Insurance Australia Limited t/as NRMA Insurance v Zhang

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Zhang [2022] NSWPICMP 346
CLAIMANT:	Wan Yi Zhang
INSURER:	Insurance Australia Limited t/as NRMA
REVIEW Panel:	PRINCIPAL MEMBER John Harris
Dr Paul Friend
Dr Doron Samuell
DATE OF DECISION:	29 August 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 2 December 2015. the issue was the extent of any permanent impairment of psychiatric injury; the Medical Assessors referred to the pre-existing psychiatric condition and the delay in onset of symptoms and determined that there was no psychiatric injury caused by the accident; the Principal Member provided a minority decision referring to the evidence that showed aggravation of the psychiatric condition; the claimant’s claim was also based on her reaction to her physical condition; in these circumstances a delay in an aggravation of her psychiatric condition was explicable on the basis that it was a reaction to her physical condition; State of New South Wales v Bishop referred; Held – the Medical Assessors were not satisfied that the motor accident caused a psychiatric injury.
DETERMINATIONS MADE:	The Review Panel revokes the certificate dated 19 April 2021 and issues a new certificate determining that there was no recognised psychiatric condition arising from the injuries sustained in the motor accident.

REASONS

MEDICAL ASSESSOR FRIEND and MEDICAL ASSESSOR SAMUELL

Background

Wan Yi Zhang (the claimant) suffered injury in a motor accident on 2 December 2015.
Insurance Australia Ltd (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay to the claimant any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).

The Review

The application for referral of the medical assessment of Medical Assessor prior to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[1]
[1] Section 63(7) of the MAC Act.
On 17 December 2021, the delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]
[2] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F(2) of 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 Medical Assessor.[3]
[3] 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 Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
All members of the Panel had no previous involvement with the claimant or with this matter.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[5]
E [5] Section 63(3A) of the MAC Act.
The Panel issued the following Direction to the parties requesting the provision of respective bundles that should be considered. The parties provided respective and comprehensive bundles.

Assessment under 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 Prior and dated 19 April 2021.

MATERIAL BEFORE THE REVIEW PANEL
Review Application

The submissions from the insurer regarding the review application states that Medical Assessor Prior did not take into account relevant information for the previous psychiatric history including the reports of the psychologist in May and August 2015, the discharge referral from Prince of Wales Hospital dated 23 November 2014 and the disability support application dated 15 January 2013. It also states that the previous review panel and Assessor Synnott found the claimant was a poor historian and not credible.

Reply Submissions

The claimant’s submission dated 22 March 2018 states there is no material error in the examination by Assessor Samuels. The assessor assessed the claimant’s pre-existing psychiatric condition and found no impairment. It states there is no reason not to accept the claimant’s account that she ceased taking antidepressants some six months prior to the accident. This was confirmed in the letter of Ms Tang dated 31 August 2015.
The claimant’s 5R submissions dated 5 October 2021 states there was no material made by Assessor Prior and the alleged errors in the insurer’s submissions all relate to the assessment of the claimant’s pre-accident whole person impairment made by the assessor.

Supporting documents

The Review Application submissions by the insurer states Assessor Prior fell into error by not taking into account relevant consideration of the previous psychiatric history. It states the reports by Ms C Tang Pearce dated 28 May 2015 and 31 August 2015, three months prior to the accident, in which it was reported that the claimant was highly distressed and anxious and was hitting herself for self-harm. Her depression, anxiety and stress levels were extremely severe. She advised she could not manage cooking or housework and at times remained in bed for a few days. It appears she suffered from major depression and found it difficult to function.
She had been under the care of Ms Tang-Pearce since 22 November 2013.
The discharge referral from Prince of Wales Hospital dated 23 November 2014, one year before the accident, states she was referred after expressing thoughts of wanting to commit suicide by taking an overdose, however later retracted this statement stating she would kill herself by not eating or drinking.
The Disability Support Application dated 15 January 2013 due to anxiety and depression states the impact on functioning included poor concentration and poor motivation.
It states the medical evidence is substantially inconsistent with the claimant’s self-report. It states the previous review panel and Assessor Synnott found the claimant was a poor historian and not credible. The photographs of the claimant’s vehicle, registration CC6 6EN show some minor scratches around the fuel filler cap flap on the lefthand side but do not appear to show any other damage.
The report of Dr Robert D Lewin, psychiatrist, dated 22 November 2017 regarding the motor accident on 2 December 2015 states Ms Zhang was the driver involved in a rear-end collision. Her vehicle was stationary when her vehicle was hit waiting for traffic lights to change. It states that the general practice records contain multiple references to psychiatric symptoms and prescriptions for sleep disturbance and related problems including Lexapro and Stilnox in 2013, 2014 and 2015.
It states Ms Zhang came to Australia in 1990 as a single woman and married 3-5 years later. She returned to China in 1996 and returned to Australia just prior to the birth of her daughter in 2000.
She subsequently separated from her husband. There was a lot of domestic violence between them. He paid for his daughter’s school fees but provided no other financial support.
She last worked in 1996 in China in a spectacle shop. She has not worked in Australia.
She relied on social security benefits and at times her sister helped by providing food or small amounts of money.
She experienced sustained low mood after 2000 and in the years prior to the motor accident. This was present all day. There were suicidal ideas and she attempted self-harm by hitting herself.
She was referred to a psychologist and was referred to a psychiatrist just after the motor accident.
In the motor accident she was thrown forward but did not hit her head and was able to exit the vehicle without assistance although she was aware of pain and feeling stunned and limping.
She states that she just wanted to die and was in pain all the time all over her body.
She woke early in the morning and had middle insomnia and was mostly unable to sleep because of pain. She had reduced appetite and lost 7kg over 12 months. She had sustained lethargy. She felt her condition was becoming worse. She always felt low, discouraged and hopeless, that things were bad all the time and that she was not able to cheer up or feel good at any stage.
She had negative thoughts, feelings of guilt, shame and hopelessness.
In 2016 she took an overdose of sleeping tablets soon after returning from China. She has ongoing feelings of hopelessness, wants to die and repeatedly beats her head with a closed fist.
She feels anxious when she drives but can drive from her home at Rosebery to her general practitioner in Hurstville. She is constantly on the lookout for danger when driving and fearful of involvement in another collision. She drives cautiously and rarely exceeds 30 km per hour. She travelled to China in 2016 to see a doctor in China. She had special injections which had limited benefit.
She was prescribed Efexor 300 mg daily and Valdoxan at night for sleep as well as Seroquel.
She was referred Dr Zhang, psychiatrist, and had four sessions of treatment.
She was referred to the local Community Mental Health Service. She apparently could not afford to continue attending the psychiatrist.
Dr Lewin states she has a diagnosis of recurrent Major Depressive Disorder and currently has a psychotic depression. It states the case has not yet stabilised and should be evaluated for whole person impairment in 9-12 months to allow evidence based treatment to be undertaken.
The MAS Certificate by Assessor Anthony Samuels dated 29 December 2019 states that Ms Zhang acknowledged a previous history of depression and had been treated by a psychologist and with antidepressant medications. She was unsure whether she was consulting a psychologist at the time of the motor accident and thinks that she stopped the antidepressant medication prior to the motor accident.
She was in a relationship at the time of the motor accident, but they broke up six months after the motor accident, because her partner said she was crazy.
Her current symptoms were that she felt like people were stalking her. She felt like smashing her vehicle and does not want to live. She hears a voice talking about her and has depressed mood with poor sleep.
She feels tired but cannot sleep and at times she just wants to die. She can feel anxious and panicky.
She feels uncomfortable eating, does not want to eat and has lost 7 kg of weight.
She dreams of cars in her sleep.
Her concentration is poor and she is forgetful.
She stays in bed and lies around all day. She cannot control her bowel or bladder and had a bowel motion in a friend’s car which led to her being reluctant to go out.
She only drives when she is required to do so. Dr Samuels makes a diagnosis of a Major Depression with Psychotic Features.
He determined that there was no pre-existing whole person impairment. The whole person impairment arising from the injuries sustained in the motor accident was 15%.
He assigned class 3 to Self Care and Personal Hygiene; Social Functioning; and Adaptation. He assigned class 2 the remaining three categories.
The report by Assessor JRS Ashwell dated 21 February 2018 states that the following injuries give rise to a permanent impairment which is not greater than 10%:
Neck – soft tissue injury – C5/6 right foraminal stenosis with foraminal protrusion compression right C6 nerve root;
Lower back – soft tissue injury – L5/S1 disc tear and protrusion;
Left shoulder – soft tissue injury.
The MAS Certificate of the Review Panel reviewing the MAS Certificate of Assessor Anthony Samuels dated 29 December 2017 and issued a new Certificate stating that the condition of persistent depressive disorder arising from the injuries sustained in the motor accident led to a whole person impairment which was not greater than 10%.
It refers to the report of Ms Christine Tang-Pearce, clinical social worker, counsellor and psychotherapist, dated 31 August 2015 which states she completed six sessions of counselling and was requesting further counselling sessions so she could cope with her depression. She scored in the extremely severe range for depression, anxiety and stress on the DASS 21.
Ms Zhang denied taking psychiatric medications prior to the motor accident and to being admitted to a psychiatric hospital or psychiatric unit. She consulted a psychologist but could not remember anything more. She denied being incontinent before the motor accident. She took sleeping tablets occasionally, some of which were dispensed in China.
Ms Zhang was advised that there was a history of prescription of psychiatric medication and expression of suicidal ideas and incontinence before the accident and was unable to account for the discrepancy.
There is no description of her current symptoms but it states that she described the accident making her feeling annoyed and that she had extremely bad luck. She wanted to die soon and felt that her life was insignificant. She could no longer walk and therefore could drive but had to drive at only 20-30 km per hour. She felt panicky if a large vehicle passed her vehicle. Her heart was beating faster when there was a large vehicle behind her or a vehicle honked its horn.
She was concerned about her daughter and particularly her daughter’s difficulties with examinations especially in the latter years of secondary school.
She had no interest in forming a new relationship.
The panel noted inconsistencies in Ms Zhang’s account particularly about her description of her previous psychiatric history and incontinence before the motor accident. It noted she said she had had counselling before the motor accident, but this was regarding her daughter’s studies.
The panel made a diagnosis of an exacerbation of her pre-existing persistent depressive disorder. It assigns a whole person impairment of 24%. It determined that there was a 15% pre-existing whole person impairment which gave a current whole person impairment of 9% arising from the injuries sustained in the motor accident.
The MAS Certificate by Assessor Inglis Howe Synnott dated 10 April 2019 states that the treatment is as follows:
1.     1-12 psychiatric sessions and/or psychological consultations per year from date of assessment continuing for the next 0-10 years.
2.     Whether the psychological injuries give rise to a need for attending care from day of accident to 30 April 2017 and whether this is causally related to the injuries sustained in the subject accident.
3.     Whether the psychological injuries give rise to a need for attendant care from 1 May 2017 to date of assessment and whether this is causally related to the injuries sustained in the subject accident.
4.     Whether the psychological injuries give rise to a need for attendant care/domestic assessment from the date of assessment and continuing for the rest of the claimant’s life estimated as being 31 years and whether this is causally related to the injuries sustained in the motor accident or do not relate to the injuries caused by the motor accident.
Assessor Synnott determined both treatments are not reasonable and necessary in the circumstances. She reported that her current symptoms included seeing people in the house and that sometimes they talk to her at times saying things like ‘You can die’.
On one occasion she went to the beach and saw a person who told her to walk into the water.
She has thoughts of suicide and cut herself on occasions.
When asked specifically she described being depressed, having thoughts of suicide and being worried about her daughter and particularly how it would impact her if she killed herself.
She had poor sleep and nightmares about the motor accident, anxiety and nervousness and difficulty relaxing, poor concentration, memory and loss of motivation and social avoidance.
She is irritable, has a loss of appetite and upset by reminders about the motor accident. She is nervous and apprehensive in a motor vehicle and avoids driving and only drives to local destinations.
Assessor Synnott noted that there were a lot of inconsistencies in the account and particularly describing the distance between pre- and post-motor accident symptoms.
She described physical symptoms which rendered her incapable of doing all activities of daily living, that NGOs provide assistance and her daughter and sister are also helpful.
It appears that she had a persistent depressive disorder prior to the motor accident and may have experienced an exacerbation of these symptoms following the motor accident but it appears it was of minor intensity.
She applied for a disability support pension before the motor accident and she had extensive treatment for her symptoms.
Assessor Synnott noted that she had not worked in paid employment for over 20 years prior to the motor accident was not coping with simple domestic and self-care tasks.
The MAS Certificate following further assessment by Assessor Michael Prior dated 19 April 2021 states that the exacerbation of pre-existing persistent depressive disorder with a current condition of major depressive subtype with psychotic and anxiety symptomatology and a comorbid posttraumatic stress disorder give rise to a whole person impairment of 19%.
Ms Zhang stated she had a pre-existing depressive condition and had been consulting a psychiatrist or psychologist. She had been prescribed medication but did not take it. She states she could not really say if she was getting better from the depression just before the accident.
She was in a relationship at the time of the motor accident which was going well.
She, despite her symptoms frequently went out for meals or tea and played mah-jong with friends. She was able to manage domestic chores and self-care and was able to drive alone and independently. She reported that she did not have problems with her memory or concentration.
Ms Zhang stated that her depression got worse after the motor accident and has remained severe. She was sad and unhappy all the time which never remitted and she becomes more depressed if she recalls or is reminded of the motor accident. She was unable to experience pleasure or enjoy activities and did not feel any better with others. She had lack of motivation, was unable to focus and concentrate and unable to remember.
She described wanting to die and stated that she had previously cut her wrists. She felt guilty about her daughter because her daughter takes antidepressants and she is scared she will have the same problems as herself. She stated everything was bad and “there is nothing left in my life”. She has lost 20 kg in weight since the motor accident with constant fatigue and energy and no strength.
She describes having frequent panic attacks which can occur up to several times each day, but their duration was brief and she could not quantify their length. They can occur spontaneously or when she is reminded of or thinks about the motor accident.
Her symptoms include a fear she will pass out, hyperventilation, dry mouth, sweating and shaking, and an increased heart rate and feelings of numbness in her hands and head.
She reported experiencing auditory hallucinations in the form of a single male voice which encourages and commands her to harm herself. “The voice tells me I can die and if I die I’ll get rid of how I feel.”
She has nightmares of a vehicle hitting her. She thinks about the accident whenever she closes her eyes and it can just come into her mind.
Environmental factors trigger distressing intrusive recollections of the motor accident which include if she talks about the motor accident.
She is very jumpy in response to sudden unexpected movements or noises.
She is apprehensive and tearful about being a passenger in a car and fearful of a further motor accident. She is now very angry.
She is generally withdrawn and feels detached from family members that she previously felt close to including her daughter, father and sisters.
Assessor Prior assigned a whole person impairment of 26%, assigning a class 3 to all domains except Adaptation to which he assigned a class 5.
Assessor Prior determined there was a 7% pre-existing whole person impairment. This gave a final whole person impairment of 19% arising from the injuries sustained in the motor accident.
The clinical records from the Prince of Wales Hospital and Royal Hospital for Women include the following.
The discharge referral for mental health admission 22 September 2014 to 23 November 2014 states that Ms Zhang presented after being referred by CRS Employment expressing thoughts of wanting to commit suicide by taking an overdose but later stated that she wanted to kill herself by not eating or drinking.
She was diagnosed as having a depressive disorder with comorbid gambling.
The latter diagnosis was made from collateral information provided by her general practitioner.
Also included was the triage assessment which states that the referrer from CRS Employment had referred her because she states she did not want to live any more and that she would take sleeping tablets. She was asked about her 14-year-old daughter and particularly her daughter had said she would kill herself if she took her own life. She then stated she would kill herself slowly by not eating or drinking. She stays in bed all day, does not shower or cook for herself or daughter. Her father and sister live in the same apartment block and provide support for her. Her daughter cares for herself.
She described having failing eyesight due to banging her head.
Her medications were Lexapro 20 mg which had taken for many years and
Stilnox 10 mg. Her discharge medications were venlafaxine 225 mg daily and olanzapine 2.5 mg daily.
The mental health progress notes by Laurie Power, senior medical officer, which is difficult to date but appears to be around the time of 29 October 2014, states she was seen with an interpreter. She described feeling a little better, sleeping on and off during the night and sleeping during the day. She spent most of the time in bed, ate a little for dinner and less likely to hit herself in the head. She denied being suicidal but still feels she wants to die. She denied the gambling debt reported by her general practitioner. She wanted to apply for the disability support pension and wanted assistance because she feels unable to manage at times. She states she was compliant with medication and had no side effects.
It is not clear whether this admission was an inpatient admission or managed as an outpatient admission by the acute care team.
The report from the Transcultural Mental Health Centre states that Ms Zhang was referred on 17 March 2014 and first face-to-face contact was 10 April 2014 with subsequent sessions on 8 May 2014 and 11 June 2014. She was referred for psychoeducation with respect to anxiety and depression by Leila Sedlarevic, case worker for the Commonwealth Rehabilitation Service.
It states she is prescribed Lexapro and Stilnox but sleeps no more than two hours each night and has been keeping appointments with CRS to prepare for employment.
She told Centrelink that she wanted to kill herself.
Ms Zhang has two younger sisters. Her father and one of her younger sisters live in another apartment in the same apartment block. Her father cooks meals and brings them to Ms Zhang for Ms Zhang and her daughter Caroline to eat. At times he sleeps in Ms Zhang’s home. Her younger sister also cooks for Ms Zhang and her daughter.
Ms Zhang unequivocally lacks motivation to carry out her daily routines. It is not uncommon that for three days she eats meals only in her bed and does not shower for the same duration and does not make efforts to attend appointments.
Her ex-husband visits from China to see his daughter usually staying about eight days at which time he will stay in Ms Zhang’s home. It also makes the statement “She has had a few recent car accidents believably bound up with her undesirable physical and psychological conditions”. This statement is not further explained.
The clinical notes from Christine Tang-Pearce include a DASS 21 dated 29 August 2013 which scores Depression as 12 (mild range), Anxiety 16 (severe range) and Stress 16 (mild range).
Subsequent DASS scores apparently for 28 August 2013 she Anxiety as 40, Depression at 34 and Stress at 40 and on 14 October 2013, Anxiety at 40, Depression at 34 and Stress at 40. It states Ms Zhang has anxiety and depression disorder as a result of chronic pain and struggles in her role as a single mother. It states she lacks a support network in Australia.
The chronic pain has affected her employment prospects. She was taught communication and parenting skills and pain management skills. It was recommended that she concluded six sessions of treatment and it was recommended that she have a further six counselling sessions to deal with the suicidal and negative thoughts.
The DASS 21 scores, apparently on 28 March 2014, show Depression at 42 (extremely severe), Anxiety 38 (extremely severe) and Stress 36 (extremely severe).
The clinical notes from the Hurstville City Medical Centre include the following.
The entry dated 25 March 2013 states that a Centrelink medical report was completed in support of the disability support pension.
The list of active past history diagnoses includes
anxiety/depression in 2013 and in 2012
cervical disc disease and lumbar disc disease.
Developing auditory and visual hallucinations in 2016.
Her medications at the time of printing of the clinical notes, 4 May 2021, included Lexapro 20 mg and Stilnox 10 mg and 12.5 mg.
The entry dated 26 September 2014 states that she was admitted apparently by the acute care team at the Prince of Wales Hospital due to being suicidal and now has been discharged home with Community Mental Health follow up.
The entry dated 3 October 2014 lists the medication as Lexapro 20 mg and Stilnox CR 12.5 mg one tablet daily.
The entry dated 3 November 2014 states she was in a motor accident two months previously and her vehicle was damaged. It states she saw psychologist Yip Tong and Dr Laurie Power. She was prescribed venlafaxine 225 mg daily. It notes the Lexapro was ceased.
The entries from 12 January 2015 to 23 November 2015 (the latter was the last entry prior to the motor accident on 2 December 2015) record the prescription of Stilnox CR 12.5, Endep 50 mg tablets and later Stilnox 10 mg tablets, but no antidepressant medication and there is no description of psychiatric symptoms.
The entry dated 31 August 2015 appears to show that a K10 in Chinese was printed and a mental health treatment plan was prepared. It appears that she also was referred to a psychologist. She was prescribed olanzapine 2.5 mg on that date.
The entry dated 4 December 2015 states she has back pain. It states she was involved in a motor accident when someone’s car hit her car while she was waiting at a traffic light. She has tender low back around the L3-L5 region with limited movement. She continues to be prescribed Stilnox in 2016 and Endep 50 mg was prescribed on 13 May 2016.
The entry dated 30 September 2016 states that a Chinese K10 was printed and a referral to C Tang-Pearce was also created.
There is no mention of depressive symptoms and apart from one Endep prescription, no prescription of other antidepressant medications during 2016 up to and including 30 December 2016.
The entries from 13 January 2017 to 18 December 2017 include prescriptions for Stilnox 10 mg and 12.5 mg but no antidepressant medication and made no mention of depressive symptoms. The entries in 2017, where Stilnox is prescribed, refer to not sleeping well or having insomnia, but no other possible depressive symptoms.
The entries from 15 January 2018 to 21 December 2018 include prescriptions for Stilnox for insomnia but no description of depressive symptoms and no prescriptions for antidepressant medication.
The entries from 12 January 2019 up to and including 21 December 2020 include prescriptions for Stilnox 10 mg and 12.5 mg for insomnia or poor sleep but no antidepressant medication and no reference to depressive symptoms.
The entry dated 21 January 2021 states she has a diagnosis of schizophrenia and was prescribed aripiprazole 20 mg one tablet daily.
The entry dated 23 April 2021 states the diagnosis is schizophrenia and that she was prescribed aripiprazole 20 mg and 10 mg tablets in addition to Stilnox.
The entry dated 3 May 2021 states she is still depressed especially when she thinks about the CVA, fell, SOB, dizziness. Was prescribed Lexam (escitalopram) or Lexapro 20 mg one tablet daily in addition to Stilnox 10 mg and 12.5 mg.
The medical report for Disability Support Pension Centrelink dated 25 March 2013 states that she has lumbar disc disease and low back pains.
The Centrelink medical report in support of a Disability Support Pension dated 15 November 2013 lists diagnoses of depression, anxiety and insomnia with poor concentration and poor motivation. It lists other diagnoses of lumbar and cervical disc problems at S1 and L5/S1.
The report by Christine Tang-Pearce, clinical social worker, counsellor and psychotherapist, dated 28 May 2015 states that she is distressed and has depressed mood due to the relationship with her ex-husband, financial pressure and parenting issues around her daughter.
She was initially seen in August 2013 and not seen again for 12 months after she had a car accident. The DASS 21 showed she scored in the extremely severe range for Depression, Anxiety and Stress. She did not experience any positive feelings, her life was meaningless and she was close to panic.
She hit her head because she was angry with herself and felt guilty and regretted not taking care of her daughter in the right way when she was young. She had suicidal thoughts from time to time.
The report by Christine Tang-Pearce dated 31 August 2015 states that Ms Zhang has completed six sessions of the mental health care plan. She is highly anxious and distressed.
The DASS 21 indicates that the Depression, Anxiety and Stress levels were extremely severe. She has major depression and finds it difficult to function. She has stopped taking the antidepressant medication for a few months and it appeared that her depressive mood was worse.
The report of Christine Tang-Pearce, clinical social worker, dated 29 August 2016 states Ms Zhang has completed six sessions of mental health care plan. She was highly distressed and anxious which may be due to relationship issues with her husband as well as concerns about her daughter and financial pressures. She reported since her car accident she had pain in her back and legs which affected her sleep and moods. Her depression increased and she worried about her health and her future.
The DASS 21 indicated that the Depression, Anxiety and Stress levels were extremely severe. She was hitting the front of her head to self-harm and to relieve her frustration.
The Application Form for the National Disability Insurance Scheme completed by Dr Ye dated 24 November 2017 lists the diagnoses as anxiety and depression, lumbar disc disease, faecal incontinence, cervical disc disease, non-insulin dependent diabetes mellitus, osteoarthritis, fatty liver, left shoulder aches with capsulitis.
The report apparently from the National Disability Insurance Agency dated 8 October 2018 states that she has difficulties attending due to mental health conditions as she often feels exhausted and anxious.
It states she was rejected for a claim under workers compensation. She has declining capacity to organise support on her own and a support coordinator would be helpful.
The psychology report from the Benevolent Society by Sindy Kwok and endorsed by Sunit Misra dated in November 2018 states the DASS scales were extremely severe for Depression, Anxiety and Stress. She was taking Efexor XR 360 mg daily in addition to other medications.
It states that she returned to China with her husband in 2000 when her daughter was six years old. She returned to Sydney with her daughter in 2013 for education and reported guilt in agreeing to her ex-husband to educate her daughter in China for 10 years. She feels more relieved because her daughter is bilingual which is her strength.
She attended the Camperdown Mental Health Clinic for 2-3 years in 2017 and Dr Zheng Zhang, psychiatrist, three times in Kogarah. She feels her symptoms have worsened since the car accident in 2015 with injuries to her hips, waist and back and becoming incontinent. She was not admitted to hospital and managed the injury by visiting her GP, Dr Tony Ye. She was embarrassed about the incontinence. She has severe anxiety and startle when large or fast vehicles drive past. She has panic attacks, anxiety and social isolation and prefers to stay at home. She thinks about suicide of varying intensity each day. She has self-harmed by shallow wrist cutting and has thoughts of walking into an ocean.
The discharge referral from Royal Prince Alfred Hospital dated 17 September 2020 states that Ms Zhang presented to the Emergency Department via ambulance on that date with an episode of dizziness, reduced responsiveness whilst out to dinner with her family. CT brain scan excluded any intracranial pathology. She was admitted overnight for monitoring.
She was given a likely diagnosis of vestibular migraine after review in the RPA Dizzy Clinic. She had the sudden onset of vertigo, feeling flushed in the face, ringing ears and the room spinning.
The clinical records of Dr Jiang Li from the Hurstville Medical Practice include the following.
The medical certificate by Dr Li dated 14 December 2015 states she was involved in a motor accident on 2 December 2015 and has neck, lower back, pain from whiplash, anxiety and depression from the motor accident on 2 December 2015. She needs physiotherapy and psychologist counselling.
The entry dated 14 December 2015 states she was involved in a motor accident on 2 December 2015 when her vehicle was stationary and hit from behind causing injuries to her neck, lower back and has neck and lower back pain radiating to her legs and numbness in her legs. She has right shoulder and hand numbness and has become more anxious and depressed and has insomnia. She has a previous history of lower back and neck pain and anxiety and depression but stopped medication 6-7 months ago.
She has poor sleep, early morning awakening, depressed mood, panic attacks, suicidal thoughts, low self-esteem and hallucinations. She was prescribed Mobic, Panadeine Extra, Endep 10 mg.
The entry dated 21 December 2015 states she is taking her own medications and has not started the medication that was prescribed for her at the previous appointment, has not had physiotherapy, did not have a claim number but still has right neck and shoulder and lower back pain and insomnia. She has anxiety and whiplash injury as previously.
The entry dated 22 January 2016 states she presented for two issues, firstly the injuries following the motor accident which caused lower back and right shoulder and neck pain and insomnia for which she takes Endep 10 mg at night.
The second issue was poor sleep, early morning waking, depressed mood, panic attacks, suicidal thoughts, low self-esteem and irrational fear.
She has diagnoses of anxiety and depression in addition to whiplash following a motor accident. The dose of Endep was increased to 25 mg at night, then she was referred to a psychologist for counselling and review.
The entry dated 1 February 2016 is similar to the previous entry but the Endep was ceased and she was commenced on Efexor 75 mg in the morning and Seroquel 25 mg half tablet at night.
The entry dated 8 April 2016 states she has been taking Efexor and Endep but not the Seroquel. The dose of Efexor was increased to 150 mg daily.
The entry dated 15 April 2016 states that Efexor 150 mg and Seroquel 12.5 mg has helped a little. She remains depressed and has the previous symptoms. She was referred to Dr Zhen Zhang.
The entry dated 29 April 2016 states she is taking Seroquel 50 mg at night and Efexor 150 mg daily. The dose of Efexor was increased to 225 mg. She has depressed mood, hallucinations and poor sleep.
The entry dated 16 May 2016 states she remains depressed and has insomnia. Avanza 30 mg half a tablet at night was added to her regimen.
The entry dated 1 June 2016 states that the dose of Seroquel was increased to 100 mg at night. She ceased taking Avanza but continued to be prescribed Efexor 225 mg daily.
The entry dated 2 September 2016 states she continues to have lower back and leg pain and left shoulder pain from the motor accident. She has seen a psychiatrist who added Valdoxan 25 mg at night in addition to her current medications.
The entry dated 21 September 2016 states her medications are Efexor 225 mg daily, Avanza 30 mg at night, Seroquel 100 mg at night and Valdoxan 25 mg at night. She has better sleep but is still anxious.
The entry dated 24 March 2017 states she is taking her current therapy for mental illness and hypertension and has been to a mental hospital and still feels anxious and has increasing visual hallucinations in addition to left shoulder pain, lower back pain and left leg numbness. She has the symptoms of poor sleep, early morning awaking, depressed mood, panic attacks, hallucinations and suicidal thoughts.
The list of prescriptions shows that she was prescribed Efexor XR 150 mg two in the morning on 5 May 2017, Valdoxan 25 mg on the same date and Avanza 30 mg one at night on 24 March 2017.
The clinical notes of the Hurstville Medical Practice from 14 June 2017 to 10 July 2019 include the following entries.
The entry dated 15 November 2017 states she has run out of medication and has insomnia and been more depressed. She has the same depressive symptoms. She was prescribed Valdoxan 25 mg at night and was referred to Dr Zhen Zhang.
The entry dated 19 March 2018 states again she has run out of medication, has insomnia and headache. She was prescribed Avanza 30 mg at night and Efexor XR 150 mg two in the morning. Valdoxan was ceased.
The attached list of prescriptions shows that on 19 March 2018 she was prescribed Avanza 30 mg one tablet at night and Efexor XR 150 mg two tablets in the morning.
These medications were previously prescribed on 5 May 2017. She was prescribed Avanza on 24 March 2017.
The clinical notes from the Hurstville Medical Practice from 21 March 2018 to 20 March 2022 contain no entries mentioning depression or the prescription of Efexor, Valdoxan or Avanza.
The clinical notes from the Eastgardens Medical Centre from 20 September 2005 to 12 March 2020 include the following entries. There is no reference to any depressive symptoms or the motor accident on 2 December 2015 and there is no prescription of antidepressant medications.
The clinical notes from the Eastgardens Medical Centre from 24 March 2020 to 22 March 2022 have no references to depressive symptoms and no prescriptions for antidepressant or other psychiatric medication.
The clinical notes from Concord Hospital include a HoNS dated 13 December 2018 with a diagnosis of depressive episode and appears to show mild symptoms for irritability, fleeting thoughts of ending it all, problems with memory, minor health problems, odd or eccentric beliefs, mild but definite depression and distress. The conclusion is it is a mild level
The triage findings for 21 November 2018 state that she was referred by the Benevolent Society seeking mental health review and management.
She had contact with Redfern Community Mental Health in 2017. She had a car accident in 2015 and since then has been suffering from depressive mood with ongoing suicidal ideation. She was reported to have cut her wrist in October 2018 but was not hospitalised.
It states it was in the context of workers compensation about to cease her payment. She has not been sleeping well for a month and has increasing suicidal ideation.
The mental health progress note by Louise Kathleen Crowley, trainee specialist, dated 16 April 2019 states that she was reviewed with a telephone interpreter. She was again very morose and too fatigued to engage in any activity, never goes out, never sees anyone but is managing shopping and ADLs at a basic level.
She was excited to tell me she made another suicide attempt this month. She felt a bit better one day and went to the beach where she likes to walk. She heard voices telling her to walk in the water and so she walked in around ankle depth.
She heard her daughter’s voice and decided to go home. She wanted to go through the three previous suicide attempts in detail. One of these involved making superficial cuts to her arm and taking dozens of photographs. She tried to review these with me today. She states she has not slept for an entire month but then stated maybe an hour a night. She has an NDIS plan but only for assistance with domestic duties and travel.
She does not like escitalopram as it causes a dry mouth but does not want to stop it because she feels she needs medication to fix the situation.
Her breathing rate was 50 breaths per minute and she wanted a pill to fix her breathing. She did not want psychological treatment but wanted medication to make her feel better. The impression was this was a complex trauma/cluster B presentation with likely pseudo hallucinations.
The entry dated 5 March 2019 by Louise Kathleen Crowley at Redfern Community Health Centre states that she remains morose, is not getting out of bed, nothing has changed and has not left the house. She has ringing in her ears and this makes her feel she would be better off if she were dead.
She has fatigue but has not lost weight despite not eating. She says she has not slept in the month since previously reviewed. She has thoughts of wanting to be dead but no active plans. She thinks she sees visual hallucinations sometimes. This is a ghost that she thinks she might see when she turns around to where she was but it is not there.
She is taking escitalopram 10 mg daily. She is frustrated that she has been here several times and nothing has been done for her. It states that she is reasonably groomed. Her behaviour was pleasant, polite and engaged with the telephone interpreter for the duration of the interview. She made some eye contact and reacted appropriately at the beginning and end of the interview. She appeared to communicate in a normal fashion with the interpreter. She described her mood as dreadful and no better. Content of thoughts is no change. She just wants to lie in bed and someone else to solve the situation.
She remains fixated on the photographs of the superficial self-harm from months ago. The impression was of trauma/dysthymia/ cluster B traits. It states she is just realising she may play some role in the recovery process. She ahs increased the dose of escitalopram to 20 mg daily. It states that support for DSP application was declined and that employment should be a good goal.
The entry dated 27 February 2017 states she was interviewed with a Mandarin speaking telephone interpreter. It describes ongoing low mood, poor sleep and appetite and a previous episode of depression in 2015 but worse since the accident. Self-harming behaviours including hitting her head on a wall, feels anxious when driving that some cars may be targeting her. She receives the New Start allowance. She had good eye contact, was easily engaged by the interpreter and was reactive during interactions. She was upset by discussing current stressors and described worsening mood with thoughts of self-harm. She felt life was hopeless. Her daughter is a strong protective factor.
The report by Dr Rob T Mathunni, trainee specialist dated 14 March 2017 states she was prescribed Efexor the previous year but sometimes misses doses and also is prescribed Valdoxan. She has been unhappy for several months. She had a motor accident in October 2015.
She feels anxious when driving and thinks someone is following her when driving or when walking.
She doses off and on during the day and nibbles at food but had no weight change.
She spends almost the whole time in bed and ruminates at night. She worries about the money to have physiotherapy and have acupuncture.
She hits her head every day. She has had thoughts of ending her life. She denied nightmares or flashbacks or being hypervigilant.
She has ongoing low mood, poor sleep and appetite and the depression is worse since the accident. She has self-harming behaviours including hitting her head on the wall. She thinks that some cars may be targeting her. It states that she had good eye contact and was easily engaged by the interpreter and was reactive during the interactions. She was reactive and appropriate throughout.
The entry by Amanda Salmon, registered nurse, dated 25 February 2017 states she returned a call by the interpreter service. She was perplexed as to why the ACS were visiting her house today. She was out with her daughter today organising things for her daughter’s education. She is still not at her home and will not be returning home until late. She repeatedly declined home visits from ACS tonight and would speak to them by telephone.
She was consulting a psychotherapist near Campsie who was helpful. She was depressed but denied suicidal ideation. She reported that all her injuries including her foot were from the motor accident. She denied any previous psychiatric mental health admissions and does not want to be admitted as it scares her.
The entry by Guat Tay registered nurse dated 25 February 2017 which is a report of a home visit, states that her father answered the door bell and stated that she was out attending her daughter’s school event. He stated that she was not well, has a sore leg and is barely able to walk. He was unable to provide information about mental state as he was not living with her.
The Medicare PBS records show that escitalopram was dispensed on four occasions in 2013.
She was prescribed amitriptyline in 2014 which last dispensed on 7 July 2014.
Amitriptyline was dispensed on 11 May 2015 and subsequently in on 29 June 2015. It was next dispensed on 16 April 2016.
Venlafaxine was first dispensed on 15 April 2016 but not subsequently.
The amitriptyline was dispensed on 21 December 2015 and again on 15 April and
14 May 2016.
No antidepressant medication was dispensed after 14 May 2016 until escitalopram was dispensed on 4 March and 28 March 2019. No antidepressant was dispensed thereafter up to and including 22 November 2019.
Stilnox is not a PBS listed medication so it will not be shown in these records
The records of Dr Jiang Li show that she had been prescribed venlafaxine, mirtazapine, amitriptyline and quetiapine during 2016 and 2017.
The claimant’s 5A submissions dated 22 March 2018 state there is no material error made by Assessor Samuels. The assessor assessed the claimant’s pre-existing psychiatric condition and found no impairment.
The assessor had no reason not to accept the claimant’s account that she had ceased taking antidepressant medication some six months prior to the accident.
Her treating psychologist, Ms Tang, advised on 31 August 2015 the claimant advised her she had stopped taking antidepressant medication for a few months.
The assessor extensively referred to all medical records and documents provided by both parties. The three letters by Ms Tang up to and including 31 May 2015 stated there was no complaint of self-care difficulty or relationship problems. The assessor did not find that the claimant sustained an injury causing an inability to control her bowel or bladder. It stated that she was more depressed, avoiding people, feeling suicidal, had possible psychotic symptoms in the form of voices and a sense that people are stalking her and following her.
The claimant’s 4A submissions (undated)
The Review Panel assessment on 20 July 2018 determined there was a persistent depressive disorder and assessed a whole person impairment of 9% related to the subject motor accident.
The claimant’s condition has deteriorated since this assessment. This is evidenced by:
-    the report of psychologist Sindy Kwok dated 28 November 2018;
-    NDIS change of circumstances form dated 28 November 2018;
-    the clinical notes of Concord Repatriation General Hospital dated 20 June 2019;
-    report of Sam Borenstein dated 26 August 2019.
It states the claimant was admitted to Concord Hospital on 21 November 2018 with increasing suicidal ideation and in October 2018 had cut her wrist.
By 15 January 2019 she reported to Concord Hospital where she was self-harming including beating her head with her fist to cause a haemorrhage, elbowing walls, intentionally not taking diabetes medication and overdosing on sleeping tablets.
On 6 February 2019 she reported she was eating sweet foods and not taking her diabetes medication in the hope of dying.
On 16 April 2019 she reported another three suicide attempts to Concord Hospital.
In November 2018 Ms Kwok reports the claimant was at that time socially isolated from others including her sister.
At the time of Mr Borenstein’s assessment in August 2019 she had deteriorated being unable to care for dependents including her daughter.
The claimant’s 5R submissions dated 5 October 2021 states there was no material error made by Assessor Prior. The alleged errors A, B and C in the insurer’s submissions all relate to the assessment of the claimant’s pre-accident whole person impairment made by the assessor. It states that it is not necessary for the assessor to comment on each and every document before him. It states that the insurer in their submissions have extracted various pre-accident records from the claimant’s treating clinical notes, submitting that the assessor did not mention these in his certificate.
The insurer submits the assessor concluded the claimant was a reliable historian despite the inconsistencies between the history he recorded and the medical evidence available. However, the claimant submits she was consistent with the history she provided to the assessor.
The report of Sam Borenstein, clinical psychologist, dated 26 August 2019 states that symptoms include depressed mood and anxiety, suicidal thoughts with intent and has made four attempts on her life immediately following the motor accident in the way of overdose and attempt to cut her wrists. She showed photographs of the left wrist with multiple lacerations from such an attempt in November 2018.
She reports she always felt like someone was stalking her and telling her she was going to die.
She recalls one occasion walking towards the water when on the beach in an attempt to drown herself but then her daughter’s voice and that saved her.
She confirmed various symptoms in the reports including faecal incontinence, chronic pain, sleep disturbance, nightmares of the accident every 2-3 days, appetite disturbance, weight loss, impaired concentration, difficulties maintaining memory, gastrointestinal symptoms and being housebound. She is unable to perform domestic chores and has to be reminded by her sister to shower and to eat. She showers no more than three times per week when her daughter says she smells.
She has early morning awakening, intermittent insomnia and sleeps for no more than two or three hours per night. She barely leaves her home and is virtually isolated. Her symptoms include reduced tolerance to frustration, irritability, impaired concentration and weight loss. She stays in her room and only drives a short distance when in the company of her daughter.
She suffered symptoms of depression prior to the motor accident on 2 December 2015.
Medical records confirm that in 2013 she had an episode of depression and required counselling.
In 2014 and 2015 she was suffering from depression relating to the relationship with her former husband and financial issues as a result of being a single mother. It states this was consistent with a diagnosis of Adjustment Disorder with Depressed Mood.
It states her mood was depressed and affect was restricted. She sat with her eyes half closed and on one occasion fully closed. She was noted to hyperventilate at least once. She complained of a lack of energy and appeared lethargic and lacking motivation.
The 21 Item Depression, Anxiety and Stress Scale showed extremely severe symptoms of Depression, Anxiety and Stress.
Mr Borenstein made a diagnosis of Major Depression (recurrent type) with Psychotic Features. The pre-existing history of depression was reactive depression and the diagnosis of Major Depression was a direct result of the accident which occurred on 2 December 2015.
Mr Borenstein assigned a whole person impairment of 47%, assigning class 3 to Self Care and Personal Hygiene; Social and Recreational Activities; and Travel and class 4 to Social Functioning; Concentration, Persistence and Pace and class 5 to Adaptation.
It states that he agrees with the review panel’s calculation of pre-existing whole person impairment of 18% and assigns a final whole person impairment of 32% arising from the injuries sustained in the motor accident on 2 December 2015.
The report of Dr Clive Sun, rehabilitation and pain physician, dated
9 September 2016 regarding the motor accident on 2 December 2015 lists the diagnoses as follows:
-    cervical spine soft tissue injury without retinopathy
-    lumbar spine soft tissue injury
-    left shoulder soft tissue injury.
The report of Dr Clive Sun, rehabilitation and pain physician, dated
9 September 2016 assigns a whole person impairment of 17% for the injuries to the cervical and lumbar spine and left shoulder.
The report of Dr Zhen Zhang dated 1 September 2016 states that Ms Zhang developed symptoms of irritability, insomnia, severe anxiety following the motor accident in November 2015.
Her symptoms are consistent with a diagnosis of PTSD and Major Depression.
She has had recurrent nightmares, flashbacks of the incident and avoidant behaviour.
She feels emotionally numb and often can become anxious when she is driving. She always feels another car is about to hit her.
Her mood has been low and she has suicidal ideations.
She sleeps for a few hours each night and is lethargic during the day having no energy or motivation.
She has paranoia and she feels people are following her and also hears her name being called. She has poor memory and at times she overeats to self-sooth. She experiences anxiety and often feels palpitations and dry mouth.
There is a family history of depression and she had one episode of depression several years ago and recovered with brief psychotherapy. There is no history of psychosis.
It recommends increasing the dose of Efexor to 300 mg daily and adding Valdoxan 25 mg at night.

RE-EXAMINATION

The Review Panel considered all the evidence before it and decided that it was necessary to re-examine the claimant.
The re-examination occurred on 8 August. Assessor Friend interviewed the claimant face to face with a Mandarin interpreter.
Assess Samuell was present via video teleconference and was able to ask questions during the examination.

History of the Motor Accident

Ms Zhang stated the motor accident occurred when her vehicle was stationary and a large vehicle crashed into the rear of her vehicle.
She was frightened and had pain in her back almost immediately. She was able to get out of her vehicle but was also aware of pain in her neck. She looked at her vehicle and saw that it was scratched but later it was determined that there was damage underneath the vehicle.
She exchanged details with the other driver.
Her daughter’s uncle was visiting from England and was a passenger in the vehicle.
He drove them home.
The vehicle was later repaired.
History of Symptoms and Treatment Following the Motor Accident
Ms Zhang consulted Dr Ye at Hurstville City Medical Centre two or three days later.
The clinical notes from the Hurstville City Medical Centre show that she attended on
4 December 2015. She described having back pain and was involved in a rear-end collision.
There is no mention of psychiatric symptoms including depressive symptoms.
Subsequent consultations on 7, 14, 21 and 28 December 2015) show that she was prescribed Stilnox but no other psychiatric medication.
Ms Zhang continued to be prescribed Stilnox during 2016. She was prescribed Endep 50 mg one tablet at night on 13 May 2016 but otherwise no other prescription for antidepressant medication up to 30 December 2016.
Ms Zhang stated that she changed from Dr Ye to Dr Jiang Li because Dr Ye was always busy whereas Dr Li was always on time.
The first consultation with Dr Li was on 14 December 2015. This entry states that she had been involved in a motor accident and has injured her neck and lower back and has neck and lower back pain which radiates into her leg and causes numbness. She has right shoulder and hand numbness and had become more anxious and depressed and has insomnia.
She has a past history of lower back and neck pain from bulging discs and anxiety and depression but stopped medication in the last 6-7 months. It does state that she has poor sleep, early morning awakening and depressed mood, panic attacks, suicidal thoughts, low self-esteem and hallucinations. She was prescribed Endep 10 mg one tablet at night.
There was a further consultation on 21 December 2015 which states that she had not yet started the prescribed medication and was still taking her own medications.
The consultation on 22 January 2016 states that she has poor sleep, early morning awakening, depressed mood, panic attacks, suicidal thoughts, low self-esteem and irrational fear and has anxiety and depression following the motor accident.
Ms Zhang was asked about her symptoms following the motor accident She replied that her blood pressure was high and she had never previously had high blood pressure. She had suicidal thoughts. She wanted to die and was thinking of killing herself. She did not attempt suicide because she thought of her daughter.
She showed me a photograph of some lacerations on her left wrist but the date on the photograph on her mobile telephone was 21 November 2018.
She would bang or knock her head on the car if she saw the vehicle involved in the motor accident. She then showed me a photograph dated 6 February 2020 of herself with a bruise at the lateral end of her left eye.
She was hearing someone call her name every day. She could see somebody every day who was in front of her or on her right side but if she tried to look at it clearly the figure would disappear.
She was at the beach, one day in 2020. She heard a voice telling her to walk forward and almost reached the water before her daughter stopped her.
She has a headache, if she thinks about the accident and later said that her heart would stop for a second and she would lose consciousness. She needed to take medication or else she would have a cardiac arrest. These events commenced in 2020.
Ms Zhang had back pain and cannot not walk properly. She took Nurofen and Voltaren every four hours.
She was suicidal and anxious. She felt that her mental state adverse affected her daughter’s mental health.
Ms Zhang was then asked why having been being prescribed Efexor and Seroquel by Dr Li on 1 February 2016 she had Efexor dispensed on 15 April 2016 and not subsequently, that amitriptyline was dispensed on 14 May 2016 and there was no subsequent dispensing of antidepressant medication until escitalopram was dispensed on 4 and 28 March 2019.
Ms Zhang replied that if she did not feel like getting her own medication, she would obtain an antidepressant medication from her sister. She could not name the antidepressant medication that she obtained from her sister. She stated at this stage that her memory was very poor.
Ms Zhang was asked about her consultations at the Eastgardens Medical Centre where the records from 20 September 2005 to 12 March 2022 make no reference to depressive symptoms or the motor accident on 2 December 2015 and there was no prescription of antidepressant medications or other psychiatric medication.
Ms Zhang replied that she did not feel like telling them about her symptoms and it was annoying to tell all doctors about those symptoms.
Ms Zhang was then asked about her functioning in 2016, She replied that she could not remember and that she does not remember much.
Ms Zhang stated that she deteriorated in 2017 and she started attending the Redfern Community Mental Health Centre. Nothing had occurred to make her feel more depressed, but she did state that “Every time I think about the accident I get frustrated”.
She then stated that “When I hear of friends or others being involved in accidents, they have all had compensation and it is unfair for me because they have had smaller accidents”.
She stated that “If I sit in the car, I feel frightened and I can’t drive myself”.
Ms Zhang has been receiving the disability support pension for the last couple of years and has also been receiving NDIS funding for what appears to be a similar length of time.
Current Symptoms
Ms Zhang stated that she continues to feel depressed, has suicidal thoughts, continues to see the person standing in front or beside her. She continues to hear a voice calling her name every day.
Previous Medical History
Ms Zhang was treated by Ms Christine Tang-Pearce in 2013 and 2014 for depression.
She consulted Ms Tang-Pearce in August 2013. She reported she did not have any positive feelings, her life was meaningless and she was close to panic. She hit her head because she blamed herself and felt guilty and regretted not taking care of her daughter in the right way when she was young and had suicidal thoughts from time to time.
She was assessed at Prince of Wales Hospital in 2014, it appears from 22 September to 23 November. She at that stage was expressing thoughts of wanting to commit suicide by taking an overdose but then later changed it to saying she would kill herself by not eating or drinking. It also states that she has a comorbid gambling disorder. It states at that stage she had been taking Lexapro 20 mg for many years and Stilnox. She was prescribed venlafaxine 225 mg daily and olanzapine 2.5 mg daily when she was discharged.
It appears this treatment was as an outpatient.
The report by Ms Christine Tang-Pearce, clinical social worker, counsellor and psychotherapist, dated 28 May 2015 states she is distressed and depressed due to the relationship with her ex-husband, financial pressure and parenting issues around her daughter.
The subsequent report by Christine Tang-Pearce dated 31 August 2015 states that Ms Zhang has completed six sessions of mental health treatment plan and is highly anxious and distressed. It states she has major depression and finds it difficult to function but has stopped her antidepressant medication a few months ago.
The subsequent report by Christine Tang-Pearce dated 29 August 2016, after completing six sessions of a mental health care plan, states she is highly distressed and anxious which may be due to relationship issues with her husband as well as concerns about her daughter and financial pressure. Since the motor accident she has had pain in her back and legs which have affected her sleep and mood, her depression has increased and she is worried about her health in the future.
Ms Zhang confirmed that she had applied for the disability support pension three times prior to the accident. She stated that the depression was part of the application but could not remember any other listed disabilities on the application.
The report of a disability support pension by Dr Ye dated 15 November 2013 lists diagnoses as lumbar and cervical disc disease, urinary and faecal incontinence. She had a diagnosis of anxiety and depression which has been present since 2011 and is treated by Ms Christine Tang-Pearce.
Daily Activities
Ms Zhang stated that she stayed in bed all day and did not feel like getting up. She stated she just wanted to lie there and die and that would be better. She did not feel like showering or bathing and only would shower if her daughter told her to do so.
She no longer cooked since forgetting that something was on the stove which caused it to burn. This was because of her poor memory and had occurred recently.
The NDIS had granted funding for someone to come and do cooking for her.
She needed reminding to shower for four or five years but could not remember exactly when it started.
She did not undertake any social activities but previously had a lot of friends and went out. She stated this was before the car accident.
She was this point asked by Assessor Samuell about her pre-accident history which showed that she had a poor relationship with her family, had arguments with her daughter, was depressed and there was no evidence that she was undertaking any social activities.
Ms Zhang replied that she felt there was a misunderstanding in the relationship with her daughter. She saw her daughter knocking her head and she felt that she caused her to become depressed.
She continued that the social worker at Centrelink had sent her to the Randwick hospital (Prince of Wales Hospital).
She no longer drove a motor vehicle. Her sister, who owned the vehicle she had been driving, sold it. She did not remember when she had last driven a motor accident.
She was asked then how she visited doctors at the Hurstville City Medical Centre, the Hurstville Medical Practice and the Eastgardens Medical Centre during 2016 and subsequently. She replied that her sister drove her. She sometimes caught a bus but mostly her sister drove her to these appointments.
Ms Zhang was asked about her relationship with her daughter before the accident. She stated she felt guilty about taking her daughter back to China for an education and she thinks she may have hit her and does not know how to explain it.
The relationship with the family had been good before the accident.
She was currently always fighting with her daughter which caused her daughter to go into her bedroom and hide. She had a poor relationship with her family which had been occurring in the past year.
The discharge referral from Royal Prince Alfred Hospital dated 17 December 2020 states that she developed symptoms of dizziness and reduced responsiveness whilst out to dinner with her family.
Ms Zhang stated that her memory had been good before the accident but was now bad and she would forget many things.
She was asked by Assessor Samuell if she had such a bad memory how she had been able to sit through an examination lasting about an hour and a half and was able to provide details of previous history, her motor accident and her subsequent treatment. She stated that she had gone through the points of her history the previous day so she would remember the details and that she had seen a specialist before.
She was asked how long she had had a poor memory and replied for the past six months.
She had at one stage been concerned she had Alzheimer’s Disease, but the doctor told her that she was too stressed. Her father had commented on her poor memory.
Mental State Examination
Ms Zhang was examined with a Mandarin speaking interpreter. She was accompanied to the examination by her daughter, but her daughter remained sitting in the waiting room.
The interview was limited because Assessor Samuell could not join by video teleconference until 15 minutes after the scheduled start time and the interpreter could only stay for one hour and 30 minutes after the scheduled start time.
Ms Zhang reported symptoms of depression, suicidal thoughts, would see someone standing in front of her and beside her and would hear her name being called every day.
She provided photographic evidence of lacerations on her wrist in 2018 which was confirmed by the report of Louise Crowley on 16 April 2019.
Ms Zhang during the examination showed no evidence of psychomotor retardation answering questions very promptly and often with very lengthy answers.
She was initially distressed in the examination by wearing face mask which passed as the examination proceeded.
Ms Zhang’s account was somewhat disorganised. She provided a lot of specific information about her previous history, her symptoms following the motor accident and subsequent events following the motor accident particularly since 2017.
Comments on Consistency
Ms Zhang’s account was very inconsistent.
Although she stated that she was quite depressed in 2016 she had not had any antidepressant medication dispensed after May 2016 until 2019 despite attending subsequently the Redfern Community Mental Health Centre and Concord Hospital.
The report of Ms Tang-Pearce dated 29 August 2016 states she was highly distressed and anxious which may be due to relationship issues with her husband as well as concerns about her daughter and financial pressures. She reported since her car accident she had pain in her back and legs which affected her sleep and moods. Her depression increased and she worried about her health and her future.
The discharge referral from the presentation at Prince Alfred Hospital on 17 December 2020 refers to the onset of physical symptoms whilst she was out to dinner with her family.
Assessor Prior dated 19 April 2021made a pre-existing diagnosis of depressive disorder with a current condition of major depressive subtype with psychotic and anxiety symptomatology and a comorbid posttraumatic stress disorder giving rise to a whole person impairment of 19%.
She was diagnosed with having Major Depression with Psychotic Features and assigned a whole person impairment of 15% arising from the injuries sustained in the motor accident by Assessor Anthony Samuels on 29 December 2019.
She was diagnosed by Dr Robert Lewin in his report dated 22 November 2017 as having a Major Depressive Disorder currently with psychotic depression which was not yet stabilised.
The medical certificate of the Review Panel reviewing the MAS certificate of Assessor Anthony Samuels dated 29 December 2018 states that the condition of persistent Depressive Disorder arising from the injuries sustained in the motor accident led to a whole person impairment that was not greater than 10%.
Assessor Inglis Howe Synnott’s report dated 10 April 2019 comments on her inconsistencies particularly the distance between the pre- and post-accident symptoms, her description of her physical abilities and being incapable of doing all activities of daily living.
The Review Panel considered all the available evidence and documents including the opinions of previous assessors.
The panel concluded that there was insufficient evidence that Ms Zhang reached criterion for a recognised psychiatric illness following the motor accident on 2 December 2015.
It noted the following
The limited dispensing of antidepressant medication, in 2016
The report of Ms Tang-Pearce in August 2016 which refers to being highly distressed and anxious which may be due to relationship issues with her husband as well as concerns about her daughter and financial pressures, in addition to the effects of the motor accident.
The inconsistencies in her account particularly regarding in relationship with her family and her daughter before and after the accident
No prescribed antidepressant medication was dispensed between May 2016 and March 2019.
The clinical notes of the Hurstville City Medical Centre up to 3 May 2021 do not record depressive symptoms and make not mention of the motor accident after 4 December 2015. She was repeatedly prescribed Stilnox for insomnia, but no antidepressant medication.
The clinical notes of the East Gardens Medical Centre from 20 September to 22 March 2022 make no mention of the motor accident or depressive symptoms before or after the motor accident.
The clinical notes of the Hurstville Medical Practice do mention the motor accident and list the prescribing of Efexor, Seroquel and Endep but the PBS dispensing records show one dispensing of Efexor, no dispending of Endep after 13 May 2016 and no dispensing of Seroquel in 2016 and no further dispensing of psychiatric medication until 4 March 2019.
The Review Panel recognised that Ms Zhang had been depressed prior to the motor accident which may or may not have resolved prior to the motor accident and it appears to have recurred in 2017 and was present in 2018 and 2019.
Causation
The Review Panel determined that Ms Zhang did not reach criterion for a recognised psychiatric condition arising from the injuries sustained in the motor accident. It accepted that she had previous episodes and subsequent episodes of depression but there was no evidence that the episode of depression commencing in 2017 was caused by the injuries sustained in the motor accident on 2 December 2015.

CONCLUSIONS

The Medical Assessors determined that Ms Zhang did not reach criterion for a recognised psychiatric condition arising from the injuries sustained in the motor accident on 2 December 2015.
The Medical Assessors therefore revoked the certificate of Assessor Michael Prior dated 19 April 2021 and issued a new certificate.
The Medical Assessors also determined that as there was no recognised psychiatric condition arising from the injuries sustained in the motor accident there could be no assessment of permanent impairment.

PRINCIPAL MEMBER HARRIS

These are short separate reasons as it is a minority opinion.
I accept that Ms Zhang suffered a psychiatric injury arising from the motor accident. An assessment of permanent impairment should be undertaken based on an aggravation of a pre-existing psychiatric condition. My reasons for reaching the minority view are based on four matters.
First, various prior medical assessments accepted that Ms Zhang suffered both physical and psychiatric injuries caused by the motor accident.
Medical Assessor Prior provided the certificate dated 19 April 2021 which is under review. He diagnosed that the motor accident caused an exacerbation of persistent depressive disorder and co-morbid chronic post-traumatic stress disorder. The Medical Assessor assessed 26% permanent impairment and made a deduction of 7% due to pre-existing psychiatric injury resulting in 19% permanent impairment.
Assessor Samuels provided a medical certificate dated 29 December 2017 when he diagnosed major depression with psychotic features.[6] The Assessor assessed the claimant at 15% impairment and made no deduction for any pre-existing condition.
[6] Insurer’s bundle, page 64.
Assessor Ashwell was appointed to assess the physical injuries. He diagnosed soft tissue injuries to the neck, lower back and left shoulder and assessed the claimant at 3% permanent impairment.[7]
[7] Insurer’s bundle, page 76.
The first Review Panel provided a certificate dated 21 August 2018 when they diagnosed persistent depressive disorder.[8] The claimant was assessed at 24% permanent impairment with a deduction of 15% for a pre-existing psychiatric condition leaving an impairment of 9% resulting from the motor accident.
[8] Insurer’s bundle, page 84.

Assessor Synott provided a certificate dated 10 April 2019 when he assessed that various psychiatric treatment was not reasonable and necessary and not causatively related to the motor accident.[9] The opinion was based on the extensive pre-existing condition when the Assessor concluded that the proposed treatment was not related to the motor accident.
[9] Insurer’s bundle, page 102.
Assessor Wijetunga provided a certificate dated 17 April 2019[10] certifying that a supervised gym treatment for three months was reasonable and necessary and causatively related to the motor accident. The Medical Assessor otherwise certified that various treatment did not satisfy the relevant tests due to unreliability in presentation, pre-existing conditions and the minor nature of the motor accident.
[10] Insurer’s bundle, page 118.
Secondly, it does not appear from a reading of the insurer’s multiple submissions that it contended that there was no psychiatric injury caused by the motor accident.
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[11] and Insurance Australia Ltd v Marsh.[12]
[11] [2021] NSWCA 287 at [40], [41] and [45].
[12] [2022] NSWCA 31 at [11], [21], [64]
The submissions in this matter are over an extensive period. However, it does not appear that the insurer asserted that the motor accident did not cause an aggravation of a psychiatric condition. A summary of the insurer’s submissions are as follows.

Insurer’s submissions dated 24 October 2017[13]

[13] Insurer’s bundle, page 1.

The insurer noted the history recorded by Dr Zhen Zhang in a report dated
1 September 2016 of the extent of the pre-existing psychiatric condition was incorrect. It noted that there were no symptoms of nightmares, flashbacks of the motor accident reported to her general practitioner. The complaints were of poor sleep and low mood.
The insurer noted that Ms Tang-Pearce, psychologist, diagnosed the claimant with anxiety and depression in 2013 and there was an admission to hospital in September 2014. In August 2015 there were reports of self-harming behaviour with extremely severe stress levels. It submitted that the very minor motor accident did not result in any additional impairment.

Insurer’s submissions dated 27 February 2018[14]

[14] Insurer’s bundle, page 6.

These submissions were filed seeking a review of the certificate provided by Assessor Samuels. The errors were said to be the cessation of the psychiatric condition prior to the motor accident noting the prescription of Olanzapine, an anti-psychotic from
31 August 2015 with further scripts in October and November 2015.
The insurer referred to the report of Ms Pearce dated 31 August 2015 that the claimant was self-harming, had extreme depression, could not cook and remained in bed for days at a time.

Insurer’s submissions dated 11 October 2018[15]

[15] Insurer’s bundle, page 10.

These submissions addressed various treatment disputes. It alleged that the need for treatment arose from the claimant’s pre-existing symptomatology and was unrelated to the motor accident.

Insurer’s submissions dated March 2020[16]

[16] Insurer’s bundle, page 15.

These submissions were filed opposing the application to seek a further assessment. It was submitted that the history of self-harm was known to the previous Panel. The insurer otherwise submitted that the claimant’s account was unreliable.

Insurer’s submissions dated September 2021[17]

[17] Insurer’s bundle, page 19

These submissions were filed seeking a review of the assessment provided by Medical Assessor Prior. It submitted that the Medical Assessor did not consider relevant evidence and failed to question the claimant’s credit despite substantial inconsistencies.
It noted that the assessment for 7% for pre-existing psychiatric condition was substantially less than the assessment made by the previous Review Panel. The insurer emphasised the medical records of Dr Ye which included reports from
Ms Pearce dated 28 May 2015 and 31 August 2015. The claimant had been under the care of Ms Pearce since 22 November 2013.
The insurer referred to the discharge records from Prince of Wales Hospital dated
23 November 2014 which recorded thoughts of self-harm. The Disability Support Application dated 15 January 2013 referred to an inability to function based on poor concentration and poor motivation. Other records refer to ongoing symptoms including the prescription of Olanzapine in August 2015.
The insurer otherwise submitted that the medical records were inconsistent with the claimant’s reporting. These inconsistencies included:
(a)    ability to manage domestic chores and self-care in contradiction to the report to Ms Pearce;
(b)    the claimant’s assertion that she was able to function domestically and as a mother;
(c)    the assertion that she did not take medication is inconsistent with the fact that she was prescribed and purchased antidepressant medication on multiple occasions, and
(d)    that the claimant applied for a disability pension on two occasions due to her psychiatric condition and was not out of work because she was a single mother.
The insurer submitted that the diagnosis of post-traumatic stress disorder was inconsistent with the minor nature of the motor accident evidenced by the photographs and the police report.
Accordingly, whilst the Panel is required to form its own opinion, that opinion is subject to principles of natural justice. The majority opinion is contrary to the insurer’s submissions that the impairment caused by the psychiatric injury was not greater than 10% rather than a submission that there was no psychiatric injury.
Not only is the acceptance of injury implicit in the insurer’s submissions, but it is also otherwise consistent with the opinion obtained by Dr Lewin who was qualified by the insurer.
Dr Lewin provided a report dated 22 November 2017.[18] The doctor opined that
[18] Insurer’s bundle, page 42.
Ms Zhang required psychiatric care and was unlikely to respond to counselling alone. He opined that the condition had not stabilised.
Thirdly, contrary to the opinion of the Medical Assessors, Ms Zhang reported psychiatric symptoms following the motor accident. The evidence also establishes that Ms Zhang obtained anti-depressants immediately after the motor accident for prescriptions that had been obtained either before or after the motor accident.
Ms Zhang suffered from significant psychiatric problems prior to the motor accident.
However, there are reports in the histories that consumption of the anti-depressant medication ceased in the period prior to the motor accident.
In July 2013, Ms Tang-Pearce assessed anxiety and depressive disorder from chronic pain and financial pressures as a single parent.[19] Subsequent reports in 2013 confirmed this diagnosis.[20] Ms Zhang was treated for low back pain and right sciatica during this period.[21]
[19] Insurer’s bundle, page 238.
[20] Insurer’s bundle, pages 239 – 242.
[21] Insurer’s bundle, pages 359-376.
An employment assessment report undertaken for the Australian Government in October 2014 noted cervical and lumbar disc disease and anxiety and depression since 2011 and other health conditions including knee arthritis and incontinence.
A lengthy report from Mr Tong, clinical physician dated 25 July 2014 noted treatment in mid-2014 for anxiety and depression. Care for Ms Zhang and her daughter was then provided by the claimant’s father and sister. Obstacles for recovery were identified as financial hardship, health problems and self-hatred.[22]
[22] Insurer’s bundle, page 229.
The claimant was admitted to hospital on 22 September 2014 and discharged on
[23] Insurer’s bundle, page 165.
[24] Insurer’s bundle, page 211.
[25] Insurer’s bundle, page 167.
23 November 2014.[23]The admission followed suicidal thoughts and long-term symptoms of anxiety and irritability in the context of domestic abuse.[24] Admission followed a six-month deterioration of depressive symptoms. The claimant reported staying in bed all day, not showering or cooking for herself or her daughter and being provided for by her father and sister.[25]
The notes show improved mood during the hospitalisation with decreased insomnia.[26]
[26] Insurer’s bundle, page 182.
In a report dated 28 May 2015 Ms Tang-Pearce noted the first consultation was in August 2013 and then did not see her for 12 months. Depression, anxiety and stress level were assessed as extremely severe. The care was directed to managing negative thoughts, preventing self-harming and managing depressive mood and stress.[27]
[27] Insurer’s bundle, page 408.
Ms Tang-Pearce provided a further report dated 31 August 2015 following completion of six sessions of the Mental Health Care Plan.[28] A further DASS assessment indicated depression, stress and anxiety levels were extremely severe and Ms Zhang could not manage cooking or housework. At times Ms Zhang remained in bed for a few days and found it difficult to function.
[28] Insurer’s bundle, page 410.
Ms Zhang reported having ceased taking anti-depressant medication “for a few months” and it appeared that her depressive mood had worsened. It was recommended that Ms Zhang consult with medical professionals to review medication and continue counselling throughout the year.
On 4 December 2015 the general practitioner noted tenderness in the low back around L3 to L5.[29] Panadeine forte was prescribed at that time.
[29] Insurer’s bundle, page 272.
The certificate from Dr Li dated 14 December 2015 noted anxiety and depression from the motor accident with medication being discontinued for the last six to seven months.[30]
[30] Insurer’s bundle, page 41.
Ms Tang-Pearce provided a report dated 29 August 2016 noting increased depression following the motor accident. Assessment of depression, anxiety and stress levels were extremely severe.[31]
[31] Insurer’s bundle, page 243.
Dr Zhen Zhang, psychiatrist, provided a report dated 1 September 2016 diagnosing post-traumatic stress disorder and depression following the motor accident. The doctor obtained a history of recurrent nightmares, flashbacks and avoidant behaviour and noted one history of depression “several years ago”.
Psychological report authored on behalf of the Benevolent Society for treatment in 2018 described a worsening history since the motor accident. DASS scores across the scales for depression, anxiety and stress were again assessed as extremely severe. Recommendations included ongoing psychological support, consultation with a psychiatrist, and referral to a neurologist.[32]
[32] Insurer’s bundle, page 831.
The pharmaceutical records show Ms Zhang obtained two prescriptions of Amitriptyline on 29 June 2015 (total 100 tablets).[33] Amitriptyline is an antidepressant for the treatment of anxiety and depression. The records do not show further supply until after the motor accident. That is consistent with the history recorded elsewhere by the claimant that she had ceased taking antidepressants for some the time prior to the motor accident.
[33] Insurer’s bundle, page 917.
Following the motor accident, Amitriptyline was prescribed and supplied on
[34] Insurer’s bundle, page 918.
[35] Insurer’s bundle, page 917.
21 December 2015.[34] Further, three prescriptions totalling 150 tablets were prescribed on 10 August 2015 but not supplied until 16 April 2016.[35]
It is undoubtedly the position that the claimant reported, suffered and was treated for a psychiatric condition immediately following the motor accident. That conclusion is clear from the contemporaneous record of the general practitioner and the supply of antidepressant medication. The conclusion is supported by the opinion of Ms Tang-Pearce who treated Ms Zhang both before and after the motor accident.
Accordingly, contrary to the majority opinion, there were clear contemporaneous support for the claimant’s contention that the motor accident aggravated the psychological condition.
Fourthly, medical opinion establishes that the claimant’s psychiatric condition was exacerbated by her physical injuries suffered in the motor accident. The medical evidence establishes that Ms Zhang suffered soft tissue injuries caused by the motor accident. Ms Zhang’s underlying psychiatric condition was suspectable to aggravation because of the pain and the consequences of her perception of the physical symptoms. That case, is clear from various psychiatric opinions including those proffered by
[36] Claimant’s bundle, page 15.
Dr Borenstein who provided a report dated 26 August 2020 diagnosing major depression as a direct result of the motor accident.[36]
As Basten JA noted in State of New South Wales v Bishop[37] “the mere passage of time may in some circumstances be determinative; in other circumstances it may be irrelevant.”[38] The ongoing physical injuries suffered in the motor accident is a further explanation for the cause of the claimant’s psychiatric condition, even if that condition was delayed.
[37] [2014] NSWCA 354 (Bishop).
[38] Bishop at [20].
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide guidance on the test of causation. Relevantly cl 1.7 of the Guidelines provides:
“1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
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[39]. In Raina v CIC Allianz Insurance Ltd[40] 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), ss 5D 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.”
[39] See s 3B(2) of the CL Act.
[40] [2021] NSWSC 13 (Raina) at [65].
Causation is established if there is a material contribution to the aggravation of the condition and the resultant impairment. The evidence in my view supports a clear causal relationship that the motor accident aggravated the underlying psychiatric condition.
For these reasons I conclude that the claimant suffers from a psychiatric injury caused by the motor accident and that an assessment of permanent impairment is required.

[2022] NSWPICMP 346

29 August 2022