overwhelming and quit. The GP records referred to tinnitus as impacting her work. When this was discussed Ms McPherson agreed this was another factor. She said the tinnitus subsequently resolved, but she still occasionally experienced it when listening to music with headphones.
There were times when she wished she had not survived “It had completely shaken up my life, it would be easier to not have survived”. Ms McPherson said she did not self-harm and drank alcohol to cope. She initially made an effort to go out for friends’ birthdays without drinking because she disliked the feeling of not being in control, but after four months started drinking wine, especially when she was in public, in an attempt to forget about her appearance “and to numb that feeling of unease”. Ms McPherson also consumed alcohol about two to three times a week when at home.
Ms McPherson was seeing a psychologist, Ms Gerber, fortnightly before the accident and continued to see her at roughly the same frequency afterwards. Treatment included exposure therapy, which was successful in reducing her reactions to sirens and flashing lights. She felt that dissociation and constant tension were the most prominent symptoms since the accident. She felt as if she had left her body whenever she spoke about it. A motor accident occurred outside Ms McPherson’s house, and she recounted an out of body experience, as if she was “over my body watching it unfold”. She continued to have similar experiences and times where she was unable to remember what she was doing.
She did not have clear memories of being in the car accident, describing “flashes of memory, like a light or my body being moved. The first time I had the feeling of a flashback, I was walking up the street and my vision went black, and I thought I was going to die”. She reported nightmares about car accidents and situations where her life was in danger that had gradually diminished in frequency and now occurred about once or twice a month. She was vigilant when she left the house and easily startled. When she heard a car engine, she sometimes felt that she was in danger and could die. Her body felt “tight”, and she felt exhausted from the constant tension, frequent bouts of anxiety and chest tightness when triggered, and occasional panic attacks. Ms McPherson said that she consequently found it difficult to take on new tasks.
She avoided learning to drive and for some time was unable to be a passenger in a car. A current goal of therapy was to decrease her anxiety while travelling and she was now able to travel for 45 minutes in a car and longer in a train. She stated that during car journeys she dissociated, shook and was rendered momentarily speechless when triggered, which often occurred with sudden braking. Train travel could be endured with less anxiety because braking occurred less frequently.

Having considered the Guidelines, the documentary evidence and the claimant’s history at the re-examination the Panel is of the view that the claimant is assessed as having a current class 2 impairment.
Ms McPherson’s energy remains reduced, which the panel accepted would impact her persistence and pacing. She reports difficulty learning a language and the piano and says she has difficulty reading books which would suggest a class 3 impairment. She was however able to do basic sewing tasks (and two years previously a sewing project) and to learn lines and undertake acting auditions. She was able to complete a responsible service of alcohol course. She can read and follow a recipe for cooking tasks.
Objectively, she participated in the interview without difficulty and appeared able to engage in and focus for the duration of the two-hour interview. The objective findings at the time of the assessment indicated a capacity to focus on a demanding task for more than 30 minutes and could not be considered a moderate impairment as defined by the PIRS. The panel therefore considered she had a mild (category 2) impairment.

Adaptation

Dr Vickery assessed the claimant with a category 3 impairment whereas Dr Allan and Medical Assessor Sidorov assessed the claimant with a class 4 impairment.
The potential impairment classes in the Guidelines for the claimant’s current and pre-accident impairment are:
(a)    class 1 - no deficit, or minor deficit attributable to normal variation in the general population. Able to work full time. Duties and performance are consistent with injured person’s education and training. The injured person is able to cope with the normal demands of the job;
(b)    class 2 - mild impairment. Able to work full time in a different environment. The duties require comparable skill and intellect. Can work in the same position, but no more than 20 hours per week; for example, no longer happy to work with specific persons, work in a specific location due to travel required;
(c)    class 3 – moderate impairment. Cannot work at all in same position as previously. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different; for example, less stressful;
(d)    class 4 – severe impairment. Cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic, and
(e)    class 5 – totally impaired. Cannot work at all.
The Panel has considered the above, the documents in the file and the history of the claimant and is of the view the claimant has a class 4 impairment.
Ms Mc Pherson reported that her contract as a bank teller, four days a week, was not renewed after seven months because of performance problems. Anxiety impacts her ability to leave the house. However, she was able to undertake some modelling work and has been able to audition for durations of a couple of hours intermittently, such that, in the Medical Assessors’ view she would be able to undertake less than 20 hours a fortnight of work, in less demanding work roles than she performed before the accident. The Medical Assessors are not of the view that the claimant is totally impaired or cannot work at all because of her psychological state.

Current impairment assessment

The Panel’s finding of current impairment is summarised in the prescribed form attached to these reasons (attachment A). The class scores listed in ascending order are 1, 2, 2, 2, 3 and 4. This provides a median value of 2 and an aggregate score of 14. In accordance with Table 6,17 in the Guidelines this results in a WPI of 7%.
The Panel is of the view that consideration must be given to the effects of treatment in accordance with cls 6.222 and 6.223. The Medical Assessors are of the view that the treatment offered to Ms McPherson by her psychiatrist and psychologist and the medication she is taking is evidence-based, appropriate and effective treatment. Ms McPherson reports some improvement from psychological therapy with Ms Gebert after the accident and the Panel noted that she reported ongoing functional impairment. Her ability to travel independently by public transport and as a passenger in a car has improved more recently. Her ability to maintain and sustain a relationship has also persisted. It is the clinical judgment of the Medical Assessors that Ms McPherson’s condition would deteriorate if treatment was withheld. An adjustment of her current impairment by 1% for treatment effect is, in the Panel’s view appropriate.
As a result of this adjustment, the Panel is satisfied that the claimant’s current WPI is 8%.

What was the claimant’s pre-existing impairment?

The PIRS provides for the consideration of any psychiatric condition present before the accident in question as follows[31]:
“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.”
[31] Clause 6.218 of the Guidelines.
The Medical Assessors are satisfied that there is evidence of a pre-existing psychiatric diagnosis. The claimant was still having treatment by Ms Gebert at the time of the accident. The claimant was not taking medication for it although she was taking melatonin for insomnia.
The Panel notes Ms Gebert’s diagnosis was of a generalised anxiety disorder and borderline personality traits.

The Panel notes the claimant takes issue with Medical Assessor Sidorov’s assessment of the “likely” impairment and says he should have assessed the actual impairment and not speculate. The Panel is required by the Guidelines to “estimate the overall pre-existing impairment”. This will require an exercise, in this case, of looking back six years to estimate what the claimant’s functionality was at that time and her likely impairment at the time of the motor accident which of necessity involves some degree of speculation.

Self-care and Personal Hygiene

It is the clinical judgment of the Medical Assessors that the claimant’s estimated impairment at the time of the accident was class 1. Ms McPherson was able to care for herself independently and there is no evidence of any impairment in this area of function.

Social and Recreational Activities

It is the clinical judgment of the Medical Assessors that the claimant’s estimated impairment at the time of the accident was class 1. Ms McPherson was able to go out independently to social events. She enjoyed embroidery, sewing and yoga. There is no evidence of any impairment.

Travel

It is the clinical judgment of the Medical Assessors that the claimant’s impairment in this area of functioning is class 1. Ms McPherson did not drive but was not anxious when travelling in a motor vehicle or by public transport, including to new environments. There was no impairment.

Social functioning

The Medical Assessors are of the view that in their clinical experience, Ms McPherson should be assessed as having a pre-accident impairment of class 2. Childhood experiences impacted her interpersonal functioning with a teacher at university and she had to learn to institute necessary boundaries with her mother through psychological therapy. This was a mild impairment.

Concentration, persistence and pace

The Medical Assessors have assessed the claimant’s pre-accident impairment in this area as a class 1 impairment. Ms McPherson had been able to complete a Bachelor of Performance at university and reported the ability to focus on work and to audition. There was no impairment.

Adaptation

It is the clinical judgment of the Medical Assessors that the claimant’s pre-accident impairment in this area is a class 2 minor impairment. Interpersonal sensitivities impacted Ms McPherson’s work relationships and her anxiety levels. Ms McPherson had resigned from her work in a call centre and worked casually. The panel note the pre-accident history of suicidal ideation and self-harm, reflecting difficulties adapting to stress. This is consistent with a mild impairment.

Pre-accident impairment

The Panel’s assessment of pre-existing impairment is summarised in the prescribed form which is attachment B to these reasons. The classes of impairment in ascending order are 1, 1, 1, 1, 2 and 2. The aggregate score is 8 and the median 1 which converts to a pre-existing WPI of 1%.
Ms McPherson had regular psychological therapy before the accident. She reported that this enabled her to place boundaries in the relationship with her mother which led to a mild improvement in their relationship. Self-harming ceased and the claimant was able to finish school, university and obtain employment. The Medical Assessors are of the view that the claimant’s treatment appears to have been evidence based, effective and appropriate and without it the claimant’s pre-accident function would likely have been worse. It is the Panel’s view the pre-existing impairment should be adjusted for the effect of treatment by 1%.
Because of this adjustment, the Panel is satisfied that the claimant’s pre-accident WPI is 2%.

What is the impairment caused by the accident?

In accordance with cl 6.218, the claimant’s pre-existing impairment (2%) is deducted from her current impairment (8%) to arrive at a figure of 6% being the accident-related impairment.

IS THE DISPUTED TREATMENT PAYABLE BY THE INSURER?

The disputed treatment from Ms Gebert would be payable as part of Ms McPherson’s statutory benefits claim. NRMA, the applicant in these Review Proceedings was the relevant insurer within the meaning of s 3.2(2)(a) of the MAI Act and liable for treatment and care expenses incurred in connection with the injuries caused by the accident. However, in accordance with s 3.2(5) of the MAI Act, at a point in time five years after the accident (26 May 2024), NRMA ceased to be the relevant insurer, and the Lifetime Care and Support Authority of New South Wales (Lifetime Care) becomes the relevant insurer.
Ms McPherson’s legal representatives advised that Lifetime Care has been paying for her counselling sessions and there is no dispute about treatment involving that (relevant) insurer. They also advise that Ms Gebert bulk-billed her for treatment after NRMA ceased paying for the treatment and that there may be no loss in relation to this treatment.
Ms McPherson has been diagnosed with a post-traumatic stress disorder and has had, since the date of the accident ongoing symptoms related to that post-traumatic stress disorder. The counselling that has occurred and the medication that has been prescribed to date is, in the clinical judgment of the Medical Assessors reasonable and necessary in the circumstances to treat this disorder. The Panel has found that post-traumatic stress disorder has been caused by the subject accident. Therefore, the psychological treatment that was provided by Ms Gebert on or before 26 May 2024 is causally related to the subject accident.
Ms McPherson has a post-traumatic stress disorder caused by the accident and requires treatment for it. While the insurer argues that the claimant was having treatment from Ms Gebert before the accident and that treatment was likely to continue had the accident not occurred, that is, in the Panel’s view, a matter that may be relevant for a merit reviewer to determine in a dispute about the reasonable cost of treatment and care.

CONCLUSION

As the Panel has come to the same conclusion as Medical Assessor Sidorov in respect of the disputed treatment referred for Review, the Panel affirms that certificate.
The Panel has however come to a different conclusion to Medical Assessor Sidorov in respect of the degree of the claimant’s WPI. It therefore follows that his certificate must be revoked.

Attachment A – assessment form – current impairment

Psychiatric diagnoses	Post traumatic stress disorder
Psychiatric treatment	Psychiatrist, psychologist, medication
Impairment category	Class	Reason for decision
Self-care and personal hygiene	2	See paragraphs 209 - 212
Social and recreational activities	3	See paragraphs 213 - 216
Travel	2	See paragraphs 217 - 220
Social functioning	1	See paragraphs 221 - 224
Concentration, persistence and pace	2	See paragraphs 225 - 229
Adaptation	4	See paragraphs 230 - 233
List classes in ascending order: 1, 2, 2, 2, 3, 4		Median class value: 2
Aggregate score - 14		WPI – 7%
Adjustment for treatment effect – 1% see paragraph 235		Total current WPI – 8%

Attachment B – assessment form – pre-existing impairment

Psychiatric diagnoses	Generalised anxiety disorder Borderline personality traits
Psychiatric treatment	Psychologist
Impairment category	Class	Reason for decision
Self-care and personal hygiene	1	See paragraph 241
Social and recreational activities	1	See paragraph 242
Travel	1	See paragraph 243
Social functioning	2	See paragraph 244
Concentration, persistence and pace	1	See paragraph 245
Adaptation	2	See paragraph 246
List classes in ascending order: 1, 1, 1, 1, 2, 2		Median class value: 1
Aggregate score - 8		WPI – 1%
Adjustment for treatment effect – 1% see paragraph 247		Total pre-existing WPI – 2%

[2025] NSWPICMP 376

29 May 2025