Insurance Australia Limited t/as NRMA Insurance v Shanks
[2023] NSWPICMP 64
•1 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Shanks [2023] NSWPICMP 64 |
| CLAIMANT: | Brett Steven Shanks |
INSURER: | Insurance Australia Ltd t/as NRMA Insurance |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Michael Hong |
MEDICAL ASSESSOR: | Atsumi Fukui |
| DATE OF DECISION: | 1 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury as he was cycling as part of a group and struck by the insured vehicle; the dispute related to the assessment of permanent impairment under of psychological injury and various treatment disputes; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; parties referred treatment disputes including need for Endep which the claimant had ceased taking; findings made that claimant would require ongoing treatment by general practitioner at six times per year for 30 years for ongoing review including prescribing medication; Held – claimant assessed at 7% permanent impairment in respect of the psychological injury and various findings made for treatment disputes; original assessments revoked. |
| DETERMINATIONS MADE: | |
Medical Assessment – Permanent Impairment
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) is as follows:
The Review Panel revokes the certificate of Medical Assessor Shaikh dated 15 June 2021 and issues a new certificate that the following injuries caused by the motor accident give rise to a whole person impairment which is NOT GREATER THAN 10%.
Medical Assessment – Treatment and Care
Review Panel Assessment of Treatment and Care
Certificate issued under s 63 of the Motor Accidents Compensation Act 1999
The Review Panel revokes the certificate of Medical Assessor Shaikh dated 15 June 2021 and issues a new certificate that:
“The use of any Endep per month in relations to all psychological injuries from the date of the medical assessment and continuing for a further forty-three years is not causally related to the injury sustained in the subject accident.
The use of any Endep per month in relations to all psychological injuries from the date of the medical assessment and continuing for a further forty-three years is not reasonable and necessary related to the injury sustained in the subject accident.
Six GP consultations per year in relations to all psychological injuries from the date of the medical assessment and continuing for a further thirty years is causally related to the injury sustained in the subject accident.
Six GP consultations per year in relations to all psychological injuries from the date of the medical assessment and continuing for a further thirty years is reasonable and necessary related to the injury sustained in the subject accident.”
REASONS
BACKGROUND
Mr Brett Shanks (the claimant) suffered injury in a motor accident on 21 October 2017 when he was cycling as part of a group and was stuck by a motor vehicle (the motor accident).[1]
[1] Insurer’s bundle, p 56.
Insurance Australia Ltd (the insurer) is liable for the driver of the motor vehicle for liability to pay to Mr Shanks any damages under the Motor Accidents Compensation 1999 (the MAC Act).
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”.
Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
The present disputes between the parties are whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10% and various treatment disputes. These constitute medical disputes within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
The treatment disputes were:
“Whether the use of 0 to 30 tablets of Endep per month in relations to all psychological injuries from the date of MAS assessment and continuing for a further zero to forty-three years is causally related to the injury sustained in the subject accident.
Whether the use of 0 to 30 tablets of Endep per month in relations to all psychological injuries from the date of MAS assessment and continuing for a further zero to forty-three years is reasonable and necessary related to the injury sustained in the subject accident.
Whether 0 – 6 GP consultations per year in relations to all psychological injuries from the date of MAS assessment and continuing for a further zero to forty-three years is causally related to the injury sustained in the subject accident.
Whether 0 – 6 GP consultations per year in relations to all psychological injuries from the date of MAS assessment and continuing for a further zero to forty-three years is reasonable and necessary related to the injury sustained in the subject accident.”
Section 44(1)(c) of the MAC Act provides that the 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.
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.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[4]. In Raina v CIC Allianz Insurance Ltd[5] 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.”
[4] See s 3B(2) of the CL Act.
[5] [2021] NSWSC 13 (Raina) at [65].
CONDUCT OF THE REVIEW
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 Shaikh dated 15 June 2021 who assessed the permanent impairment at 15%. The Medical Assessor also assessed the treatment disputes in the claimant’s favour.
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.[6]
[6] Section 63(7) of the MAC Act.
On 27 May 2022, the delegate of the President[7] 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.[8]
[7] Insurer’s bundle, p 17.
[8] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the Act and Schedule 1, cl 14F(2) of the Personal Injury 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 (the Commission) .
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.[9]
[9] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[10]
[10] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[11]
[11] Section 63(3A) of the Act.
MEDICAL ASSESSMENT UNDER REVIEW
This review is from the assessment of Medical Assessor Shaikh dated 15 June 2021 who determined that Mr Shanks suffered 15% permanent impairment due to psychological injury.[12] The Medical Assessor found that the claimant suffered from post-traumatic stress disorder and an adjustment disorder.
[12] Claimant’s bundle, p 161.
The Medical Assessor answered each of the treatment questions “yes” with a time limit of five years for the first two disputes.
OTHER MEDICAL ASSESSMENT
Medical Assessor Oates issued a Medical Assessment dated 27 August 2021 relating to various treatment disputes.[13] The Medical Assessor stated:[14]
“Based on the history provided by the claimant and file evidence, I find the accident was a cause of a soft tissue injury to the cervical spine, open fracture volar plate and dislocation of left 5th finger proximal interphalangeal joint, soft tissue injury to right wrist with TFCC (triangular fibro cartilage complex) tear and aggravation of ulnar positive variance at the distal radial ulnar joint, soft tissue injury to left ankle; soft tissue injury to left elbow (lateral epicondylitis) and multiple abrasions.
I note a neurologist Medical Assessor, Dr T Coyne, diagnosed a head injury with scalp contusion with persisting neurological symptoms including headache, cognitive dysfunction, dizziness, balance impairment perception, not accounted for by any structural brain injury sustained in the accident and therefore likely to relate to other factors, such as the psychological conditions as described in psychology/ psychiatry reports, and also Mr Shanks’ persisting pain.
I do not find that injuries to the left knee and right hip are causally related to the accident. This is because of the long time lag between the accident and the onset of symptoms in these regions. Had these injuries been caused by the accident, symptoms would have been expected within a few days of the accident at the latest.”
[13] Claimant’s bundle, p 171.
[14] Claimant’s bundle, pp 181-182.
SUBMISSIONS
Insurer’s submissions dated 9 July 2020[15]
[15] Insurer’s bundle, p 40.
These submissions cover medical disputes for “future treatment and future domestic assistance”. Some of these disputes are not before the Panel.
The insurer submitted that the only physical injury was an open dislocation of the left 5th finger, the claimant is not suffering post-traumatic stress disorder and only “in fact suffering an Adjustment Disorder”.[16] It otherwise submitted:
“[T]he claimant’s ability to travel and undertake other activities is also at odds with the level of impairment suggested as a result of the diagnosis.”
[16] Insurer’s bundle, p 49.
The insurer referred to pre-accident medical records:
(a) 3 January 2012 – short term memory loss;
(b) 17 February 2014 – anxiety advice and counselling, and
(c) 31 July 2012 – anger outbursts and reporting a major stress as “child/past work history”.
The records of Ms Pennant, Dr Mitchell and Dr MacDonald confirm the claimant had previously seen a psychologist.
The insurer submitted that “MRI scans and neuropsychological testing have determined that the claimant has not suffered a brain injury”.
The insurer noted opinions that the claimant was a perfectionist and rigid. How this affected the issues for determination was unclear from its submissions.
The insurer referred to the opinion of Dr Levi, psychologist, who recorded that the claimant had not returned to jogging (inconsistent with paragraph 63 and 64). The doctor diagnosed an adjustment disorder and noted prior issues dealing with stress. In a subsequent report the doctor noted that the claimant was “significantly more connected with the sporting community, and had returned to engage in a number of premorbid sporting activities” such as running and swimming and having travelled to Japan and Bali. A snowboarding holiday in Japan was not mentioned to the doctor.
The differences in DASS assessment indicated possible exaggeration or the claimant’s rigid personality.
Dr Levi assessed the claimant at 5% and Dr Rowe made an assessment of 6%.
The claimant relied upon the opinion of Dr Chau who diagnosed an adjustment disorder. However, the doctor was not advised of pre-accident psychological history and the traumatic childhood. The doctor was not advised of the claimant’s travel activities.
The insurer referred to the following post-accident activities:
(a) swimming 30 minutes, twice per week (Ms Paull – 1 April 2018);
(b) volunteering for Meals on wheels (Dr MacDonald – August 2018);
(c) quite functional and able to jog, swim and go the gym (Mr Newton –
17 August 2018);(d) running and swimming (Pindarra physiotherapy – 5 November 2018);
(e) right ear problems due to swimming (18 December 2018);
(f) gym program three days per week (Dr Sharwood);
(g) morning runs and surfing with children (Dr MacDonald – 20 March 2019);
(h) injured left knee after running or surfing (Dr MacDonald – 11 April 2019);
(i) snowboarding in Japan (Facebook post 24 February 2019);
(j) directing adult swimmers (Instagram account – 15 November 2019);
(k) engaging in a park run (March – August 2019);
(l) race secretary for Laurie Lawrence Swim Club (confirmed in a statement) and under 7’s Age Manager for Tugun Surf Life Saving Club (2019 – 2020), and
(m) travel to Bali on 19/20 July 2018 and Tokyo in February 2019 (particulars).
The insurer “also understood” that the claimant had engaged in the following activities:
(a) travel to Bali (July 2019);
(b) travel to Sydney (August/September 2019);
(c) travel to Noosaville (4 November 2019), and
(d) assisting his wife in the running of her hairdressing business.
Dr Levi opined that the claimant would require psychological treatment until the end of 2020.
In mid-April 2019 Dr Chau recommended various treatment including psychiatric medication for five years.
Insurer’s submissions dated 11 August 2020[17]
[17] Insurer’s bundle, p 690.
The insurer did not concede that the claimant reached the threshold and submitted that he suffered from an adjustment disorder. The submissions are generally repetitive of the submissions dated 9 July 2020.
The insurer submitted that the claimant did not sustain an organic brain injury and also referred to consultations with Dr Sebastian and Dr Ray, both neurologists, whose reports had not been obtained.
In relation to the psychiatric impairment rating scale (PIRS) categories, the insurer submitted:
(a) Self-care and personal hygiene: Both Dr Levi and Dr Rowe noted that the claimant was well-dressed and there was no deficit. The physical activity and training post-accident suggests a person who values a fit and healthy lifestyle.
(b) Social and recreational activities – various references show the claimant swimming and running, engaged in gym programs and surfing. The claimant volunteered for the Club and travelled overseas with his family.
(c) Travel – the claimant has travelled to Bali in July 2018 and July 2019, Japan in February 2019 for his 40th birthday and both Sydney and Noosaville.
(d) Social functioning – there were pre-accident family tensions and the rating was otherwise class 2.
(e) Concentration – the claimant has been working in his wife’s business for at least ten hours per week, in conjunction with invoicing, working as a swim coach and caring for children. He has an ability to sustain focused attention.
(f) Adaption – The insurer referred to the above and the fit out of his wife’s business. The claimant has shown an ability to work at least 20 hours per week.
Insurer’s submissions dated 18 May 2021[18]
[18] Insurer’s bundle, p 649.
These submissions addressed the records produced by the Tugun Lifesaving Club and refer to the courses completed by the claimant including the Bronze Medallion. It was submitted that the level of physical activity in completing these courses was “inconsistent with the extent of the physiological incapacity asserted”.
Insurer’s submissions dated 13 December 2021[19]
[19] Insurer’s bundle, p 9.
These submissions were filed seeking a review of the medical certificates.
The insurer noted that the Medical Assessor failed to consider:
(a) previous submissions;
(b) records from Tugun Surf Lifesaving Club (relevant to the claimant’s bronze medallion and unspecified “other achievements”);
(c) bank statements;
(d) surveillance reports dated 26 May 2021 and 9 June 2021, and
(e) reports of Dr Rowe and Dr Baron-Levi;
The insurer referred to its submissions dated 11 August 2020 which were said to raise “the following issues”. Those “issues” were the following materials:[20]
“(a) The outcome of neuropsychological testing, by Dr Elsbeth;
(b) The investigations by four separate neurologists, in terms of the claimant’s reported cognitive incapacity;
(c) The medico-legal opinions of Dr Sharwood, Dr Baron-Levi and Dr Rowe;
(d) The claimant’s post-accident activities, as outlined at paragraph 52;
(e) The AHC desktop investigation report, which again highlighted the claimant’s level of activity and overseas travel;
(f) The material available as a whole, in terms of conducting a PIRS assessment.”
[20] Insurer’s bundle, p 14.
There is no paragraph 52 in these submissions.
The reference to engaging with the submissions pertaining to the PIRS criteria is a reference to its submissions dated 18 May 2021.
The reference to failing to engage with the submissions concerning the bank statements is a broad generalisation with respect to the claimant demonstrating “a degree of social activity and engagement above what was reported during the course of the assessment”.
The insurer referred to the submissions dated 10 June 2021 which addressed surveillance footage and the capacity demonstrated in that material applicable to the PIRS categories.
The insurer referred to cl 1.41 of the Guidelines relating to inconsistencies between the clinical findings of the Medical Assessor and the information obtained through medical records and other information. It was submitted that there was a failure to apply the test and to bring the “inconsistencies outlined above and observed by various medico-legal practitioners” to the claimant’s attention.
The specific inconsistencies were not outlined in the submissions.
Claimant’s submissions dated 26 May 2020[21]
[21] Insurer’s bundle, p 602.
These submissions quantify the claimant’s assessment of damages.
Claimant’s submissions dated 25 February 2021[22]
[22] Claimant’s bundle, p 35.
These submissions responded to the treatment dispute and summarised the allegations of injuries and disabilities but did not address the evidence referred to by the insurer. It was asserted that the dispute was raised late and the ongoing nature of the dispute had exacerbated the psychiatric condition.
Claimant’s submissions dated 25 February 2021[23]
[23] Claimant’s bundle, p 49.
The claimant noted the insurer’s previous concession that he exceeded the threshold based on the reports of Dr Levi dated 16 June 2019 and Dr Rowe dated 27 March 2019.
The claimant referred to the report of AHC dated 2 April 2020 and submitted:[24]
“AHC's report makes a number of allegations and assumptions based on static posts and images in a number of unverified online accounts allegedly belonging to the claimant. These assumptions do not allow for contextualisation, additional information, nor have had any input or verification from the claimant.”
[24] Claimant’s bundle, p 50.
The claimant submitted that he had not had an opportunity to respond to the report and been denied procedural justice.
The claimant submitted that pre-accident psychiatric history if “not significant” and he made no attempt to hide it. The only reference to short term memory loss is in March 2012.
The claimant referred to the head injury and submitted:[25]
“It is submitted that the fact there was a head injury is accepted by the treating and investigating practitioners. The extent of the head injury and whether it has caused any lasting impairment cannot be clearly determined. At a minimum, the psychiatric implications have been significant to the claimant, and have not been the result of exaggeration or malingering.”
[25] Claimant’s bundle, p 53.
The claimant submitted that his pre-accident rigid and perfectionist personality is not a pre-existing illness or psychiatric diagnosis. His personality “is akin to an ‘eggshell psyche’ and the effects of the injury are more severe to the claimant”.
The claimant admitted that he engaged in swimming and jogging, and these had been disclosed to various treatment providers.
The claimant noted the photograph in Japan does not show him snowboarding. Other evidence (12 May 2017 - Triathlon) depicts his pre-accident active lifestyle.
The claimant was not malingering or exaggerating the effects of his injuries referring to the opinions of Dr Mitchell and Dr Levi (by reference to the results of the TOMM).
Claimant’s submissions dated 3 May 2022[26]
[26] Claimant’s bundle, p 186.
These submissions were filed opposing the review of the Medical Assessment. We have read the submissions noting that they have marginal relevance given that the Panel is required to undertake a new assessment.
Claimant’s submissions dated 28 September 2022[27]
[27] Claimant’s bundle, p 193.
These submissions sought expedition noting that the claimant’s psychologist tragically suicided at the end of 2021 and the claimant had not found another suitable psychologist. The submissions noted the delay in the matter which had exacerbated the claimant’s poor mental health who was “at risk to himself of self-harm”.
EVIDENCE
Pre-existing conditions
In July 2012 the general practitioner noted a recent history of anger outbursts with major stressors relating to child and past work history.[28] The claimant was referred for treatment to Dr Jeffrey.
[28] Insurer’s bundle, p 313.
In September 2012, Dr Angela Jeffery, psychologist reported that the claimant had attended for four sessions of psychological treatment associated with feelings of frustration, irritability and intolerance.[29]
[29] Insurer’s bundle, p 307.
In February 2014 there is reference by the general practitioner to anxiety advice and counselling.[30]
Claimant’s statement dated 13 April 2020[31]
[30] Insurer’s bundle, p 315.
[31] Claimant’s bundle, p 1.
The claimant provided a lengthy statement. The following is a short summary of its contents.
The claimant was fit, active, healthy and in full employment prior to the motor accident. He stated:[32]
“Dealing with the early onset of PTSD, loss of cognitive functioning, memory loss and multiple injuries has created stress and anxiety on a large scale. Trying to adapt to these changes, the loss of my independence i.e. work vehicle taken away followed by job loss and unable to do active like I was so use too, sent me into a very dark place where on several occasions I considered taking my life. Luckily with the support of my family and even more so the psychologists I see weekly and psychiatrists I see monthly we have been able to manage this with heavy medication and learning new skill to deal with the changes.”
[32] Claimant’s bundle, p 10.
The claimant described his three overseas trips and the assistance he received from parents in managing the under 7’s group at the Club. He noted that he commenced swim coaching at the end of 2019 averaging between 7 and 11 hours per week. This ceased on
19 March 2020 due to COVID-19.
Statement – Ms Shanks dated 13 April 2020[33]
[33] Claimant’s bundle, p 20.
Ms Shanks stated she had read her husband’s statement and agreed with it. Ms Shanks stated that she had witnessed her husband’s ongoing struggles with pain, mental challenges and constant battles with the insurer.
Contemporaneous medical evidence
The ambulance record confirmed the motor accident noting abrasions to various body parts.[34]
[34] Insurer’s bundle, p 126.
The hospital discharge noted abrasions and friction burns to multiple sites and an open fracture of the finger.[35]
[35] Insurer’s bundle, p 135.
The initial clinical note of the general practitioner referred to fracture of the finger, right wrist disruption, whiplash, bruised left skull and short-term memory loss.[36]
[36] Insurer’s bundle, p 196.
On 27 November 2017 the general practitioner referred the claimant to Ms Pennant for review and continuing management for anxiety and post-traumatic stress disorder.[37] In a report dated 22 October 2018 the doctor noted that psychologically, the claimant had “ongoing problems”.[38]
[37] Insurer’s bundle, p 200.
[38] Claimant’s bundle, p 134.
Qualified evidence
Dr Karen Chau, psychiatrist, was qualified by the claimant and provided a report dated
17 June 2019.[39][39] Claimant’s bundle, p 107.
The doctor opined that antidepressant medication should continue for a further five years and psychological treatment continue for 12 more sessions. The claimant required 10 more session with a psychiatrist.
Dr Chau diagnosed an adjustment disorder and assessed impairment at 17% noting that if further inconsistent information became available then this would be altered. As part of the assessment the doctor noted that travel was limited to “local and familiar territory” and employment was limited in a supportive environment for up to 10 hours per week.
Dr Jeffrey Levi, psychologist, was qualified by the insurer and provided an initial report dated 15 June 2019.[40] The doctor diagnosed the claimant with an adjustment disorder with anxiety with the prognosis being guarded given the claimant’s rigid personality and perfectionism and assessed impairment at 13%.
[40] Insurer’s bundle, p 78.
Dr Levi provided a further report dated 3 April 2020[41] commenting on the further information. After reviewing the material, Dr Levi observed that “Mr Shanks was significantly more connected with his sporting community and had returned to engage in a number of premorbid sporting activities”. The doctor noted that the trip to Japan in February 2019 was not mentioned in the June 2019 examination.
[41] Insurer’s bundle, p 70.
In light of the further information, Dr Levi changed his assessments for social and travel capacities as well as concentration and assessed the claimant at 5%.
Dr William Rowe, psychiatrist, was qualified by the insurer and provided a report dated
27 March 2019.[42] The doctor diagnosed post-traumatic stress disorder which is often a chronic condition and assessed impairment at 15%.[42] Insurer’s bundle, p 102.
Dr Rowe provided a supplementary report dated 4 May 2020 in response to further information.[43] The doctor opined that the claimant was doing more activity, more travel and more social activity than he was led to believe. He otherwise changed his assessment on adaption and did not believe that further psychological treatment was required.
[43] Insurer’s bundle, p 98.
Dr Rowe maintained his diagnosis of post-traumatic stress disorder but substituted a diagnosis of an adjustment disorder of mixed type for the previous diagnosis of major depression. The doctor assessed permanent impairment at 6%.
Treating evidence
In February 2018 Ms Pennant, psychologist noted feelings of anxiety, irritability, frustration, reduced concentration and poor short-term memory associated with recovery from the physical injuries. The psychologist recommended further treatment.[44] This opinion was confirmed in a subsequent report dated 20 November 2018 with a recommendation that the claimant be referred to a psychologist with greater expertise in the clinical management of post-traumatic stress disorder.[45]
[44] Insurer’s bundle, p 355.
[45] Claimant’s bundle, p 140.
In a report dated 7 June 2018, Dr Richard Adams, neurologist, opined that there were no neurological sequelae to the motor accident and the consequence of the injury “have mainly been on a psychological basis”.[46] Following an MRI scan of the brain, Dr Adams opined in June 2018 that the “major effects” are “along the line of posttraumatic stress disorder”.[47]
[46] Insurer’s bundle, p 387.
[47] Insurer’s bundle, p 388.
In a report dated 12 July 2018, Dr MacDonald, psychiatrist noted a lack of confidence and assertiveness. Perfectionism was described as a pre-morbid trait. In August 2018 the doctor noted the claimant had planned for a graduated work plain in a Meals on Wheels branch.[48]
[48] Insurer’s bundle, p 377.
On 22 November 2018 Dr MacDonald noted that the claimant was doing “marketing for his wife’s business” which led to clashes between them. The claimant’s employment with Beach House had recently been terminated.[49]
[49] Insurer’s bundle, p 211.
Dr MacDonald provided a further report dated 20 February 2019[50] diagnosing an adjustment disorder with mixed anxiety and depressive reaction. He considered the future prognosis was “above average” given key personality strengths and the lack of obvious sustained cognitive dysfunction.
[50] Claimant’s bundle, p 142.
Dr MacDonald provided a further report dated 18 October 2022.[51] The doctor noted that the claimant’s mental state in October 2022 was “the worst I have ever seen” and his concerns were based on the self-neglect, further mental state deterioration and severity of the depressive symptoms.
[51] Claimant’s bundle, p 198.
Dr MacDonald opined that the claimant was “completely anhedonic, had a profound sense of hopelessness and helplessness”. The doctor opined that the mental state would “improve significantly with the conclusion of this claim”.
Mr Richard Newton, physiotherapist, provided a report dated 17 August 2018.[52] Mr Newton opined that the post-traumatic stress disorder and anxiety and depressions was the probable driver of ongoing neck pain. Current exercise included jogging for up to 40 minutes and swimming for 30 minutes.
[52] Insurer’s bundle, p 441.
In a further report dated 30 January 2019 Mr Newton opined that the interventions over the past few months “haven’t been wonderfully successful” and recommended alternative treatment.[53]
[53] Insurer’s bundle, p 453.
Dr Elspeth Mitchell, neuropsychologist provided a neuropsychological assessment report dated 28 February 2018.[54] Neuropsychological profile was unremarkable with response indicating elevated symptoms of anxiety and stress. Ongoing cognitive symptoms were more than likely due to psychological sequelae.
[54] Insurer’s bundle, p 256.
In May 2019 Dr Raj, neurologist, opined that there was no obvious focal neurological deficit.[55] The claimant was suffering from post-traumatic headaches with a possibility of mild vestibular dysfunction.
[55] Claimant’s bundle, p 136.
The doctor opined that the claimant had ongoing stress and anxiety and required ongoing psychological support.
AHC Investigations
The report dated 2 April 2020 identifies the claimant involved with the following activities:[56]
(a) Instagram setting in February 2019 pictured the claimant at the snow;
(b) Instagram setting in November 2019 pictured the claimant instructing an adult class at Laurie Lawrence Swim School;
(c) a Strava account showed the claimant engaged in physical activities in May, July and August 2019;
(d) the claimant completed a Mudgeeraba parkrun on 9 March 2019;
(e) the claimant was the Race Secretary for Laurie Lawrence Swim Club and the manager of the under 7’s age TUGUN Surf Lifesaving Club for 2019-2020, and
(f) the claimant may have been involved with the fit out of his spouses new salon.
[56] Insurer’s bundle, p 514.
The report dated 26 May 2021 identified the following:[57]
(a) surveillance on 21 May 2021 identified the claimant driving to the Club, ordering coffee and meeting his wife. Later that day the claimant with his wife visited a number of stores, and
(b) surveillance on 23 May 2021 showed the claimant with his family watching surf lifesaving activity at the Club followed by shopping.
[57] Insurer’s bundle, p 655.
The report dated 9 June 2021 showed the claimant:[58]
(a) on 4 June 2021 travelling to the Club alone and sitting outside for up to one hour, and
(b) on 7 June 2021 travelled to Currumbin, returned items and attended a café.
[58] Insurer’s bundle, p 674.
Tungun Surf Lifesaving Club
The claimant applied for membership of the Tungun Surf Lifesaving Club (the club) on
21 October 2018.[59] The claimant completed a number of courses including the Bronze Medallion in September 2019.[60] The course duration for the Bronze Medallion was over a six to eight week period.[61][59] Insurer’s bundle, p 621.
[60] Insurer’s bundle, p 622.
[61] Insurer’s bundle, p 647.
In August 2019 the claimant was appointed as the under 7 age manager.[62]
Bank records[63]
[62] Insurer’s bundle, p 624.
[63] Insurer’s bundle, pp 732-763.
The claimant’s bank records cover the 2020 year and show regular expenditure at various stores.
RE-EXAMINATION
Mr Shanks was examined by the Medical Assessors on 13 February 2023. The examination report is as follows:
“The assessment was conducted via an audio-visual link. Mr Shanks attended accompanied by his wife Marissa Shanks.
History
Psychosocial history and pre-accident history
Mr Shanks is a 44-year-old married man who lives on the Gold Coast with his wife and two daughters aged 9 and 13 years. He currently works as a swimming coach 9.5 hours per week and helps with payroll for his wife’s hairdressing business on Sundays, spending approximately 1 hour on the computer.
At the time of the subject motor accident, Mr Shanks was working full-time as a maintenance manager for a resort. He had been in the role for 5 years and was supervising a team of eight staff members.
Mr Shanks was born and raised in Brisbane. He is the youngest of three sons in the family, with two older brothers. He described his upbringing as “standard”, that he grew up in a “normal family” and denied any history of trauma. (He was specifically asked about any childhood trauma, given the reference to the issue of potential trauma in early life in one of the documents). He clarified this issue by stating that his parents always drank alcohol socially, but they were not alcoholics. He stated that he has always maintained a good relationship with his parents and siblings.
He completed high school at Year 12 and commenced a motor mechanic apprenticeship and worked as a motor mechanic for 7 years. He then worked in carpentry in the early 2000s. During 2007 to 2008, he studied to get a builder’s qualification and commenced contracting as a builder carpenter. He subsequently went into resort maintenance as building industry was slowing down.
He has been with his wife Marissa for a long time, and they were married in 2005. He stated that his children are healthy and denied any issues.
He denied significant medical history. He stated, “I was extremely fit”. He was involved in triathlon since age 12 and has played competitive sports. He denied prior injuries or accidents.
He denied a past psychiatric history. He stated that he had previously been referred to a psychologist by his GP in relation to managing his emotions after the birth of his second child. He stated that it was around 2013 and it was in relation to the stress of managing a business and a family of four. He stated that he saw the psychologist twice. He was not prescribed any medications. Mr Shanks was asked to clarify information which indicated that he had seen a psychologist Angela Jeffery in August 2012 and GP consultation related to his psychological symptoms in February 2014. There was a reference to anger outburst in August 2012. He stated that the reason for seeing a psychologist was about “being a better dad” and that he had only seen the psychologist on 2 occasions. In reference to the issue that he had raised about “losing memory”, he stated that it was a general conversation with his GP and that there was nothing significant.
He denied previous thoughts of self-harm or suicidal ideation. He denied a history of anxiety or depressive symptoms. He stated that seeing a psychologist was about being “just a busy family” with his wife running a busy salon, and he was doing a lot of physical training. He denied problems with his marriage other than having “general disagreements”.
Being a business owner, his wife worked full-time in excess of 65 hours per week.
Mr Shanks was therefore busy picking up the daughters from school and taking them to sports. He also did the majority of housework, cooking and childcare. He stated, “it was busy, but we managed”.Mr Shanks denied any substance misuse. During ages 18-20 he was engaged in social drinking, but he was always “heavily into sports” and never drank in excess. He is a non-smoker and denied any recreational drug use.
There was no known family psychiatric history. His mother has been diagnosed with breast cancer and has had treatment.
He denied a forensic history.
History of the motor accident
On 21 October 2017, Mr Shanks was participating in a local triathlon competition. He was riding his bicycle and was approaching a roundabout when he saw a white Ute on his left-hand side. He was approaching the roundabout relatively slowly and saw the Ute slowing down, so he continued through the roundabout and remembered seeing the bumper bar of the Ute. He stated that that was the last thing he remembered before waking up on the road. He had been struck down by the Ute and found himself on the ground. He was injured on the left-side of his body and his face and remembered seeing “blood everywhere”. He was unable to move and was given medication by ambulance officers and was taken to hospital.
History of symptoms and treatment following the motor accident
Mr Shanks was taken to Tweed Heads Hospital where he was seen in the emergency department. He was discharged later that day. In addition to injuries to his face and the left-side of the body, he had also fractured his left little finger. Mr Shanks returned to the hospital over the next 2 days to have a wash out of his finger and was subsequently referred to his GP for ongoing management. He stated that he was in much pain and could barely move or walk. He was unable to return to work for a few months.
Mr Shanks stated that his GP managed him with the support of an orthopaedic surgeon, physiotherapist and neurologist. His neck pain became increasingly worse and despite intensive physiotherapy, his symptoms did not improve. He stated, “it just went on and on”. He stated that he experienced issues with the insurer with barriers to him accessing appropriate assessment and treatment.
With respect to mental health issues, Mr Shanks stated that his symptoms emerged 6 weeks after the subject motor accident. He was lying on the bed at his physiotherapist, and he mentioned how he gets anxious when he hears cars and that he cries for no reason. The physiotherapist suggested he speak with his GP and a psychologist. He stated that the psychologist diagnosed him with post-traumatic stress disorder after the first consultation. He saw the psychologist for a few months or possibly longer, he was unable to recall exactly. He stated that he wasn’t getting much better. He then consulted another psychologist, Cliff, for 3 years, whom he saw weekly. Cliff became a “pivotal person” in his life, but he committed suicide at the end of 2021. Since then,
Mr Shank’s mental health has deteriorated.Mr Shanks was asked to elaborate on his symptoms. Because he was unable to drive due to his physical injuries, he was being driven to appointments by his wife or his mother. He described becoming agitated, especially if other cars were close to their car. He also experienced nightmares and restlessness. He had poor sleep because of pain and anxiety. He had emotional lability. He reported seeing the image of “the white bumper of the Ute” which collided with him, and the image then triggered him feeling the actual impact of the vehicle. These symptoms are ongoing. He stated that he has not slept well since the subject motor accident hence leading him feeling exhausted.
His GP referred him to a psychiatrist at the end of 2017 because of lack of improvement in his symptoms despite seeing a psychologist. He was referred in view to pharmacotherapy. He has been seeing a psychiatrist, Dr McDonald, who prescribed him sodium valproate, the dose of which has been increased over time. He has also trialled many other medications which he was unable to name. He stated that the medications were changed because of “a lot of ups and downs”.
He stated that he tried seeing another psychologist after the death of Cliff. He tried seeing a new psychologist a few times but found it difficult to engage and stopped. He stated that he could not handle relaying the same information again. He found his mental state progressively worsen. The death of Cliff was a big loss which still causes him much distress.
His psychiatrist increased his medications at the end of 2022. He is now prescribed duloxetine 120mg and lamotrigine 50mg.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Shanks had right hip surgery in early-2022. He stated that it was an interim surgery as he is too young to have a hip replacement surgery. He was unsure if the condition is related to the subject motor accident. He reported experiencing dull pain and that walking long distance is difficult.
He suffered a tear to the triangular fibrocartilage complex (TFCC) in his right wrist from the subject accident which was a delayed diagnosis. He stated that he is in dispute with the insurer regarding this condition. He has been to see a pain specialist.
Current symptoms
Mr Shanks reported constant pain in his neck and decreased function of his left little finger. He is left-handed. It impacts on his writing and cutting. He also described referred pain to his left elbow and difficulty lifting his arm. He described his mental state as “I just feel crap”. He related his emotional distress to his physical limitations and his inability to do physical activities. He also stated that he has been frustrated and upset because of the loss of his physical state, describing his pre-accident state as “super healthy” and his current state as “a fat mess”. Consequently, he feels lacking in confidence. He does not feel like he is contributing to his family, not as a husband and a father that he wants to be.
Current and proposed treatment
Mr Shanks was previously prescribed Endep but suffered major side effects and only took it for a short period and ceased it. He is prescribed duloxetine 120mg and lamotrigine 50mg. He sees his psychiatrist monthly and he sees his GP as needed. He is taking Voltaren 50mg and Panamax for pain. There are currently no further plans for other treatment.
Additional evidence
Mr Shanks was asked to elaborate on his Life Savers club activities. He stated that his daughter participated in Nippers, and he was asked to manage a children’s group as they lacked a manager. He agreed to do so because he could be with his younger daughter in the group. He stated that he had a support person with him and that he participated for one season. Each session was for 2-hour duration. His friend subsequently took over the course.
It has been noted that Mr Shanks has had three overseas trips since the subject motor accident. He stated that he went to Bali during 2018 with his family through his wife’s business while the hair salon was having a fit-out. The trip to Bali was his last overseas travel before the COVID-19 pandemic.
The trip to Japan was his 40th birthday present from his wife. It was organised so that his two brothers and his friends would take him to Japan as a surprise for his birthday. He stated that he did not want to go. The group stayed at a resort in Nozawa Onsen, and he joined the others in snowboarding. He stated that he “felt like a burden”. His neck was painful, and he couldn’t do what he would have done normally had he not been injured.
Clinical ExaminationMental State examination
Mr Shanks was neatly casually dressed. He was seated throughout the assessment and did not display any overt symptoms of pain. He was not very forthcoming with information and there was a tendency to minimise any significance of his activities such as his overseas travel and participation in the Life Saving course. He was mildly anxious. There was no evidence of pervasive depressed mood. There was no agitation. He became tearful when referring to his psychologist who had died. There was no formal thought disorder. There were no psychotic symptoms. He denied any active thoughts of self-harm or suicidal ideation. His cognition was intact. He was able to give a detailed account of what he recalled about the subject accident and issues relating to his physical injuries.
Current functioning
Mr Shanks had an occupational therapist who assisted him to return to work but had three failed attempts to resume his employment as a maintenance manager for a resort. He couldn’t manage his responsibilities and his employment was subsequently terminated. He stated that the difficulties related primarily to his physical injuries, but he also had “meltdowns” and found himself crying in the office. He commenced working as a swimming coach around November 2019 and currently works 9.5 hours per week. He stated that a year ago he increased the hours to 12-13 hours per week but struggled with the stress of managing the physical workload and in dealing with the parents of the children he was coaching. He discussed with his psychiatrist and decreased his working hours and the dose of his psychotropic medications were increased at the time.
He stated that he feels physically and mentally exhausted. Mr Shanks reported limitations in his activities due to his physical injuries. He is no longer active in attending to housework or cooking and his wife has taken over the cooking. He is unable to lift his children. He is still responsible for picking up his children from school either on foot or by using an electric bike. He then takes them to gymnastics. He drives a car and is cautious on the highway. He does not drive long distances because of physical pain.
He finds socialising difficult and has less association with the triathlon community because he doesn’t want to talk about the accident and his condition. He has lost many friends. He stated that he worries about people judging him because of his injuries and he does not feel “tough” as he used to be while in the building industry.
Comments on consistency
Attempts were made to clarify a number of issues noted in the documentation. In relation to his previous contact with psychologist, Mr Shanks denied that he had experienced any memory problems in the past and was dismissive of the significance of his previous contact with a psychologist. He denied experiencing any significant psychological symptoms in the past.
He reported that he had never had a prior physical injury. The Panel noted his fractured right forearm as a teenager.
Psychiatric Impairment Rating Scale
Psychiatric diagnoses
1. Adjustment Disorder with Anxiety
2.
3.
4.
Psychiatric treatment description
Psychologist, psychiatrist, psychotropic medications including antidepressant and mood stabilisers. GP appointments and pain medications.
Category
Class
Reason for Decision
1. Self Care and Personal Hygiene
2
Mr Shanks stated that he occasionally does not bother to have a shower and when exhausted goes to bed in his clothes. He shaves less frequently but this is mainly to cover the scar on his face. He is not eating regular meals and his wife does the cooking now.
2. Social and Recreational Activities
3
He is no longer able to enjoy the physical activities he used to engage in due to his physical injuries but avoids contact with the triathlete community because he does not want to talk to people about his condition. He avoids social events but is forced by his wife to attend. He has lost friends over the years. Attending family events is fine.
3. Travel
1
He drives a car and duration of driving is limited by his physical pain. He picks up children from school on foot or on an electric bicycle. He has travelled overseas on planes.
4. Social Functioning
2
He reported that his children can agitate him. He has struggled in his marital relationship due to lack of intimacy and his wife is exhausted from having to take over many responsibilities from him. He has lost friendships.
5. Concentration, Persistence and Pace
2
He reported that concentration is fine. He has become forgetful and uses a list from his wife or reminders. He stated that he struggles with multitasking. He has no trouble reading manuals or following instructions. He can focus on doing the payroll for his wife’s business, which takes about an hour on the computer.
6. Adaptation
3
He was unable to return to his pre-accident employment and is working in a less demanding role as a swimming coach to children and helps with the payroll for his wife’s hairdressing business which he has always been doing.
List classes in ascending order: 1, 2, 2, 2, 3, 3
Median Class Value: 2
Aggregate Score: 13
% Whole Person Impairment: 7 %
Permanent Impairment
Pre-existing/subsequent impairment
There was no history of pre-existing impairment.
There was no evidence for subsequent impairment.
Effects of Treatment
Mild treatment effect of 1%WPI
He gained symptomatic relief and mild improvement.
Final % permanent impairment
A Current 7% permanent impairment
B Pre-existing/subsequent 0% permanent impairment
C Adjustments 1% for effects of treatment
Determination Regarding the Degree of Whole Person Impairment of the Injured Person as a Result of the Injuries Caused by the Motor Accident
The total percentage whole person permanent impairment for assessed injuries caused by the motor accident is 8%. Therefore, the total whole person impairment is not greater than 10%.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
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[64] and Insurance Australia Ltd v Marsh.[65]
[64] [2021] NSWCA 287 at [40], [41] and [45].
[65] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the extensive joint examination findings of the Medical Assessors and adds the following reasons.
Injury
There is a suggestion in the insurer’s submissions of exaggeration and lack of credibility. Part of that submission arose from comments of Dr Levi of DASS scores. Dr Levi stated:[66]
“Notwithstanding, there was evidence that Mr Shanks presented with symptoms of anxiety. I noted that his results on the DASS revealed an Extremely Severe range of anxiety, the same level that was obtained in a previous assessment in March 2018.
Dr McDonald reported on the 11 June 2018 that suicidal ideation was evident. I would agree with Dr McDonald. Mr Shanks also presented with lowered self-esteem and loss of identity. Mr Shanks reported that her husband believed he was being judged by other people and as a consequence, tendered to avoid social situations.”[66] Insurer’s bundle, p 73.
Later in his report Dr Levi acknowledged the possibility of exaggeration give the significant change in DASS scores with that undertaken by Ms Kontkanen. The other possibility was the claimant’s premorbid rigid personality, and that Mr Shanks was “awfulizing his current situation”.
The Panel has considered the matters raised by the insurer as is evident from our summary of the background facts. We note that the insurer’s submissions contested both causation of injury and the extent of any impairment.
Based on the examination undertaken by the Medical Assessors on the Panel and a consideration of the entire matter, including the onset of symptoms we are satisfied that the claimant suffered from and continues to suffer a significant psychological injury caused by the motor accident.
Pre-existing impairment
The insurer referred to the claimant’s pre-existing disposition as a vulnerable personality such as a premorbid rigid personality. The submissions did not explain how this affected either the level of impairment or any pre-existing deduction.
The insurer did not articulate any pre-existing impairment. Its submissions on a vulnerable personality only support the claimant’s allegation that he sustained a poor psychological reaction to the motor accident. This conclusion is consistent with the observations of Dr Levi who stated:[67]
“In my opinion, the evidence suggested that Mr Shanks’ rigid personality and perfectionism in all likelihood was a risk factor for a poor recovery following a traumatic event.”
[67] Insurer’s bundle, p 73.
There is no basis to make any deduction for any pre-existing condition of the psychological condition. We adopt the reasoning in QBE Insurance (Australia) Ltd v Kumar[68] concerning the issue of onus.
[68] [2022] NSWPICMP 66 at [118]-[120].
Clause 1.31 of the Guidelines requires a deduction for “pre-existing impairment”. However, there is no basis to make any deduction for any pre-existing condition[69] as there is no evidence of “objective evidence of a pre-existing symptomatic permanent impairment” in the shoulders.
[69] Clauses 1.31 of the Guidelines.
We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.
Treatment disputes
The dispute is whether the treatment is “reasonable and necessary in relation to the injury sustained in the subject accident”.
The issue of reasonable and necessary is distinct from the issue of causation. These principles have been discussed elsewhere by Review Panels.[70] The MAC Act characterises the disputes as separate issues.
Causation of need for treatment
[70] See for example the discussion in Venizelou v AAI Ltd [2021] NSWPICMP 215 at [106]-[132].
The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[71]
[71] [2018] NSWSC 1710 (Phillips) at [29].
Endep treatment is not causally related to the psychological injury and is not reasonable and necessary because it was prescribed for pain management at the dose of 25-50mg, not an antidepressant dose for the management of psychiatric disorders. It was also ceased after a short period due to side effects and therefore not applicable to the question of ongoing treatment.
In answering the questions posed by the parties, Endep is not treatment for the psychological condition as it has ceased.
The other issue is the causal relationship and the extent of general practitioner appointments for psychological treatment.
Mr Shanks remains on antidepressant medication for the treatment of his psychological condition caused by the motor accident. This need will continue indefinitely and as was held earlier in the Reasons; the condition is permanent. The general practitioner will be required to monitor and prescribe the medication into the future.
Reasonable and necessary
The claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[72], Grove J stated:[73]
“22. I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23. The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[72] [2003] NSWCA 52 (Clampett).
[73] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[74]
[74] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[75] They include:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[75] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of the issue of whether treatment “relates to the injury caused by the accident”.
For the reasons provided earlier, the use of Endep treatment is not reasonable and necessary and has otherwise been ceased.
Mr Shanks has a need for ongoing treatment for his chronic psychological condition. The need for the claimant’s attendance at the general practitioner relates to ongoing review including prescribing medication. We assess that need at bi-monthly, that is six times per year. Given our findings, we assess on the balance of probabilities that this need will continue indefinitely.
The parties did not provide an updated life expectancy, and allowing for some uncertainty into the distant future, we accept that the need for treatment will continue for 30 years.
CONCLUSION
The certificates issued by Medical Assessor Shaikh dated 15 June 2021 are revoked. Replacement certificates are attached at the commencement of these Reasons.
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