Insurance Australia Limited t/as NRMA Insurance v Rose
[2024] NSWPICMP 424
•2 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Rose [2024] NSWPICMP 424 |
| CLAIMANT: | Ethan Rose |
| INSURER: | NRMA |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Christopher Rickard-Bell |
| MEDICAL ASSESSOR: | Doron Samuell |
| DATE OF DECISION: | 2 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; insurer’s application for review under section 63 of a permanent impairment dispute; claimant was a rear seat passenger in a car which left the road and hit a tree; claimant sustained physical injuries not referred for assessment and claimed that he developed psychological symptoms; Medical Assessor determined permanent impairment at 15%; insurer argued claimant had pre-existing anxiety disorder not properly assessed; delay in onset of psychological symptoms and inconsistency between reported functionality and symptoms at examination; joint neuropsychological report suggested claimant was exaggerating symptoms; Medical Review Panel concerned at reliability of claimant’s evidence due to neuropsychologist’s report; Held – accident could have caused psychological injury; claimant sustained a psychiatric disorder as a result of the accident; claimant suffers from post-traumatic stress disorder and adjustment disorder; 5% permanent impairment; no adjustment for treatment; no assessment of pre-existing and subsequent impairment necessary; no matter of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate issued by Medical Assessor Shen dated 6 April 2023. 2. Certifies that the degree of Ethan Rose’s permanent impairment resulting from the injuries caused by the motor accident on 6 November 2017 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
Ethan Rose was involved in a motor accident on 6 November 2017. The claimant was a rear-seat passenger in a car, the driver of which lost control colliding with a tree.
Mr Rose says he injured his head, neck, both shoulders and right leg in the accident and developed a psychological injury. He made a claim for statutory benefits and damages against NRMA, the third-party insurer of the vehicle that he says caused his accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 6 April 2023 Medical Assessor Shen determined that Mr Rose had a WPI of 15% which is of course, greater than 10%.
The insurer then lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 30 May 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review. On 12 February 2024, the President’s delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Mr Rose’s claim and his entitlements to compensation are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
Compensatory damages under the MAC Act are awarded for economic as well as non-economic losses resulting from the injuries, disabilities and impairments caused by the motor accident.
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act with some limitations and restrictions. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[2] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[2] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
The Guidelines include a chapter entitled “Mental and behavioural disorders” and require the assessment to be undertaken in accordance with the psychiatric impairment rating scale (PIRS) and that the AMA4 Guides are to be used as “background or reference only”.[3]
[3] Clause 1.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with whatever the current edition of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD).[4]
[4] Clause 1.213 of the Guidelines.
The PIRS provides[5] for the consideration of any psychiatric condition present before the accident in question:
“In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”
[5] Clause 1.218 of the Guidelines.
The PIRS provides in cl 1.219 for six areas of function:
(a) self-care and personal hygiene;
(b) social and recreational activities;
(c) travel;
(d) social functioning (relationships);
(e) concentration persistence and pace, and
(f) adaptation.
The PIRS then provides at 1.220 for five classes with a descriptor for each which is “illustrative rather than literal criteria” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury.”
The impairment may be adjusted for treatment[6] that is treatment such as medication being consumed to treat the psychiatric condition.
[6] See clauses 1.222 – 1.223 of the guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate score is converted to provide a WPI percentage.[7]
[7] See clauses 1.225 – 1.228 and table 17.
Dispute resolution
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.[8]
[8] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Shen, further medical assessments and the review of medical assessments by this Panel.[9]
[9] Sections 61, 62 and 63 of the MAC Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Shen examined the claimant on 3 April 2023 and issued his reasons three days later. He notes at [2] he was asked to assess psychological injuries including post-traumatic stress disorder and a major depressive disorder. He identifies and summarises at [5] the documents he was provided with in the application and reply.
The claimant’s history is documented at [8]:
(a) he reported he was not in a relationship at the time of the accident but has been with his partner for three or four years. He lives with her and her mother;
(b) the claimant disclosed previous mental health issues when he was 14 or 15 years of age in particular due to bullying and suspected attention deficit hyperactivity disorder (ADHD), and
(c) he was working at the time of the accident but has not worked for two years due to no work being available. He has tried retraining (he started an apprenticeship in welding for example) but without success.
The claimant gave a consistent history of the accident at [9] adding that he stayed overnight in hospital. He told the Medical Assessor about his psychological treatment (recorded at [10]) and feels his mood has worsened over the past three years. He has not trialled anti-depressants because he has friends who said it made them worse.
Medical Assessor Shen has a history at [11] of the claimant’s motorbike accident three years earlier (and after the current accident) and the claimant injured his right knee in that accident.
Medical Assessor Shen refers at [12] to the claimant’s physical symptoms, poor concentration and “brain fog”. The claimant complained of a 20kg weight gain, poor sleep, lack of motivation and energy and feelings of anxiety. He reported frequent intrusive memories of the collision and dreamt about the accident. There were triggers and he remained hypervigilant when in cars.
The Medical Assessor noted at [13] there was no current psychiatric treatment, and that the claimant wanted some more therapy but could not afford it. He was open to, but wary of trialling anti-depressants.
The claimant is reported at [15] to be not doing much although he would go fishing, he walks sometimes, he had been working on a car but not lately and he spent time with friends looking at cars. He goes to the pub but less frequently. He was reported to shower 3 -4 times a week and change his clothes 3 -4 times a week. There are some activities he does around the house. He said he had not driven for two years because he feels anxious. It was then put to him that other histories suggested he had been driving. Mr Rose then reviewed his answer and thought it might have been the previous year when he stopped.
Medical Assessor Shen considered at [16] the claimant’s consistency noting the neuropsychological assessment and commented that the claimant appeared to have a more impaired level of functioning now than earlier. He thought the claimant was minimising his pre-accident condition.
Medical Assessor Shen diagnosed at [18] post-traumatic stress disorder caused by the accident due to the timing of the emergence of symptoms and the intrusive memories since the accident. He considered the claimant’s depression relevant to his pain, ongoing disability and reliance on others. He considered “there is possibly a degree of symptom exaggeration”.
He expressed at [22] his views that while there may have been some exaggeration he thought the claimant’s depressive condition was worsening although the post-traumatic stress disorder was static and that he needed treatment.
Medical Assessor Shen assessed the claimant’s WPI as 15%. While he included at [24] space for the assessment of pre-existing anxiety and has assessed each class as 1 – he provided no reasons for this. He said, “while he may have had pre-existing anxiety, and perhaps OCD, there is no evidence available to suggest that it had a material impact on his functioning at the time.”
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer argues at 3.1 that the Medical Assessor incorrectly assessed the claimant’s current impairment and his pre-existing impairment.
The insurer suggests that the Medical Assessor’s findings were “based entirely on the subjective report of symptoms from the claimant”.
The insurer goes through each of the six criteria and sets out what the insurer says is objective evidence of functionality at odds with the subjective complaints.
The insurer complained of the absence of reasons for the assessment of class 1 for all criteria in the pre-existing impairment assessment.
The insurer has provided its original submissions lodged with the application for medical assessment.[10] These dispute causation of injury and the nature and extent of the injury and the resulting impairment in particular the adjustment for a pre-existing impairment.
[10] Page 8 of the insurer’s bundle.
In particular the original submissions at [3] refer to the claimant’s pre-existing anxiety disorder including the referral in September 2015 to a psychiatrist and the psychiatrist’s opinion. The insurer notes the claimant was kicked out of home and reported anxiety on
31 August 2017 (two months before the accident) and that two weeks before the accident he saw a general practitioner (GP) also with symptoms of anxiety.
The insurer submits at [4] that psychological symptoms (low mood and depression) were not mentioned until a year after the accident.
Claimant’s submissions
The claimant argues (from [20]) that the assessment of the claimant’s impairment by others reflects the time lapse from when these assessments were done and the fact that the claimant’s condition is not static.
The claimant says the Medical Assessor explained his reasons for the pre-existing impairment assessments noting it did not impact on the claimant’s functioning.
Procedural matters
On 14 February 2024, the Panel informed the parties it did not have all the documents before it that were before Medical Assessor Shen. The Panel issued directions for bundles of documents. Both parties have complied.
The Panel met on 29 April 2024 and reported to the parties on 30 April 2024.
The Panel noted the issues in dispute identified in the submissions included:
(a) causation due to what the insurer says is an absence of recorded complaints of psychological symptoms for a year after the accident;
(b) apportionment of WPI due to what the insurer submits is a pre-existing symptomatic psychological disorder before the accident, and
(c) the class of impairment for each of the six criteria in the PIRS.
The Panel advised the parties of the re-examination date.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claimant’s claim form was signed and dated 28 August 2018. The claimant lists injuries to the right and left shoulder, his head, right leg, ankle and foot and his back and neck. He refers to pre-existing anxiety at question 24. He says he was about to start employment as a fencing contractor.
The police report has been provided confirming the claimant was a passenger in a car the driver of which lost control in the wet and hit a tree.
The ambulance report[11] notes the claimant was trapped in the rear seat after the accident for about an hour and that his Glasgow Coma Scale (GCS) rating was 15 out of 15. It should be noted that when the claimant was first seen his GCS score was 14 and he was confused however one hour latter and thereafter the GCS score was 15.[12] There is a note of a “small abrasion to [right] side head” but no mention of any loss of consciousness.
[11] Page 81 of the claimant’s bundle.
[12] Page 85 of the claimant’s bundle.
The hospital triage notes record that the claimant was seen 2.5 hours after the accident. The notes state there was a small contusion to the right side of the head, neck pain was denied, and the claimant had consumed ?8-10 can of alcohol. This note states the GCS score was 15 and there is no record of any period of loss of consciousness. The “ED note”[13] does say “possible LOC, woke up calling his friend who was leaning onto his left shoulder.”
[13] Page 90 of the claimant’s bundle.
Treating medical records and reports
The Notes from O Plus Health confirm the claimant’s pre-accident anxiety disorder from 2015. The claimant reported to Dr Kuppusamy on 10 September 2015 poor sleep, low self-esteem, irritability, irrational fears, panic attacks. He was referred to Richard Miller for counselling.[14]
[14] The referral is on page 133 of the claimant’s bundle.
The GP mental health plan at this time includes the following details:
(a) presenting issue of anxiety, panic attacks, upset over thoughts he gets really violent thoughts and nightmares, and
(b) these mental issues started a few months ago now starting to affect his day-to-day life, not socialising well.
Mr Miller reported to Dr Kuppusamy on 23 September 2015 after two consultations with the claimant. He noted the claimant had a “fairly sedentary lifestyle” and was overweight. He demonstrated low mood and showed obvious signs of anxiety.
The claimant told Mr Miller he had been going to the gym and started having anxiety attacks with intrusive thoughts “enticing him to commit violent acts”. He found this “distressing”. He says these episodes of anxiety have “left him with general feelings of being disconnected from reality” which was of great concern.
On 29 September 2015, the claimant attended Dr Kuppusamy again who records the claimant had seen a psychologist twice and felt it was doing him some good “but not fully” and the claimant was feeling anxious and dizzy after a trip to Sydney. A further attendance on 27 October 2015 refers to a cancelled appointment with the counsellor, internet-based self-diagnosis and anxiety.
The claimant had issues on 31 August 2017 to do with anxiety and homelessness (kicked out of home by his mother) and a Centrelink certificate was given. He refers to the claimant having had a job at the sawmill but losing that job because he fell of his bike and was not able to work.
The claimant attended again on 19 October 2017 for an anxiety disorder and a referral to CHESS (a former employment and disability support advisory service where he lived).
The claimant attended on 13 November 2017 referring to the car accident the previous week and he was complaining of pain and swelling of the right ankle. He was able to walk and “clinically [the right ankle] looks fine”. Mr Rose was advised to return in a week if symptoms persisted.
The notes from Ochre Health (Grafton Super Clinic) commence on 15 November 2017. The claimant complained to Dr Qamar of left shoulder pain after the accident but had no tingling or numbness and he was not taking any pain killers. There was no swelling or deformity but tenderness and normal movements except with abduction. Voltaren was prescribed. On
27 November 2017, the claimant attended with left shoulder and right ankle pain. He was tender on the shin and on the shoulder blade at the back.
The claimant attended on Dr Weerasena on 9 February 2018 with right lower leg symptoms and again on 22 February 2018.
The claimant next attended on 6 June 2018 with left shoulder pain but had a full range of motion on examination. Shoulder pain was the focus of an attendance on 19 July 2018.
The claimant saw Dr Kennedy for the first time at the practice on 26 July 2018 complaining of chronic pain in the left shoulder but there is reference to right shoulder crepitus and of a soft tissue injury to the right shoulder. The claimant attended on 1 August 2018 complaining that his shoulder hurt when he was doing push-ups. Again, there is reference to the right arm. Relevantly to the current proceedings the claimant’s mood was said to be stable.
There are further attendances for right shoulder and mild complaints of left shoulder pain.
On 31 August 2018 the claimant complained to Dr Kennedy of fatigue, being forgetful, poor concentration, feeling tired and sleepy and waking not refreshed. The claimant was referred for sleep studies.
The claimant continued to present with shoulder pain and on 25 October 2018 he reported Codeine was helping but he had strained his shoulder “lifting heavy boxes”. There is also a suggestion on 16 November 2018 of lifting a car battery which caused a flare up, lifting fishing tackle and he heard his right shoulder pop and lifting a 20 kg bag put him out for a day. The claimant was concerned the effect this was having on his workouts – he could do 50 push ups before the accident now can only do 5.
On 6 December 2018, the claimant complained of his right shoulder playing up and depression – his mood was low and he had “suicidal ideation but no active plans”.
On 11 December 2018, Dr Kennedy referred the claimant to Ms Edwards for “opinion and management. Feeling depressed secondary to not being able to work due to shoulder injury”.[15]
[15] Page 68 of the claimant’s bundle.
On 2 April 2019, Ms Edwards reported to Dr Kennedy:[16]
“Ethan presented with PTSD and depression following a motor vehicle accident. He described nightmares, anxiety while a passenger, low mood and poor motivation. He attended three appointments, last seen on the 14th Feruary. EFT was used as an exposure tehcinque and he reported his mood and motivation had improved as had his anxiety.”
[16] Page 77 of the claimant’s bundle.
Ms Edwards discharged him as he did not make any further appointments.
On 4 April 2019 a further referral was written to Chris Collyer[17] noting:
“Mood is ok but anxiety getting worse. Feeling tense, having nightmares. Counsellor thinks he may have PTSD from the car crash in November 2017. Found counselling was ok but did not find the methods used helpful such as tapping.”
[17] Page 70 of the claimant’s bundle.
Dr Kennedy referred the claimant to Ms Howard in Canberra on 16 July 2019[18] saying:
“He admits to having ongoing symptoms of anxiety when he thinks about the accident. He feels anxious when driving at times. I think he will benefit from your expert psychological review.”
[18] Page 71 of the claimant’s bundle.
The claimant complained to Dr Kennedy on 2 December 2019 about a fall at work five days previously when he fell on a rock and hurt his back. He had pain in the lumbar spine and was put off work for a week and a workers compensation certificate of capacity was completed. On 9 December 2019 the claimant reported his pain was not settling and was radiating to the left buttock area. The claimant was still experiencing lower back pain shooting at times on
6 January 2020.
A further referral to Ms Howard was given on 13 January 2020. Dr Kennedy noted the claimant had chronic pain in his right shoulder and was not making much progress with his physical symptoms. He repeated the terms of the previous referral.
The claimant was also referred to Psych Nexus on 18 January 2020 in similar terms to the referral to Ms Howard.
There were two further attendances on Dr Kennedy for back pain in February 2020.
On 20 February 2020 the claimant complained of shoulder pain, and it was noted he injured his right knee when he came off a dirt bike two weeks previously. The claimant had been to hospital and complained that his right knee was still sore “can feel swollen and unstable”. The knee injury was referred to again in a consultation on 15 April 2020. On 29 April 2020 the knee was still store and the X-ray report was said to show no bony injury.
The claimant attended again on 13 May 2020 referring to poor memory, low concentration and mood swings and wanted to get this dealt with.
Mr Rose reported to Dr Kennedy on 3 September 2020 that he did some labouring work but the strain on his shoulders was too much. Later the claimant complained that his shoulder was getting worse due to the insurer refusing to fund his physiotherapy and his mood was low and the insurer had not funded his counselling.
A neuropsychological assessment was requested by the claimant’s GP and conducted by
Ms Sauer, clinical neuropsychology registrar on 10 September 2020 “to better understand his current cognitive strengths and challenges and to guide his ongoing care”.
The claimant reported a loss of consciousness “for an unknown period of time” and that he was trapped in the car for over an hour. She notes he had a GCS reading at hospital of 15 out of 15, a small graze in the right parietal area and a normal CT scan of the brain.
The claimant reported poor memory, word finding difficulties, depression and post-traumatic stress disorder symptoms and panic attacks. Ms Sauer summarises the claimant’s physical injury and treatment. She records that Mr Rose had recently had an MRI of his cervical spine which revealed “a benign nerve sheath tumour to the right of the spinal canal at C3-4 displacing the vertebral sheath”.
She notes the claimant had a motorbike accident “in the bush” on 7 February 2020. He was “doing a mono” (which the Panel understands to be a manoeuvre on one wheel) at 60 kmph when he fell to his right side. He said he was wearing a helmet, went to hospital and was discharged the next day.
Ms Sauer has a history of the claimant having anxiety since 14 years of age and possibly undiagnosed ADHD.
She notes the claimant was well groomed and casually dressed. She also notes he was pleasant with no evidence of behavioural disturbance. She did note that on Mr Rose’s self-report he was severely depressed with moderate anxiety and in the upper limits of normal stress.
After testing she expressed the opinion that Mr Rose had a mild traumatic brain injury and that it was likely “psychological factors have continued to confound Ethan’s cognitive function and contribute to his poor personal satisfaction”.
She made a number of recommendations for treatment and lifestyle changes. In her covering letter to Dr Kennedy, she said “management of Ethan’s mental health is key, and I would strongly advocate for him to be supported by CTP insurance for ongoing psychological therapy.”
The claimant was referred to Mindfully Well on 11 February 2011 by Dr Kennedy[19] for further counselling to assist with anxiety, panic attacks and post-traumatic stress disorder.
[19] Page 278 of the claimant’s bundle.
Records from Grafton Hospital include letters from the neurosurgical unit concerning the claimant’s benign C3/4 tumour.[20] It suggests the claimant was on the waiting list for the operation at John Hunter Hospital in October 2021.
Medico-legal reports
[20] Page 318 of the claimant’s bundle.
Claimant
The claimant relies on a report from Ms Collins, occupational therapist dated 27 March 2020. She has a history of the accident and a subsequent motor bike accident and knee injury. She also has a history of the work-related accident and back injury in November 2019.
Ms Collins has a history of the claimant’s pre-accident work in the sawmill and his post injury work as a fencing contractor and bob-cat operator which started in March 2018 but which ceased in July 2019 due to an increase in shoulder pain. Mr Rose then obtained work in November 2019 as a landscaper but fell and injured his back and could not continue working “Mr Rose reports he feels he was managing this position until the fall”.
The claimant said he was taking occasional Panadol and Nurofen.
Ms Collins says at [4.1] “Mr Rose reports he is fit for suitable duties from 07 April 2020”. She imposed a lifting and carrying, push and pull restriction of no more than 20kg with bending, squatting, twisting and driving limited “as tolerated”.
In terms of Mr Rose’s functioning at the time she reports:
(a) after the accident he completed all personal care tasks and toileting with some difficulty and was independent in eating and drinking [6.1 - 6.3];
(b) from December 2017 to the date of Ms Collins’ report the claimant was “completing all meal preparation tasks independently” [7.1];
(c) from January 2018 to the date of the report he was completing his own cleaning [7.2];
(d) from January 2018 to the date of the report the claimant had resumed doing the laundry but had difficulty hanging clothes and taking them off the line [7.3];
(e) from July 2018 to the date of the report the claimant was mowing and whipper-snipping (pacing himself) and a lightweight whippersnapper with harness was recommended [7.4];
(f) from May 2018 to the date of the report, he was washing his car as needed [7.5];
(g) the claimant reported some anxiety about shopping and crowds but was able to do his own grocery shopping [7.6];
(h) the claimant said he could not hold a spear over his head because of his physical injuries and had not been spear fishing. “He reports that his anxiety and post-traumatic stress disorder has also impacted on his capacity to complete tasks.” [7.7], and
(i) the claimant said that physically he was able to drive but that his post-traumatic stress disorder was impacting his driving and he avoided it “where possible” [7.8].
Ms Collins’ conclusion at [8.1.3] was that the claimant’s psychological state was impacting his ability to socialise and that he ceased therapy due to his work commitments and “noted a decrease in his driving capacity and increase in social anxiety since this time and is keen to resume counselling”. She noted at [8.1.4] that there is high unemployment where he lives and that his physical injuries have affected his ability to obtain work. She refers at [8.1.6] to a report from Dr Hopcroft dated 4 March 2020 that suggested the claimant had reached maximum medical improvement and says he has had a “reasonable physical recovery” but that his psychological injury was “having a large affect on his capacity to function”.
Dr Parsonage, psychiatrist provided a report to the claimant’s solicitor on 1 May 2020. At that time the claimant was 21, living with his parents and siblings and his girlfriend visited. The claimant had worked until November 2019 but then ceased due to a back injury.
The claimant reported leaving school in year 8, going to TAFE and completing years 9 and 10. He worked at Coles, left for Queensland and then moved home and did some traffic control work.
The claimant reported anxiety as a teenager, had counselling which made him feel worse, so he stopped, and his anxiety symptoms resolved.
He gave a consistent history of the circumstances of the accident but reported that he was knocked out for about 20 minutes. He reported right leg and ankle symptoms for eight months and he has been left with neck and shoulder problems.
The psychological symptoms complained of involved travelling and driving, he had nightmares and anxiety in the car. He says he lost interest in four wheel driving and fishing and became a bit more snappy, angry and depressed because of shoulder pain.
The claimant told Dr Parsonage he had counselling and was giving medication (he said Minipress).
He reported hurting his back when he fell on a rock doing some labouring work.
Dr Parsonage noted the claimant did not satisfy the criteria for DSM-5 but that he did suffer from a specific phobia of driving and an adjustment disorder, with depressed mood. He acknowledged the previous anxiety disorder but no evidence this was affecting the claimant immediately before the accident.
In a separate report he assessed WPI at 5%.
Dr Parsonage undertook a further examination of the claimant and reported on
17 March 2022. He summarised the additional information.
The claimant reported continued problems with his neck and both shoulders.
The claimant reported an increase in anxiety and depression over the previous 6 – 9 months. He was questioned about ADHD and said he was never formally diagnosed and went to TAFE to year 10 and obtained a Certificate III in Civil Construction. He said he had got a job and lost the job because he was slow and could not remember things.
The claimant had been having no treatment but was to see his GP and find a psychologist. He was reluctant to take medication. The claimant had surgery to his neck shortly before the examination.
Dr Parsonage noted the suggestion of cognitive difficulties being related to a brain injury but considered it more likely to be related to his depression. Dr Parsonage noted that appropriate treatment would assist the claimant returning to employment which would improve his mood.
In a separate report Dr Parsonage assessed WPI at 17%.
Insurer
Dr Vickery provided a report to the insurer on 9 August 2021 after an examination on
26 July 2021.[21]
[21] Page 32 of the insurer’s bundle.
Dr Vickery has a history from the claimant of “suffering some anxiety” before the accident which was “manageable and did not significantly restrict his activities”.
The claimant reported pain in both his shoulders when he does anything, bouts of depression with reduced motivation, concern about dementia. He was having “blank outs” for up to 5 second while driving and nightmares several times a week. He was anxious with driving and his memory was affected.
The claimant was having no treatment and no medication. He reported benefit from the 10 sessions of counselling he had before the insurer stopped payment.
The claimant reported bushwalking, riding a motorbike, fishing and camping watching Youtube and helping his partner’s father with car restoration. He went out on a date night with his partner every few weeks.
Dr Vickery noted the clinical neuropsychological registrar’s report of 2 October 2020 and was of the view the claimant had a post-traumatic stress disorder with some mild neurocognitive impairment.
Dr Vickery advised further counselling was necessary but there was no accident-related need for domestic assistance or any impact on his capacity for work.
Dr Vickery assessed WPI at 1%.
Associate Professor Batchelor, neuropsychologist provided a joint report to the parties dated 13 May 2022.
She has at [3] a consistent report of the accident, the GCS scores and the hospital attendance. She also has a history of the pre-accident anxiety issues. She reviews at length a number of documents some of which are not before the Panel (mainly reports clearly relevant to the claimant’s physical injuries). Importantly she had the report of Dr Sauer.
At [4] A/Prof Batchelor tested the claimant’s memory of the accident and his pre-accident school and work history. She has a history of him working after the accident in 2018 as a fencing contractor for two to three months and then him working in a quarry between April and July 2021 but nothing in between (and not for example the job that led to the fall and injury in 2019).
Associate Professor Batchelor has a history of the claimant having cognitive assessment in Ballina about two years previously (that would be Dr Sauer) and in Brisbane in June 2021 (the Panel does not appear to have any report in relation to that assessment).
Associate Professor Batchelor administered a number of tests and says at 4.3:
“Although Mr Rose’s result on the Validity-10 Scale of the Neurobehavioral Symptom Inventory was not indicative of a deliberate attempt to exaggerate disability, his scores on all other measures provided unequivocal evidence of suboptimal performance.”
She also said:
“… 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 [to Ms Sauer]. 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.”
She expressed the view at [5] that:
(a) the claimant did have a mild traumatic brain injury caused by the accident based on his GCS score of 14 and mild amnesia of a short period after the accident;
(b) he did not give the testing his best abilities, and
(c) the results therefore of her testing were invalid and she could not ascertain any genuine cognitive impairment from the head injury.
She did express the view that psychiatric disorder or chronic pain could explain any cognitive impairment present but that to definitively determine that she would require the claimant to be “working to the best of his abilities” on testing.
RE-EXAMINATION FINDINGS
History provided by the claimant
Work history
Mr Rose was aged 25 at the time of the assessment. He said he had been the recipient of a disability support pension for seven months based on the combined diagnoses of a post-traumatic stress disorder and depression, together with a variety of physical complaints.
He said that he last worked in 2021 or 2022, as an excavator, and then did a day’s work around six months later. He said, though, that he was incapable of work as it was physically too challenging, and he could not cope with the commute. He said, with respect to the driving, that, when he worked he had to drive into town to the depot, a 25-minute commute, and was then required to drive from the depot to a job site. He said that this overwhelmed him. He said that when he drove his eyes were “hurting” and he was “spacing out”. He said it felt dangerous for him to drive. He added that he felt as though he was “not there enough in [his] mind”. He said that, while driving, he felt anxious and experienced a tension headache behind his eyes. He said that when he drove, he would be scanning his environment and panicking and felt as though he was floating. He has informed his GP about these symptoms but has retained his driver’s licence.
We asked Mr Rose about his work history, and he told us that he left school in Year 8 or 9 as he was bullied. He said that, as a result of the bullying, his school life was not enjoyable and he found it hard to do anything in class. He said that he then went to TAFE where he did Year 10 equivalent study. He said that he did “really well” with that. He said that he then got a job at Coles collecting trolleys and cleaning for around 16 hours per week. He said that he did that work for around a year. He said that, while he was working at Coles, he studied at TAFE and obtained a Certificate III in civil construction and plant operations. He said that he lost his job at Coles as there was a scheduling conflict with TAFE.
After this, Mr Rose said he then moved to Queensland where he unsuccessfully tried to get work for a period of two months. He returned home to find work and said that he “may have” had a job with a sawmill, however, he could not recall the terms of his engagement. He acknowledges that he has never had a permanent full-time job. He also acknowledged that he was receiving assistance in job-seeking on the basis of pre-existing anxiety around the time of the subject accident. At that time, he said he was living with a mate as he had an argument with his mother and was not receiving help from anyone. Mr Rose admitted that he had motivational problems for work before the subject accident, had significant anxiety and found it difficult to talk to others. Before the subject accident, he had a period of unemployment lasting for around one year.
Psychiatric history before the accident
We asked Mr Rose about his psychiatric history pre-dating the subject accident. He said that he had “bad thoughts” at around the age of 15 or 16. He said that at primary school it was believed that he may have had an ADHD. He specifically denied psychological problems arising from the bullying at school.
We asked Mr Rose to elaborate on what he meant by “bad thoughts”. He said that he would have thoughts that would randomly pop into his head about his brother or parents getting stabbed. When he experienced those thoughts, his heart would race and said it was “sort of similar to now when I have thoughts about the accident”. We asked him when he last had violent thoughts and he told us that he gets “the odd thought that just goes”. He last had those violent thoughts a few days before we assessed him. He said that the violent thoughts were “kind of different” to the thoughts that he had about family members. Before the subject accident, he said that he saw a psychologist on two occasions. He reported that speaking to the psychologist made him feel worse. He acknowledges that he may have discussed his anxiety with his GP. At this stage of the interview, he told us that it was his view that a job would improve his mental health. Mr Rose advised us that there was no family psychiatric history.
Medical history
Mr Rose said that he sustained a knee injury before the subject accident, which led to him losing his job at the sawmill.
Two years after the subject accident, he had a motorbike accident where he further injured his knee and sustained some lacerations and bruising. He said that the motorbike accident occurred on a dirt road on a private property. He said that motorbike riding had been his hobby, and, at the time of the motorbike accident, he had ridden that motorbike for the second time after the accident that is the subject of this claim.
We asked him about any psychological impact from the motorcycle accident, and he said that he did not think it affected him mentally “too much”. We reflected back to him that his mental health seemed to have deteriorated sharply after that accident. He agreed with that observation.
Mr Rose also advised us that he had an injury in a job that he undertook working on a highway after the subject accident where he slipped on rocks in a drain and hurt his back. He said that he sustained a soft tissue injury to his back and made a workers’ compensation claim for physical injuries. He said that that injury was resolved a few months later.
He was unaware of any other personal or family psychiatric history.
Other relevant history
He consumes one to two serves of alcohol on weekends. He denies that alcohol consumption has ever been a problem. He denies the use of cigarettes or illicit substances.
We asked about any history of problems with the law. He said that he committed an offence when he did not use P plates. He did not describe any other past problems with the law.
There were no other noted personal injury claims apart from his workers compensation lower back injury claim.
Family history
Mr Rose was born in Grafton and said that he has lived in Grafton most of his life, other than a short period in Queensland.
His father is alive, and he advised us that his relationship with him was “quite good”. His parents cohabitate, although they are not in a relationship. His mother writes plans for individuals receiving National Disability Insurance Scheme (NDIS) benefits. He has two brothers and is the second of the sibship.
He denied any adverse early life events or difficulties growing up.
Current situation
Current treatment
At the time of the assessment, Mr Rose was under the care of a GP alone. He said that he last received psychological treatment through PsychNEXUS over a year before the assessment. He could not recall the names of the psychologists who have treated him. In total, he thought he had seen around three psychologists. He advised us that treatment had been helpful. When we asked Mr Rose how the treatment had helped, he did not provide a clear response. He then volunteered that, in his view, he had psychologically deteriorated over time.
At the time of the assessment, he was taking no psychotropic medication. He said that he had, in the past, taken medication for his nightmares, however, experienced intolerable side-effects. He said that he was scared about taking antidepressant medication as he did not respond well to it. He said that a friend had tried to suicide on antidepressants, making him especially cautious.
He said he may take Palexia (an opioid analgesic) once per week if his pain is “really bad”.
Current symptoms
We asked Mr Rose about his experience of the diagnosed conditions. With respect to the diagnosis of a post-traumatic stress disorder he told us that he experienced nightmares most nights of the week. He said that he may have one night per week where he does not have nightmares.
He said that he may also experience random memories of the subject accident that he said recently included a “smashing sound”. He said that these recollections make him want to crawl into a ball, however, he has not done that. He said that he struggles to sleep and cannot get the subject accident out of his head. He said that, even as a passenger, he is continually scanning his environment for danger. He told us that he felt, “spaced out all the time” and likened his head space to being in a dream. He added, “It almost feels like I’ve died in a car accident, and I am living in a dream”. He told us that the nightmares could be about the car accident or about car accidents that had not happened.
After experiencing a nightmare, Mr Rose says that he tries to clear it from his mind. He said that most nights he is sleeping for between four and five hours. He says that he believes his nightmares are getting worse over time because he is inactive. A year before we assessed him, he said that, on average, he was experiencing nightmares four times per week, and two or three years ago two or three times per week.
He says that the nightmares began immediately after the subject accident. He said that he first informed another person (his mother) about the nightmares five to six months later. He said that he first told a professional about the nightmares around a year after the subject accident. He said that before the subject accident he had nightmares “here and there about random stuff”. He acknowledged that he would have bad thoughts about things that could happen to his family and “the odd nightmare”. He said those nightmares stopped once he got a job and was working in Coles in 2015.
We asked Mr Rose about his experience of depression. He said that he feels as though he has no meaning in his life. He said that he was “sort of sitting around waiting to die”. He told us that he felt “worthless as a man”. He said he feels as though he has had no young adulthood and said that it was like it had “been stolen”. He said that he used to enjoy going fishing and thinks about killing himself daily. He recalls an incident around 18 months before we assessed him in which he had an argument with his girlfriend and felt like jumping out of a car. He said, more recently, that there was an incident five months before we assessed him when he contemplated self-harm and he took three painkiller tablets. He said that he did not carry through with a suicide plan as he did not want people to find him. He said that his ‘depression’ had got worse as he is “meant to be like a man”. He said that he sees old friends living life, having children and families and he is doing nothing. He told us that he felt as though he was a drag on his girlfriend and others.
Current functioning
We asked Mr Rose why he thought he was unable to work. He said that he has “no motivation anymore”. He said that, when he did have motivation, it was difficult for him to find a job as he lives outside of town. He said there is not a lot of demand for work where he lives and transport has been a “huge factor”. He said that if someone else took him to work, his motivation would remain an issue. He said that he does not like being in a car with anyone, other than his girlfriend. At present, he said that it was “not worth it” as he is “too far behind”.
At the time that we assessed the claimant, he was living with his girlfriend, Briony, and her parents. He has been living in his current situation for “a few years”. At the time of the subject accident, he was living with a friend.
His relationship with Briony commenced following the subject accident, although he said they knew each other before the accident. They have been together for four to five years. Briony is aged 23 and works on a full-time basis in retail and she studies. He said that the relationship with Briony was “really good at the start”, although for the past two years it had been “a bit difficult”. He said that she has been frustrated with him as she is “doing everything” and “sick of having to drive [him] around”. He said that they argue because he smells. He said they may argue because he will “space out and doesn’t hear”. He told me they had broken up “for a week or two” and it was “almost like we are friends”. He said there are no plans to marry, and he has no children.
He says that his relationship with Briony’s parents is okay. He said that, since Briony’s father returned from Antarctica at the beginning of 2024, he is annoyed with Mr Rose sitting around the house and not contributing. Mr Rose says that he has no motivation to contribute and merely sits in his room. He said that he presently has a good relationship with his mother.
At the start of the day, Mr Rose said that he will wake naturally or Briony will wake him up. He said that Briony will then drop him off at his mother’s house and he stays there until she picks him up to take him home. While at his mother’s Mr Rose says he spends his time on his phone watching YouTube videos. He said that he talks to his mother when she does not work every second Friday. He said that he has done little else in the last eight months. He reinforced voluntarily that, over that same timeframe, Briony has done all of the cooking, washes his clothes and “doesn’t get a break”.
He has one friend who rings him. They speak on a weekly or fortnightly basis. He said that he has not seen that friend for a long time.
He told us that he enjoyed fishing but had not done that for the six months before we assessed him. When asked why he stopped fishing, he referred to arguments he was having with Briony and difficulties he had with driving.
He told us that he last drove in June 2023. He said that he hates driving as he will “space out”. He said that he cooks small items, such as toast and cleans on an occasional basis with prompting from Briony. He said that Briony does the shopping. He said that he dresses himself, but does not change his clothes often. He said that he showers every three or four days when someone around him complains. He said that he does not see a need to shower.
We asked him about some specific symptoms. Mr Rose said that he had not weighed himself recently, although he believed that his weight had increased. He said that he “feels like shit” most of the time and “doesn’t want to be here”. He said that he does not enjoy anything. He told us that he would have difficulty concentrating on a video as his mind will not be focused. He estimated that his concentration span was for between 15 and 20 minutes, with a maximum of 30 minutes until he will need a break. At the conclusion of the interview, we reflected back to Mr Rose that he had been speaking to us for over an hour and a half without any observed difficulty, in contrast with his assertions. He acknowledged our observations to be correct.
History of the accident
We discussed the accident that is the subject of this claim. Mr Rose told us that he could remember “bits and pieces”. He said that he had been drinking before the accident. He said that the accident occurred somewhere between 6:00 and 7:00pm on 6 November 2017. He was seated in the rear of the vehicle on the passenger side. He was restrained. He recalls the weather as being inclement.
He said the driver of his vehicle lost control of the vehicle and hit a tree. He said that he remembers the smashing and looking at his friend. He thinks he was “knocked out”. He recalls people talking and said that he left the accident scene by ambulance. He was taken to the Grafton Hospital where he stayed overnight.
He first sought medical attention from his GP a couple of weeks after the accident in relation to physical complaints. He said that he has been treated with physiotherapy, surgery to his cervical spine and injections to his neck. He said that he complained about his mental health around 12 months later. He has attended a pain clinic.
Post-accident functioning
About four months after the accident, Mr Rose began working in fencing. He said he was working on a full-time basis when it was not raining. He told us that he worked for around five months trading under his own ABN. He said that he stopped that work due to his physical complaints in relation to his shoulders and neck. At that time, while he said he preferred not to drive, he was able to drive on a regular basis, and did so according to the work requirements.
He then did highway work as a labourer for two to three weeks on a casual basis working full-time hours before he was hurt during that job. He then worked as a welding apprentice for two days in what was supposed to be full-time employment. He said that he only lasted for two days due to a combination of the long drive and grinding that he said hurt his shoulders.
At the conclusion of the interview, we reflected back our observations to Mr Rose that his mental functioning did not appear to cause significant disability for the first few years after the subject accident. We asked Mr Rose for his response, and he said that his constant pain has chipped away at him over the period. He said that an operation to remove scar tissue at the level of C3/C4 did not stop his pain experience.
Mental state examination
Mr Rose presented as a man of stated years who had a full beard and frontal balding. His level of self-care and grooming appeared to be normal. His psychomotor functioning was normal. He was engaged and attentive throughout the interview process. At no stage was he observed to be distressed or disordered.
His speech was normal in form. The content of his speech emphasised his disability. His self-reported symptoms appeared to be excessive when compared with the mental state observations. His narrative was heavily focused on disability, with self-reported functioning and language closely aligned with the explanatory guide to the use of the PIRS scale.
His narrative indicated a sharp decline in psychological functioning in 2020 which he agreed was at a time after his motorbike accident and which also coincides with him being certified by Ms Collins as fit to return to work. At interview, he stressed themes of helplessness and hopelessness.
His affect was bright and reactive. He did not look depressed, anxious or disordered at any stage. His affect was inconsistent with his narrative.
His cognitive functioning was normal at a clinical level.
There was no evidence of psychosis.
CONSIDERATION OF THE ISSUES
Is the claimant’s evidence reliable?
Associate Professor Batchelor provided a joint medico-legal report at the request of both parties. She concluded, “the data provided unequivocal evidence of a deliberate attempt to exaggerate impairment.”
It is the Medical Assessors clinical judgment that, at the re-examination, the claimant was attempting to minimise his pre-accident condition and maximise his post-accident state.
Because of this finding, the Panel is of the view that we should approach with caution the claimant’s evidence and look for confirmation in the medical records or elsewhere.
Causation of injuries
The test of causation of injury formulated in cls 1.5 – 1.7 of the Guidelines requires the Panel to answer two questions:
(a) could the motor accident have caused or contributed to the occurrence or worsening of a psychological or psychiatric disorder?
(b) did the motor accident in fact cause or contribute to the occurrence of worsening of a psychological or psychiatric disorder?
The Panel notes that Mr Rose’s accident occurred at night in the wet, when the car slid out of control and hit a tree. The claimant was trapped for an hour and was transported to hospital. While he was lucky to escape serious injury the medical evidence suggests he sustained injuries to his right ankle and both shoulders.
It is the clinical judgment of the medical members of the Panel that the claimant could have sustained psychological or psychiatric injury as a result of the circumstances of his accident.
The question remains whether the accident did cause or contribute to the occurrence of or worsening of a psychological or psychiatric injury.
Mr Rose is a 25-year-old disability support pensioner who was, at the time of the accident 19 years of age. He had significant pre‑existing psychological difficulties before the subject accident. He had a patchy work history, anxiety, motivational problems and interpersonal problems pre-dating the subject accident.
Following the subject accident, Mr Rose was able to engage in full-time work without psychological restriction, commenced a new relationship and did not advise his treating GP about psychological difficulties until 2018, about a year after the subject accident. This is, in the clinical experience of the Medical Assessors, medically plausible particularly in a relatively unsophisticated young man. Psychological symptoms are often slow to emerge, sometimes difficult to associate with a disorder, particularly in the light of the claimant’s pre-accident experiences and as the claimant’s physical injuries have also appeared to progress and have not recovered over time.
The Panel is satisfied that the claimant did sustain a psychiatric disorder as a result of the accident.
Diagnosis of the claimant’s current condition
The Medical Assessors are of the view that the claimant satisfies the diagnostic criteria for a post-traumatic stress disorder in accordance with DSM-5 as follows:
(a) the accident satisfies Criterion A as outlined in paragraph 172;
(b) the claimant described distressing, intrusive recollections and re-experiencing phenomena satisfying Criterion B;
(c) Mr Rose is avoidant of driving thus satisfying Criterion C;
(d) he satisfies Criterion D with prominent negative alterations in his cognitions and mood after the accident;
(e) he satisfies Criterion E with irritable behaviour, angry outbursts and self-reported problems with concentration and sleep disturbance;
(f) Mr Rose satisfies Criterion F as the disturbance has lasted for more than one month, and
(g) Criterion G is satisfied because the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning. There are dissociative symptoms for that diagnosed condition.
The Medical Assessors also considered whether the claimant’s condition satisfied the criterion of an adjustment disorder in accordance with DSM-5 as follows:
(a) Criterion A requires the development of symptoms in response to a stressor such as the accident, within three months of the onset of the stressor. While the claimant’s depressive symptoms did not appear to emerge (on the claimant’s history) until six months after the accident, his depressive symptoms appear to be related to the ongoing physical symptoms and his slow recovery;
(b) Criterion B.1 was satisfied as Mr Rose has exhibited marked distress that was disproportionate to the severity or intensity of the stressor;
(c) Criterion C is not satisfied because the symptoms also meet the criteria of another mental disorder (post-traumatic stress disorder), and
(d) Criterion D is not relevant, and Criterion E is not relevant because the stressor (the ongoing pain) has not ceased.
The claimant has had treatment for his symptoms including psychological counselling although it appears he has not trialled medication. The Panel is satisfied that the impairment is permanent and unlikely to change in the near future.
The findings of the Medical Assessors following their clinical examination of the claimant are documented in the table below.
PIRS Category Class Reason for decision Self-care and personal hygiene 2 Mr Rose said that he cooks small items, such as toast and cleans on an occasional basis with prompting from Briony. He said that Briony does the shopping. He said that he dresses himself but does not change his clothes often. He said that he showers every three or four days when someone around him complains. He said that he does not see a need to shower.
The Medical Assessors discussed awarding the claimant a class 3 and considered the disclosures made by the claimant concerning his self-care and reported neglect. When compared to his presentation at the re-examination, the assessment by the occupational therapist and the documented exaggeration on testing by Dr Batchelor the Panel decided a class 2 was more appropriate.
Social and recreational activities 2 Mr Rose said that he enjoyed fishing but had not done that for the six months before we assessed him. He said he has one friend who rings him. They speak on a weekly or fortnightly basis. He said that he has not seen that friend for a long time.
The Medical Assessors discussed awarding a class 3 and considered the disclosures made by the claimant concerning his social and recreational activities and his self-reported difficulties. When compared with his documented participation in fishing and trail bike riding after the accident, the assessment by the occupational therapist and the documented exaggeration on testing by Dr Batchelor and consider a class 2 impairment more appropriate.
Travel 2 He said that he does not like being in a car with anyone, other than his girlfriend. While he appeared to have no difficulty travelling for the first year after the accident, he told us that he last drove in June 2023. He said that he hates driving as he will “space out”.
His currently reported travel functioning was evaluated against his post-accident functioning and the documented exaggeration on testing by Dr Batchelor. The Panel also noted that the claimant has maintained his driver license at all times since the accident.Social functioning 2 The claimant commenced a relationship following the subject accident and that relationship continues.
Mr Rose reports that the relationship is strained, although the panel notes they are cohabitating (and cohabiting with the mother and father of his girlfriend). The Panel notes other aspects of the history including the claimant’s relationship with his own mother (fractured close to the time of the accident and now repaired) suggest a class 2 impairment.Concentration, persistence and pace 1 The claimant told us that he would have difficulty concentrating on a video as his mind will not be focused. He estimated that his concentration span was for between 15 and 20 minutes, with a maximum of 30 minutes until he will need a break.
At the conclusion of our interview, we reflected back to Mr Rose that he had been speaking to us for over an hour and a half without any observed difficulty, in contrast with his assertions. He acknowledged our observations to be correct.Employability 2 The claimant was not working at the time of the subject accident, had a history of inconsistent work predating the subject accident and was able to obtain employment and work following the subject accident without psychological restrictions until his physical symptoms or other accidents and events intervened.
His currently reported work capacity was evaluated against his post-accident functioning and the documented exaggeration on testing by Dr Batchelor.
The claimant’s class scores arranged in order are 1, 2, 2, 2, 2, 2 and the median of those scores is therefore 2. The total of the scores is 11.
With reference to Table 17, this translates to a class 2 impairment of 5%.
Adjustments
The Guidelines permit the adjustment of WPI for:
(a) treatment;
(b) a pre-existing disorder, and
(c) subsequent disorders.
Clause 1.222 and 1.223 of the Guidelines enables WPI to be adjusted upwards for the effect of prescribed treatment on the basis of four matters one of which is that ceasing the treatment will result in the deterioration of symptoms or worsening of function.
As the claimant is not having any current treatment, the Panel is of the view there is no treatment to cease and therefore no allowance can be made for treatment.
Clauses 1.31 – 1.33 and 1.218 enables WPI to be adjusted for a pre-existing impairment. This requires the estimate of the pre-existing impairment which is then to be deducted from the current impairment. The Panel is of the view that the claimant had a pre-existing symptomatic anxiety disorder before the accident based on Mr Rose’s well documented, diagnosed and treated anxiety disorder including an attendance on his GP three weeks before the car accident. This is likely to have affected some of the six PIRS categories in particular social functioning (noting that the claimant reported being kicked out of home by his mother) and adaptation (the claimant appears to have been given a certificate for Centrelink benefits on the basis of this anxiety disorder).
In the light of the Panel’s finding that the claimant does not have a WPI of greater than 10%, the Panel does not consider it necessary to further consider the degree of the pre-existing impairment.
Clause 1.34 provides for the adjustment of WPI for subsequent and unrelated injuries and impairment. The Panel notes that the claimant lost his pre-accident sawmill employment due to an injury and subsequently lost his landscaping job because of an injury. The Panel also notes the claimant’s involvement in a motor bike accident in February 2020 which the claimant conceded at the re-examination may have been associated with a deterioration of his condition. There is certainly evidence that the claimant was functioning well up until early to mid-2020 (the assessment of Dr Parsonage assessed the claimant’s WPI at 5%) and the claimant’s own occupational therapist expert documented the claimant’s functional abilities in March 2020 which were much better than the claimant’s reports to the Medical Assessors.
Again, noting the Panel’s assessment of WPI at not greater than 10%, the Panel does not consider it necessary to further consider any or all of these post-accident events and their effect on the claimant’s impairment.
CONCLUSION
As the Panel has found the claimant’s WPI as a result of the injuries caused by the accident not greater than 10%, it follows that the certificate of Medical Assessor Shen should be revoked.
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