Insurance Australia Limited t/as NRMA Insurance v Warda
[2024] NSWPICMP 714
•15 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Warda [2024] NSWPICMP 714 |
CLAIMANT: | Ban Warda |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | John Baker |
MEDICAL ASSESSOR: | Michael Hong |
DATE OF DECISION: | 15 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26 of Medical Assessor Nagesh’s assessment of 15% whole person impairment (WPI); claimant sustained physical injuries in accident on 10 March 2021; claimant described chronic pain from soft tissue injuries to her lower back and shoulders and has become depressed due to her pain; claimant’s history at the re-examination was that it was her physical injuries that prevented her from engaging in activities at home and outside the home; Held – Medical Review Panel diagnosed a persistent depressive disorder caused by the accident which resulted in 7% WPI; Medical Assessment Certificate revoked. No issue of principle. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Nagesh dated 20 July 2023. 2. Certifies that the degree of Ms Warda’s permanent impairment resulting from the injuries caused by the motor accident on 10 March 2021 is 7% which is not greater than 10%. A statement setting out the Appeal Panel’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Ban Warda was involved in a motor accident on 10 March 2021.
Ms Warda says she injured her cervical spine, lumbar spine and right shoulder in the accident, and she made a claim for statutory benefits and then damages against NRMA, the third-party insurer of the vehicle that hit her vehicle. The claimant says she has also developed a psychological or psychiatric injury as a result of the accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with Ms Warda’s damages claim and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 13 April 2023, Medical Assessor Home determined the claimant did not have a WPI of greater than 10% (he found 7%) in respect of her physical injuries and that decision has not been challenged.
On 20 July 2023, Medical Assessor Nagesh determined the claimant had a WPI of greater than 10% (he found 15%) for her psychological or psychiatric injury.
The insurer lodged an application with the Commission seeking a review of Medical Assessor Nagesh’s decision.
On 31 August 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 12 June 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review proceedings.
LEGISLATIVE FRAMEWORK
Ban Warda’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4 of the MAI Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Dispute resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Dixon, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s 7.26(2) and (2B)).
The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.26(3A)).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.
Guidelines
The Guidelines include a chapter entitled “Mental and behavioural disorders” and require the assessment to be undertaking in accordance with the psychiatric impairment rating scale (PIRS). The Guidelines also say that the mental and behavioural chapter of the AMA 4 Guides are to be used as “background or reference only”.[5]
[5] Clause 6.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with whatever the current edition of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD)[6].
[6] Clause 6.213 of the Guidelines.
The PIRS provides in clause 6.219 for six areas of function:
1.219.1 self-care and personal hygiene;
1.219.2 social and recreational activities;
1.219.3 travel;
1.219.4 social functioning (relationships);
1.219.5 concentration persistence and pace, and
1.219.6 adaptation.
The PIRS then provides at 6.220 for five classes with a descriptor for each which is “illustrative rather than literal criteria” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury”.
The impairment may be adjusted for treatment[7] that is treatment such as medication being consumed to treat the psychiatric condition.
[7] See clauses 6.222-6.223 of the Guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage.[8]
[8] See clauses 6.225-6.228 and Table 17.
ASSESSMENT UNDER REVIEW
Medical Assessor Nagesh examined the claimant on 8 May 2023 and issued his decision on 20 July 2023. He confirms at [2] that he was asked to assess a “psychiatric injury.”
He has a history of the claimant’s life before the accident noting she was not working, was caring for her two children, did all things around the house and was fully independent. The claimant says she came to Australia in 2004, worked with her husband in his business but separated from him in 2012. She denied any previous mental health issues.
The claimant said she is in chronic pain from the soft tissue injuries to her lower back and shoulder. She says she takes fluoxetine and temazepam and pain killers for her chronic pain.
The claimant says she was hit from the right on the M5, and her airbags deployed. She got out of the car and then collapsed and was taken by ambulance to Liverpool Hospital. She was discharged later in the day and has been treated by her general practitioner (GP) since then.
The claimant says a month after the accident she became depressed as a result of her pain. She continued to drive but her sleep was affected, she lost her appetite, suffered from headaches, was upset, tired and forgetful. She reported occasional nightmares of the accident.
She says her GP has supported her with psychotherapy and prescribed medication. She saw a psychologist for four months but is not currently having any counselling.
Medical Assessor Nagesh records the claimant’s current symptoms of depressed mood, anxiety, insomnia, lack of appetite, lack of energy and motivation, social withdrawal, diminished ability to concentrate and feelings of worthlessness.
Medical Assessor Nagesh reports that she gets up and prepares meals then drops her children at a bus stop, she does some cleaning and showers every day (although before the accident she showered twice a day). She does her shopping online, does not socialise and has stopped attending family functions. She drives to Woolworths to shop. She is separated from her husband, and they are trying to get back together. She cannot read a book or magazines and says she struggles to watch television. She has left the stove on because she forgets to turn it off.
Medical Assessor Nagesh was of the view the claimant did not satisfy all the criteria for a diagnosis of a post-traumatic stress disorder but did satisfy the criteria for a Persistent Depressive Disorder. He was of the view the accident was the cause of this.
He assessed WPI at 15% did not add anything for the effect of treatment (noting there was none) or subtract anything for pre-existing conditions (on the basis there was none).
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer says Medical Assessor Nagesh’s errors are:
(a) a failure to provide sufficient reasoning for the rating for self-care and personal hygiene and adaptation, and
(b) he erred in the class of impairment associated to those areas.
The insurer submits that the reasons for the claimant’s “struggles” are due to her physical problems not her psychological injury. The insurer says the Medical Assessor has not explained how the claimant’s self-care and personal hygiene has been affected by her psychological injuries and should be assessed at 1 or 2.
The insurer also suggests that the assessment of class 3 for adaptation is incorrect as the claimant was not employed at the time of the accident and has continued to fulfil her role as a mother without difficulty and should be assessed at 1 or 2.
The insurer says WPI should be assessed at 6% or 7% based on those two functions being assessed at 1 or 2.
Claimant’s submissions
The claimant submits at [1.2] that the insurer does not refer to medical or factual evidence to support its submissions.
The claimant says at [2.4] that the Medical Assessor has explained why he rates her impairment in self-care noting that she struggles with activities of daily living, relies on online shopping and used to shower twice a day and wear makeup but no longer does so. The claimant says the Medical Assessor took a history of lack of motivation and that this is the reason for the class 3 impairment.
In terms of the area of adaptation, the claimant notes cl 6.220 of the Guidelines which says that the PIRS criteria are illustrative and not literal. The claimant points to several examples of impairment to her functioning as a carer for her family.
Procedural matters
The Panel issued directions to the parties for bundles of documents noting that the Panel did not have access to the original medical assessment file.
The insurer’s bundle was due on 5 July and was received on 21 June 2024, and the claimant’s bundle was due on 26 July 2024 and was received on 16 August 2024.
The Panel met on 20 August 2024 and reported to the parties the same day. The Panel noted the insurer’s submissions did not challenge causation of injury and asked the insurer to confirm that there was no issue of causation and agree that the real issue in dispute between the parties was the degree of WPI resulting from the injury caused by the accident.
The Panel noted there were no pre-accident medical records and requested a bundle of notes from Dr Touma’s practice before and after the accident and a copy of the claimant’s psychologist’s clinical notes.
Responses from the parties
The claimant provided an updated copy of Dr Touma’s notes on 13 September 2024, but these did not include any pre-accident records. Notes from Ramsey Andrews were also provided and on 25 September 2024, clinical notes from the claimant’s psychologist were provided.
No response was received from the insurer. The Panel has therefore dealt with the issue of causation.
After the re-examination, the claimant contacted the Commission concerned she had given an incorrect history, and she wished to have an additional appointment with the Medical Assessors. The insurer did not agree to this.
One of the members of the Panel was not available at that time to consider the matter and the claimant was encouraged to submit a short, signed statement addressing the history she was concerned about. The Panel advised that when all of the members of the Panel were together again, they would consider whether it was necessary to conduct a further re-examination.
The Panel received a short statement from the claimant on 1 October 2024 and have determined that we would not be assisted by a further re-examination. The claimant has given evidence as to the correct history and the Panel is not of the view that a further opportunity to give oral evidence to the Medical Assessors is necessary.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claimant’s application for statutory benefits was dated 6 April 2021. The claimant identifies her injuries as neck, back, left and right shoulder, anxiety, depression and insomnia.
A certificate of fitness was completed by Dr Touma on 7 April 2021. He diagnosed headache, neck pain, lower back pain, bilateral shoulder pain and anxiety. He noted treatment as analgesia and referral for physiotherapy and psychological counselling.
The claimant gave a statement to an investigator for GIO in relation to someone else’s claim arising out of this accident. She says she owned the car but that her husband arranged the insurance and servicing of it. Ms Warda also said that said she hired a vehicle after the accident and before her car was returned to her.
There is an updated statement from the claimant and one from her husband supporting her deterioration physically and psychologically since the accident.
Treating medical records and reports
Ambulance attended the scene of the accident and transported the claimant to hospital.[9] The claimant complained of centralised neck pain when first assessed and while on her way to hospital complained of pain to the abdomen and lumbar spine.
[9] The report is at page 48 of the insurer’s bundle.
The Liverpool Hospital notes record a diagnosis of neck pain and back pain. They note no head strike or loss of consciousness, and the claimant was able to get out of the car and mobilise. She complained of neck, lower back and right lower abdominal pain. X-rays were done revealing no abnormality. She was discharged home into the care of her GP.
Notes from the claimant’s GP, Dr Touma have been provided. While they indicate the claimant may have attended the practice from 22 May 2019 (the date the records were created), there are no pre-accident records, and the first entry is on 15 March 2021. The claimant attended complaining of neck pain, lower back pain not radiating to the legs and the claimant had bilateral shoulder pain. She was said to be not sleeping well and was having flashbacks. The claimant was referred to Ms Georgis for physiotherapy.
On 19 March 2021 the claimant returned to Dr Touma complaining of insomnia and asking for sleeping pills. She was prescribed Temazepam. On 25 March 2021 the claimant attended again due to ongoing issues with sleep and issues with driving or being in a car. She was referred to Mr Andrews, psychologist.
On 7 April 2021 the claimant returned and reported feeling the same. She was having physio that day, was not driving and complained of neck, back and shoulder pain. Ms Warda remained anxious.
When the claimant attended on 21 April 2021, she was feeling tired and experiencing dizziness but feeling and sleep better.
On 10 May 2021 the claimant attended to discuss the results of her ultrasound and reported ongoing neck and lower back pain affecting her activities of daily living. On 26 May 2021 the claimant’s MRI was discussed and the claimant confirmed lower back pain radiating to both legs intermittently. She was said to be living with her 12-year-old daughter. The claimant was referred to Dr Abraszko at this consultation and was prescribed Lyrica.
Dr Abraszko wrote two letters to the claimant’s GP. She noted neurologically the claimant was normal in the upper and lower limbs. She did not recommend injections or surgery, but recommended nerve conduction studies be done. These were done by Dr Choong, neurologist in October 2021 and the results were normal with no evidence of carpal or cubital tunnel syndrome.
On 11 January 2022 the claimant saw Dr Touma. The insurer had ceased paying for her psychologist and Ms Warda had her last physiotherapy appointment. Her mood was low, and she was having sleeping issues.
The next appointment was on 15 June 2022 (there were no intervening consultations) where the claimant complained of ongoing shoulder and back pain and continuing issues with sleeping and low mood.
The claimant saw Dr Touma over a year later on 30 October 2023 (again it appears there were no intervening consultations) having had a cervical spine MRI and referrals to Dr Bazina and Dr Dave were given. On 1 December 2023 the claimant reported ongoing issues with stress and anxiety, not sleeping well and she had a fear of driving. A referral was given to Ms Gadea. On 11 December 2023 further referrals to Dr Banjamin and Ms Youkhana were give and the claimant complained of depression, anxiety, post-traumatic stress disorder and neck pain.
The next attendance recorded in the notes was on 13 May 2024 when the claimant reported ongoing lower back pain radiating into her left leg with pins and needs and she was referred to Dr Darwish.
In the additional notes from Dr Touma provided by the claimant in September 2024, there is another set of records which appear to have been sent to the claimant’s solicitor commencing with an attendance on 10 May 2021 and which have other entries relevant to general medical conditions and vaccinations.
On 3 November 2021 is a record of ongoing stress and being easily angered and unable to control herself. She was reported to be abusive towards her children and was throwing things at home on the walls.
On 19 April 2022 is a note that the claimant was planning a trip away to the Hunter Valley with family and friends. Also is this note under social history “home with husband and 2 kids.”
On 2 June 2022 is this note “requesting repeat script of Temazepam. Could not come in person for review as busy at work.” There were other attendances on other doctors requesting further scripts with a note on 29 June 2022 that she was dependent on Temazepam.
On 11 September 2023 – Dr Khan has a history of painful breasts, and the note suggests “had implants about 2 years ago.” The implants were said to be palpable on examination.[10]
[10] The Panel was concerned that this history suggested the claimant had surgery after the accident. This might have impacted upon her impairment assessment if it had. However, the claimant confirmed Dr Khan’s history was incorrect and said that this surgery took place 10 years ago, long before the car accident.
Psychologist’s notes
Ramsey Andrews, psychologist from the Emerald Hills Medical Centre saw the claimant for the first time on 20 April 2021. He noted the claimant was shocked “and seems to have developed trauma around episodes related to incident.”
On the next occasion (4 May 2021) the claimant recorded having grown up in Iraq, attending school and then college training to be a teacher. However, she never worked, got married to a “blood relative” and came to Australia. She separated from her husband when she was pregnant because he had an affair. When she arrived in Australia “she felt trapped as she lived with husband and his parents.” The claimant has been in her own house for five years and does not want to return to her husband.
The notes are relatively brief but include references to the claimant “seeing victim on the floor after accident.” She had a near accident on 8 June 2021 when a car braked behind her and almost hit her.
The claimant reported disturbed sleep on 25 August 2021 due to traumatic memories of the accident. On 15 September 2021 the claimant was stressed as she was “uncertain about her case”. On 28 September 2021 Ms Warda complained of her right hand, neck and shoulders getting worse and she cannot dry her hair properly and it takes longer in the shower.
On 21 October 2021 the claimant expressed concern “with anger towards her kids” and on 28 October 2021 she wanted medication “as she cannot control her anger.” She was advised to see Dr Touma and obtain a referral to a psychiatrist. The claimant was prescribed Zantac and reported on 10 November 2021 that she had stopped as she did not think she needed it.
On 18 November 2021 the claimant reported her son was playing up at school and her daughter has issues “because of their negative environment at home.”
On 25 November 2021 she reported considering getting back together with her husband “is smiling for the first time in a long time as he is going over and beyond for her and the family.”
On 1 December 2021 her son’s behaviour was reported to be getting worse affecting her mood. On 9 December 2021 the claimant had another “near accident experience whereby she was shaken up etc”.
On 16 December 2021 the psychologist had a conversation with the claims officer who approved a session as the final session based on an independent medical examination. Mr Andrews says in his notes:
“However I explained to [the claims officer] that client still suffers ptsd and that she has improved thus far and alhough there are other complicating factors in her history and current circumstances this is slowing down progress but that further psych treatment directly related to the MVA will nevertheless help progress.”
There do not appear to be any further consultations.
Insurance company documents
The insurer sought assistance from Benchmark Rehabilitation. Ms Freeman a consultant occupational therapist assessed the claimant’s needs and provided a report dated 11 May 2021. In terms of domestic assistance, the claimant declined assistance saying she preferred her family to provide cleaning services. The claimant also declined to participate in a physical conditioning and upgrading program.
Medico-legal reports
Dr Bodel provided a report dated 3 September 2021 to the claimant’s solicitor. He assessed the claimant’s physical injuries and assessed WPI at 11% (5% for the neck and 6% for the right shoulder). The examination was done by telehealth.
Dr Rastogi, psychiatrist provided a report dated 23 September 2021 to the claimant’s solicitor. Dr Rastogi notes the claimant is nervous when driving and is preoccupied with the accident. She is fearful of having an accident again and has to drive her children and do the shopping. “She is very irritable and frustrated and punching walls and removing her frustration on her children.” She was having outbursts of anger and has hit her children a few times. Her children tell her they hate her.
Dr Rastogi has a report of “debilitating” pain which is precluding her from doing what she used to do. Her sleep is interrupted by pain. She is isolated and feels useless and worthless.
Dr Rastogi has a history of no previous mental illness and ongoing psychological counselling.
The claimant’s family is in America. She separated from her husband due to his infidelity and she relies on Centrelink benefits and help from him.
Dr Rastogi diagnosed an Agitated Major Depressive Disorder due to ongoing pain and functional limitations. She declined to assessed WPI on the basis that the claimant’s injuries had not reached maximum medical improvement.
Dr Rastogi saw the claimant again and submitted a report dated 28 December 2023. The claimant provided updates in relation to her physical injuries and said she has poor sleep and feels angry and irritable. Her son was seeing a psychologist, and she felt guilty.
Dr Rastogi records that the claimant reports:
(a) struggling with self-care and cooking and relies on take away;
(b) driving is now restricted to 10 minutes due to anxiety and fear and pain;
(c) she does not go out and has lost friendships;
(d) she is irritable and loses her temper;
(e) she does some household chores and relies on her ex-husband, and
(f) she has poor concentration and forgetful.
Dr Rastogi maintained her diagnosis of a Major Depressive Disorder and said the injury had stabilised but there is no assessment of WPI.
Other assessments
Medical Assessor Home examined the claimant on 23 August 2022 and issued a certificate on 29 August 2022. He was asked to assess whether any of the claimant’s physical injuries were not minor injuries.
He has a consistent history of the accident and treatment and notes that the claimant has been given home exercises by her physiotherapist and was taking Lovan for anxiety.
Medical Assessor Home diagnosed soft tissue injuries and noted no evidence of fractures or the complete or partial rupture of tissue. He found no evidence of radiculopathy. He certificated all injuries were minor injuries.
Medical Assessor Friend examined the claimant on 12 January 2023 and 2 February 2023 and issued his decision on 15 February 2023.
He has a history of the clamant driving a limousine for her husband’s hire car business, two children and that she and her husband had been separated for eight years.
Medical Assessor Friend has a consistent history of the accident and treatment. He notes the claimant used to drive her children to school but now takes them to the bus stop. She does not drive further because of her back injury and because she is frightened. She was upset and nervous, easily irritated and shouts at her children. Her children’s behaviour has been affected. She has been seen by a psychologist but not since payments were stopped.
The claimant said she was taking Zactin for her anxiety and Temaze for her sleep. He reports her difficulties in the home primarily due to her physical injuries but has a history of memory problems, tearfulness and lack of concentration. He notes the claimant is not receiving Centrelink Benefits.
Medical Assessor Friend diagnosed a Persistent Depressive Disorder which was not a minor (now threshold) injury.
Medical Assessor Home examined the claimant again on 11 April 2023 in respect of WPI and issued his decision two days later. He was asked to assess soft tissue injuries to the neck, lower back and right shoulder.
He records the claimant’s post-accident treatment including attendance at hospital and discharge the same day; visits to her GP and referral for MRI of her spine and ultrasound of her shoulder and referral to Dr Abraszko. The claimant said she took analgesia, paracetamol and ibuprofen and Lovan for anxiety.
The claimant denied previous physical problems.
He assessed WPI at 7% on the basis of 5% for the lumbar spine due to the presence of dysmetria and 2% for the loss of motion in the right shoulder.
RE-EXAMINATION FINDINGS
The claimant attended the on-line medical re-examination with Medical Assessors Baker and Hong on 2 October 2024. Ms Warda was at home on her own. Connectivity was good and the re-examination was conducted via the MS Teams platform.
History from the claimant
Psychosocial history and pre-accident history
Ms Warda was born in Iraq and came to Australia with her husband in 2012. Her parents, two brothers and two sisters are in the USA. There was no developmental trauma identified and she said she was not exposed to war experiences or threats.
Ms Warda said she has never suffered from psychological problems previously. She married in 2003, and they separated in 2012. She said that when she was pregnant with her second child, due to a problem with his behaviour, she left him. She recalled she had marital counselling when she separated from her husband. She said that her husband wants to get back with her, but she does not want to be in a relationship with him, but she allows him to come and stay, mostly for the children, as she knows she cannot look after them due to her physical injuries. He had apologised for his behaviour, and she said she has moved on from the previous marital issues. He comes to help with the children, and she explained that he can take them out and play with them. He also helps with gardening as she cannot do many activities due to her physical injuries after the subject accident.
In terms of medical conditions, she said she did not have any previous health issues. She does not have drug or alcohol problems.
She is not aware of a family history of mental illness before the subject accident, but she said her son has Attention Deficit Hyperactivity Disorder (ADHD) now.
In terms of education and employment history, she reported in Iraq, she completed a bachelor's degree in teaching although she never worked as a teacher. She was a news reporter for a local TV station, and after she married, she has not worked.
In Australia, she has completed language courses and a couple of short courses for example, in computers. Her husband had a limousine business, and she was doing a small amount of work as a driver on the weekend, e.g. when there was a wedding. This was not full-time work. She said she did this for one or two years about 15 years ago.
She has not had other employment before the subject accident, and she said she did not work due to her childcare obligations and she was receiving family payments from Centrelink. She said since the accident she no longer received any payment from Centrelink and her ex-husband takes care of all of her living expenses.
Ms Warda reported that she has been seeing the same GP, Dr Touma for about five to six years now and always seen him at the same practice and was seeing him there before the accident. The Panel has not received his records from before the subject accident.
History of the motor accident
Ms Warda reported on 10 March 2021, she had dropped the children off at school and took the M5 motorway. She kept to the left lane as she planned to exit on Moorebank Avenue to go to Liverpool. She said she did not see the accident but there was a car from the right that struck her car and she was pushed into the other lane. She does not remember how she stopped the car. She exited the car and remembered she could not walk, she had no energy, and she had to sit down. Some people stopped and came to help and called the ambulance and police. Later on, the police told her there were three cars involved but she was not aware of the third car.
She did not lose consciousness and the airbags in Ms Warda's car did not deploy. Her car was later repaired.
She was taken to Liverpool Hospital and investigated for a few hours.
After the subject accident, Ms Warda developed physical injuries, and reported ongoing back, neck, shoulder and right arm problems. She said she cannot lift her right arm high and has "pins and needles" on lifting. She says her back pain is severe but she understands it is a "minor injury" for the purposes of her level of compensation, but it is severe. She says she has neuropathic pain and pain travels to her left leg, and she struggles to walk. The worst pain is her back pain. She said she cannot do anything with her right arm, e.g. cooking, household chores and cleaning. She bought a robot vacuum because she cannot clean due to her arm pain.
Her walking tolerance is 30 minutes. She rests and then can walk again but she could not sit for long and therefore, she said she could not drive for long. She said she can only sit for 30 minutes with regular changes in posture.
History of symptoms and treatment following the motor accident
Psychologically, Ms Warda said since the accident, she has driving anxiety and said does not drive at night or on the highway. She said the children use the school bus since the accident as she is scared of driving. She said however that she has to drive them to some of their activities as no one else could do it.
She said her life changed since the accident and everything is affected, and she cannot do things with her children like before the accident. During school holidays, she cannot take them out. She says her children‘s friends could not come to visit as she could not look after them or cook for them. She said she cannot socialise and cannot have visitors as she cannot sit down for long. She struggles to go out and cannot sit and have fun as she cannot sit for long. She said for Father’s Day, the children wanted to take her out, they begged her and so she went out, but could not sleep that night as she experienced severe pain, and when out, she could not sit and wait for lunch to come.
She said she cannot do her housework properly due to the pain she experiences.
She says she has developed chronic anxiety and depressive symptoms.
Details of any relevant injuries or conditions sustained since the motor accident
She said she had a near-miss and a minor collision on the road, but she was not sure of whether these occurred before or after the subject accident. Her ex-husband was driving in one incident. She was driving in the other incident and the other car moved while parking. Se had a minor scratch to her car which was not her fault. She did not sustain an injury.
Current State
Current symptoms
Ms Warda described depressed moods most days. She generally only sleeps four to five hours at night and has nightmares and because of this, she said she is dizzy and cannot focus during the day and cannot read. She has not checked her weight, and she thinks she was 55kg before the accident but does not know her current weight. She thinks she has lost weight. She is often tired as she does not sleep well.
She described being irritable. She said she threw things and broke a plate after she threw it to the ground. She is angry at her son. A year ago, he ran and hit his head on a table and he started bleeding and she blames herself for it. She told her psychologist and learnt calming and breathing exercises to improve her behaviour.
She has suicidal ideation. She said her children told her they hate her as she cannot do things with them. She said twice, she tried to end her life, then the thought of her children changed her mind, and she did not proceed. Once was before Dr Nagesh's assessment and another episode around Father’s Day.
Current and proposed treatment
Ms Warda is currently taking:
(a) Temazepam 10mg;
(b) Lovan 20mg;
(c) Lyrica, and
(d) Voltaren.
She has consulted Mariel Gadea, psychologist since early 2024 and has an appointment booked with Dr Samir, psychiatrist in a few months' time. Ms Warda has never had a psychiatric admission.
Clinical examination
Mental state examination
Ms Warda had neatly shaped eyebrows and clean nail polish. She was neatly presented, and her hair was tied back. She cried at times. She engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. She was mildly restricted in her affect. She spoke spontaneously. Ms Warda was attentive and gave a clear history and provided clarification when asked.
Current functioning
Ms Warda is living with her two children, an 11-year-old son and a 15-year-old daughter. She is 45 and said that her ex-husband sometimes stays overnight to help with the children. She is living in her own house and said that it was purchased maybe five to six years ago with financial support from her parents, after they sold a property in Iraq.
She said her son is very attached to her and even now, sleeps next to her at night. She talks to her family in the USA regularly via video chat and the last time she saw them in person was a few years ago, when they visited Australia. She has not been overseas for a long time The claimant corrected this history after the re-examination.
The claimant said she has not taken any trips locally. The Panel asked her about a Hunter Valley trip referred to in the GP’s notes. She thinks this was maybe two years ago. She did not want to go, but her son wanted to go, and a friend drove as she could not drive that distance. They stayed overnight in a hotel. She said it was very painful, she saw the GP the same day and would not do it again.
Ms Warda discussed her children having behavioural problems and she blamed herself for it because she was yelling at the children. Her son started having trouble at school and yelling at other people. He was suspended a few times and then changed schools. His behaviour is better now but he has been diagnosed with ADHD. She said a paediatrician prescribed him medications.
Ms Warda said she spends a long time cleaning up and cooking and it takes half a day, as she does everything slowly because of her pain. She prepares cooking ingredients the night before. She does the washing up. She drops the children off to the bus. Sometimes, she buys groceries and shops but cannot carry heavy items and can only carry small things.
She does not go to the school awards presentation anymore – she said she went only once since the accident but could not do it again as it involved sitting and standing for a long time.
She takes her son to soccer sometimes.
She said braking in traffic increases her back pain.
She goes to Woolworths supermarket but avoids shopping centres and large shops, as she is too scared someone would bump into her and she would fall. She shops online too.
Ms Warda takes walks when it is sunny but does not walk far which she estimated around
10-15 minutes on her own. She does not have local friends. She has a best friend, and they talk regularly, but she had moved away. They had a catch-up a couple of months ago.Before the accident, she liked going out with this friend for coffee and shopping. Her life revolved around household chores and her family, and she took her son to the park, and they played soccer but physically she cannot do it now because of her physical injuries.
If there is no pain or if her pain is improved, she said she would do more with her children and spends hours with them, she would return to study and work, e.g. be a teacher in Australia.
She struggles with her hair because of her physical injury and her daughter helps, usually she washes it once a week. She has quick showers daily without prompting. She does her eyebrows herself but needs extra support with the left arm as she drops things from arm weakness.
She tries to cook healthy food and said she cannot lift heavy items. She eats three meals a day. She does not watch television or spend time on the computer much. She is right-handed and said her writing is ok, but she has no need to write much.
She said she spends all her time with household chores during the day, so that when the children are home, she can dedicate her time to them. She helps the children get ready for school.
Additional information from the claimant
The claimant contacted the Commission after the re-examination advising that she felt pressured during the medical assessment and felt she may have misled the medical examiners.
She provided a short statement dated 1 October 2020 advising that she had travelled to the USA with her children in June 2024 to stay with her parents. She said she was feeling stressed and had stayed with them “to obtain much needed support.”
Comments of consistency
The claimant gave a history at the re-examination of not having travelled after the accident which she amended in her further additional statement. The Panel accepts this explanation noting she was upset at time during the course of the re-examination. The Panel has considered this additional information in its assessment of the PIRS category of Travel.
The claimant told the Medical Assessors that she had not worked for her husband for 15 years and that when she did it was only for a short time. This is inconsistent to the note in the claimant’s GP’s records of 2 June 2022 (see paragraph 69 above) which suggests she was working at that time. This was not put to the claimant as the Medical Assessors did not want to upset the claimant. The Panel is proceeding therefore on the basis that the claimant has not worked for her husband for many years before the accident and has not worked for him since the accident.
Diagnosis and reasons
Ms Warda does not have a past psychiatric history. She described being in the car accident, sustaining soft tissue injuries and developing chronic pain symptoms, which have not substantially improved over the years. She developed persisting anxiety and depressive symptoms, as a result of the subject accident and her physical injuries also compounded her psychological distress and perpetuated her anxiety and depressive symptoms.
Her symptoms are consistent with a Persistent Depressive Disorder (PDD) and fulfil the DSM-5-TR criteria as follows:
(a) Ms Warda has depressed mood for most of the day, for more days than not, for at least two years;
(b) she described being depressed and also having the following symptoms:
(i)insomnia;
(ii)chronically low energy, and
(iii)poor concentration;
(c) during the two year period since the accident, she has never been without the depressive symptoms above for more than two months at a time;
(d) Ms Warda has not fulfilled the DSM-5-TR criteria for a concurrent persistent Major Depressive episode;
(e) there has never been a manic episode or a hypomanic episode, and criteria have never been met for cyclothymic disorder;
(f) her psychological symptoms are not better explained by Schizophrenia or a related psychotic disorder;
(g) her symptoms are not attributable to the physiological effects of a substance (e.g., a drug of abuse, a medication) or another medical condition (e.g., hypothyroidism), and
(h) her symptoms cause significant impairment in social, occupational, and other important areas of functioning.
Causation and reasons
Ms Warda does not have a past psychiatric history. She described being in a car accident, sustaining physical injuries and she has developed chronic pain symptoms, which have not substantially improved over the years. She developed persisting anxiety and depressive symptoms, as a result of the accident and her physical injuries have compounded her psychological distress and perpetuated her anxiety and depressive symptoms.
The Panel noted she has had other road accidents or near-misses on the road. These did not cause significant or any damage to the car and no physical injury to herself.
The claimant reported a marital breakup with counselling at the time, years before the accident. The claimant does not report any ongoing psychological issues arising from that and has maintained a cordial relationship with her husband since then.
There are no other stressors or contributing factors identified as contributing, and the Panel concluded the subject accident caused her current psychological injury.
It is the clinical judgment of the Medical Assessors that Ms Warda's psychological impairment is permanent and stabilised, with or without medical treatment, and is not likely to remit or change more than 3% with further medical treatment.
PSYCHIATRIC IMPAIRMENT
In accordance with the PIRS, the medical members of the Panel have assessed the claimant’s impairment in the six categories as follows:
Category
Class
1. Self Care and Personal Hygiene
1
Ms Warda said she eats three meals a day and cooks a healthy diet. She showers daily without prompting. She takes care of her appearance with some assistance from her daughter and it takes longer because of her physical injuries.
Ms Warda's physical injuries and pain are not assessable in the PIRS. From a psychological perspective, there is no deficit or minor deficit only.
2. Social and Recreational Activities
2
Ms Warda wants to do more, and occasionally has recreational activities within her physical capacity. She enjoys having a catch-up with her friend and talking to her family, and spending time with her children at home. A long-time friend has moved away but the friendship continues.
Ms Warda goes out to activities with her children less frequently than before her accident, but on her report, this is due to her physical injuries and significant levels of pain from her injuries which she says are aggravated when she is out for a long time.
3. Travel
2
Ms Warda is anxious and avoids some places (supermarkets) as she worries she would be further physically injured. She no longer drives at night but she drives on her own locally.
She has travelled to the United States to visit her parents with her children in recent times and has had at least one trip within NSW. The claimant reported increased pain and discomfort as a result.
Ms Warda's physical injuries and pain are not assessable within the PIRS. From a psychological perspective, there is a mild deficit only.
4. Social Functioning
2
Ms Warda's relationship with her ex-husband is settled.
She is anxious and avoids most of her friends.
She has maintained at least one long-term friendship.
The relationship with her general family is good and they are close. Her relationship with her husband has improved since the accident.
She can look after her children reasonably well, but not as well as before the accident.
5. Concentration, Persistence and Pace
3
Ms Warda described having poor concentration.
She says she has not worked for some time both before and after the accident. She would like to work but says her physical injuries prevent it.
She does not undertake any intellectually demanding tasks for up to 30 minutes in her daily life and does not read books. She spends time long periods of time cooking as she says she is slow (partly because of her physical injuries), and this does not involve consistent focus.
6. Adaptation
2
She has reduced stress tolerance compared with before the subject accident, she has reduced adaptation and continues to engage in the same age-appropriate life roles in similar hours as she did before the accident.
Classes in ascending order: 1, 2, 2, 2, 2, 3
Median Class Value: 2
Aggregate Score: 12
Whole Person Impairment: 6 %
The Panel notes the claimant gave a different history to Medical Assessors Baker and Hong from that recorded by Medical Assessor Nagesh, which is likely to be a result of the further effluxion of time since the accident and because Ms Warda has had further psychological treatment after his assessment.
In terms of self-care Medical Assessor Nagesh had rated the claimant as class 2 whereas the Panel noted the claimant had good self-care within her physical capacities and rated her as class 1.
In terms of social and recreational activities, Medical Assessor Nagesh rated the claimant as class 3 noting that Ms Warde has been socially withdrawn but the history given by Ms Warda to the Panel is that it is her physical injuries which are the primary limitation with her ability to engage. She wants to do more but physically cannot, and the Panel noted she does enjoy a variety of family-oriented activities, generally within her home, therefore the Panel rated her as class 2.
In terms of adaptation, Medical Assessor Nagesh rated the claimant as class 3 and said her ability to handle stress has decreased but this explanation could also be consistent with rating 2. The Panel noted that overall, Ms Warda performed similar life tasks before and after the accident, but she has reduced efficiency and it took longer time (as a result of her physical injuries) and therefore considered a class 2 impairment was more appropriate.
Adjustments
Pre-existing/subsequent impairment
There are no pre-existing or subsequent conditions and resulting impairments.
Effects of treatment
There has been symptomatic relief and mild improvement with her medication and ongoing psychological treatment and the medical members are of the view that an additional 1% should be added to the WPI.
CONCLUSION
The Panel is satisfied that the claimant sustained a psychiatric or psychological injury caused by the motor accident on 10 March 2021. The Medical members of the Panel have diagnosed a persistent depressive disorder.
The final WPI, taking into account the adjustment for treatment is 7%. As the outcome has changed it follows that Medical Assessor Nagesh's certificate must be revoked.
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