Janev v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 588
•21 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Janev v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 588 |
CLAIMANT: | Mirjana Janev |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
PRINCIPAL MEMBER: | John Harris |
MEDICAL ASSESSOR: | Gerald Chew |
MEDICAL ASSESSOR: | Christopher Rikard-Bell |
DATE OF DECISION: | 21 August 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; permanent impairment; son suffered serious injuries in 2015 motor accident; claimant witnessed son’s serious injuries at hospital; finding that motor accident caused a post-traumatic stress disorder and substance use disorder (alcohol); discussion of video footage; clinical assessment of permanent impairment undertaken by Medical Assessors in a joint examination; Held – claimant sustained permanent impairment assessed at 8%; deduction of 1% made for prior symptoms; Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% The assessment made by the review panel under s 63(4) of the Motor Accidents Compensation Act, 1999 is as follows: 1. The Review Panel revokes the certificate of Medical Assessor Samuell dated · post-traumatic stress disorder, and · substance use disorder (alcohol – in remission). |
REASONS
BACKGROUND
The son of Ms Mirjana Janev (the claimant) suffered a significant brain injury as a passenger in a motor accident on 26 March 2015. The claimant alleges that she suffered nervous shock by reason of her son’s accident and injuries.[1]
[1] Claimant’s bundle, p 11.
Insurance Australia Ltd trading as NRMA (the insurer) is liable to pay Ms Janev any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 1.2 of the Guidelines.
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 Samuell on 1 December 2022 (the medical assessment). Medical Assessor Samuell assessed the permanent impairment caused by the motor accident at 9%.
The application for referral of a medical assessment 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.[4]
[4] Section 63(7) of the MAC Act.
The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
CONDUCT OF THE REVIEW
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
MEDICAL ASSESSMENT UNDER REVIEW
[8] Section 63(3A) of the MAC Act.
This review is from the medical assessment when it was determined that the motor accident caused a post-traumatic stress disorder and assessed the claimant at 13% permanent impairment. The Medical Assessor opined that there was a pre-existing alcohol misuse and adjustment disorder assessed at 5% resulting in a 9% [sic] permanent impairment for the psychological injuries caused by the motor accident.
In a separate medical assessment certificate, Medical Assessor Samuell found that the domestic assistance request of 26 March 2015 was causally related to the motor accident.[9]
[9] Insurer’s bundle, p 573.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the Motor Accident Injuries Act 2017 in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[10] In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[10] See s 3B(2) of the Civil Liability Act 2002.
[11] [2021] NSWSC 13 (Raina) at [65].
Clause 1.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
SUBMISSIONS
Insurer’s submissions dated 22 June 2021
The insurer summarised the background to the dispute and noted that it had arranged surveillance throughout 2020 and 2021. A brief summary of the surveillance is:
(a) in February 2020 the claimant was observed driving a black jeep;
(b) in April 2020 the claimant was observed driving to places on multiple occasions up to 40km with and without passengers, performing grocery and clothes shopping and loading items for the vehicle;
(c) in June 2020 the claimant was travelling in a motor vehicle as a passenger and driver on multiple occasions performing grocery and clothes shopping;
(d) in August 2020 the claimant was driving with passengers to the local area and shopping;
(e) in October and November 2020 the claimant was driving with passengers up to 25km, washing a vehicle and attending Court;
(f) in February 2021 the claimant was driving and travelling in a motor vehicle and shopping for clothes, and
(g) in April 2021 the claimant was driving a vehicle, attending a shopping centre and hosing the front.
The insurer noted the attendance at hospital on 31 March 2015 for chest pain with episodes of hyperventilation.
The insurer referenced clinical notes from Plumpton Medical Centre (25 January 2015) and in Erskine Park Family Clinic (February/March 2013 and September 2015) concerning the claimant’s relationship with her daughter.
The insurer referenced the reports of Dr Prior and Dr Roidan and emphasised the conclusion that the claimant was over-reporting her symptoms.[12]
[12] See paragraphs 5.20 and 5.30.
The insurer referred to the report of Dawn Piebenga, occupational therapist dated
1 April 2021 which noted a decline in functioning sometime after the motor accident which was suggestive that the capacity may be influenced by other stresses.The insurer noted that the surveillance was provided to Dr Prior, Dr Roidan and
Ms Piebenga. Dr Prior then made a number of changes to the various scales and assessed impairment at 7%. Dr Roidan considered that the surveillance footage brought into question the claimant’s reporting of lack of motivation, and he otherwise maintained his concerns of accepting the claimant’s reporting of symptomatology at face value. Ms Piebenga opined that the overall activities did not reflect overwhelming anxiety as reported in the previous examination and the demonstrated capacity included performed front yard maintenance, shopping and driving which suggested that there was no restriction in the performance of any domestic tasks.The insurer accepted that the claimant suffered some psychological sequelae as a result of her son’s involvement in the motor accident but submitted that the claimant had downplayed both pre-and post-accident psychiatric stresses and tended to exaggerate the effects of the accident.
Insurer’s submissions dated 2 February 2023[13]
[13] Insurer’s bundle, p 582.
These submissions opposed the claimant’s application to review the medical assessment. The insurer submitted that the claimant had failed to demonstrate that the Medical Assessor’s assessment was incorrect in a material respect.
Claimant’s submissions dated 15 July 2021[14]
[14] Claimant’s bundle, p 1.
These submissions noted the history of the matter and sought a deferral of the medical assessment to enable the claimant to obtain a medico-legal assessment.
Claimant’s submissions dated 16 January 2023
These submissions were filed seeking leave to review the medical assessment.
The claimant submitted that the Medical Assessor made material errors in that he failed to correctly apply the test of causation in respect of the alcohol use disorder and otherwise failed to disclose his path of reasoning respect to determine causation.
The claimant referred to the reasons provided by the Medical Assessor which appeared to indicate that the alcohol use disorder pre-existed the motor accident but otherwise acknowledged that the claimant employed maladaptive coping mechanisms as a result of the motor accident. It was submitted that the alcohol use disorder was aggravated or exacerbated and accordingly the motor accident materially contributed to the condition and satisfied the test of causation: Owens v Motor Accidents Authority of NSW.[15]
[15] (2012)61 MVR 245 at [50].
The claimant otherwise submitted that the Medical Assessor failed to disclose his path the reasoning in relation to his findings of causation for the alcohol use disorder.
EVIDENCE
The parties filed bundles of documents for the Panel’s consideration including video showing the claimant in another motor accident.
The insurer filed material late showing allegations of criminal conduct between the claimant and her husband who have cross applications of domestic violence restraints. There are references in the material to serious alcohol abuse by the claimant and her husband, alleged malicious damage of property, breach of bail orders and the claimant’s intoxication in the presence of protected persons.
This material was filed without submissions as to the relevance of the material.
Pre-existing conditions
The insurer referenced pre-accident medication for obesity.
On 24 August 2010 Dr Fernandes-Estacio noted the claimant was tearful and had problems with her daughter.[16] On 16 November 2010 the doctor noted that the counselling was not helping and that the daughter was now living with a friend.[17]
[16] Insurer’s bundle, p 326.
[17] Insurer’s bundle, p 328.
On 26 February 2013 the claimant was prescribed Zoloft. Dr Ghisla recorded:[18]
“patient has been semi-estranged from daughter for 2 years
patient is anxious and ‘stressed all the time’
patient is depressed and worried for her daughter
patient crying while talking
patient has thought of killing herself in the past
no plans at the moment
patient is open to counselling”
[18] Insurer’s bundle, p 339.
On 6 March 2013 the general practitioner (GP) noted that the claimant was not taking Zoloft, was anxious and had “a lot of stressors with family/children & keeps coming back to siter’s newborn baby”.[19]
[19] Insurer’s bundle, p 340.
A clinical note of Provincial Medical Centre dated 26 March 2014 noted chest pain especially after eating food and recorded a history of possible anxiety and depression.[20]
[20] Insurer’s bundle, p 251.
A clinical note by Dr Tun dated 25 January 2015 recorded that the claimant had “chest pain, can’t sleep, daughter in rehab ran away, grandson died” and recommended counselling.[21]
[21] Insurer’s bundle, p 278.
Contemporaneous medical evidence
The hospital note dated 31 March 2015 referred to the son’s severe head injury and the subsequent development by the claimant of central chest pain with associated symptoms which included hyperventilating, anxious, tingling hands and teariness.[22]
[22] Insurer’s bundle, p 159.
A certificate from Dr Wadhera dated 3 September 2015 stated that the claimant was on antidepressants for post-traumatic stress disorder, depression and anxiety following the motor accident.[23]
[23] Claimant’s bundle, p 393.
The claim form dated 10 September 2015 referred to the motor accident causing the claimant’s psychological injury. A medical certificate dated 14 September 2015 certified the claimant as suffering from nervous shock, anxiety and disorder caused by the motor accident.[24]
[24] Claimant’s bundle, p 15.
On 23 September 2015 Dr Koday noted the claimant was stressed, suffered anxiety symptoms, insomnia and questioned depression in the context of the son’s multiple head injuries.[25]
[25] Insurer’s bundle, p 341.
On 10 February 2016 the insurer admitted breach of duty of care and that the claimant suffered some injury as a result of the insured’s negligence.[26]
[26] Claimant’s bundle, p 16.
A referral from Dr Fernando to Richard Barclay, psychologist, dated 10 August 2016, referred the claimant for opinion and management for anxiety and depressive symptoms following the motor accident.[27]
[27] Claimant’s bundle, p 277.
Subsequent evidence
On 6 October 2017 Dr Wadhera recorded that the claimant had been binge drinking for five years, one to two times per week.[28]
[28] Claimant’s bundle, p 240.
Dr Wadhera, GP, provided a report dated 22 November 2018.[29] The doctor diagnosed post-traumatic stress disorder, panic attacks and depression noting the claimant was still having nightmares memory flashbacks and sleep issues with other symptomatology.
[29] Claimant’s bundle, p 224.
Concerning the impact on various activities of daily living, the GP noted that the claimant was managing self-care but lacking motivation and opined that the motor accident caused the development of post-traumatic stress disorder with general anxiety and panic disorder and recommended an increase in motivation to go out or do recreational activities. The GP opined that the claimant was unable to complete all domestic duties and had not worked since December 2017.
Ms Adrienne Powys, clinical psychologist provided a report dated 12 September 2019.[30] The claimant was described as observably tense, despondent and anxious and indicated a lack of desire to be present. The claimant’s life was described as shrinking to the point where her major focus was protecting her son who had incurred lifelong injuries from the motor accident and she spoke about mistrust of medical practitioners including lawyers involved in the case.
[30] Insurer’s bundle, p 348.
Ms Powys noted some information in Dr Prior’s report of the claimant’s guilt due to accidentally phoning her husband and son placing the phone back in the consul which fell on the husband’s foot. The claimant speculated this may have distracted her husband and caused the accident and she blamed herself and felt “guilty and bad” about that.
The psychologist noted that the claimant’s husband had subsequently telephoned and advised the practice that the sessions had raised issues from the past which had upset the claimant and all future appointments were cancelled.
Dr Bhavanishankar, psychiatrist, provided a report dated 29 May 2020 following a recent referral.[31] The doctor noted the motor accident which left the claimant with long-term chronic disabilities and had turned the claimant’s life “upside down”. Reference is made to the claimant experiencing stress about the earliest order from a previous relationship who had a history of substance use.
[31] Claimant’s bundle, p 389.
The doctor opined that the motor accident caused the development of post-traumatic stress disorder with generalised anxiety and panic disorder, a major depressive disorder in the past history of alcohol misuse disorder. He recommended an increase in Fluoxetine and a trail of Prazosin to assist with flashbacks and nightmares.
Dr Bhavanishankar, psychiatrist, provided a further report dated 25 February 2021. The doctor repeated his previous diagnosis noting he did not believe there was any relevant pre-existing history although noted a range of psychosocial stressors post-accident which included managing her son’s complex behavioural and emotional needs following the accident, the strain on the relationship with her husband and the fractious relationship with the daughter.
The doctor noted recent attendance in court following a dispute with a neighbour which resulted in a subsequent worsening of mood. The doctor opined that the prognosis was guarded with the claimant reporting chronic, fluctuating and poorly limited symptoms due to the psychological diagnosis.
In July 2020 the claimant presented to hospital with neck pain, headache and blurred vision following a fall on the previous day.[32]
[32] Claimant’s bundle, p 402.
A referral from the GP dated 26 March 2021 to the psychologist noted anxiety and panic attacks following a motor accident on 17 March 2021.[33]
Qualified opinions
[33] Insurer’s bundle, p 240.
Dr Prior
Dr Michael Prior, psychiatrist, was qualified by the insurer and provided a report dated
5 November 2018.[34][34] Claimant’s bundle, p 134.
The doctor noted the death of the claimant’s grandson in 2013 which the claimant said she was tragic but something she coped with. There was a denial of any other pre-existing significant acute or chronic stressors or positive or negative life events prior to the motor accident. There was a denial of pre-existing alcohol, illicit substance all prescription medication. Alcohol consumption was described as in the social context of approximately once a month and no more than a glass of wine.
The doctor noted a history that the claimant’s son was 11 years of age at the time of the accident and suffered significant traumatic brain injury requiring hospitalisation for up to nine weeks with 11 days in intensive care with complications of cerebral oedema and then admission to the epilepsy ward.
After a detailed history, Dr Prior opined the claimant’s history was internally consistent and diagnosed chronic post-traumatic stress disorder, comorbid major depressive disorder with secondary panic phenomena and secondary alcohol use disorder in recent remission.
Dr Prior opined that the cause of the psychological condition was the motor accident itself and viewing video details of the scene of the accident including of her injured and unconscious son. The alcohol use disorder was opined to be secondary to both the chronic post-traumatic stress disorder and the major depressive disorder.
Dr Prior assessed the impairment as suffering from 19% whole person impairment by reason of the psychological conditions.
Dr Prior provided a further report dated 26 September 2019 following a medical examination around that time.[35] The doctor questioned the claimant about her relationship with her eldest daughter who had problems with drugs prior to the motor accident and the claimant agreed that this was correct and reported that the daughter’s predicament upset and annoyed her, but she was powerless to do anything and noted that they were still seeing each other and communicating prior to the motor accident.
[35] Claimant’s bundle, p 167.
In relation to prior alcohol use, the doctor noted the clinical note of Dr Wadhera dated
6 October 2017 which referred to binge drinking for approximately five years. The claimant stated that it was only after the motor accident that she started to drink heavily and that she did not drink heavily prior to the motor accident.Dr Prior confirmed his previous diagnosis and noted that the claimant was potentially vulnerable to a secondary alcohol use disorder if there was in fact a history of past binge drinking.
Dr Prior opined that the claimant’s performance was within the range and assessed the claimant as suffering a 22% whole person impairment. The change in the assessment was the rating for self-care and personal hygiene which had increased to Class 3.
Dr Prior provided a supplementary report dated 29 April 2021[36] noting that he had no further face-to-face contact with the claimant since the previous report of September 2019. The doctor therefore noted that he had no firsthand knowledge of the claimant’s current clinical status. The doctor stated:
“After having reviewed my previous assessments and the additional material provided for this supplementary report, it in my opinion appears likely that Ms Janev did suffer from some pre-existing psychiatric symptomatology, but it is certainly not clear to me whether this symptomatology constituted a psychiatric diagnosis per se. It is also not clear and there is no contemporaneous documentary evidence available to attempt to ascertain whether that if such a pre-existing symptoms and/or psychiatric condition existed whether it was indeed associated with any impairment or not.”
[36] Insurer’s bundle p 540.
Dr Prior assessed some friction in the relationship between the claimant and her daughter but otherwise assessed any pre-accident impairment at 0%.
Dr Prior assumed that the surveillance was the claimant’s and was “representative and characteristic of her function rather than being exceptional and rare events”. Accordingly, the doctor maintained his previous diagnosis but adjusted all psychiatric impairment rating scale (PIRS) categories to Class 2 apart from adaption which was assessed as Class 3. The resulting impairment was assessed at 7%.
Dr Roldan
Dr Roldan, psychologist, was qualified by the insurer and provided a report dated
10 June 2020.[37] Following testing the psychologist opined that the claimant’s performance was within the range associated with “deliberate underperformance or feigned incompetence”. Consistent with that finding it was the psychologist’s opinion that he could not accept on face value the claimant’s symptoms and impairment.[37] Insurer’s bundle p 430.
Dr Roldan provided a further report dated 22 April 2021 commenting on the surveillance reports and supplementary material.[38] The doctor commented, upon reviewing the material, that the claimant attempted to minimise and/or completely ignore relevant aspects of the pre-subject accident history and/or unrelated stressors.
[38] Insurer’s bundle, p 558. The
Dr Roldan also opined that the content of the surveillance indicated inconsistency between the film and the claimant’s account of her activities.
Mr Burchett
Ms Burchett, vocational psychologist, was qualified by the insurer and provided a report dated 28 July 2020.[39] The psychologist opined that the claimant had various personal strengths and transferable skills in relation to administrative work which made her suitable for employment in a number of other occupations.
[39] Insurer’s bundle, p 454.
Ms Piebenga
Ms Dawn Pienbenga, occupational therapist, was qualified by the insurer and provided a report dated 15 March 2021.[40] Ms Piebenga supported a claim for domestic assistance for a short period in early 2018 and opined that the future domestic assistance was not required.
[40] Insurer’s bundle, p 491.
Ms Pienbenga opined, upon viewing the surveillance, that the claimant would not have any restriction of the performance of any domestic tasks.[41]
[41] Insurer’s bundle, p 571.
Investigations
The insurer relied on surveillance of the claimant’s activities in February 2020, April 2020, May 2020, June 2020, July 2020, October/November 2020, January 2021 and April 2021.
Statements
Paige Janev, daughter of the claimant, provided a statement dated 8 March 2021.[42] The daughter relevantly stated:
“This accident has impacted my mum’s mental health dramatically, we no longer celebrate birthdays, no longer go, and do things as a family. The impact of this event to my mum’s mental health as I see is not fixable with time until things, but she will never make a recovery from this. I have simply lost my best friend and mother as a result. We are all struggling with Christian’s brain-damaged especially my mother who constantly worries for his future.”
[42] Claimant’s bundle, p 126.
In a written submission to the Medical Assessor, the claimant noted the motor accident when her son was critically injured and wrote:[43]
“On the 31st of March 2015 in the ICU, I developed central chest pain was transferred to the emergency department at Westmead Hospital. Eight suffered a panic attack due to distressing my son hooked up to machines and ventilate. From the time Christian was admitted to hospital until the time he was discharged, an epileptic side and stay for the entire three months Christian was recovery at hospital.
….
My health issues are still ongoing due t that I constantly worry for Christian and future all the time.”
[43] Claimant’s bundle, p 128.
Angela Minawi is the sister of the claimant and provided a statement dated 8 March 2021. Ms Minawi stated:[44]
“Mirjana is my elder sister. Over the years I’ve had to watch her mental health deteriorate due to the car crash her son was involved in 2015 where he was a passenger in his father’s van…
Prior to this I recall my sister Mirjana being outgoing, and entertaining, life of the party, always willing to host all the birthday parties and family events, to babysit when needed and a strong support system to myself when going back to the workforce and needed ongoing assistance with my son.
She was always the rock of the family, there whenever you needed her, strong, independent, and happy woman.
Since the car crash my sister Mirjana is constantly depressed, shows ongoing signs of trauma, she is no longer an entertainer, in fact she really allows people in the house and chooses to isolate itself often stop she has withdrawn herself from family and friends. My sister and I used to be quite close, she was my role model and rock. Since the incident we do not talk as much or go out on many family outings. She often chooses to opt out of attending family gatherings altogether or at the last moment. I miss the system before a horrible accident changed her forever.”
[44] Claimant’s bundle, p 133.
Police records
We have considered the various records produced by the New South Wales Police which we do not intend to summarise.[45]
[45] Insurer’s bundle, pp 587- 725.
MEDICAL EXAMINATION
The claimant was medically examined by both Medical Assessors on 5 August 2024. The examination report is as follows.
Identification data
Ms Mirjana Janev is a 51-year-old woman who receives the Disability Support Pension as of July 2020 and resides with her daughter, aged 29 and two grandchildren, aged eight and three. Ms Janev has four other children: Tiana, aged 22, who is a registered nurse, Christian, aged 17, who is in Year 12 at Erskine Park High School, Jayden, aged 15, who is in Year 9 at Erskine Park High School and Stephanie who has some mental health issues and resides with the maternal grandmother. Ms Janev has recently separated from her husband Roman following an argument between him and Tiana in June 2024.
Pre-accident functioning
Prior to the motor vehicle accident, Ms Janev was extremely happy and functioning well. She claims she was able to take care of herself well, although there were some difficulties in the relationship with her daughter Paige that was longstanding resulting in an adjustment disorder. In addition, there was the death of her grandson at 11 days old and a mental health care plan by Dr Kodsky dated 6 March 2013 was noted due to the problems with her daughter.
In terms of self-care, Ms Janev was able to cook, clean and manage herself and her family well. therefore, there was no impairment of self-care and personal hygiene.
In terms of social functioning, there was a breakdown in the relationship with her daughter and there was moderate impairment of social functioning.
In terms of concentration, Ms Janev was able to concentrate and could focus well. Therefore, there was no impairment of concentration, persistence and pace.
In terms of social and recreational activities, Ms Janev enjoyed an active social life with good friends and she enjoyed interacting with work colleagues. Therefore, there was no impairment of social and recreational activities.
In terms of adaptation, Ms Janev was working 38 hours per week in the family business. Therefore, there was no impairment of adaptation.
In terms of travel, there were no restrictions and no impairment of travel.
Mental state examination
Ms Janev presented as a pleasant woman who was neatly attired with her hair tied behind her head. She was of large build and engaged well with the interview process. Her eye contact was good and she was able to express herself well. She was very organised and had notes that she relied upon for information such as dates of accidents and health issues, as well as hospital admissions. She was very clear and well-prepared. Her speech was normal in tone and volume. There was no abnormality of perception. Ms Janev’s affect was sad and anxious, although there was some reactivity and on a few occasions, she was able to smile. Her cognitive function appeared normal and her thoughts were logical. There was no evidence of paranoia or hallucinations and she appeared to have normal insight and judgement.
Ms Janev wishes the motor vehicle accident never occurred and she believes the accident has caused a lot of trauma and contributed to a lot of her problems. She now does not have a job and she has separated from her partner. Nevertheless, she is still the Director of her ex-partner’s business in telecommunications. In addition, Ms Janev is trying to support her son who wants to become a pilot. He is currently attempting to do his HSC and there is tutoring, however, he still suffers a lot of anxiety and other difficulties. It was Ms Janev’s view that the motor vehicle accident involving Christian resulting in severe injuries was the main issue for her. She stated she recovered from the loss of her grandchild but acknowledged she was depressed for some time after the baby’s death as well as from the estrangement with her daughter. However, Ms Janev stated she only developed substance use with alcohol two years after the subject motor vehicle accident.
History of the motor vehicle accident
On 26 March 2015 Ms Janev was at home and she said she heard some helicopters, however, she did not think a great deal more about them. At the time she was speaking with her son Christian on the phone who was in a vehicle with her ex-partner Roman and he dropped the phone which appeared to trigger a motor vehicle accident, however, Ms Janev was unaware that an accident occurred. She said Roman reached down to retrieve the phone and then collided with a pole. Christian was severely injured and an ambulance arrived and transported him to Westmead Children’s Hospital. The Toyota HiAce they were travelling in was severely damaged and it was not fitted with airbags. Ms Janev arrived at the hospital and spoke to a social worker and her sister arrived to support her. The surgeon then spoke with Ms Janev and advised her that Christian had sustained a severe traumatic brain injury and he was required to undergo surgery as fluid was building up. He was in intensive care for 12 days and a drain was placed in his brain then removed after 12 days. He was on the ward for a further three months before he was discharged. Following the neurosurgery, he became deaf in his left ear and he had to learn to walk again which was a struggle.
Christian required lifetime care and rehabilitation and he suffered from fatigue. He was attending Penrith Christian School and then moved to James Erskine Public School due to bullying and exclusion. He underwent treatment with occupational therapy, physiotherapy and hydrotherapy. There were behaviour problems at school and he would refuse schoolwork. There were learning and behavioural difficulties with anger and lashing out and he required a teacher’s aide and caseworker. There was continued educational support throughout his schooling and the main issues were the brain injury on the left side causing a tremor with his right hand, as well as difficulties with handwriting. In addition, she has developed a generalised anxiety disorder and it will take him two hours to prepare for school due to difficulties with anxiety.
Symptoms and treatment after the accident
Following the motor vehicle accident, since Christian was hospitalised, Ms Janev has developed high levels of anxiety and features consistent with post-traumatic stress disorder. There have been flashbacks about her son’s health issues, as well as about hospitals and doctors. There has been avoidance of emergency vehicles and going to doctors. There has been low self-esteem and negative feelings about herself, as well as high levels of anxiety, hypervigilance and panic attacks. In addition, Ms Janev has self-medicated with alcohol which she claims she commenced two years after the motor vehicle accident. Ms Janev stated she has found it difficult to concentrate and enjoy herself, therefore she was placed on the Disability Support Pension in July 2020 in relation to complex trauma and depression and she ceased work in 2017. Ms Janev stated she has been abstinent from alcohol for the past 12 weeks.
Ms Janev was under the care of Dr Bhabani Shankar from 2020 to 2023 who diagnosed post-traumatic stress disorder then “he discharged me from his care because my ex-partner degraded him.”There have been admissions to Blacktown and Nepean Hospital, drug and alcohol problems and currently, there is psychological and psychiatric treatment with Nepean Drug and Alcohol Service.
Past medical history
There is no history of serious illnesses, injuries or conditions. The current medication is Prozac 60 mg, Endep 100 mg, Metoprolol 50 mg and Ozempic for weight loss. There is no family history of psychiatric illnesses and no drug or alcohol problems.
Past psychiatric history
There is no history of anxiety, depression or need for treatment from mental healthcare providers, except for when her grandchild died at 11 days old due to a cardiac condition. She has never taken antidepressant medication previously.
Past forensic history
There is no history of motor vehicle accidents, Workers’ Compensation claims, insurance claims or legal issues.
Current symptoms
Ms Janev’s sleep is poor with many interruptions during the night. She does not enjoy herself and she feels overwhelmed at times. There has been suicidal ideation and she overdosed on alcohol on 4 April 2023 and was admitted to Nepean Hospital. Ms Janev was admitted to the mental health care ward at Blacktown hospital in June 2023 for six weeks then four weeks at Nepean Hospital. There were manic symptoms induced with alcohol and Antabuse. There were no further manic symptoms and she received treatment with Olanzapine and Lamotrigine, however, she has now ceased these medications. There are panic attacks with hyperventilation and palpitations. She is worried about her son and his future and she stays at home in her room. She does not enjoy herself and she finds it hard to go out. Ms Janev worries about helicopters and doctors and she does not like to attend appointments unless necessary, as well as becomes easily overwhelmed. There was a suicide attempt on one occasion when there was a charge against her in relation to assaulting her daughter and she injected herself with insulin.
The relationship with Roman has broken down and he was incarcerated following an argument on 11 June 2024 between him and Ms Janev’s daughter Tiana who called the Police and “… he was arrested and charged.”Roman now resides with his parents and
Ms Janev stated there is no longer communication between them.Ms Janev was questioned about the relationship with her daughter Paige who she stated became rebellious at age 16 and left the family home. She stated Paige was abusing drugs and using ICE at the time of the birth of Ms Janev’s grandson who died at 11 days old. There was anger from Ms Janev towards Paige regarding her choice of partner and the drug use, therefore, communication with Paige ceased after her grandson was born. Ms Janev stated she was shocked to learn that her grandson had died, and she said, “I spent four days in my room crying.” She did not attend the funeral as she felt too guilty although she had visited his grave. Ms Janev stated the relationship with Paige was estranged for several years however they have reconciled over the past 6-12 months.
Ms Janev is close with her other grandchildren but would like to interact with them more frequently. Therefore, it is the Panel’s view there is an adjustment disorder following the death of her grandson and estrangement from her daughter causing depression and consultation on 6 March 2013 with Dr Kodsky.
Alcohol use
Ms Janev claims she had not used alcohol before 2017 when she commenced heavy alcohol use and she lost control of her alcohol intake. There have been numerous issues requiring admission to hospital relating to alcohol use. Ms Janev was prescribed Antabuse in an attempt to cease alcohol use and there have been numerous relapses. Although it was reported to Dr Wadaja that there was binge drinking for five years leading up to 2017,
Ms Janev stated this was a misunderstanding by Dr Wadaja and there were no previous problems with alcohol and coincides with the two years following the motor vehicle accident which would have been during his recovery. Therefore, it is Ms Janev’s position that alcohol use and problems with alcohol commenced after the subject motor vehicle accident.In 2020 there was police involvement and an argument with neighbours in 2020. On
4 April 2023 there was an overdose of tablets and alcohol and admission to Nepean Hospital then released the following day. In November 2023 there was an admission for alcohol detoxification and Ms Janev stated there has been no alcohol use for the past 12 weeks.Ms Janev was questioned about the entry by Dr Widera who noted binge drinking over five years before 2017, which would be approximately 2012, however, Ms Janev denied there were any alcohol issues before 2017.
Current functioning
Ms Janev stated she is able to dress, feed and manage herself adequately but will only shower every 3-4 days as she feels depressed and she is prompted to wash and clean herself. She presented as neatly attired at the interview and tastefully groomed. Therefore, there is mild impairment of self-care and personal hygiene.
In terms of social functioning, Ms Janev is living with her children and two grandchildren. The relationship with her daughter Paige has improved a great deal and they have reconciled. Her daughter Stephanie has developed some mental health issues and has moved to live with the maternal grandmother. The relationship between Romam and Tiana broke down resulting in Roman’s eviction from the house. Ms Janev does interact with some friends such as with Mona. Overall, the Panel believes due to the improvement and reconciliation of the relationship with her daughter, there is an ability to maintain relationships, therefore, there is mild impairment of social functioning.
In terms of concentration, Ms Janev was able to concentrate for over 90 minutes at the interview. She was well-organised and did not require a great deal of prompting. She could provide clear indications of dates and there was good clarity of thinking. However, Ms Janev did report there was a lack of ability to concentrate, therefore there is mild impairment of concentration, persistence and pace.
In terms of social and recreational activities, Ms Janev does not have a great deal of interest in going out with friends. She has lost social interactions because she is no longer working, although there is contact with one friend and they share joint concerns as she also has a child with a brain injury. Therefore, there is moderate impairment of social and recreational activities.
In terms of adaptation, Ms Janev has not worked since 2017 and claims she is unable to work due to a lack of motivation and inability to settle in the work environment. In addition, her low mood impacts her ability to work. It is the Panel’s view that Ms Janev would struggle to work more than 20 hours in her pre-injury role and there is severe impairment of adaptation.
In terms of travel, Ms Janev has been disqualified from driving, however, she is able to drive without restrictions.
Video footage
Ms Janev was questioned about video footage from 2020 and 2021 and she stated she was being followed by NRMA and that some of the footage was fabricated while some of it was genuine. She stated at the time she was attending some appointments with her daughter and there were only short trips.
Diagnosis
The Panel formed the view in line with previous reports there is post-traumatic stress disorder and substance use disorder (alcohol). Before the motor vehicle accident, it is the Panel’s view there is evidence of an adjustment disorder following the death of her grandchild and estrangement from her daughter. The estrangement with her daughter has now improved and there has been an adequate period of grieving and the adjustment disorder has now resolved.
Following the motor vehicle accident, the Panel formed the view Ms Janev developed post-traumatic stress disorder and substance use disorder (alcohol – in remission). There is no evidence of ongoing bipolar affective disorder even though there were what appeared to be substance induced manic episodes and admission to Blacktown and Nepean hospital in 2023.
The criteria according to DSM-5 are outlined below:
“A. A traumatic event (the motor vehicle accident involving her son)
B. Re-experiencing phenomena with intrusive recollections, nightmares and dreams about her son as well as dreams about helicopters
C. Avoidance behaviours avoiding hospitals, doctors and health environments
D. Negative cognitions with self-negativity and self-medication with alcohol
E. Marked alterations in arousal with panic attacks, hypervigilance and anxiety
F. Duration of more than one month
G. Significant impairment of functioning
H. Not due to substance use or other medical condition”
Causation and reasoning
It is the Panel’s view that prior to the motor vehicle accident, there is evidence suggestive of an adjustment disorder in relation to the death of her grandson and the breakdown in the relationship with her daughter. This is supported by reports of depression and relationship difficulties in the GP records in relation to her daughter and the death of her grandson, such as in the mental health care plan dated 6 March 2013. Therefore, the ongoing relationship difficulties with her daughter would have perpetuated the adjustment disorder before the motor vehicle accident.
On 26 March 2015 Ms Janev’s son was involved in a motor vehicle accident causing a significant brain injury and subsequent complex treatment and rehabilitation. Following the accident, Ms Janev developed post-traumatic stress disorder, however, she claims there were no issues with substance use or alcohol before the accident which developed two years after the accident, and there was a misunderstanding by the GP who noted binge drinking for five years before 2018. It is noted there are no entries in the GP records about issues with alcohol use before the motor vehicle accident.
On 22 November 2018 Dr Wadaja recommended treatment of 10 sessions with a psychologist following the death of her grandson and there was treatment in 2019 with Adrian Powys, psychologist.
Based on this assertion, post-traumatic stress disorder and substance use disorder (alcohol –in remission) are causally related to the subject motor vehicle accident.
In addition, there is an impact from the substance use disorder resulting in further legal issues and ongoing socialisation problems.
The video footage provided from investigations in 2020 and 2021 indicating Ms Janev appeared to be at the shops with her daughter does not negate the fact that she has developed a psychological condition causally related to the subject motor vehicle accident.
Whole person impairment
Pre-existing impairment:
| Psychiatric Diagnoses | Adjustment Disorder | |
| Psychiatric Treatment -Description | Psychological counselling | |
| Category | Class | Reason for Decision |
| Self-Care & Personal Hygiene | 1 | In terms of self-care, Ms Janev was able to cook, clean and manage herself and her family well. therefore, there was no impairment of self-care and personal hygiene. |
| Social & Recreational Activities | 1 | In terms of social and recreational activities, Ms Janev enjoyed an active social life with good friends and she enjoyed interacting with work colleagues. Therefore, there was no impairment of social and recreational activities. |
| Travel | 1 | In terms of travel, there were no restrictions and no impairment of travel. |
| Adaptation | 1 | In terms of adaptation, Ms Janev was working 38 hours per week in the family business. Therefore, there was no impairment of adaptation. |
| Concentration, Persistence & Pace | 1 | In terms of concentration, Ms Janev was able to concentrate and could focus well. Therefore, there was no impairment of concentration, persistence and pace. |
| Social Functioning | 3 | In terms of social functioning, there was a breakdown in the relationship with her daughter and there was moderate impairment of social functioning. |
List classes in ascending order:
| 1 | 1 | 1 | 1 | 1 | 3 |
Median Class Value: Aggregate Score:
| 1 | 8 |
Whole Person Impairment:
| 1% |
123.Current impairment:
| Psychiatric Diagnoses | 1. Post-traumatic stress disorder | 2. Substance use disorder (alcohol – in remission) |
| 3. Pre-existing adjustment disorder | ||
| Psychiatric Treatment -Description | Nil current treatment | |
| Category | Class | Reason for Decision |
| Self-Care & Personal Hygiene | 2 | Ms Janev stated she is able to dress, feed and manage herself adequately but will only shower every 3-4 days as she feels depressed and she is prompted to wash and clean herself. She presented as neatly attired at the interview and tastefully groomed. Therefore, there is mild impairment of self-care and personal hygiene. |
| Social & Recreational Activities | 3 | In terms of social and recreational activities, Ms Janev does not have a great deal of interest in going out with friends. She has lost social interactions because she is no longer working, although there is contact with one friend and they share joint concerns as she also has a child with a brain injury. Therefore, there is moderate impairment of social and recreational activities. |
| Travel | 1 | In terms of travel, Ms Janev has been disqualified from driving, however, she is able to drive without restrictions from a psychological perspective. |
| Adaptation | 4 | In terms of adaptation, Ms Janev has not worked since 2017 and claims she is unable to work due to a lack of motivation and inability to settle in the work environment, in addition, her low mood impacts her ability to work. It is the Panel’s view that Ms Janev would struggle to work more than 20 hours in her pre-injury role and there is severe impairment of adaptation. |
| Concentration, Persistence & Pace | 2 | In terms of concentration, Ms Janev was able to concentrate for over 90 minutes at the interview. She was well-organised and did not require a great deal of prompting. She could provide clear indications of dates and there was good clarity of thinking. However, Ms Janev did report there was a lack of ability to concentrate, therefore there is mild impairment of concentration, persistence and pace. |
| Social Functioning | 2 | In terms of social functioning, Ms Janev is living with her children and two grandchildren. The relationship with her daughter Paige has improved a great deal and they have reconciled. Her daughter Stephanie has developed some mental health issues and has moved to live with the maternal grandmother. The relationship between Romam and Tiana broke down resulting in Roman’s eviction from the house. Ms Janev does interact with some friends such as with Mona. Overall, the Panel believes due to the improvement and reconciliation of the relationship with her daughter, there is an ability to maintain relationships, therefore, there is mild impairment of social functioning. |
List classes in ascending order:
| 1 | 2 | 2 | 2 | 3 | 4 |
Median Class Value: Aggregate Score:
| 2 | 14 |
Whole Person Impairment:
| 7% |
There is 1% apportionment for pre-existing psychological condition.
There is no adjustment for treatment effect as there is currently no psychological treatment received.
The final whole person impairment is therefore 7%-1%=6%
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[46] and Insurance Australia Ltd v Marsh.[47]
[46] [2021] NSWCA 287 at [40], [41] and [45].
[47] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the extensive reasons provided by the Medical Assessors. Given the extensive nature of the reasons provided by the Medical Assessors, there is no need to add further reasons.
We have read the police records which relate to allegations of criminal conduct by the claimant and her husband, generally involving intoxication and in the presence of protected persons. Allegations within the records include that the claimant was intoxicated in breach of bail conditions which include not consuming alcohol within a set period in the presence of protected persons.
These charges appear to be not finalised and made the Panel’s task difficult as the claimant’ had a right to silence. We were otherwise not assisted by submissions from the insurer, who filed the records, as to the relevance of the material.
We have noted the records which, present a history of alcohol affecting a family with records of domestic disagreements.
CONCLUSION
The certificate issued by Medical Assessor Samuell is revoked as we have reached a different assessment. A replacement certificate is attached at the commencement of these Reasons.
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