Kairouz v Allianz Australia Insurance Limited
[2025] NSWPICMP 641
•26 August 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Kairouz v Allianz Australia Insurance Limited [2025] NSWPICMP 641 |
| CLAIMANT: | Rita Kairouz |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Gerald Chew |
| MEDICAL ASSESSOR: | Christopher Rikard-Bell |
| DATE OF DECISION: | 26 August 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA); claimant injured in motor vehicle accident; MA determined the claimant’s permanent impairment at 5%; the claimant sought a review of the assessment under section 7.26; the claimant was re-examined; Held – Review Panel revoked certificate of MA; substituted determination of 7% whole person impairment. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the Certificate of Medical Assessor Alexey Sidorov of |
STATEMENT OF REASONS
INTRODUCTION
On 31 March 2021, the claimant, Rita Kairouz (Ms Kairouz), was a passenger in an old (2005) Toyota Corolla Sedan driven by her husband, George Kairouz, when it was involved in a motor vehicle accident (the accident).
Ms Kairouz alleges at [22] in her Statement of March 2024 that as she was causing the vehicle to reduce speed approaching a red light, a vehicle from behind struck the rear of the Corolla and then a third vehicle collided with the second vehicle causing a second impact to the Corolla which Ms Kairouz alleges was a ‘severe’ impact.
She states at [14] that the airbags did not deploy, but the radio in the car was dislodged due to the impact and her bag was flung forward. She states that in order to protect herself, she put her hands on the dashboard, causing immediate pain to her wrists and hands. She was shocked and began shaking.
Ms Kairouz also alleges at [15] that she felt pain in her neck, shoulders, hands, wrists, left knee, back, and severe anxiety.
She has brought a claim under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for
non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.This dispute is in relation to whether the degree of permanent impairment sustained by Ms Kairouz as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a medical assessor.
The dispute as to permanent impairment in respect of the claimant’s psychological injury was referred to Medical Assessor Alexey Sidorov (psychiatrist) who assessed her on 21 May 2024 and certified on 4 June 2024 that the accident had given rise to a permanent whole person impairment (WPI) of 5% by reason of a Major Depressive Disorder with Anxious Distress.
Ms Kairouz has sought a review.
STATUTORY PROVISIONS
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 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 Review Panel notes that when considering the issue of causation of injury it had regard to the decision in: AAI Limited t/as AAMI Limited v Jacobs [2024] NSWSC 371. In Jacobs the insurer argued that the Medical Assessor had disregarded all of the contrary views so that the causation issues had not been properly dealt with. In response the claimant submitted that the Medical Assessor found there had been physical injuries which in turn caused psychiatric injuries. The court held that the Medical Assessor had considered the whole of the material before him and had subsequently reached a conclusion that was available to him. His Honour stated that:
“In other words, it is obviously not enough to simply consider one side’s material, but that does not mean that every dispute in the material needs to be described and particularly resolved. This, albeit imperfect, assessment did look at both sides and did reach a conclusion, including specifically on causation.”
THE REVIEW
Ms Kairouz has sought a review of the medical assessment of Medical Assessor Sidorov.
A delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
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.The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission). Accordingly, the President’s delegate referred the matter to this Panel to assess.
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.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 9 May 2025, the Panel agreed an examination was necessary. The Panel members have had no previous involvement with the claimant or with this matter.
EVIDENCE BEFORE THE PANEL
The Panel issued a Direction to the parties on 18 March 2025 requiring each party to file an indexed, paginated bundle of documents. Further directions of 13 May 2025 requested Ms Kairouz to attend a medical re-examination via audio-visual link with the Medical Assessors on 26 June 2025.
In response to the first Direction, the solicitor for Ms Kairouz uploaded to the portal a bundle of documents paginated from pages 1 to 457. The solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 465.
The Panel has not referenced or summarised all of the records relating to Ms Kairouz’s symptoms or injuries. If some of those medical records and reports are not referred to in the Panel’s review, it should not be assumed that the Panel was unaware of that medical material or that the Panel failed to take the material into account. In its review the Panel is endeavouring to carry out its statutory function and promote the objects of the legislation it operates under including the legislator’s guiding principle that proceedings in the Commission be a just, quick and cost-effective resolution of the real issues in the proceedings. Consistent with this guiding principle, the Panel has not referred to every item of medical evidence but has done its best to refer to them sufficiently but briefly where appropriate.
Material lodged by the parties
The material uploaded to MyPathway by both parties as a bundle is listed as follows:
(i)Claimant’s review submissions;
(ii)Insurer’s PIC Submissions of 8 July 2024;
(iii)Certificate of Medical Assessor Alexey Sidorov dated 4 June 2024;
(iv)Sealed Certificate and Reasons of Assessor Atsumi Fukui dated
7 December 2022;(v)Report of Dr David Freiberg dated 8 February 2024;
(vi)Dr David Freiberg letter dated 6 March 2024;
(vii)Report of Dr David Freiberg dated 14 March 2024;
(viii)Report of Dr David Freiberg dated 26 April 2024;
(ix)Statement of Rita Kairouz dated 22 March 2024;
(x)Report of Dr Conrad dated 13 July 2023;
(xi)Clinical Notes of Charmaine Moubarak (Psychologist);
(xii)Clinical Notes of Chiropractor (various dates);
(xiii)Application for Personal Injury Benefits Form dated 9 June 2021;
(xiv)Report of Dr Hanna dated 24 December 2021;
(xv)Allianz Recovery Plan dated 29 November 2023;
(xvi)Clinical Notes of Dr Hanna;
(xvii)Clinical Notes of Guildford Road Medical Centre;
(xviii)Certificates of Capacity (various dates);
(xix)X-ray of the Shoulders and Wrists dated 19 May 2021;
(xx)X-ray of the Cervical Spine dated 6 April 2021;
(xxi)X-ray and Ultrasound of the Right Knee dated 22 December 2021;
(xxii)Ultrasound of the Bilateral Shoulders dated 26 October 2022;
(xxiii)X-ray of the Right Ankle and Both Wrists dated 29 March 2023;
(xxiv)Allied Health Recovery Request 3 dated 1 February 2022, and
(xxv)Clinical Notes of Dr Keshavarzi
Report of Dr Freiberg dated 14 March 2024
The Panel reproduces the relevant sections of the report of Dr Freiberg dated 14 March 2024 below:
“I enclose [Ms Kairouz’s] treatment intervention sleep study which shows 13 cm H2O CPAP via an oronasal mask will be required to control her potential for severe sleep disordered breathing. The severe hypoxaemia was averted.
There was still severe insomnia related to her pain. Her sleep efficiency was 38%. Her proportion of REM sleep was only 1% (normal range 20-25%) and there were 22 spontaneous awakenings and a spontaneous arousal index of 5/hour. There were also frequent periodic limb movements that may need to be treated if her sleep fragmentation persists with an arousal index of 19/hour. I was not aware of this because her original diagnostic home sleep study did not record limb movements.
I will keep you posted on [Ms Kairouz].
If she brings me appropriate adherence data from her trial of CPAP I will make application to the ENABLE Department to supply her with it long term”
Report of Dr Freiberg dated 26 April 2024
The Panel reproduces the relevant sections of the report of Dr Freiberg dated 26 April 2024 below:
Sleep History
“A typical nights sleep prior to her motor vehicle accident she would be a side sleeper for 9 hours. She would have an uninterrupted sleep. She was not known to snore. She would wake refreshed and on reflection she would score 3/24 on an Epworth Sleepiness Score. A typical nights sleep after her motor vehicle accident her sleep duration was reduced to 2 to 3 hours. She could not find a comfortable position. She needed to sleep on her back because of her injuries. She would wake constantly with pain and anxiety. She noted restless leg movements that would also wake from her sleep. She was unrefreshed by her disturbed and truncated sleep. She scored 12/4 on an Epworth Sleepiness Score which is moderate hypersomnolence.”
Examination
“On examination Mrs Kairouz had a Mallampati class 1 airway, partial nasal air flow obstruction and clear lung fields to auscultation. Her weight was 63 kg which was similar to her pre-injury weight.”
Sleep Studies
“Mrs Kairouz had an ambulatory diagnostic polysomnogram on the 22 February 2024. The sleep study showed a sleep efficiency of 56% or a total sleep time of 293 minutes which represents a 50% reduction in the pre-injury reported sleep duration. There were 26 spontaneous awakenings and a spontaneous arousal index of 5/hour. The likely etiology of the spontaneous awakenings and arousals is due to her pain. She spent 100% of the time sleeping on her back. There were 270 obstructive hypopnoeas, apnoeas and central apnoeas lasting on average 34 seconds but up to 103 seconds in duration. This was associated on 235 occasions with oxygen desaturation with maximal falls to 71%. Her oxygen saturation was below 90% for 16% of the total sleep time. Therefore this sleep study showed severe insomnia due to pain and severe sleep disordered breathing. On the 8 March 2024 Mrs Kairouz had a treatment initiation sleep study with CPAP therapy. 13 cm H2O of CPAP via an oronasal mask was required to control her severe sleep disordered breathing. The previously demonstrated severe hypoxaemia was averted. There was still severe insomnia. She had a sleep efficiency of 38%. REM sleep was only 1% of total sleep time (normal range 20-25%). There were 22 spontaneous awakenings and a spontaneous arousal index of 5/hour. There were frequent periodic limb movements with an arousal index of 19/hour. Therefore in summary this sleep study showed a moderate CPAP pressure will control her sleep disordered breathing on her back but there is persistent severe insomnia and mild periodic limb movement disorder.”
CPAP Therapy in the Home Environment
“Mrs Kairouz commenced a home clinical trial renting a CPAP device over a one month period. She used the device for an average of 6.5 hours but reported she would be asleep for no more than 4 hours. Her apnoea-hypopnoea index reduced from 55/hour to 2.5/hour on 13 cm H2O CPAP and the oronasal mask fit was adequate. Despite the reversal of her sleep disordered breathing with CPAP therapy and her demonstrated adherence to this she still remained moderately hypersomnolent with an Epworth Sleepiness Score of 11/24. The likely cause of this is her ongoing severe insomnia due to pain. Mrs Kairouz would not entertain pharmacological intervention for her periodic limb movement disorder. This may be contributed to by her pre-existing diabetes but it is also likely worsened by her two anti-depressant medications. She was not prepared to trial any pharmacological intervention for her periodic limb movement disorder.”
Opinion
“Prior to her accident, she was not known to snore. She was a side sleeper. She had an uninterrupted 9 hours sleep. She would wake refreshed and her Epworth Sleepiness Score was in the normal range at 3/24. Complicating her motor vehicle accident has been severe insomnia due to pain which persists and is causing moderate hypersomnolence despite treatment intervention with CPAP therapy. The CPAP therapy would not have been required prior to her motor vehicle accident and the likely precipitant for this is the need to sleep in the supine position and the respiratory suppressant effects of the Lyrica medication she takes before retiring. Mrs Kairouz is unable to continue to afford to continue renting a CPAP device and she cannot afford to purchase it. Untreated obstructive sleep apnoea syndrome can lead to abnormal physiology that can have serious implications including increased cardiovascular disease, stroke, metabolic disease, excessive daytime sleepiness, workplace errors, traffic accidents and death. (1) This woman should have a trial of treatment with CPAP therapy. The cost of a CPAP device is $2,500. This will need to be replaced every 5 years. The mask system will need to be replaced yearly at a cost of $300. She will need to be reviewed by a Sleep Specialist yearly at a cost of $500.”
3. Relationship between condition on examination and injuries sustained in the accident.
“This woman's insomnia due to pain is directly related to her motor vehicle accident.”
4. Extent of the condition on examination being caused by the accident
“Her severe sleep disordered breathing is likely to have been precipitated by the need to sleep in the supine position from her injuries and the use of respiratory suppressant medications before retiring. Her periodic limb movement disorder is likely to be due to the dual anti-depressant medication she uses but there maybe a predisposition for this by her pre-existing diabetes although there was no history to suggest this.”
10. Prognosis
“This woman will suffer indefinitely with chronic hypersomnolence due to her chronic insomnia and mild periodic limb movement disorder. She will need long term ventilation to reverse her severe sleep disordered breathing. The latter would not have been required prior to her motor vehicle accident.”
ASSESSMENT UNDER REVIEW
Medical Assessor Alexey Sidorov examined Ms Kairouz on 21 May 2024 and issued his Certificate on 4 June 2024, determining that Ms Kairouz had WPI of 5%. The Panel reproduces his findings below:
[2] The injuries referred to Medical Assessor Sidorov were:
·Anxiety, stress, Major Depressive Disorder, Persistent Depressive Disorder (Dysthymia) with Anxious Distress, Somatic Symptom Disorder with predominant pain.
[3]-[4] Medical Assessor Sidorov summarised the submissions of the parties.
[5]-[6] Medical Assessor Sidorov noted that he considered the documents provided in the application and the reply, as well as the additional/late document being the Statement of Rita Kairouz of 22 March 2024.
[8]Medical Assessor Sidorov provided a psychosocial and
pre-accident history of Ms Kairouz, noting that she was 71 years old and resided in Blacktown with her husband. She received an aged pension from Centrelink. She has three adult children living independently. Ms Kairouz was born in Lebanon and migrated to Australia in 1973. She explained that her husband came from Australia to marry her in Lebanon and subsequently she moved to Australia with him. She has two brothers and three sisters. She denied any history of childhood trauma or abuse. She attended school until the fifth grade and then left to care of her mother. She never worked in Lebanon. When she arrived in Australia, she was pregnant with her eldest daughter and was a homemaker. After her children grew up, she worked for one to two years as a cleaner 20 to 21 years ago. She left the job as it was "too much" for her. Her children needed her to be at home at the time. It was unclear as to why that was as her children would have been adults at the time. She was unable to clearly explain as to why she left that place of employment. She was otherwise financially supported by her husband through her life before being on the aged pension. She denied any problems with her mental health prior to the accident. She denied any history of significant depression or anxiety. There was also no history of mania or psychosis. She denied smoking tobacco cigarettes, consuming alcohol or using illicit drugs and denied gambling. She denied any previous personal injury insurance claims or any other legal issues. She stated that she had been diagnosed with diabetes mellitus, hypertension and elevated cholesterol about 10 years before. She took Telmisartan, Somac, Diaformin and Rosuvastatin for these conditions. She was not aware of any family history of mental illness.[16] Medical Assessor Sidorov was of the opinion that Ms Kairouz’s Major Depressive Disorder with Anxious Distress was caused by the accident, and there were no other identifiable causes.
[9] Medical Assessor Sidorov set out the history of the accident, Ms Kairouz’s husband was driving at the time. She was wearing a seatbelt and sitting in the front passenger seat. Her husband was slowing down and coming to a stop when they were rear-ended by a car travelling behind. A third car that was travelling behind the car that rear-ended them rear-ended that car and, as a result, they were rear-ended by the car travelling behind them again. Ms Kairouz recalled that as a result of the impact, she was pushed forward and hit the dashboard. Police attended. The car was repaired. She stated that she was asked by the police if she needed an ambulance to be called, she declined this offer as she did not feel that she needed to attend the hospital.
[10]Medical Assessor Sidorov set out the history of symptoms and treatment following the accident, noting that after the accident Ms Kairouz developed headaches as well as pain in her neck and back. She saw her general practitioner the following day and was provided with analgesia and referred to physiotherapy. She stated that after attending sessions of physiotherapy for about one year, she stopped as she did not feel any improvement and she felt that her pain was getting worse. She continued taking analgesic medication. She stated she was diagnosed with disc injuries in her neck and back, as well as damaged muscles. She had been prescribed various combinations of analgesic medications and had recently been taking Lyrica, as well as Osteomol and Meloxicam. Ms Kairouz reported that since the accident she had been feeling irritated and stressed and had disturbed sleep. She stated that her mood had become generally not good, and she had been feeling depressed most days. She also became more forgetful and had found it difficult to focus and concentrate. She generally felt unhappy and did not enjoy her usual activities. Her energy levels were often low, and she felt that she was not motivated to do most things. Her appetite had generally been reduced and she does not enjoy the food in the same way as she used to. She also described that her self-esteem had been diminished and she felt worthless, helpless and hopeless. She denied suicidal ideations or thoughts of harm to self or others. She stated that she had been referred to a psychologist, Charmaine Moubarak, last year and was attending regular sessions. She had also been prescribed antidepressant medication, Escitalopram, 10 milligrams, by her general practitioner. She has also been taking Amitriptyline, 10 milligrams, for disturbed sleep.
[12]Medical Assessor Sidorov noted Ms Kairouz’s current symptoms being that she continues to experience ongoing pain in her head, neck and back. She continues to experience depressive symptoms, as well as feeling anxious, stressed out and often on edge, tense and restless.
[13]Medical Assessor Sidorov set out Ms Kairouz’s current and proposed treatment, noting that she attends regular sessions with a psychologist. She is also prescribed and takes Escitalopram, 10 milligrams daily, an antidepressant medication, as well as Amitriptyline, 10 milligrams at night, to help her sleep. She is also prescribed and takes Lyrica, Osteomol and Meloxicam for pain.
[14]-[16] Medical Assessor Sidorov found on clinical examination:
“Ms Kairouz was a well-presented woman appearing of stated age. She was generally cooperative and settled. She was teary at times. There was no evidence of psychomotor disturbance or abnormal movements. Her affect was anxious and dysphoric. She described her mood as "not good". There was no evidence of formal thought disorder. She denied any thoughts of self-harm, suicidal ideations or thoughts of harm to others. There were no psychotic symptoms present, such as delusions or hallucinations. She was oriented to time, place and person. She had good insight and a good degree of rational judgment.
Ms Kairouz stated that she performed household tasks as much as her pain allowed her to and otherwise her husband performs household tasks. She stated that she is able to shower and change her clothes without any significant problems, but her husband assists her if necessary. She was independent with her activities of daily living and personal hygiene. She stated that she was fearful getting into the car but was able to do so. She was able to leave home independently in her local area and go for walks but was afraid to travel further out without her husband present. She attends church regularly. She also goes to her daughter's house with her husband. She usually attends church every week. She enjoys interacting with her family but has stopped meeting her friends due to a reduced motivation and has stopped engaging in activities, such as crocheting and sewing. She reported being more forgetful and having difficulties with concentration, but no overt cognitive problems were noted during the assessment. She was not working at the time of the accident and was in receipt of the aged pension. She has not worked most of her life, aside for one to two years 20 years ago. She continues to perform household tasks, including housework, as much as her pain allows her to, but has some reduction in motivation and energy levels when doing so.
There were no particular inconsistencies noted in Ms Kairouz's history or presentation.”
[17]-[18] Medical Assessor Sidorov provided a summary of relevant documentation, including:
·Medical Assessment Certificate by Dr Atsumi Fukui
(7 December 2022): diagnosis of Major Depressive Disorder with Anxious Distress.·Referral letter to Charmaine Moubarak, Psychologist
(30 July 2023): referral for treatment of anxiety and depression related to a motor vehicle accident, exacerbated by chronic pain and loss of health and fitness.·Clinical notes by Charmaine Moubarak, Psychologist (2023): presentation of depressive and anxiety symptoms.
·Application for Personal Injury Benefits Form: description of the subject accident, generally consistent with the account provided during the assessment.
·Clinical record – Mounties Care Health Clinic, Guildford: initial presentation on 1 April 2021 with headache and neck pain; subsequent entries note ongoing pain issues; entry dated 21 December 2022 records depressed mood, poor sleep, and fear of driving; prescription of Lexapro and Endep noted.
·Letter by Dr Hany Hanna (24 December 2021): diagnoses of posttraumatic mechanical derangement of cervical spine, symptoms affecting both shoulders and right wrist, and anxiety.
·Insurer’s submissions: GP reported an 8% Whole Person Impairment (WPI) assessed by Dr Canaris in relation to psychological injury.
·Medical Assessment Certificate by Dr Alexander Woo: cervical spine, lumbar spine, both shoulders, right knee, and both wrists/hands determined to be minor injuries under the Act.
·Statement of Ms Kairouz (22 March 2024): describes background, the accident, treatment and pre-existing injuries, current mental and physical state, ongoing pain issues, and depressive and anxiety symptoms.
[19] Medical Assessor Sidorov provided his diagnosis and reasons:
“Based on the account provided by Ms Kairouz, her presentation and review of the provided documentation, she meets the diagnostic criteria for a Major Depressive Disorder with Anxious Distress as per the DSM-5. This is based on a history of Ms Kairouz experiencing a depressed mood most of the day nearly every day, with associated diminished interest and ability to derive pleasure from most of her activities, significant appetite and sleep disturbance, experiencing low energy and fatigue most days, feelings of worthlessness, helplessness and hopelessness, a diminished ability to think and concentrate and memory difficulties. Associated with her depressive symptoms, Ms Kairouz also developed symptoms of anxious distress associated by feeling keyed up and tense, anxious and restless.”
[20]With respect to causation and reasons, Medical Assessor Sidorov noted that Ms Kairouz's Major Depressive Disorder with Anxious Distress was caused by the subject accident. There were no other identifiable causes.
[21] Medical Assessor Sidorov noted that Major Depressive Disorder with Anxious Stress was caused by the accident.
[23]Medical Assessor Sidorov set out the PIRS table:
| Psychiatric diagnoses | Major Depressive Disorder with Anxious Distress | |
| Psychiatric treatment description | Antidepressant medication and psychological therapy. | |
| Category | Class | Reason for Decision |
| 1. Self care and personal hygiene | 1 | There is no evidence of impairment in regard to Ms Kairouz's self-care and personal hygiene. |
| 2. Social and recreational activities | 2 | There is evidence of mild impairment. Ms Kairouz has become more socially withdrawn and partakes less frequently of her social and recreational activities, although she still attends church and sees her family. |
| 3. Travel | 2 | There is evidence of mild impairment. Ms Kairouz is able to leave home independently in her local area, however, when she travels in a motor vehicle, she experiences significant anxiety. |
| 4. Social functioning | 2 | There is evidence of mild impairment. Ms Kairouz has lost some friendships but generally maintains a good relationship with her husband and her other family members. |
| 5. Concentration, persistence and pace | 2 | There is evidence of mild impairment. Ms Kairouz reported that she has become more forgetful and has found it more difficult to concentrate since the subject accident, however, no overt cognitive impairments were noted during the assessment. |
| 6. Adaptation | 2 | There is evidence of mild impairment. Ms Kairouz has continued to perform housework, which was her main engagement at the time of the accident as she has been unemployed for many years. She is currently primarily impaired by her pain, however, there is likely an element of motivation and reduced energy that contributes to her reduced ability to perform housework. |
| List classes in ascending order: 1, 2, 2, 2, 2, 2 | ||
| Median Class Value: 2 | ||
| Aggregate Score: 11 | ||
| % Whole Person Impairment: 5% | ||
[27]Medical Assessor Sidorov concluded that Ms Kairouz suffered 5% WPI as a result of the accident.
SUBMISSIONS
Submissions of the Claimant undated - uploaded 21 June 2024
The Panel refers to the submissions of Ms Kairouz of 21 June 2024 by reference to paragraph numbers:
[2]-[4] Ms Kairouz seeks a review of the Certificate of Medical Assessor Alexey Sidorov dated 4 June 2024. She submits the Medical Assessor erred in assessing 5% permanent impairment for Major Depressive Disorder with Anxious Distress. She submits the errors are material, not trivial or insignificant, citing Meeuwissen v Boden & Motor Accidents Authority of New South Wales (2010) NSWCA 253 at [16]to [24].
[7] Ms Kairouz submits the Medical Assessor failed to engage with the medical evidence when determining impairment and acted ultra vires.
[8] Ms Kairouz submits the Medical Assessor failed to provide adequate reasoning including failure to:
(a)engage with Medical Assessor Fukui’s Certificate;
(b)consider admitted documents from Dr Freiberg;
(c)assess the shower impairment;
(d)address chronic sleep issues;
(e)consider chronic insomnia’s significance;
(f)justify “mild” adaptation;
(g)assess medication adjustment;
(h)elaborate on concentration, and
(i)link insomnia to impairment.
[9] Ms Kairouz submits the Medical Assessor made a material error by disregarding relevant medical evidence and providing no reasoning.
Submissions
[14]-[15] Clause 6.18 of the Guidelines outlines steps for assessing permanent impairment, including evaluation of all evidence. The submissions link the Medical Assessor’s failure to clause 6.18 of the Guidelines.
[16]-[19] Ms Kairouz lodged four documents by Dr Freiberg with the PIC on
1 May 2024. These documents include letters and reports dated
8 February, 6 March, 14 March, and 26 March 2024. On 6 May 2024, the Respondent consented to their admission. The President’s delegate granted leave under Rule 67(4)(b) for inclusion of the documents.[20] The documents of Dr Freiberg have high probative value relating to Ms Kairouz’s sleep and insomnia.
[21]-[24] Dr Freiberg reported pre-accident sleep of nine hours, post-accident sleep of two to three hours, disturbed by pain/anxiety, with worsened sleep scores. The 14 March 2024 letter includes sleep study results: sleep efficiency of 38%, REM 1%, and 22 awakenings. The 6 March 2024 letter reported 293 minutes of sleep and a 50% reduction from pre-accident baseline. The 26 March 2024 report confirmed insomnia, poor sleep, and moderate hypersomnolence post-accident.
[25] Dr Freiberg noted a 56% sleep efficiency and major change from baseline.
[26] The President’s delegate accepted these documents as relevant to impairment.
[27]-[28] Ms Kairouz submits the Medical Assessor failed to evaluate Dr Freiberg’s evidence, breaching statutory obligations and that Dr Freiberg’s findings would affect all six PIRS domains.
[29] It is submitted that the Certificate outcome is inconsistent with medical evidence (David v Allianz Australia Insurance Ltd (2021) NSWPICMP 227 at [50]).
[30] In Stanizzo v AAI Limited trading as GIO [2021] NSWSC 1077, failure to address the claimant’s evidence was held to be error.
[31] While the Medical Assessor noted disturbed sleep, Ms Kairouz submits that he failed to assess objective sleep study findings.
[32] Poor sleep aggravates multiple PIRS categories and affects WPI.
[33] Ms Kairouz submits the Medical Assessor’s failure to assess all material breaches statutory and common law duties.
[34] In Marsh v Insurance Group Limited t/as NRMA Insurance Limited [2021] NSWSC 619, Simpson AJ found that a MAS proper officer erred in not allowing an application for review in circumstances in which there the Medical Assessor reached a view contrary to that of other medical experts.
[35] Ms Kairouz submits Dr Freiberg’s evidence could have altered the impairment rating and that not considering it was a jurisdictional error.
[37] Ms Kairouz submits the Medical Assessor failed to expose his reasoning, which indicates relevant matters were not considered, citing Moran v Motor Accidents Authority of NSW [2013] NSWSC 1135.
[38] Ms Kairouz relies on Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 NSWCA 13 which confirms the duty to give adequate reasons.
[39] Further, Ms Kairouz relies on Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 which supports that failure to make findings on material facts shows they were not considered.
[40]-[41] Campbelltown City Council v Vegan [2006] NSWCA 284 confirms that reasons must be given where multiple conclusions are open. Where facts are disputed, reasons should show why one view was preferred.
[42] Ms Kairouz relies on Minister for Immigration and Ethnic Affairs v Pochi (1990) 44 FLR 41, which confirms that natural justice requires logical material to support findings.
[43]-[44] Ms Kairouz submits the Medical Assessor failed to evaluate Medical Assessor Fukui’s Certificate, the Claimant’s statement, and psychologist notes. Medical Assessor Fukui assessed the threshold psychological injury in December 2022.
[45] Medical Assessor Fukui reported poor sleep due to pain and anxiety, feeling always scared, anxiety as a car passenger, shower avoidance, fear of something happening while showering, constant depressed mood, sadness, low energy, social withdrawal, loss of interest, lack of motivation, poor concentration, forgetfulness, self-isolation, inability to engage in previous activities.
[46] Current functioning was also impaired: minimal housework, reliance on husband and daughter for assistance, limited to simple cooking, relationship strain with husband, arguments, poor communication, headaches during family visits, mood swings, screaming at son.
[47] This is further confirmed in paragraph [18] subtitles ‘Diagnosis and Reasons’.
[48] Ms Kairouz submits the Medical Assessor did not explain why his findings differed from Medical Assessor Fukui’s, despite recognising her condition.
[49] Ms Kairouz submits the Medical Assessor acknowledged but failed to evaluate the Claimant’s 22 March 2024 Statement. She further submits the Medical Assessor failed to reconcile inconsistencies between that statement and his findings.
[51] Moubarak’s clinical notes were not considered.
[52]-[53] The Medical Assessor failed to provide reasons for preferring his view over this evidence, Ms Kairouz submits this omission breaches the duty to give an adequate reasoning path.
[54]-[56] Ms Kairouz submits the Medical Assessor failed to correctly apply PIRS by not categorising the functional impairment properly. She further submits had the PIRS been correctly applied, WPI would exceed 10% and that the above errors are directly relevant to the PIRS application.
[57] Ms Kairouz submits tiredness due to poor sleep supports higher impairment ratings.
Self-care and personal hygiene
[59]-[65] Ms Kairouz submits the Self-Care and Personal Hygiene Class 1 rating is inconsistent with Medical Assessor’s own findings. The Medical Assessor noted husband helps with dressing and showering. Psychologist, Charmine Moubarak, reported fear of showering due to trauma. Medical Assessor Fukui noted showering every four days and self-care deterioration. Ms Kairouz submits these sources support at least a moderate impairment and the Medical Assessor stated there was no self-care impairment, contradicting other evidence. She submits that no reasoning was given for this inconsistency.
Social and recreational activities
[67]-[74] Ms Kairouz submits the Social and Recreational Activities Class 2 rating is unjustified. The Medical Assessor reported withdrawal from friends and hobbies. Her psychologist noted she stays home and used to enjoy social activities. Medical Assessor Fukui noted complete social withdrawal and loss of interest at [15]. The Assessor acknowledged at [10] that Ms Kairouz is not motivated to do most things. She reported panic attacks in crowded areas. Ms Kairouz submits the Assessor failed to address inconsistency with this evidence and that a Class 3 impairment is supported.
Travel
[75]-[82] Ms Kairouz submits the Travel Class 2 rating is incorrect, noting that she could leave home independently. Medical Assessor Fukui recorded fear as a passenger and rare driving. The general practitioner notes confirm travel anxiety. Ms Kairouz’s psychologist noted hypervigilance and fear of driving; ceased overseas travel as supported in Ms Kairouz’s Statement. She submits that the Assessor failed to question travel impairment severity and he also ignored conflicting evidence. Ms Kairouz submits that a Class 3 impairment is appropriate based on travel anxiety.
Social functioning
[83]-[89] Ms Kairouz submits the Social Functioning Class 2 rating fails to consider reported arguments and family conflict. Her psychologist, Charmine Moubarak, noted irritability and avoidance of phone/socialising. Medical Assessor Fukui reported avoidance and lack of communication. Medical Assessor Fukui noted arguments with husband and moodiness with children. Ms Kairouz stated she avoids family due to low tolerance. The Medical Assessor’s Certificate claimed generally good relationships, inconsistent with other sources. She submits that a Class 3 impairment is supported.
Concentration, Persistence, and Pace
[90]-[97] Ms Kairouz submits Concentration, Persistence, and Pace class 2 rating is incorrect. Ms Kairouz stopped hobbies due to poor concentration. The Assessor did not elaborate on degree of concentration deficit. Medical Assessor Fukui noted reduction in cooking ability. Ms Kairouz’s psychologist noted forgetfulness; husband checks stove. She submits these findings show impaired focus and household risk. Ms Kairouz relies on others for cooking and cleaning; forgets TV content. She submits that a Class 3 impairment is supported.
Adaptation
[98]-[104] Ms Kairouz submits the Adaptation Class 2 rating based on housework is flawed. The Medical Assessor relied on limited functioning as support. He failed to consider abandonment of usual activities. Medical Assessor Fukui noted she needs help with basic tasks. Ms Kairouz only shops for necessities and is impatient. Medical Assessor Fukui noted self-isolation. She submits that the evidence supports a Class 3 adaptation impairment.
Inconsistency
[105]-[108] Ms Kairouz submits the Medical Assessor failed to address inconsistencies between his findings and medical evidence and that he incorrectly stated there were no inconsistencies in history or presentation. She further submits this is contradicted by multiple documents. She submits the Medical Assessor did not identify or address these inconsistencies, nor seek clarification.
Reply submissions of the Insurer dated 8 July 2024
The Panel refers to the submissions of the insurer of 8 July 2024 by reference to paragraph numbers:
1. Background
[1.1]-[1.3] Ms Kairouz was assessed by Medical Assessor Sidorov on 21 May 2024 who provided his certificate on 4 June 2024. She alleges the following errors in the certificate:
(a)Error 1 – failure to engage with the material / consider late documents
(b)Error 2 – inadequacy of reasons / failure to address contrary evidence
(c)Error 3 – failure to correctly apply the PIRS
(d)Error 4 – failure to raise inconsistencies
[1.4] Error 1 concerns failure to consider late material (Dr Freiberg’s reports).
[1.5] The insurer submits that it is for the Commission to determine whether Dr Freiberg’s reports were provided to the Medical Assessor, but even if they were not, this issue should not be addressed through a review application. Instead, the appropriate course is for the Commission to refer the matter back to the Medical Assessor under rule 112 of the PIC Rules.
[1.6]If the Medical Assessor had not received the material, the review should be dismissed and the Medical Assessor given an opportunity to provide an updated certificate.
[1.7] Ms Kairouz may seek a further review on remaining grounds once an updated certificate is issued.
2. Alleged error 1 - failure to engage with the material / consider late documents
[2.1] Ms Kairouz submits the Medical Assessor failed to consider late reports from Dr Freiberg.
[2.2] The insurer submits the review application is not the correct forum to ventilate this issue.
[2.3]-[2.4] The insurer submits the Commission should instead refer the matter back under rule 112. Rule 112 allows referral back where a certificate is incomplete (fails to comply with s 7.23 MAI Act).
[2.5]-[2.6] Procedural Direction PIC6 at [71] provides examples of incomplete certificates. One example is where ‘submitted documentation is not referred to’.
[2.7]-[2.8] The insurer submits that any failure to consider these reports was not material to the outcome of the assessment as the Medical Assessor was already aware of their contents.
[2.9] The crux of these reports concerns poor sleep.
[2.10]-[2.11] Dr Freiberg noted poor sleep and feeling unrefreshed after sleep as per Ms Kairouz’s submissions. The insurer submits that the Medical Assessor addressed poor sleep various times throughout his report.
[2.12]-[2.14] Page 3: notes disturbed sleep, use of Amitriptyline and Escitalopram; Page 4: notes poor sleep in 21 December 2022 clinical entry; Page 5: notes sleep disturbance as part of depressive symptoms.
[2.15] The insurer submits that these matters informed the Medical Assessor’s PIRS assessment.
[2.16] While Ms Kairouz claims the outcome would have differed had the reports been considered, the insurer submits that she fails to explain how.
3. Alleged error 2 - inadequacy of reasons / failure to address contrary evidence
[3.1]-[3.2] At paragraph [37], Ms Kairouz states that absence of reasoning implies failure to consider relevant material. Further, at paragraph [43], she claims the Medical Assessor failed to evaluate the medical certificate of Medical Assessor Fukui, her own statement, and psychologist notes.
[3.3] The insurer submits that the above is incorrect as the Medical Assessor noted on pages 4 and 5 that these were reviewed.
[3.4] The insurer submits there is no requirement to evaluate all material in a Commission certificate.
[3.5] Ms Kairouz also claims the Medical Assessor failed to adequately assess the impact of Major Depressive Disorder with Anxious Distress, which would have increased at least 3 of 5 PIRS categories and WPI.
[3.6] The insurer submits that she has not explained why this is an error, or how it would materially affect the outcome.
4. Alleged error 3 - failure to correctly apply the PIRS
[4.1]-[4.2] From paragraph [54], Ms Kairouz claims the Medical Assessor incorrectly applied the PIRS. Part of her argument is based on lack of access to late additional material, which is addressed above.
[4.3] She argues for a higher rating in self-care and personal hygiene, citing medical reports, but the Medical Assessor noted independence with activities of daily living and personal hygiene which the insurer submits supports class 1.
[4.4] Ms Kairouz submits that social and recreational activities should be class 3, but she reported attending church and seeing family, with no support person, which the insurer submits that class 2 is appropriate.
[4.5] On travel, she claims class 3 but described anxiety without requiring assistance and ability to travel locally, which the insurer submits is consistent with class 2.
[4.6]-[4.7] For social functioning, she cites arguments and strained relationships to argue for class 3, but these fall under class 2 descriptors, and the insurer submits the Medical Assessor’s rating is appropriate. The same applies to ‘concentration, persistence and pace’ and ‘adaptation’.
[4.8] The insurer submits Ms Kairouz’s symptoms align with class 2, which is what the Medical Assessor assessed.
[4.9] She also argues for higher ratings in those categories based on symptoms unrelated to the above categories.
[4.10] The insurer submits this is not a proper ground for review.
5. Alleged error 4 - inconsistencies
[5.1] From paragraph [105], Ms Kairouz alleges the Medical Assessor failed to apply the Guidelines regarding inconsistencies.
[5.2]-[5.3] She submits that medical records and statements suggest greater impairment than found by the Medical Assessor. She notes differences between this Certificate and Medical Assessor Fukui’s.
[5.4] The Insurer notes that Medical Assessor Fukui’s certificate is from 7 December 2022, one and a half years earlier, and submits that differences in opinion over time do not require justification.
[5.5] Ms Kairouz also says inconsistencies were not put to her but fails to identify them.
[5.6] The insurer submits this is not a proper ground for review.
RE-EXAMINATION BY THE PANEL
Psychosocial history and pre-accident functioning
Ms Kairouz was assessed by Microsoft Teams and the two Medical Assessors who examined her were assisted by an interpreter of Arabic. Ms Kairouz was located at her granddaughter's residence. The interview duration was approximately one hour.
Ms Kairouz is 71 years who had been married for 51 years, usually lived in Blacktown with her husband. She has three children, a daughter aged 52, and sons aged 46 and 45.
She migrated from Lebanon aged 18-19 following marriage. She reported limited formal education (leaving school about age 14 to care for her unwell mother). She reported previous employment as railway cleaner in Australia 22-23 years ago. Her husband was a retired waiter.
Her parents died about 15-20 years ago. She has two brothers and three sisters - one brother and one sister in Australia, two sisters deceased.
Her education ceased at year 4 level in Lebanon due to caring for her elderly mother.
She denied use of alcohol, recreational drugs, and cigarettes. Her medical conditions include diabetes, hypertension, hypercholesterolaemia. Sleep problems requiring CPAP machine were diagnosed after the accident. She had no previous mental health diagnosis or treatment prior to accident.
Her medications included Telmisartan, Rosuvastatin, Metformin, Escitalopram 10mg, Amitriptyline 10mg, Prolia, eye drops, Panadol Osteo, Pregabalin 25mg
She had fortnightly therapy with a psychologist.
Post-accident Physical Symptoms
Pain commenced evening of accident affecting back of the head, neck, shoulders, back, hands, and knee. She said that the pain persists without improvement. She attended physiotherapy for a year but did not find it helpful. Pain rated 9/10 severity. Cannot stand for prolonged periods. Requires position changes every 30 minutes when sitting. Functional limitations: standing 20-30 minutes, sitting maximum 30 minutes, walking 15 minutes. She reported no surgical interventions
Post-accident Psychological Symptoms
She reported sleep disturbance with frequent awakening. She ceased driving completely. She reported concentration difficulties limiting activities including weaving. She reported anxiety during showering requiring husband's presence due to fears of collapse. She said she cannot tolerate children's noise during family gatherings. She avoids lifts, buses, and trains. She is hypervigilant as passenger instructing husband while driving. She reported low mood, poor energy and motivation, negative thoughts and lack of enjoyment.
Sleep disturbance in particular was explored with Ms Kairouz in further detail as the panel noted the documentation of the sleep specialist Dr Freiberg. The Panel understands that she receives CPAP treatment to help with her sleep difficulties since the accident.
She reported that she requires husband's assistance with household tasks and shopping. She reported reduced cooking capacity due to pain and concentration difficulties. She reported short walks limited to 15-20 minutes in driveway.
She attends a Maronite Church weekly but has reduced social interaction even there. She maintains contact with family with reduced frequency. She said that memory difficulties are causing marital arguments however she maintains a good relationship with her husband.
Details of any relevant injuries or conditions sustained since the motor accident
There is no evidence of relevant injuries or conditions sustained since the motor accident.
Current symptoms
Ms Kairouz presents with persistent psychological symptoms following the accident including depressed mood, low energy, low motivation, anhedonia, concentration difficulties, anxiety, sleep disturbance, avoidance behaviours, and functional impairment. Symptoms consistent with Major Depressive Disorder.
There is a significant pain component contributing to overall presentation.
Current and proposed treatment
Ms Kairouz currently takes medication prescribed by her GP. She said that psychological therapy ceased recently because of insurance payment decision.
Mental State Examination
Ms Kairouz was assessed using Microsoft Teams, the connection was good with no technical difficulties. She appeared reasonably groomed. She engaged freely and was talkative and expansive at times in response to questions asked. She reported her mood as depressed and anxious. Her affect was labile and at times dysphoric. She provided relevant answers to questions asked. She did not present with a formal thought disorder and did not display any aberrant thinking patterns. She was orientated to time, person and place, and her cognition appeared clinically intact. She was able to concentrate for the duration of the re-examination that was for approximately 60 minutes. She had no suicidal thoughts or thoughts of harm to others.
Diagnosis
The Medical Assessors identified that Ms Kairouz continued to suffer from Major Depressive Disorder (MDD). The Medical Assessors were of the view that the accident was causally related to her current presentation. She suffered significant psychological symptoms after the accident, which led to the development of her psychiatric injury.
Ms Kairouz experiences depressed mood most days with associated symptoms of sleep disturbance, poor energy, poor concentration, anhedonia and negative cognitions about her current condition and the future. There has never been a manic or hypomanic episode. There have been no psychotic symptoms. The symptoms are not attributable to substances or another medical condition. The symptoms have caused clinically significant distress.
The Medical Assessors determined Ms Kairouz’s current whole person impairment (WPI) as per the table below.
| Psychiatric diagnoses | 1.Major Depressive Disorder | |
| Psychiatric treatment description | Ms Kairouz has received medication and psychological therapy. | |
| Category | Class | Reason for Decision |
| 1. Self-Care and Personal Hygiene | 2 | Ms Kairouz reported some reduced motivation and energy as well as increased anxiety in the shower requiring her husband nearby. Some of this is related to her physical pain and disability however on balance. The Medical Assessors formed the view that she displayed a mild level of impairment in this category. |
| 2. Social and Recreational Activities | 3 | Ms Kairouz’s social activities are restricted mostly to her family and church. She is more withdrawn from social activities. She has not been away on holiday since the accident. The Medical Assessors formed the view that she displayed a moderate impairment. |
| 3. Travel | 3 | Ms Kairouz stated that she is unable to drive since the accident. She was challenged with the Certificate of Assessor Fukui where it was stated that she had driven independently but she adamantly denied this. The Medical Assessors’ view was that she displayed a moderate impairment in this category. |
| 4. Social Functioning | 2 | Ms Kairouz indicated that her relationships with family and at Church are intact but she reports that she has withdrawn from as active engagement. There are some increased arguments with her husband. There has been no separation from husband. The Medical Assessors formed the view that she displayed a mild impairment in this category. |
| 5. Concentration, Persistence and Pace | 2 | Ms Kairouz reported subjectively reduced concentration. She demonstrated adequate concentration to participate in the assessment of 60 minutes. She is able to concentrate for periods in Church and while doing household tasks at a reduced pace. Her pain also impacts on her concentration, persistence and pace however on balance the Medical Assessors formed the view that she presented with a mild impairment affecting this category. |
| 6. Adaptation | 2 | Ms Kairouz previously performed the domestic duties. She continues to perform domestic duties albeit at a reduced pace and with increased assistance from her husband. Her pain and physical symptoms contribute to her reduced pace however on balance the Medical Assessors formed the view that she presented with a mild impairment affecting this category. |
| List classes in ascending order: 2, 2, 2, 2, 3, 3 | ||
| Median Class Value: 2 | ||
| Aggregate Score: 14 | ||
| % Whole Person Impairment: 7 % | ||
The Medical Assessors noted that there is no significant pre-existing condition. An adjustment to her WPI was therefore not indicated.
The Medical Assessors were of the view that Ms Kairouz’s treatment had not resulted in any significant impact on her psychiatric injuries. The Medical Assessors did not make any adjustment for treatment for this reason.
The members of the Panel held a second meeting on 9 July 2025. At this meeting, the members of the Panel discussed all relevant issues, including the findings of the medical assessors of the Panel as referred to above, the reasoning of the medical members of the Panel, causation, and the submissions, and having done so, and only then, came to a view that the accident had caused the conditions identified by the medical assessors of the Panel and had given rise to permanent impairment of 7%.
The Panel collectively came to a view that Medical Assessor Sidorov’s determination should be revoked and determined that as a result of the accident, Ms Kairouz had a 7% WPI.
HOW THE PANEL DEALT WITH THE CLAIMANT’S SUBMISSIONS
The submission is that Medical Assessor Sidorov failed to engage with the evidence presented by Medical Assessor Fukui in his Certificate of 7 December 2022.
The Medical Assessor was referred for determination of a minor injury dispute the following injuries:
· Post-Traumatic Stress Disorder; and
· Depression
The Medical Assessors and the complete Panel were aware of Medical Assessor Fukui’s diagnosis and reasons [18] that:
“Following the … accident, she developed significant anxiety and avoided driving and her self-care deteriorated…”
The Panel was aware that Medical Assessor Fukui diagnosed Ms Kairouz with Major Depressive Disorder with anxious distress.
The Panel was aware of Medical Assessor Fukui’s conclusion that Ms Kairouz was not suffering from Post-Traumatic Stress Disorder, that she was a passenger in a minor motor vehicle accident, and that her situation did not meet Criterion A for Post-Traumatic Stress Disorder.
The Panel was aware of Medical Assessor Fukui’s conclusion that Major Depressive Disorder with anxious distress was caused by the accident and that it was not a minor injury.
Medical Assessor Sidorov was aware that Medical Assessor Fukui found that Ms Kairouz was not suffering from a Post-Traumatic Stress Disorder, but that her clinical presentation was best described as a Major Depressive Disorder. It accepted Medical Assessor Fukui’s reasoning that the accident had caused significant psychiatric symptoms and it noted his finding that the injury of Major Depressive Disorder with Anxious Distress was not a Minor Injury.
The Panel was assessing WPI, not a threshold dispute, but it was obvious to the Panel that its conclusions were consistent with the diagnosis of a non-threshold injury.
The Panel concluded that the accident was causally related and had caused significant psychological symptoms.
The Panel was well aware of the sleep disorder, which Ms Kairouz suffers, and refers specifically to:
“…has experienced depressed mood most days with associated symptoms of sleep disturbance, poor energy…”
The Panel made reference to Ms Kairouz using a CPAP Machine since the accident.
Correspondence from Dr Freiberg of 8 February 2024, 6 March 2024, 14 March 2024, and his report of 26 May 2024, were all noted and assimilated by the Panel and taken into account.
With respect to the submission to the attribution of chronic sleep disorder to the degree of permanent impairment was expressly noted and given consideration.
SUMMARY AND CONCLUSIONS
The Review Panel determined that Ms Kairouz had, as a result of the accident, a 7% WPI.
The Review Panel revokes the determination of Medical Assessor Sidorov and substituted the determination that, as a result of the accident, Ms Kairouz had a 7% WPI.
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