Insurance Australia Limited t/as NRMA Insurance v Rose

[2025] NSWPICMP 780

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Rose [2025] NSWPICMP 780

CLAIMANT:

Ethan Rose

INSURER:

Insurance Australia Ltd t/as NRMA

REVIEW PANEL

PRINCIPAL MEMBER:

John Harris  

MEDICAL ASSESSOR:

Thomas Newlyn         

MEDICAL ASSESSOR:

Gerald Chew

DATE OF DECISION:

9 October 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; motor accident; assessment of whole person impairment (WPI) for psychiatric impairment; claimant passenger in vehicle collision with tree; remittal from Supreme Court; previous Review Panel set aside and disregarded in this decision; procedural unfairness by previous Review Panel in using opinion suggesting exaggeration; opinion disregarded; claimant presented with significant ongoing pain which had been excluded from any assessment (clause 1.215 of the Motor Accident Permanent Impairment Guidelines (the Guidelines)); pre-existing deduction (clause 1.31); IAG Ltd v Chahoud applied; reliance on pre accident clinical records; Held – claimant’s degree of permanent impairment assessed at not greater than 10%; original assessment revoked.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

The assessment made by the review panel under s 63(4) of the Motor Accidents Compensation Act 1999 is as follows:

The Review Panel revokes the certificate of Medical Assessor Shen dated 6 April 2023 and issues a new certificate that the following injury caused by the motor accident give rise to a whole person impairment which is NOT GREATER THAN 10%:

·         Post-traumatic Stress Disorder with Dissociative Symptoms and Delayed Expression; 

·         Persistent Depressive Disorder. 

REASONS

BACKGROUND

1. Mr Rose (the claimant) was injured in a motor accident on 6 November 2017. The claimant was a passenger in the insured vehicle which collided with a tree.[1]

   [1] Claimant’s bundle, p 9.

2. Insurance Australia Ltd trading as NRMA (the insurer) is liable to pay Mr Rose any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).

3. The present dispute between the parties is whether the degree of permanent impairment as a result of the psychological injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]

   [2] See ss 57 and 58 of the MAC Act.

4. Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.

5. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]

   [3] Clause 1.2 of the Guidelines.

6. The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Shen on 6 April 2023 (the medical assessment). Medical Assessor Shen assessed the permanent impairment caused by the motor accident at 15%.

7. The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]

   [4] Section 63(7) of the MAC Act.

8. The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]

   [5] Section 63(2B) of the MAC Act.

9. Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).

MEDICAL ASSESSMENT UNDER REVIEW

1. This review is from the medical assessment certificate issued by Medical Assessor Shen when it was determined that the motor accident caused a post-traumatic stress disorder with dissociative symptoms and a major depressive disorder.

2. The Medical Assessor noted a pre-accident history of bullying with consultation to a psychologist. The claimant left school in year eight or nine before completing his school certificate and then completing a certificate III in civil construction.

3. Symptoms following the accident included neck pain, bilateral shoulder pain with right sided AC joint subluxation, swollen leg and a head injury. The claimant developed psychological symptoms and whilst driving, his eyes start to hurt me has an anxiety attack. The claimant had received some psychological therapy although it was cost prohibitive and was then on prazosin 1mg for nightmares. Overall, the claimant felt that his mood had progressively worsened over the past three years although he was not sure why.

4. The claimant injured his right knee during a motorbike accident three years previously and subsequent to the motor accident.

5. Examination revealed a claimant was casually dressed and reasonably well groomed and engaged cordially in the assessment and provided relevant answers to questions asked. There were ongoing complaints of pain in the neck and shoulders the bomb ongoing complaints of hypervigilance and recurrent intrusive memories of the car accident. The claimant reported being more negative in his outlook had suicidal thoughts and was easily overwhelmed with them.

6. Current functioning included going fishing with his partner, talking on the phone with his family. Sometimes the claimant will spend time with friends looking at cars. Prior to the accident the claimant would regularly go four-wheel driving or camping, socialising with friends on a daily basis and working on cars. He would previously go to the heart but now this was restricted to once in the past six months with his partner.

7. The claimant reported showering and changing clothes irregularly. Other activities around the home were limited. The claimant had not driven for about two years, but this was due to anxiety so now he got a lift from his parents as he finds it hard to get into the drivers’ seat.

8. The Medical Assessor noted a number of inconsistencies including a more impaired level of functioning compared to previous assessments, and minimisation of pre-existing anxiety as the claimant had seen a psychologist in 2017.

9. The Medical Assessor assessed psychological impairment at 15% comprising assessments of moderate impairment (Class 3) for self-care and personal hygiene and concentration persistence and pace and a class 4 assessment for adaptation.

10. The Medical Assessor noted a pre-existing condition of anxiety although assessed this at 0% impairment.

11. The Medical Assessor made no allowance the effects of treatment.

PREVIOUS PANEL AND SUPREME COURT PROCEEDINGS

1. A previous Review Panel concluded that the motor accident caused a post-traumatic stress disorder and assessed impairment at 5%.

2. In Rose v Insurance Australia Ltd[6] the Court set aside the certificate issued by the Review Panel and ordered that the medical assessment be remitted to a differently constituted Panel.

   [6] {2025] NSWSC 134 (Rose).

3. We do not intend to summarise the reasons of the previous Panel as that certificate has been set aside. We have disregarded those findings for the purpose of this Review. The Court found jurisdictional error and/or error on the face of the record summarised as follows.

4. First, the Panel referred to “employability” as a PIRS descriptor when it should have used the word “adaptation” and apply the rating scale in Table 16 of the Guidelines.[7]

   [7] Rose at [44]-[46]

5. Secondly, the Panel did not use the required “form” as provided by the cl 1.220 of the Guidelines.

6. Thirdly, the Panel failed to provide reasons in sufficient detail as to disclose the path of reasons in assessing the particular class for adaptation[8] and social and recreational activities.[9] The Court emphasised the failure by the Panel to consider the change between the pre-accident position and the position at the time of the medical examination (cl 1.220 of the Guidelines).

   [8] Rose at [80].

   [9] Rose at [85].

7. Fourthly, the Panel failed to afford the claimant procedural fairness in relying on the report of Associate Professor Batchelor when:

   ·        The doctor observed that reported memory and other cognitive deficits may be secondary to psychiatric disorder and/or chronic pain, and this was outside her area of expertise and represented matters for psychiatric or other specialised opinion;

   ·        The insurer in its written submissions filed on the review did not rely on the report of Associate Professor Batchelor, and

   ·        The use to which the Panel made of the opinion of Associate Professor Batchelor was not drawn to the claimant’s attention.

CONDUCT OF THE REVIEW

1. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[10]

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

2. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[11]

   [11] Rule 128 of the PIC Rules.

3. The review is by way of new assessment of all matters with which the medical assessment is concerned.[12]

   [12] Section 63(3A) of the MAC Act.

STATUTORY PROVISIONS

1. The provisions of the Civil Liability Act 2002 (the CL Act) apply to the Motor Accident Injuries Act 2017 in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[13] In Raina v CIC Allianz Insurance Ltd[14] Campbell J stated:

   “One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”

   [13] See s 3B(2) of the Civil Liability Act 2002.

   [14] [2021] NSWSC 13 (Raina) at [65].

2. Clause 1.7 of the Guidelines provides:

   “There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”

SUBMISSIONS

Insurer’s submissions dated 29 August 2022[15]

[15] Insurer’s bundle, p 2.

1. The insurer noted pre-accident medical records which showed:

   ·        treatment by Mr Miller for anxiety disorder in September 2015 visualising violent images which entice him to commit violent acts;

   ·        reported to his GP in October and November 2015 that the claimant was suffering from anxiety and having panic attacks and violent thoughts and nightmares. These were now affecting his day-to-day life and he was not socialising well;

   ·        reported to his GP on 31 August 2017 that the claimant had been kicked out of home by his mother and his girlfriend had broken up with him. He was suffering from anxiety and had difficulty finding work. He had a casual job at a sawmill but fell of his bike resulting in not being able to work and losing his job. The claimant remarked that he was nervous and needed to see psychologist again to work on CBT, and

   ·        reported to his GP on 19 October 2017 for his anxiety disorder who noted that he was living with a mate that was homeless.

2. The insurer referred to the various treating evidence noting that the first reference to psychological symptoms after the motor accident was in December 2018.

3. The insurer noted that the claimant reported to his GP in December 2019 that he had recently injured his back at work. It also noted that in February 2020 the claimant reported to his GP that he came off a bike two weeks beforehand and went to hospital for treatment.

4. The insurer noted the opinion of Dr Siu in September 2020 concerning the findings on the MRI scan which demonstrated a legion at the right C3/4 foramen and recommended surgical resection at John Hunter Hospital. The insurer understood that this procedure occurred around February 2022.

5. The insurer referred to the opinion of Dr Vickery dated 9 August 2021 who diagnosed the claimant with post-traumatic stress disorder and considered there may be a mild neurocognitive impairment, considered the claimant would have a positive prognosis and assessed whole person impairment at 1%.

6. In relation to the claimant’s potential neurocognitive impairment the insurer relied on the report of Associate Professor Batchelor dated 13 May 2022.

7. The insurer submitted that any psychological injuries were not related to the motor accident on the basis that:

   ·        the claimant had difficulty dealing with significant mental health problems three weeks before the motor accident, and

   ·        the claimant failed to report any psychological symptoms to his GP until more than a year after the motor accident.

Insurer’s submissions dated 24 April 2023[16]

[16] Insurer’s bundle, p 7.

1. These submissions sought leave to review the medical assessment certificate.

2. The insurer submitted that the Medical Assessor incorrectly assessed impairment in accordance with the PIRS scale and incorrectly assessed the claimant’s pre-existing impairment in accordance with the PIRS scale.

3. The insurer submitted that the Medical Assessor noted the possibility of a degree of symptom exaggeration and that the findings were based entirely on a subjective report of symptoms.

4. In respect of the assessment of class 3 for self-care and personal hygiene, the insurer noted:

   ·        Ms Collins, occupational therapist, in a report dated 27 March 2020 that the complainant completed all personal tasks independently, albeit slowly;

   ·        Dr Parsonage in March 2022 noted that the claimant showered each day, and

   ·        Dr Vickey in August 2021 found no psychiatric impairment for hygiene and grooming.

5. In respect of the assessment for social and recreational activities, the insurer noted the history recorded by Dr Vickery that the claimant enjoyed going out for a date night for a meal at a local pub café every week or two with his partner, enjoyed fishing and riding a motorbike and camping, however his shoulder pain significantly restricted these activities.

6. In respect of the assessment for concentration, persistence and pace, the insurer referred to the pre-existing clinical note from Dr Rollock dated 19 October 2017 that the claimant had difficulty concentrating.

7. In respect of the assessment of adaptation the insurer noted:

   ·        the claimant had worked full-time after the accident;

   ·        the last attempt to work was hindered by shoulder problems;

   ·        the clinical note of Dr Kennedy dated 5 September 2018 that the claimant complained of left shoulder pain and certified him unable for full duties but fit for light duties.

   ·        the history of injury in November 2019 when the claimant fell and bruised his back with loss of employment associated with that condition;

   ·        the report to Ms Collins, occupational therapist in March 2020 that the claimant would like to be employed in a position such as a plant operator in the mines, and

   ·        the opinion of Dr Vickery that the psychological injury caused no impact on capacity and noting that the claimant had recently worked full-time.

8. The insurer submitted that the treating evidence before the accident showed the claimant was symptomatic and referred to the clinical records of the general practitioner. These records showed:

   ·        in September 2015 a diagnosis of anxiety disorder affecting his day-to-day life and was not socialising well, and

   ·        an anxiety condition in August and October 2017 and the claimant was homeless.

Claimant’s submissions dated 8 May 2023[17]

[17] Claimant’s bundle, p 329.

1. These submissions were filed opposing leave to review the medical assessment.

2. The claimant submitted that the grounds for review were no more than a difference of opinion with factual findings made by the Medical Assessor. It was noted that the Medical Assessor had to apply their own clinical judgement on the date of the examination and form their own opinion as to diagnosis and assessment.

3. The claimant submitted that the insurer’s submissions referred to historical references to the claimant’s self-care and hygiene whereas the Medical Assessor accepted the claimant’s evidence taken during the assessment. Similar submissions were made to the assessment by the Medical Assessor for other PIRS categories.

4. The claimant submitted that the Medical Assessor was aware of the pre-existing condition but found that there was no impact on his functioning at the time of the accident. This was consistent with the opinion of Dr Vickery who was qualified by the insurer.

EVIDENCE

1. The parties filed bundles of documents for the Panel’s consideration.

Pre-existing conditions

1. On 18 August 2015 the general practitioner (GP) noted anxiety for the past three months which had substantially improved with the claimant going out with friends in the last week.[18]

   [18] Claimant’s bundle, p 125.

2. On 10 September 2015 the GP prepared a mental health plan noting poor sleep and low self-esteem.[19]

   [19] Claimant’s bundle, p 125.

3. The mental health plan referred to the claimant having panic attacks and upset over thoughts he would get violent thoughts and nightmares. The medical issues had started a few months previously and was starting to affect his day-to-day life and was not socialising well.[20]

   [20] Claimant’s bundle, p 131.

4. On 29 September 2015 the GP noted that the claimant had seen a psychologist twice and the counselling was helping to some extent but not fully. The claimant remaining a little bit anxious and feeling dizzy.[21]

   [21] Claimant’s bundle, p 126.

5. Mr Richard Miller, psychologist, provided a report dated 23 September 2015.[22] The claimant presented with a low mood and showed obvious signs of anxiety stating that he had intrusive thoughts visualising violent images which entice him to commit violent acts. He was confident he would not act upon these but found them distressing resulting in anxiety.

   [22] Claimant’s bundle, p 134.

6. Mr Miller suggested some lifestyle changes and opined there may be physiological factors play a role as physical assertion appeared to precipitate the anxiety.

7. On 31 August 2017 the GP entered the claimant and anxiety and was homeless that he has been kicked out of home by his mum and was living at his mates place or in his cart. The claimant also reported breaking up with his girlfriend. The claimant had a job at the sawmill but fell off his bike and was not able to work.[23]

   [23] Claimant’s bundle, p 127.

8. On 19 October 2017 the GP noted that the claimant was homeless but now living with a mate and had difficulty concentrating. The GP diagnosed an anxiety disorder.[24]

   [24] Claimant’s bundle, p 127.

Contemporaneous medical evidence

1. The ambulance report noted the high-speed collision into a tree with the claimant trapped by compression to the right lower leg.

1. The hospital notes refer to the claimant being trapped by the right lower leg with a small contusion to the right head.[25] The clinical notes refer to a possible loss of consciousness and the claimant woke up within the car calling his friend who was leaning onto his left shoulder. The CT scan of the brain was normal.[26]

   [25] Claimant’s bundle, p 90.

   [26] Claimant’s bundle, p 99.

2. The claimant attended his GP on 13 November 2017 complaining of right ankle pain and was prescribed Ibuprofen.[27] On 15 November 2017 the GP noted left shoulder pain following the motor accident.[28]

   [27] Claimant’s bundle, p 128.

   [28] Claimant’s bundle, p 138.

3. On 27 November 2017 the GP noted left shoulder and right ankle pain post motor accident and referred the claimant for an ultrasound of the left shoulder.[29]

   [29] Claimant’s bundle, p 155.

4. On 22 February 2018 the GP noted right lower leg pain above the ankle and left shoulder pain.[30]

   [30] Claimant’s bundle, p 139.

5. On 6 June 2018 the GP recorded left shoulder pain and noted that the claimant did a lot of manual work with fencing.[31]

   [31] Claimant’s bundle, p 140.

6. On 8 August 2018 the GP noted right shoulder pain which commenced after the motor accident. An ultrasound scan showed subacromial bursitis.[32]

   [32] Claimant’s bundle, p 136.

7. The claim form dated 28 August 2018 recorded in the motor accident caused injuries to shoulders, head, right leg, back and neck. The claimant noted that there was a pre-existing anxiety condition.[33]

   [33] Claimant’s bundle, p 10.

8. On 31 August 2018 the GP noted right shoulder pain and that the claimant was forgetful, had poor concentration and was feeling tired and sleepy by the end of the day.[34]

   [34] Claimant’s bundle, p 146.

9. On 11 December 2018 the general practitioner referred the claimant to Ms Edwards for opinion and management noting depression secondary to not being able work due to shoulder injury.[35]

   [35] Claimant’s bundle, p 69.

10. On 1 April 2019 the GP noted the anxiety was getting worse and the claimant was having nightmares. The GP commenced the claimant on Prazosin 1mg for his nightmares.[36]

    [36] Claimant’s bundle, p 71.

11. On 16 July 2019 the GP noted the claimant had chronic pain localised in the right shoulder with physiotherapy not making much progress. The claimant admitted to having ongoing symptoms of anxiety when thinking about the accident and feels anxious when driving at times.[37] The GP expressed similar views in a letter dated 13 January 2020.[38]

    [37] Claimant’s bundle, p 72.

    [38] Claimant’s bundle, p 74.

Subsequent records

1. On 8 January 2019 Ms Edwards noted the claimant suffered poor sleep, nightmares, poor motivation, low mood and was anxious in the car as a passenger at times thinking he would die. The claimant reported that he got a fencing job for a couple months after the accident but was unable to continue enjoying fishing, beach, spearfishing and fixing things such as the boat or trailer with his hands. Ms Edwards diagnosed post-traumatic stress disorder and adjustment issues following the accident.[39]

   [39] Claimant’s bundle, p 242.

2. On 2 December 2019 the claimant reported to his GP that he had fallen on a rock at work five days previously and hurt his back.[40] The GP noted ongoing back pain on 6 January 2020.[41] On 10 February 2020 the physiotherapist noted a 70% improvement after four consultations and recommended return to restricted duties.[42]

   [40] Claimant’s bundle, p 222.

   [41] Claimant’s bundle, p 224.

   [42] Claimant’s bundle, p 256.

3. In May 2020 the claimant was referred for neuropsychological assessment.

4. In February 2021 the GP referred the claimant for further psychological treatment noting panic attacks associated with driving.[43]

   [43] Claimant’s bundle, p 279.

5. In July 2024 the GP noted a history of poor concentration and noted that the claimant was feeling depressed with suicidal ideation.[44] In August 2024 the GP noted pre-accident symptoms of poor focus and concentration which had been aggravated by the accident. The motor accident left the claimant with memory issues, depression and post-traumatic stress disorder and chronic pain in the neck and shoulders.

   [44] Claimant’s bundle, p 410.

6. Ms Mikula, psychologist, provided a report dated 21 January 2025 following her assessment of the claimant.[45] The psychologist opined that the major problems were the post-traumatic stress disorder, pain and a post-concussion syndrome.

[45] Claimant’s bundle, p 407.

Dr Sauer

1. The claimant was assessed by Dr Sauer, neuropsychological registrar who provided a report dated 10 September 2020.[46] Dr Sauer noted a history that the claimant’s memory had progressively worsened since the accident and reported post traumatic symptom including nightmares, flashbacks and panic attacks.

   [46] Claimant’s bundle, p 62.

2. Dr Sauer noted that the claimant was involved in a motorbike accident in the bush on
   7 February 2020 “doing a mono” when he fell on the right side onto a gravel track. The claimant was wearing a helmet and denied any head injury or loss of consciousness. Presentation to hospital noted CT scan of the brain was normal and there were no other significant injuries with discharge the next day.

3. Dr Sauer noted the claimant presented to the assessment on time with his girlfriend and was well groomed and casually dressed. He was polite and cooperative throughout the assessment and appeared somewhat restricted with a low mood. The claimant appeared able to focus and sustain his attention with the provision of two short rest breaks.

4. Dr Sauer opined that the claimant’s processing speed was impaired with a tendency to approach tasks in a somewhat disorganised/inefficient way. The doctor noted that the claimant experienced a mild traumatic brain injury which typically resolved within three months. The doctor otherwise opined that it appeared that psychological factors continued to confound the claimant’s cognitive function and contributed to poor personal satisfaction.

5. Dr Sauer recommended discussing with the GP a trial of antidepressant medication, need for mental health counselling, training for improving self-confidence and self-purpose, education on good sleep habits and improved dietary as well as limiting alcohol consumption.

Qualified opinions

Dr Parsonage

1. Dr Parsonage, psychiatrist, was qualified by the claimant and provided a report dated 1 May 2020.[47] The doctor noted a background history of issues at school with bullying, homelessness and inability at times to obtain work.

   [47] Claimant’s bundle, p 24.

2. Pre-accident functioning included four-wheel driving, camping and fishing with mates and no difficulty travelling long distances by himself. There was a falling out with the claimant’s mother, but his other family relationships were good, and he had a number of mates. The claimant read magazines about motorbikes and did some mechanical repairs. The claimant had lost a job at a sawmill about a month before the accident due to sickness.

3. The claimant noted that his main problems were anxiety whilst driving or travelling as a passenger and he tried to avoid driving. The claimant also reported that after the accident nightmares were a problem and there was a lot of interest in activities such as four-wheel driving and fishing, partly because of the driving aspect and partly because he was restricted by pain. The claimant also reported becoming angry and depressed at times because of the shoulder pain.

4. Dr Parsonage noted a subsequent history when the claimant fell on a rock the previous November whilst doing labouring work and hurt his back. The claimant reported that he recovered from the back injury but was unable to find further work.

5. The claimant reported that he was able to take adequate care for himself but less inclined to participate in social and recreational activities and was unable to drive long distances. The claimant had reconciled with his mother and there were good relationships with family members and his girlfriends. The claimant was able to do mechanical work on the car and bike but reported he got distracted by both pain and worry about the need to travel to places away from his home.

6. Dr Parsonage noted that mental state examination showed a pleasant, casually dressed young man who appeared mildly anxious and depressed but did not exhibit psychomotor agitation or retardation.

7. Dr Parsonage opined that the claimant was involved in a serious accident and exhibited a number of symptoms of post-traumatic stress disorder however did not satisfy the requirements of criteria D. The doctor opined that the claimant was suffering from a
   post-traumatic specific phobia driving an adjustment disorder with depressed mood. The driving/travel phobia was related to the trauma the accident and the adjustment disorder with depressed mood was secondary to the restrictions arising from the painful physical injuries and his restricted ability to travel.

8. Dr Parsonage assessed whole person impairment at 5% with assessments at either class 1 or 2 for the various PIRS categories.

9. Dr Parsonage provided a further report dated 17 March 2022 following a further examination at that time.[48] The doctor noted that the claimant was still living in Grafton with his parents, two brothers and his girlfriend. The claimant was on Jobseeker benefits and had last worked in July 2021.

   [48] Claimant’s bundle, p 37.

10. Dr Parsonage noted the claimant reported ongoing problems with the neck in both shoulders and could not lift heavy things. The claimant reported ongoing anxiety and depression making it increasingly difficult to concentrate, focus and remember matters. The claimant reported that these problems were slowly getting worse and restricted things he was interested in. The claimant reported that he could not focus as an apprentice boilermaker before the accident and he had been interested in doing mechanical repairs.

11. Dr Parsonage opined that the cognitive difficulties that occurred in the context of the claimant becoming more depressed especially when he was unable do things that he previously been interested in doing such as a course in marine biology. The claimant reported a general loss of interest and pleasure in activities he used to enjoy, such as fishing and lack of sex drive. The claimant reported that he was not motivated to eat, had difficulty sleeping and his energy levels were lessened. The claimant reported concentration problems and thoughts of suicide every week or every fortnight.

12. The claimant reported a continuation of nightmares related to the accident and intruded thoughts during the day related to the accident. He avoided travelling by car and driving as it scared him and increased tension symptoms.

13. The claimant reported that he had an operation to remove what was initially thought to be a nerve sheath tumour in the neck but turned out to be fibrous tissue and blood vessels. The neck was still sore from the surgery.

14. On mental state examination the claimant was noted to be casually dressed, polite and related well although appeared to have marked concentration and memory problems. The claimant appeared moderately anxious and depressed with little variation in mood with no signs or symptoms of psychosis.

15. Dr Parsonage opined that the claimant described a worsening of psychological symptoms which now satisfied the criteria for post-traumatic stress disorder and major depressive disorder.

16. Dr Parsonage noted that in his original assessment that the claimant was restricted in his ability to work outside the local area but had been able to return to labouring work. However, in the last six to nine months there have been a deterioration in the claimant’s condition as the current level of anxiety and depression caused a loss of motivation and worsening of his ability to concentrate and retain information. The doctor opined that the condition would likely to continue unless the claimant can access and respond to appropriate treatment.

17. Dr Parsonage assessed class 3 impairments for self-care and personal hygiene, social and recreational activities, concentration persistence and pace, and adaptation. It is noted that Dr Parsonage described this category as “employability”.[49]

[49] Claimant’s bundle, p 47.

Dr Vickery

1. Dr Vickery was qualified by the insurer and provided a report dated 9 August 2021.[50]

   [50] Insurer’s bundle, p 32.

2. The doctor noted bilateral pain preventing activities above shoulder height. Ongoing symptoms including included nightmares, the lack of enjoyment, anxiety with driving, memory affected and blanking out for periods up to five seconds.

3. D Vickery noted the claimant enjoyed walking in the bush, riding a motorbike, fishing and camping, watching movies and helping his partner’s father restoring vintage motor cars. The claimant reported enjoying going on a date night at the local pub café every week or two with his partner, however his shoulder pain significantly restricted activities and restricted his ability to perform housework.

4. Dr Vickery noted that the claimant was in a fulfilling and supportive de-facto relationship for the past two years, was close to his father and several mates and related well to his partner’s parents. The doctor noted no psychiatric impairment with respect to hygiene or grooming.

5. Mental state examination showed the claimant was casually dressed and groomed with good eye contact noted to be spontaneous and cooperative. The claimant’s affected range was unrestricted in the history and presentation was consistent and the claimant was able to relate a coherent and chronological story. The doctor noted the claimant was emotional and despondent when discussing his current situation noting nightmares several times a week and anxiety attacks which limit his driving.

6. Dr Vickery assess class 1 for all PIRS categories except class 2 for travel and class 3 for concentration persistence and pace. The claimant was assessed at 1% whole person impairment.

Associate Professor Batchelor

1. Associate Professor Batchelor was jointly qualified by the parties and provided a report dated 13 May 2022.[51] The doctor reported that the claimant attended the appointment with his girlfriend and presented as alert and orientated and his language was intact on a conversational level, and he was compliant throughout the assessment.

   [51] Insurer’s bundle, p 45.

2. The doctor administered several tests in order to examine the validity of the claimant’s responses.

3. Associate Professor Batchelor opined that the claimant’s results on all, but one test, provided unequivocal evidence of suboptimal performance. For example, the Test of Memory Malingering showed scores expected in association with a dense amnesia and the second trial showed a score strongly suggestive of non-credible responding.

4. The doctor referred to other tests which revealed sub optimal performance and noted that previous testing in 2020 showed results which were in the high average range as opposed to current testing,

5. Associate Professor Batchelor stated:

   “Considered in conjunction, the results returned on the tests detailed above indicated that on the present occasion of testing Mr Rose’s responses did not represent a valid index of his actual level of ability. It would not be possible for him to provide a detailed account of his symptoms or treatment were his memory as poor as those results suggested. Moreover, his scores were markedly poorer than those returned in September 2020. Reference to even severe psychiatric disorder, chronic pain and/or traumatic brain injury would not explain the very marked disorder of recognition memory evident on testing. Although those conditions can adversely impact cognitive functioning, even in combination they would not be expected to render an individual amnesic. It is therefore not possible to explain his results on testing by reference to the injuries sustained in the subject accident. The data provided unequivocal evidence of a deliberate attempt to exaggerate impairment.”

6. Associate Professor Batchelor opined that the claimant sustained a mild traumatic brain injury in the motor accident evidenced by the GCS score at the scene of the accident initially at 14/15 and a consistent reported short period of amnesia. A CT scan of the brain did not reveal any abnormalities. The literature indicated that cognitive recovery from mild traumatic brain injury will be complete within three to six months of trauma.

7. The doctor repeated that none of the psychological conditions or chronic pain in combination could explain the dense amnesia although it was “possible that he suffers memory and other cognitive defects secondary to psychiatric disorder and/or pain.” Associate Professor Batchelor concluded:[52]

   “It is possible that Mr Rose suffers cognitive impairment secondary to psychiatric disorder and/or chronic pain. The relationship between those conditions and the subject accident is outside my area of expertise and represent matters for psychiatric and specialist medical opinion.”

[52] Insurer’s bundle, p 54.

Ms Collins

1. Ms Bernadette Collins, occupational therapist, was qualified by the claimant and provided a report dated 27 March 2020.[53] Ms Collins noted that the claimant reported pain following physical assertion using the upper limbs, right sided neck pain and unable was the same activity requiring above right shoulder reach.

   [53] Claimant’s bundle, p 49.

2. The claimant reported being fully independent in personal hygiene, eating and drinking and was able to complete all meal preparation tasks independently.[54]

   [54] Claimant’s bundle, pp 56-57.

3. The claimant reported that he completes all his own cleaning, vacuum, resume laundry duties, complete the mowing and whipper snipping as required, shop independently although had some anxiety about shopping and tended to avoid crowds.

4. The claimant reported that his anxiety and post-traumatic stress disorder had impacted on his capacity to complete tasks and had otherwise impacted on his driving capacity.

5. Ms Collins noted that the claimant was keen to return to work and interested in becoming a plant operator for a mining company.

Police records

1. The police report confirmed the claimant’s version of the accident.[55]

   [55] Claimant’s bundle, p 19.

MEDICAL EXAMINATION

1. The claimant was medically examined by both Medical Assessors on 28 July 2025. The examination report is as follows.

   “Re-Examination

   The claimant was 27-years-old at the time of the appointment. He was seen by audio-visual link alone in his girlfriend’s home in Coutts Crossing.

   He was examined on 28 July 2025 using Teams videoconferencing. He used his fiancée’s computer in her office-craft room.

   History

   Medical History

   The claimant was 184 cm.

   He said he weighed 130 or 138 kg when weighed at his General Practitioner at the end of 2024 or perhaps 2025. He said he was skinny when he had the accident and may have been 115 kg. The General Practitioner record was 129.6 kg on 25 February 2025.

   Right-handed
   The claimant would not recall a 2015 motorbike accident saying that he rode a lot of motorbikes back then.
   In 2017, while working at a sawmill, he lost his job due to a sore right knee that resulted from falling off his motorbike.
   Operations: None recalled.

   ALLERGIES: None to medications.

   Education History

   The claimant left school in Year 8. He attended TAFE and completed a Year 10 equivalent. He obtained a Certificate III in Civil Construction and Plant Operations. He said that after the accident he tried to do an online Marine Science course at Southern Cross University in 2021. He thought it was a bridging course. He said he could not focus because it was as if information was coming in one ear and going out the other. He then attempted a free online environment course at TAFE. He said he could not focus, kept forgetting to do it and could not make sense of it at all. He said he had a passion for the ocean and the outdoors and thought that those courses were ones he could do.

   Employment History

   He described his employment before the 6 November 2017 MVA as, “Before the accident I wanted an apprenticeship, and I was working at Coles while doing the Certificate III and that conflicted. I lost the job. I was trying to get whatever jobs I could. I had just moved up to Queensland to experience life but there was not much there. I was experiencing life. My longest job was at Coles from 2015 to 2016.
   Before the accident I was concreting with Bob Findlay and that only lasted a couple of days. Before that I was at the sawmill and before that I was doing traffic controlling.”

   Asked about his entry on the Personal Injury Claim Form that he was working for a fencing contractor he said, “I did not do fencing before the accident and started fencing in early 2018.
   I worked in fencing for about four months but stopped because it aggravated my shoulders.
   Then I may have been working on excavators and front-end loaders for six months. They let me go because I was not with it. I had to take days off for appointments. I was not all there and was blanking out in the machines. Then they let me go.
   I tried to work as an operator with a shed builder and was there for two days, but it was labouring, and I was too sore. That was in 2022.
   I did highway labouring work between operating and fencing and it was too much on my shoulders.
   I last worked in 2022. I cannot work because of my driving problem and pain, and I do not get out of bed until lunch. My mind is not there, as I am but I am not. My plan is to do more psychology. I have not thought much about it as I cannot do something physical.

   Economic status

   The claimant reported he has received Disability Support Pension from 2024 for Posttraumatic Stress Disorder (PTSD), Pain and Depression.

   Psychosocial History

   The claimant’s parents live in South Grafton. He described his family life as, “My parents live together but are separated. Mum said it happened a long time ago and they had more of a separation in early 2017. Dad had a partner for a few months, but it did not work out. Before the accident I was not getting along with Mum. We did not see eye to eye, and she kicked me out in April 2017. It was over silly arguments. I was 19 then and since then we have moved past it.
   Now I see them once every couple of weeks. Mum will come and get me and we go to the house. Briony will take me. They take me to appointments. When we go to an appointment, we have fish and chips in the car near the river.
   My older brother is working. I talk to him when I see him occasionally. My younger brother also works and I might see him. The last time we were all together was for my birthday. We had lunch at Mum’s place with my brothers and Dad. Briony was at work. I do not see them as much as before the accident when I had more contact with Dad and my brothers.

   Developmental History

   The claimant does not recall any significant symptoms during childhood. There were no reports of sexual or physical trauma. He was bullied for being overweight. For the most part, his childhood was good.

   Relationship history

   The claimant said, “I can’t remember when Briony and I got together. It was about a year after the accident. We started by talking on the phone and after a year or two we began living together. She started staying with me at my parents’ place. I had moved back there in 2019. I had been living with Hayden since 2017.
   I do not think we will get married. It is not a great relationship. We do not have a sex life. It feels more like we are just friends. We argue and the relationship is strained. At the start it was good but now I do not have a job. She has not asked me to leave, and I do not have anywhere else to go. There is not much room at my parents’ place. It is not a de facto relationship”.

   Chemical Dependency History

   He said, “I used to drink when I was hanging out with mates. We got along well. After the accident I drank 8 to 10 drinks on weekends, but I cut back over time. Now I drink once a fortnight or monthly in my bedroom. Briony buys it”.

   No use of recreational drugs or cigarettes. The claimant does not vape.

   Forensic History

   The claimant did not use P plates and was fined before and after the 2017 MVA but could not ‘exactly’ remember when.

   Commenting on his anger management, the claimant said, “I disagree and bicker with Briony and her dad. I have had arguments with my brother after the accident but only one bad one.
   I can get stuck in my head.

   He never had a gambling problem.

   The claimant said he had not made any compensation claims before the 6 November 2017 MVA. After his 2021 back accident, workers compensation paid for physical treatment. He said his back pain resolved in a few months.

   Psychiatric History Before the Motor Accident

   He said, “When I was around 14, I had ‘bad thoughts’ in my head. I could have been 15 or 16. It definitely affected me. I saw a psychologist maybe twice, but it did not help and made things worse. It is hard to know, and it was when I went to the psychologist. It could have been when I was 15 or 16. The thoughts were violent in nature and had last occurred before the 2024 interview and about six months ago. Now I let it come and go”.

   The claimant did not remember if he was more anxious after his 2015 motorbike accident or remember his anxiety symptoms in mid-2017.

   Pre-Accident Functioning

   The claimant reported:

   ‘I  used to say that a shower and a beer after work was a great feeling. I shopped and bought food and I cooked.

   I hung out with mates. We did car meets, drank, went to mates’ places and parties and watched footy on TV. I went fishing alone and with mates.

   I rode motorbikes with them.

   I had an argument with Mum, and she kicked me out but I mostly got along with everyone.

   Mum tried to get me to read but I rarely read a book. My friends and I worked on cars.
   I worked on my own car quite a bit.

   I could not find a job I enjoyed. There were a couple of months when I was not working. The Grafton area does not have many jobs. It is hard to get a trade.”

   History of the Motor Accident

   The claimant reported:
   ‘We went for a drive to get ice cream, and the driver lost control and hit a tree. I had been at a party, and I would have been intoxicated. I think I was knocked out for about 20 minutes. I remember the impact clearly. Hayden was next to me, and I remember him staring at me while we slid. I think I said something like, ‘this is it.’ Hayden’s brother and his brother’s partner were in the car. She was driving.
   I was in pain and felt like I was not really there. I did not know what had happened. People were asking me what was going on. We were on the highway that runs through Grafton. I had pain in my right leg, my neck and shoulders were sore, and my right foot also hurt. Hayden and his brother could get out but I had to be cut out of the car. The bottom half of my body was pinned.
   I was taken to Grafton Hospital, stayed overnight and was released the next day. I was told I might have soft tissue damage. I stayed at Hayden’s house. My physical injuries got worse. The neck pain grew and they found scar tissue at C3 and C4. The surgery I had was a laminectomy. It helped a bit as the pain was less but I still had nerve pain. That was in February 2022.
   My leg is as it is now. It is a bit fatter but does not hurt. My shoulders still hurt. I had an AC joint issue and right shoulder subluxation. My shoulders still give me grief. I take painkillers sometimes when the nerve pain gets bad. I saw a pain specialist and radiofrequency treatment helped for a couple of days. It made my neck feel strange. He decided not to burn the nerves because I would need the treatment every 12 months for life. I had physiotherapy but that ended a couple of years ago.’

   History of Symptoms Following the Motor Accident

   The claimant reported:
   ‘I thought we were going to die in the accident. For the first couple of days, I did not feel like I existed. I was sleeping a lot, and my body was not working properly. Then I tried to get on with life, but I was in pain and kept having visions that went on.
   The nightmares started straight away. They were about the accident and random things that kept bothering me. After a couple of weeks, it was like a video playing in my head. It felt like I was there again. I was like a ghost watching it happen. The dreams and pain affected my sleep, and they still do. I wake up when I am about to hit the tree in the dream.
   In 2017, after the accident, I was out of it. I slept 12 to 14 hours a day and could not stay awake. Over time I started sleeping less. It went down to 6 or 7 hours and now I get 4 to 5 hours of broken sleep a night. As the pain and emotions went on, I became depressed. I was trying to understand what was happening.
   At first it was just annoying but as the years passed it got worse. It feels like a weight holding me down. I have thought it would be better to be dead. I started thinking about suicide about two years ago, just watching everyone around me living their lives. I feel stuck. I see my old friends on Facebook having kids and doing things. My little brother went to Japan. I am just sitting here.
   I am in pain all the time. Painkillers mess with me and make me feel awful. If I died, it would be simpler. I tried to throw myself out of the car after an argument with Briony. I also thought about hanging myself. That was probably eight months ago, sometime after July last year.
   I get frustrated with myself and I blame myself. When I cannot do something, my mind gets angry. It does not turn off. Sometimes it feels like it does not work at all. It is like I do not exist. My brain switches off for 15 to 20 minutes and I am not there.
   On bad days, I feel like I am in a dream world. This causes arguments when I do not talk to Briony or her mum. They are the only people I talk to. I do not see my family often. I sit around and can’t do much.
   Archie the dog makes me feel better. He is my only friend.’
   The claimant cried when he mentioned Archie.
   ‘I don’t know what I feel half the time. Sometimes it feels like I am in a dream.
   I did not ask for the accident. I did not ask for help at first because I was trying to tough it out. I did not understand what was going on in my head and I was told to get help.’

   History of Treatment After the Motor Accident

   The claimant was prescribed psychotropic medicine for nightmares, but he had side effects and stopped taking them. A friend died by suicide while on antidepressants, so he did not want to take them. He had taken Palexia for pain in the past and it caused vivid and disturbing dreams.
   Reviewing specific medicine, he said that:

   ·     Mirtazapine made the nightmares more vivid.

   ·     Pantoprazole was taken occasionally for reflux.

   ·     Inderal 40 mg tablet one tablet twice a day was taken for ‘shaking’. The medicine made dreams vivid, and he preferred not to take it.

   ·     Telmisartan was taken daily to treat hypertension.

   ·     Tramadol was taken occasionally, not every day.

   ·     Minipress was not tolerated. It caused waking at night and fainting when standing up.

   A psychiatrist has not been seen although he had tried to make an appointment but “they would not see me”. He was told he had ADHD as a child because he was fidgety. He thinks the shaking symptoms are not related to ADHD.
   He has consulted with several psychologists. He found the first psychologist unusual as she used tapping as a treatment method. He then saw Julia but cannot remember how long treatment lasted but it was inconsistent. He then saw another therapist butg  he could not afford continued treatment.
   He is now seeing Jana and has been attending since around October last year. He pays for this and attends every 2 to 3 weeks. The sessions focus on calming techniques and recognising emotions. Some days he has trouble focusing. He sits there while she talks, and he has little to say.
   He receives some Centrelink support, and his mother gives him money when needed to pay for sessions.
   Physiotherapy and exercise physiology programs were prescribed but stopped two years ago.

   Details of Any Relevant Injuries or Conditions Sustained after the Motor Accident

   Hypertension was diagnosed after the accident.

   The claimant injured his right knee in 2018 after the 2017 MVA in a motorbike accident.

   He hurt his back working for a landscaper in 2021.

   Current Symptoms

   The claimant reported:
   ‘My life doesn’t feel real anymore. I used to have good friends and still had a life. Now there is nothing. I sit around and do nothing. I don’t drive because I can’t. It feels dangerous. It has been a couple of years. I stopped because I was zoning out and felt paranoid. My eyes would start hurting and I would blank out. It was all too much.
   I would just come home.
   I had already stopped driving before the 2020 motorbike accident. In 2021, I was still riding with mates, but I stopped driving completely in 2022. I don’t think the motorbike accident affected me. I may have said it did in 2024 but now I don’t think so. Things are worse now.
   I am in pain every day and I have nightmares. It takes a toll on me. I have drifted from my mates and eventually they moved on with their lives. I didn’t do anything with them.’

   Current and Proposed Treatment

   Pantoprazole 20 mg daily was taken occasionally for reflux.
   Inderal 40 mg tablets: one tablet twice a day.
   Telmisartan 40 mg was taken daily.

   Tramadol 50 mg capsule was taken as need.

   The claimant receives General Practitioner care.

   The claimant receives psychological care. He said he thought he would see Jana for the foreseeable future.

   There are no physiotherapy or exercise programs in progress.

   The claimant did not expect a change in his current treatment.

   Mental State Examination

   Grooming: The claimant said, “Briony uses clippers on my hair. The last time was at the beginning of the year. She said I looked like the clown in The Simpsons. I am going bald. I trim my beard with clippers. I did not have a beard before. I clip whatever is on the clippers, either a 2 or a 1. I do it when it gets long and itchy. “
   Clothing: He wore a brown hoodie and track pants. He said: ‘I have been wearing these trackies and jumper for 2 weeks along with the same T-shirt. Briony is the one who changes my clothes. I sleep in my clothes. In summer I wear a T-shirt and pants.’
   Activity: He clasped his shoulders and neck occasionally after one hour of the interview due to discomfort.
   No psychomotor retardation of agitation observed.

Movements: No tics or vocalisations reported.
Aggression: No hostile acts towards peers and property reported.
Impulse control: Impulse control was average. Not accident-prone.
Interaction: Cooperative throughout the interview.
Facial expression is not appropriate to verbal content.
Eye contact: Good.
Facial Expression: Little change in expression over the 2-hour 40-minute assessment interview.

Language:

-    Rate: Appropriate but slow.

-    Volume: Average.

-    Coherence: Goal-directed.

-    No bizarre use of language.

Affect Flat with little change in expression. He did not smile or laugh.

Phobias: None reported.
Obsessions: None observed or reported.
Dissociative: No behaviour observed or reported.
Preoccupations: None reported. No recurrent self-injurious behaviour patterns.
Perceptions: No anomalies reported.
Hallucinations: None reported.
Delusions: None reported.
Sensorium:
Clear.
Orientation: Intact for time, place and person.
Memory: He had problems recalling details, timelines and dates.
Concentration: He reported significant impairment with concentration.

·     .

Abstraction: Used abstract concepts without difficulty.
ATTITUDE: The claimant said: ‘The accident stole the best years of my life. If I could go back and do it all again, I would not get in the car. I saw a quote on Facebook that said richness is life and health is valuable, and it means not being in pain.’

Current Functioning

The claimant lives with his partner and her family. He goes to bed around 10 but does not sleep well. He usually sleeps with Briony but if they argue he sleeps on a futon. His sleep is broken, and he naps during the day. He struggles to get out of bed but eventually does.
When he gets up, he may have a coffee, go to the toilet and return to the bedroom. He sits on his phone, scrolls through Facebook and watches YouTube while lying in bed. This is how he spends most of the day.
He may walk Archie in the paddock. He talks to Briony when she gets home, then continues using Facebook or has a nap. He lies in bed, goes on his phone and may fall asleep and have a nightmare. He then sits on his phone again.
The claimant has no pets. Briony’s family has Archie, a dog.

The claimant might shower once a week or fortnight when he feels like it or when he smells or Briony complains. He cannot be bothered getting out of bed many days as it feels like a heavy weight is on him. Between meals he eats biscuits, which he gets from the cupboard. Briony cooks dinner, the only cooked meal. He does not eat breakfast and instead has biscuits. He reports low motivation and says chips and biscuits are fine with him. He sometimes eats with Briony and her parents, or he eats in the bedroom.

At 11 AM, Assessor Chew left the assessment interview as he had another appointment to attend. The claimant left to get a drink and returned for a further 40 minutes of assessment.

The claimant stated that there is no change in his mood throughout the day, describing it as feeling like a 10-ton weight. He might have a burst of energy and then go for a walk. Archie is mostly outside and when he is inside the claimant feels better. He walks Archie about once a week.

He spoke to a friend once two months ago. That friend sometimes sends messages on Facebook. He stopped going out with friends in 2022 or early 2023. He does not go with Briony to visit her friends. If he does, he finds it difficult as people ask what he is doing. He last did this in 2022 or 2023. He is not a fan of meeting new people. For Briony's birthday they may have dinner at home or go out with her friends.

The claimant’s intrafamilial relationships have stabilised. He said, ‘Mum and Dad work. I rarely see them.’

The claimant has lost interest in pastimes since the motor accident. He said, ‘I last went fishing when Briony took me, either late last year or early this year. I can’t exactly remember.’
I argued with Briony, I hurt my shoulders, and I got frustrated after 20 minutes. I haven’t ridden a motorbike in a long time. I used to spearfish and went a couple of times after the accident, but it hurt my neck. I used to have a 4WD and Dad has one. I used to like it, and I last did that in 2021.
At the start Briony went out occasionally to eat but stopped a couple of years ago. We just stopped and couldn’t be bothered. I have no interest, and it saves money.

No sporting activities at this time.

The claimant said, ‘I stopped driving in 2022. I still own a Holden Commodore Ute I will never get rid of. I had a motorbike I sold in 2022. Mostly, Briony and my parents drive me. I am hypervigilant in cars and when going around corners. I might freak out and that causes an argument. I grab onto something to drink in the car to sip on, usually a can of soft drink and it helps.’

He said, ‘I can concentrate if someone is constantly talking. If I am on my phone I will sit there and think. After 10 minutes I lose interest and focus. I have not read a book in a long time and the closest I come is reading on my phone. I spend five minutes on Facebook articles then change to watch a video. I was knocked out and I believe it has affected me.
In the reports about me, when they have done those reports, I have struggled to sleep. I am tired and stressed. For the one in Sydney, I had to drive an hour to catch the plane to Sydney and flew back that afternoon. I feel that with Dr Batchelor I was trying my best. It was raining and I argued with Briony.
I was not able to do TAFE courses in 2022 or focus on motor vehicle repairs like I did before the accident. For the report with Debbie Anderson in 2021, I had to drive to Brisbane. I had to get up early, Briony drove, and I was tired and stressed. I feel I was trying my best. It was the same with Melanie Sauer in 2020.
I can’t work on my car, and I have no interest. Right now, I don’t get out of bed and am not motivated. Everything has taken its toll. I have worked on cars before; I could work on them but now it is motivation and pain. I would give up if a bolt was stuck.’

The claimant has not returned to the workplace since stopping work in 2022.

The claimant said he did not meet his personal standards.

No regular religious observance. “I am baptised”.

Comment on consistency

This assessment took 2 hours and 40 minutes. Usually, a psychiatric assessment for a Review Panel will take no longer than 1 hour and 30 minutes and an assessment with a translator 2 hours. The extended time frame of this assessment was because the inconsistencies between the histories taken by Assessor Shen, Assessors Rickard-Bell and Samuell, Dr Graham Vickery, Dr Brian Parsonage resulted in repeated rechecking with the claimant of multiple aspects of his story. When asked about discrepancies the claimant gave imprecise answers predicated by problems with memory despite clearly recalling his impairment timeline.

Stabilisation

The medical assessors considered the question of stabilisation and regarded the claimant's psychiatric disorders from the accident had stabilised given that it was almost 8 years since the 6 November 2017 MVA and there had been no substantive change in treatment in the past year.

DSM-5-TR Psychiatric Diagnosis and reasons

F41.3 Posttraumatic Stress Disorder with Dissociative Symptoms and Delayed Expression F34.1 Persistent Depressive Disorder

Criteria:	DSM-5-TR Diagnostic Criteria for Posttraumatic Stress Disorder Stressor – The claimant was injured in a MVA that was life-threatening (Criterion A). Intrusion Symptoms – The claimant reports nightmares and distressing memories of the accident (Criterion B). Avoidance – The claimant tries to avoid reminders of the accident that feel like a weight holding him down. (Criterion C) Unpleasant Changes to Mood or Thoughts – The claimant has negative feelings about himself and the world and is isolated. (Criterion D). Changes in Reactivity – The claimant reports irritability and sleep difficulties. (Criterion E). Symptoms have lasted more than one month (Criterion F). He reports significant distress and impairment in social functioning (Criterion G). His symptoms are not caused by the physiological effects of a substance or another medical condition (Criterion H). He has dissociative symptoms. There is delayed expression with full criteria not reported for approximately 12 months although some symptoms were immediate. Symptoms have lasted for more than a month. He reports significant distress. His symptoms are not attributable to substance use or other medical conditions.
DSM-5-TR Diagnostic Criteria for Persistent Depressive Disorder At least 2 years of persistent unhappiness that causes significant distress or disability. The spells of unhappiness include distractibility, depressed mood, suicidal thoughts, low self-esteem and physical symptoms such as fatigue, altered sleep and appetite. He reports significant distress. His symptoms are not attributable to substance use or other medical conditions.
Comments	In 2020 Dr Parsonage diagnoses a Specific Phobia for Driving, excluding a diagnosis of Posttraumatic Stress Disorder and diagnosing a comorbid Adjustment Disorder with Depressed Mood. In 2021 Dr Vickery diagnosed Posttraumatic Stress Disorder in Partial Remission. In 2022 Dr Parsonage changed his diagnoses to Posttraumatic Stress Disorder with comorbid Major Depressive Disorder although at that point Persistent Depressive Disorder could have been diagnosed. In 2023 Assessor Shen diagnosed Posttraumatic Stress Disorder with Dissociative Symptoms and comorbid Major Depressive Disorder although at that point Persistent Depressive Disorder could have been diagnosed. In 2024 Assessors Rikard-Bell and Samuell diagnosed Posttraumatic Stress Disorder and a comorbid Adjustment Disorder with Depressed Mood. Both Posttraumatic Stress Disorder and Adjustment Disorders are in the Trauma and Stressor Related Disorders group and Adjustment Disorders should not meet criteria for another mental disorder.

Causation and reasons

The claimant reported mental health difficulties before the 2017 MVA but could not place when the difficulties arose or if they resolved. This problem with dates and timing is noticeable in the documents. Mr Rose’s response was to say that his memory since the accident is poor. His GP’s in August and October 2017 record consultations that are diagnosed as Anxiety Disorder related to work stress and interpersonal difficulties.

After the 2017 MVA, he could work until 2022 when his pain symptoms caused him to cease work. His mental health symptoms were not seen as significant until the 2022 report of Dr Parsonage, The issue of reliability has since proved vexatious for medical assessors with Assessor Chen noting multiple inconsistencies but finding a 15% Whole Person Impairment.. In the July 2025 assessment, the claimant was repeatedly asked to explain inconsistencies but responded with disambiguation. Based on his self-reports and his history the medical assessors diagnosed Posttraumatic Stress Disorder and comorbid Persistent Depression Disorder that were not present before the 2017 MVA and were caused by the 2017 MVA.

Panel decision 

The Review Panel found the accident WAS the cause of the following claimed psychiatric injuries:  

Posttraumatic Stress Disorder with Dissociative Symptoms and Delayed Expression

Persistent Depressive Disorder (incorporates Major Depressive Disorder listed by the parties.)

The degree of whole person permanent impairment of the injuries caused by the accident was calculated as follows: -

Current permanent impairment 

Psychiatric diagnoses		Posttraumatic Stress Disorder with Dissociative Symptoms and Delayed Expression  Persistent Depressive Disorder
Psychiatric treatment		Psychological counselling. Psychotropic medicine no longer taken. Propranolol for anxiety.
Category	Class	Reason for decision
Self-care and personal hygiene Table 11	3	The claimant described a lack of motivation in self-care and personal hygiene that would result in an inability to live independently. The claimant reported reliance on his partner in his self-care. Clinically, this is a moderate impairment.
Social and recreational activities  Table 12	2	He has stopped social activities reporting mental health difficulties, but recreational activities were stopped because of his physical symptoms. He can leave home. We are not satisfied that the psychiatric symptoms by themselves warrant a class 3 assessment for this category. Clinically, this is a mild impairment.
Travel Table 13	2	He travels with others but has stopped driving since 2022. He has travelled by plane to Sydney. He has travelled to Brisbane. He described himself as an anxious passenger. Clinically, this is a mild impairment given his ability to travel long distances. Whilst there was no recent travel, we accept that the claimant could travel without a support person.
Social functioning Table 14	2	Although he began his current relationship with his girlfriend after the 2017 MVA that relationship is stressed. He has repaired the difficulties between his mother and himself. The relationship with other family members is unchanged. He lives with his girlfriend’s parents. He reports significantly reduced contact with friends. Clinically, this is a mild impairment.
Concentration, persistence and pace  Table 15	2	His dissociative symptoms have resulted in avoidance of tasks that call for focus and he reported that pain was a significant issue. He described being able to concentrate if he was involved in a conversation and agreed that he had concentrated for the entire 2-hour and 40-minute assessment interview. Clinically, this is a mild impairment when the effects of pain are disregarded.
Adaptation  Table 16	3	After the 2017 MVA he could work until 2022 and has not worked since because of pain symptoms. He said he was not motivated to return to work. His adaptation to being at home is one in which he does not participate in household chores because of pain and a lack of motivation or expectation that he will help with tasks. The claimant’s pain is a significantly factor impacting on the classification for adaptation and must be disregarded. Clinically, this is a moderate impairment.

* %WPI = percentage whole person impairment 

List classes in ascending order						Median Class Value
2	2	2	2	3	3	2
Aggregate score						Total	%WPI
+	+	+	+	+	=	14	7%

Current % whole person impairment 7%

Apportionment

In the records between August 2015 and October 2017 the GP described the claimant with anxiety symptoms which waxed and waned depending on his social setting. He lost a job because of injury and was homeless in August 2018. He was not consistent with psychological counselling. His general practitioners repeatedly diagnosed an Anxiety Disorder that given his social and financial circumstances is best diagnosed as an Adjustment Disorder with Anxiety.

Pre-existing impairment

Psychiatric diagnoses					Adjustment disorder with anxiety
Psychiatric treatment					Intermittent psychological counselling
Category				Class
Self-care and personal hygiene				1	No impairment in this domain of functioning recalled or described in the General Practitioner records.
Social and recreational activities				2	He was reported to attend social functions but found that he was anxious and felt that he was being “looked at all the time”. This is a mild impairment in this domain of functioning.
Travel				1	No impairment in this domain of functioning recalled or described in the General Practitioner records.
Social functioning				2	There was a break-up with a girlfriend, and his mother had asked him to leave her home. This is a mild impairment in this domain of functioning.
Concentration, persistence and pace				2	He was not a book reader but could concentrate on car repair. He reported a long-standing concentration problem. There was a mild impairment in this domain of functioning.
Adaptation				2	He was unemployed and living with a friend and asked his General Practitioner for a Centrelink certificate so that he would be eligible for Centrelink benefits on mental health grounds. This is a mild impairment in this domain of functioning.
List classes in ascending order							Median Class Value
1	1	2	2		2	2	2
Aggregate score							Total	%WPI
+	+	+	+		+	=	10	5%

Pre-existing/subsequent impairment 5% 

Summary of permanent impairment 

Adjustment for the effects of treatment 

There is no adjustment as there was no measurable treatment effect from psychologic counselling or psychotropic medicine.

Determination regarding the degree of whole person impairment of the claimant because of the injuries caused by the motor accident

The total percentage whole person permanent impairment for assessed psychiatric injuries caused by the motor accident is 2 %. Therefore, permanent impairment is not greater than 10%.”

FINDINGS

1. The review is a new assessment of all matters with which the medical assessment is concerned.

2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[56] and Insurance Australia Ltd v Marsh.[57]

   [56] [2021] NSWCA 287 at [40], [41] and [45].

   [57] [2022] NSWCA 31 at [11], [21] and [64].

3. The Panel adopts the extensive reasons provided by the Medical Assessors supplemented by the following reasons.

4. The Panel accepts that the motor accident caused psychiatric injury. The insurer referred to some delay in complaint of psychological symptoms. However, unlike various physical injuries, the impact on an accident causing psychological trauma is not necessarily felt in the near term. The motor accident was sufficiently serious, and the claimant was of a vulnerable psychiatric nature given his pre-existing condition. His pre-existing psychiatric condition made him more vulnerable to suffering a psychiatric condition caused by the motor accident.

5. Our view the motor accident caused the psychiatric condition is only reinforced by the histories recorded in the clinical records from late 2018 referencing the motor accident.

6. The Guidelines for the assessment of psychiatric whole person impairment require the exclusion of impairment caused by physical injury and pain.[58] The clinical record refers to the claimant suffering ongoing pain particularly in the neck and shoulders. The effects of pain were observed in the recent examination and the claimant admitted that it impacted on various aspects of functioning. The assessment of the various classes for the PIRS has been made in the context that the claimant’s pain has clearly exacerbated his inability to function. This has been noted in the history recorded by the Medical Assessors and considered as part of the assessment process.  

   [58] Cls 1.214 and 1.215 of the Guidelines.

7. We make some observations of the classification for concentration, persistence and pace. We note the observations in Abdal v Insurance Australia Ltd[59] that a medical assessment only involves “the plaintiff taking about himself in response to the medical assessor’s questions or prompts, and this was not said to be, nor was it likely to be, an intellectually demanding task or a task that involved complex instruction”.

   [59] [2025] NSWSC 478

8. This is not what occurs in a normal assessment by a Medical Assessor in assessing a psychologically injured claimant and is not what occurred in the assessment undertaken by the Medical Assessors of the Panel. What occurred here and usually occurs is that the questioning by the Medical Assessor(s) over an extended period requires a claimant to maintain concentration, respond consistently to questioning, stay focused and remain coherent. The responses lead to the clinical observations made by Medical Assessors in determining whether and to the extent the claimant presents as impaired under this PIRS category for concentration, persistence and pace. Specifically, the claimant was asked by the Medical Assessor whether he concentrated during the assessment and responded that he did.

1. Abdal was recently questioned on this issue in Georges v Musico[60] when Griffiths AJ stated:[61]

   “Secondly, if necessary, I would go a step further and state, with respect, that for the following reasons, Abdal is plainly wrong and I would decline to follow it. In particular, I respectfully consider that his Honour’s approach involved an incorrect level of judicial review scrutiny to a decision which necessarily involved the application of high levels of medical expertise. I also respectfully consider that his Honour erroneously applied, outside the context in which they were made, statements in the joint judgment of Ballas.”

   [60] [2025] NSWSC 1085

   [61] Georges at [59].

2. Later in his reasons Griffiths AJ observed that the “Review Panel was plainly entitled to rely on its own clinical evaluation of Mr Georges based on the observations of two psychiatrists of how he performed during the 90-minute AVL re-examination” noting that it was an “intellectually demanding task”.[62]

   [62] Georges at [95].

3. The observations of Griffiths AJ are consistent with cl 1.217 of the Guidelines which provides:

   “The scale must be used by a properly trained medical assessor. The psychiatrist’s clinical judgement is the most important tool in the application of the scale. The impairment rating must be consistent with a recognised psychiatric diagnosis and based on the psychiatrist’s clinical experience.”

4. That assessment is also impacted because the claimant reported pain, and this was observed by the Medical Assessors. Pain will impact on an ability to concentrate over lengthier periods although, in the present matter the claimant’s observed concentration through his listening and providing answers to questioning throughout the examination was at least satisfactory.

5. There is a period of time since previous assessments which are somewhat outdated. Whilst histories and clinical observations are relevant, we are required to form our own opinion, Specifically, the assessment of the various PIRS is highly dependent upon the clinical impression of the psychiatrists from the recent examination (see cl 1.217 of the Guidelines).

6. Clause 1.31 of the Guidelines provides for a deduction if “there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident”.

7. We are satisfied that there is objective evidence of pre-existing impairment within the meaning of cl 1.31 of the Guidelines prior to the motor accident. The conclusion is based on the clinical notes which show over a two-year period the claimant was suffering from anxiety symptoms with evidence of recorded complaint only two weeks prior to the accident. The claimant was unclear in his recollection of the nature and extent of his pre-existing psychological symptoms. In those circumstances, we have applied the content of the clinical records in our assessment of the pre-existing condition. The pre-existing condition, given the recency to the accident, must have been present at the time of the motor accident.

8. The decision of Bell P (as his Honour then was) in IAG Ltd v Chahoud[63] noted the distinction between the date of the records and the date of the pre-existing impairment. His Honour stated:[64]

   “IAG submitted that in so finding, the proper officer wrongly construed cl 1.31 as requiring that the evidence itself be dated ‘at the time of the accident’. It submitted that the clause should instead be read as requiring that there be ‘evidence of pre-existing impairment at some time prior to the accident, that likely still existed at the time of the accident’. What was ‘likely still to exist’, in other words, were not records of any pre-existing impairment but the pre-existing impairment itself.”

   [63] [2019] NSWSC 767 (Chahoud).

   [64] Chahoud at [70].

9. Clause 1.34 of the Guidelines was discussed by Wright J in Slade v Insurance Australia Ltd.[65] His Honour determined that the principles discussed by Malcolm CJ in State Government Insurance Commission v Oakley[66] apply in respect of the assessment under that clause.

   [65] [2020] NSWSC 1031 (Slade).

   [66] (1990) Aust Torts Rep 81-003.

10. There is a documented history of deteriorating functioning since around 2022. This raised whether a subsequent accident has impacted and caused a deterioration of the claimant’s psychological condition. Having considered and accepted the claimant’s denials, we are not satisfied that there is “objective” evidence that the various post-accident events referenced by the insurer result in a deduction in accordance with this provision.

11. The judicial review proceedings noted a denial of procedural fairness by the previous Panel in relying on the opinion of Associate Professor Batchelor. The insurer did not file subsequent submissions seeking to address this issue. Whilst some of the comments made by that doctor may have raised reservations of credibility, in the absence of a proper submission by the insurer following the Supreme Court decision and the remittal to his Panel, we have not based our assessment on the suggestion that there was deliberate attempt by the claimant to underperform or exaggerate.

12. We have not allowed anything for the effects of treatment. Clause 1.222 to 1.224 of the Guidelines relates to the effects of treatment for psychiatric impairment. We are not satisfied that there is clear clinical evidence that the treatment has been effective in that the symptoms and/or functioning have improved (cl 1.222.3). Further, it is the clinical expertise of the two Medical Assessors on the Panel that ceasing treatment will not result in a deterioration of symptoms or a worsening of function (cl 1.222.4). This is because, despite the significant past treatment the claimant reports deteriorating symptom and function over the last three years.

13. Again, we consider that a significant proportion of the reduced functioning is pain related and as a matter of logic, is not relevant to an allowance for the effects of psychological treatment.

14. We note that, as described in the examination report, a Medical Assessor left after two hours, and the examination was completed by one Medical Assessor. The Panel, in accordance with standard practice, has met and discussed the examination findings. We determine our own procedure and note there is no requirement that both Medical Assessors be present for the examination.  

CONCLUSION

1. The certificate issued by Medical Assessor Shen is revoked. A replacement certificate is attached at the commencement of these Reasons.