Kale v Allianz Australia Insurance Limited
[2025] NSWPICMP 664
•1 September 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Kale v Allianz Australia Insurance Limited [2025] NSWPICMP 664 |
| CLAIMANT: | Emine Kale |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Ankur Gupta |
| MEDICAL ASSESSOR: | Thomas Newlyn |
| DATE OF DECISION: | 1 September 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 7%; the claimant sought a review of the assessment under section 7.26; the Review Panel re-examined the claimant; Held – Review Panel confirmed certificate of MA; determination of 7% permanent impairment. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel determines that as a result of the accident, Ms Kale sustained whole person impairment (WPI) of 7%. 2. The Review Panel confirms the determination of Medical Assessor Fukui, dated |
STATEMENT OF REASONS
INTRODUCTION
Ms Emine Kale (Ms Kale), was injured in a motor accident (the accident) on
16 March 2019.Ms Kale has brought a claim for common law damages 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 to Ms Kale under the MAI Act.
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 Kale 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 Ms Kale’s psychological injury was referred to Medical Assessor Fukui who assessed her on 21 August 2023 and issued a certificate dated 30 January 2024 certifying that as a result of the accident
Ms Kale developed adjustment disorder with mixed anxiety and depressed mood and assessed her degree of whole person impairment (WPI) at 7%.Ms Kale sought a review.
The Review Panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the Review.
RELEVANT LEGAL AUTHORITY
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.[1]
[1] Section 7.20 of the MAI Act.
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 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 Ms Kale submitted that the Medical Assessor found there had been physical injuries which in turn caused psychiatric injuries. The court then held that the Medical Assessor had considered the whole of the material before him and had subsequently reached a conclusion that was available. 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.”[2]
[2] Per Elkaim AJ at [45] – [46]. Refer also to Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 and Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41] – [44].
CERTIFICATE OF MEDICAL ASSESSOR FUKUI
Medical Assessor Fukui examined Ms Kale on 21 August 2023 and provided her certificate on 30 January 2024 certifying that the injuries caused by the accident gave rise to a permanent impairment of 7%. The Panel summarises the report:
[2] The following dispute was referred for assessment to Medical Assessor Fukui,
·“Psychological injury”.
Medical Assessor Fukui discussed the submissions of Ms Kale and the insurer at [3]-[4]:
[3]-[4] The applicant submitted Ms Kale’s WPI is greater than 10%, the respondent submitted the psychological injury is not greater than 10%.
Medical Assessor Fukui stated that she had considered all of the documents provided in the application and reply, and she had also considered any late documents at [5]-[6].
Medical Assessor Fukui noted at [7] that Ms Kale was accompanied by her daughter, Aysegul, and a Turkish interpreter engaged by the Commission, was present via videoconference for the duration of the assessment. Medical Assessor Fukui recorded the poor quality of the interpreter who “did not translate at times and had to be prompted at which time she stated she had difficulty hearing or was just not paying attention. Ms Kale’s daughter assisted with interpreting given the poor engagement by the interpreter.”
Medical Assessor Fukui took a psychosocial and pre-accident history at [8]:
[8] Ms Kale is a 69-year-old woman who separated from her husband in 1997. She has one daughter and one son. At the time of the subject motor accident, she was living alone. She currently lives with her 38-year-old son. She was not working at the time of the accident. She previously worked as an assistant teacher in Kindergarten and stated that she last worked around 1998 but was unsure of the date.
She denied prior significant medical history other than hypercholesterolaemia for which she was taking medication. She denied any surgical history. She denied previous motor vehicle accident.
When asked about past psychiatric history, she denied a psychiatric history. However, when informed that there is medical documentation that she had previously suffered from mental health problems, she reluctantly stated, “I had few problems when I separated from my husband”; “I was
having mental problems leading up to separation”. She admitted to taking some medications at the time. She stated that it was because of the problems with her husband and that they had been having
separation on and off. She minimised her mental health history. She stated that she could not remember whether she saw a psychologist or if she had inpatient treatment, then stated, “probably once” around the time of the separation.
When asked about past history of self-harm or suicidal ideation, she started crying and reluctantly stated that she had taken an overdose during the separation period. However, she would not elaborate any further. She stated that her mental health improved after the separation. She had only
seen a psychiatrist whilst in hospital but never as an outpatient. She stated that she stopped taking anti-depressant medication after the separation but then was very vague and changed her story. She has, in fact, continued to take anti-depressant medication.
She stated that she did not have any significant issues with her general health prior to the subject motor accident and that she was attending gym three times per week. She was socially active and went to theatre and the cinema. She attended to housework and cooking. She spent time with her
grandchildren. She attended the Turkish Club and engaged in social activities such as going on picnics.”
Medical Assessor Fukui took a history of the accident at [9]:
“[9] The accident occurred on 16 March 2019, four and a half years prior to the subject motor accident. Ms Kale was driving through a roundabout when a car coming from her left and collided with her vehicle. She stated that she felt something was wrong with her left ankle and suffered injury to her chest from the seatbelt and experienced pain in her left hand and back. She stated, ‘I don’t remember much’. Police and ambulance attended, and she was taken to hospital.”
Medical Assessor Fukui took a history of Ms Kale’s post-accident symptoms and treatment at [10]:
“[10] Following assessment and investigations at the hospital, Ms Kale was discharged and went to stay at her daughter’s home. She was on crutches and had a cast on her left arm. She had physiotherapy and took pain medication. She stated that having to use crutches made her feel inadequate. She stated that her daughter did everything for her and she became dependent on her children. She stated that she had arguments with her son because he wasn’t that helpful. She stayed at her daughter’s home from 18 months to 2 years, then her son moved in to live with her at her home.
Ms Kale stated that she was anxious and ‘jumpy’. The sound of cars woke her up from her sleep. She experienced anxiety in a car as a passenger. She continued to drive only when necessary and for short distances. She reported low mood and disrupted sleep due to pain. She reported occasional bad dreams which wake her up. Her appetite decreased but she gained 7 kilograms in weight due to inactivity. She lost interest and reported poor concentration and focus. She would not respond whether she experienced suicidal ideation and started crying. She stated that around 2 months after the subject motor accident, she may have experienced suicidal ideation. There has not been any recent active suicidal thoughts or self-harming behaviour. She became socially withdrawn and prefers to stay indoors.
She was referred to a psychologist but stopped seeing her. Her anti-depressant medication, citalopram 20mg was recently increased to 40mg. She was tried on Neulactil but suffered side effects. She stated that medications have not helped.”
Medical Assessor Fukui outlined there were “nil reported” relevant injuries or conditions sustained since the motor accident at [11].
Medical Assessor Fukui noted at [12] that Ms Kale’s current mental symptoms had not changed.
Medical Assessor Fukui then conducted a clinical examination at [14] and her observations as to Ms Kale’s current functioning were set out at [15]:
“[14] Ms Kale was casually dressed and appeared clean. Her hair was tied back. She was initially wearing a mask which she took off during the assessment. She was an extremely poor historian and frequently cried. She did not answer questions but spoke at length about her personal issues and how she wants to do things for her children and who would look after her children (despite the fact that her children are adults and they have been caring for her). She was noted to be physically uncomfortable sitting in a chair and stood up during the assessment. Her mood was low. She frequently cried and became upset and was focussed on her physical symptoms. There was no evidence of formal thought disorder. There were no psychotic symptoms. She denied any active thoughts of self-harm or suicidal ideation. She complained about her pain but stated that she was unsure how she would feel if the pain went away. Although she was vague and unable to give a clear history, there was no evidence of significant cognitive deficits.
[15] Her self-care has declined. She no longer attends a hairdresser. Her daughter helps her with showering. She is “scared” of having a shower by herself because of her physical limitation and worries about having a fall. She does not feel like doing anything. She has a cleaner fortnightly and I provide a summary of the documentation her daughter helps with housework. She does simple cooking but reported difficulty with her left hand with meal preparation. She lacks interest in cooking. She self-isolates and there has been increased tension and arguments with her children. She manages to drive only locally and for short distances. She prefers to stay indoors and does not socialise.”
Medical Assessor Fukui commented on Ms Kale’s poor consistency at [16]:
“[16] Ms Kale was a poor historian who was unable to give a clear history. She was vague and avoided answering questions. She initially denied a past psychiatric history despite a significant history of pharmacotherapy dating back to 1992 according to the documents available. There was a history of suicide attempt and hospitalisation for mental health. Therefore, she is an unreliable historian.”
Medical Assessor Fukui summarised relevant documentation at [17]:
“[17]
·NSW Police Report dated 4/7/2019.
·Certificate of Determination 12/1/2022.
·Psychologist Arzu Oytam notes on 28/3/2022 that Ms Kale was referred in November 2019 following the subject motor accident and presented with symptoms consistent with PTSD. They also document that after the pandemic, Ms Kale developed OCD.
• Letter addressed to Dr Ozme, GP, by an unknown person dated 10/2/1992 notes Ms Kale’s history of persistent depression ‘which has been biological and personality features’ and that she has been under treatment for ‘a long time’. Ms Kale had been trialled on nortriptyline, clomipramine and Parnate and had refused ECT. Reference to multiple psychosocial issues and recommendation for mianserin is noted. This is followed by a handwritten note which is illegible. It is unclear if this documentation is by a Dr Blanchett. GP Mental Health Care Plan around December 2019 notes ‘adjustment reaction’.
• Report by Dr Canaris, psychiatrist dated 15 March 2023 upon which Ms Kale relies for the submission of permanent impairment. Dr Canaris opines diagnoses of ‘posttraumatic stress disorder with a comorbid depressive illness which because of its chronicity now warrants a diagnosis of persistent depressive disorder with anxious distress’. However, it is notable that Dr Canaris failed to elicit her past psychiatric history with longstanding pharmacotherapy, suicide attempt and hospital admission. He therefore incorrectly attributes her persistent depressive disorder to the subject accident when she had a pre-existing depressive disorder for which she was prescribed multiple anti-depressant medications, had been recommended ECT, and has continued to take anti-depressant medication leading up to the subject accident.
Furthermore, Dr Canaris does not justify his diagnosis of posttraumatic stress disorder according to DSM-5 criteria. Dr Canaris opines a WPI of 16% based on his assessment of Permanent Impairment Rating Scale. As documented in my assessment below, the only difference in the scoring relates to Concentration, Persistence and Pace for which I scored 2 and Dr Canaris scored 3.”
Medical Assessor Fukui set out her diagnoses and reasons at [18]:
“Based on the documents available, the information provided by Ms Kale and on mental state examination, it is my opinion that she has been suffering from an Adjustment disorder with mixed anxiety and depressed mood which emerged on a background of persistent depressive disorder. She developed depressive and anxiety symptoms on a background of chronic pain from the physical injuries from the subject motor accident. She stated, “I had to give up everything” and has found the change in her lifestyle from her physical injuries difficult to manage and she has had to rely extensively on her daughter. The loss of independence and having to rely on her children has been distressing for her and she related much of her functional impairment to the chronic pain. Her anxiety and depressive symptoms emerged in response to the stressor, being the subject accident and ongoing chronic pain.
She has a history of recurrent depression for which she was taking anti-depressant medication at the time of the subject accident. Her history is consistent with pre-existing persistent depressive disorder.
She did not report symptoms which would meet diagnosis of posttraumatic stress disorder according to DSM-5 criteria. The nature of the subject accident does not meet Criterion A.”
At [19] Medical Assessor Fukui confirmed the adjustment disorder was causally related to the subject motor accident as Ms Kale developed new symptoms.
At [20] Medical Assessor Fukui outlined the following injury as being caused by the motor accident:
· adjustment disorder with mixed anxiety and depressed mood.
At [22], Medical Assessor Fukui set out her opinion on the permanent impairment psychiatric impairment rating scale (PIRS) as applicable with ratings of 2 for self-care and personal hygiene, social and recreational activities, travel, social functioning and concentration. Adaptation was given a 3, arriving at a median value of 2 and WPI of 7%.
REVIEW PROCEDURE
Ms Kale has sought a review of the medical assessment of Medical Assessor Fukui.
On 7 June 2024 the 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 Panel. Ms Kale provided one ground for review:
(a) errors in PIRS Scale/WPI Assessment - Concentration, Persistence and Pace.
In relation to the ground for review, the delegate accepted Ms Kale’s submission that there was reasonable cause to suspect the Medical Assessor made a material error by placing Ms Kale in Class 2 instead of Class 3, failing to consider and record her full pre-accident lifestyle, activities and habits, not properly testing this impairment category or obtaining detailed examples, and providing no factual or rational basis for the finding, resulting in inconsistent outcomes and a potential error in diagnosis and impairment assessment.
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 Commission.[3]
[3] Section 7.26(5A) of the MAI Act.
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.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 8 May 2025 the Panel agreed an examination was necessary. All Panel members have had no previous involvement with Ms Kale or with this matter.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 10 March 2025 requiring each party to file an indexed, paginated bundle of documents.
The Panel issued subsequent Directions on 8 May 2025 requesting Ms Kale to make herself available for re-examination by the Medical Assessors on 20 June 2025 at 8.00am by Microsoft Teams.
A Turkish Interpreter was provided and facilitated the medical examination on
20 June 2025.The Panel had the documentation which had been made available to Medical Assessor Fukui and the additional documentation loaded to Pathways.
DOCUMENTS PRODUCED
The parties produced the following documents to Pathway:
Claimant
(a) claimants submissions of 6 March 2024;
(b) a bundle dated 19 March 2025 containing:
(i)claimant’s submissions in support of Medical Assessment Review Application dated 6 March 2024;
(ii)Commission’s Determination of an Application for Review of a Medical Assessment by President delegate Stephanie Wigan dated June 2024;
(iii)medico-legal report of Dr Christopher Canaris dated 15 March 2023;
(iv)certificate by Medical Assessor Atsumi Fukui dated
30 January 2024;(v)medico-legal report of Dr James Bodel dated 15 June 2022;
(vi)progress report of Mendphysio dated 13 May 2021;
(vii)progress report of Mendphysio dated 23 March 2021;
(viii)medical report of Dr Danesh dated 7 March 2022;
(ix)medical report of Dr Danesh dated 31 May 2022;
(x)clinical notes of Bankstown Lidcombe Hospital dated various;
(xi)clinical notes of Hand Injury Trauma Service Physiotherapy dated
4 June 2020;(xii)clinical notes of Dr Chris Scott dated 19 May 2021;
(xiii)clinical notes of Dr Geoffrey Smith dated 13 July 2021;
(xiv)clinical notes of Dr Esin Ozme dated various;
(xv)clinical notes of City West Medical Centre dated 28 September 2022;
(xvi)clinical notes of Dr Shiu-Kwong Law dated 27 February 2023;
(xvii)clinical notes of Arzu Oytam dated 28 February 2023;
(xviii)medical report of Dr Geoffrey Needham dated 9 August 2023;
(xix)medical report of Dr Geoffrey Needham dated 27 September 2023;
(xx)updated clinical notes of City West Medical Centre dated 16 October 2023;
(xxi)clinical notes of Chirohaus dated various;
(xxii)referral letter to Dr Andrew Kam dated 22 January 2025;
(xxiii)medical report of Dr Masoud Mehrpour dated 12 December 2024;
(xxiv)medical report of Dr Masoud Mehrpour dated 7 November 2024;
(xxv)medical report of Dr Mohamad Osama Hakmi dated 4 October 2024;
(xxvi)medical report of Dr M Dowla dated 20 September 2024, and
(xxvii)Application for Personal Injury Benefits.
Insurer
(a) submissions dated 28 March 2024;
(b) review bundle dated 26 March 2025 containing:
(i)insurer’s submissions in Reply to Review Application dated
28 March 2024;(ii)insurer’s submissions in reply dated 2 September 2022;
(iii)Certificates of Fitness dated various;
(iv)ADL Assessment Report dated 13 May 2019;
(v)referral to Dr Scott dated 21 June 2019;
(vi)referral to Dr Darwish dated 21 August 2019;
(vii)email regarding psychologist referral and GP mental health plan dated 6 December 2019;
(viii)Dr Scott records dated various;
(ix)ADL report dated 11 August 2021;
(x)Allianz correspondence regarding WPI dated 25 November 2021;
(xi)joint report of Dr Todd Gothelf dated 8 November 2021;
(xii)clinical records of Dr Darwish dated various;
(xiii)report of Arzu Oytam dated 28 March 2022;
(xiv)clinical records of Dr Bassel Hassan, Neurologist dated 19 May 2023;
(xv)clinical records of Dr Shiu-Kwong Law, Psychiatrist dated 15 June 2023;
(xvi)NSW Police Report dated 4 July 2019, and
(xvii)NSW Ambulance records dated 17 March 2019.
The Panel has not referenced or summarised all of the records relating to Ms Kale’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.
In conducting this medical review the Panel has sought to follow and implement the words of Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance who stated:
“[63] The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. (Providing it to the court is also commonplace, though misconceived.) Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
SUBMISSIONS
Submissions of the insurer (WPI – psychological) dated 28 March 2024
The Panel summarises the submissions of the insurer by reference to paragraph numbers:
[1] Background
Ms Kale, a 70-year-old female was involved in a motor vehicle accident on 16 March 2019.
By Certificate dated 30 January 2024, Assessor Fukui (Psychiatrist) determined that Ms Kale’s Adjustment Disorder with mixed anxiety and depressed mood gives rise to 7% psychiatric WPI arising from the subject accident.
Ms Kale now seeks a Review of this Certificate.
The insurer does not dispute the Review Application was made within time, noting the Certificate was issued on 7 February 2024, 28 days before the Application was lodged on 6 March 2024.
[3] Submissions in Reply
[3.1] Incorrect assessment of “Adaptation”
Ms Kale alleges the allocation of Class 3 for Adaptation is demonstrably incorrect and inconsistent with her instructions, treating evidence, and medico-legal evidence.
The Insurer compares the Permanent Impairment Guidelines with the Assessor’s reasons and submits there is no basis for asserting Class 3 is incorrect.
The Insurer submits that Ms Kale’s position reflects an attempt to subject the reasons to minute and detailed textual criticism.
The Insurer further notes that Dr Canaris also assessed Class 3 for Adaptation. Even if Dr Canaris’ rating were adopted, the outcome would not have been different.
[3.2] Inconsistent findings with Claimant’s treating and medico-legal evidence
Ms Kale alleges substantial inconsistency with the preponderance of her treating and medico-legal evidence regarding the assessment of psychological injuries.
The Insurer submits there is no material error in a difference of expert opinion, particularly when assessments are conducted at different times.
Ms Kale’s submissions do not specify the findings said to be inconsistent.
The Insurer submits this reflects an attempt to construe the reasons with an eye keenly attuned to the perception of error.
[3.3] Assessor’s failure to put inconsistent findings to Ms Kale
Ms Kale alleges that inconsistent findings were not put to her, denying procedural fairness and breaching clause 6.41 of the Motor Accident Guidelines.
The insurer notes clause 6.41 requires that inconsistencies between clinical findings and other information be brought to the injured person’s attention.
The insurer cites PIC Certificate passages showing that inconsistencies regarding past psychiatric history, self-harm, and medication use were put to
Ms Kale and she was given the opportunity to respond.The insurer submits Ms Kale’s allegations are vague and baseless.
Further, even if the Assessor failed to give an opportunity to respond, this would not be material, as the Assessor concluded there was no evidence of pre-existing impairment at the time of the accident despite a past depressive disorder.
[3.4] Failure to provide adequate reasons
Ms Kale alleges inadequate reasoning in breach of obligations from case law, including Rodger v De Gelder and D'Ament v Allianz.
The Insurer submits it is unclear how the Assessor has failed to comply with these requirements, as Ms Kale has not drawn a connection between the cited cases and the reasons provided.
The Medical Assessor accepted an accident-related psychiatric diagnosis, so it is unclear how there is a material error in reasoning on causation.
The insurer further notes Ms Kale’s submissions refer to the wrong medical assessor at paragraph 26, suggesting the submissions may be based on a template rather than the Certificate in question.
[3.5] Assessment of “Concentration, Persistence and Pace”
Ms Kale alleges the Medical Assessor failed to properly assess this category and that a Class 3 (moderate impairment) is appropriate rather than Class 2 (mild impairment), relying on AMA4 Chapter 14.7.
The insurer notes the Motor Accident Guidelines require assessment in accordance with the PIRS in the Guidelines, with AMA4 Chapter 14 used for background only.
The insurer compares the Guidelines’ Class descriptors with the Assessor’s reasons and submits there is no basis for a Class 3 rating in the history or the submissions.
[4] Insurer’s Position
The insurer submits the President would not be satisfied there is reasonable cause to suspect the medical assessment is incorrect in a material respect, and Ms Kale’s Application should be dismissed.
The insurer submits the grounds of the Application are based on perceived errors which do not exist within the Certificate.
Submissions of Ms Kale dated 6 March 2024
The Panel summarises the submissions of Ms Kale by reference to paragraph numbers:
[1] - [2] The subject Medical Assessment Report and certificate is that of Dr Atsumi Fukui dated 30 January 2024, issued 7 February 2024.
[3] – [4] Ms Kale submits this Review Application, supported by her evidence, meets the statutory criteria for the Proper Officer to exercise discretion to review the report on the basis of material errors.
[5] – [6] Dr Fukui issued a Certificate under Div 7.5 MAI Act, certifying permanent impairment of not greater than 10%. Ms Kale relies on s 7.26 MAI Act, which allows a review if the assessment was incorrect in a material respect.
[7] – [8] Ms Kale accepts she bears the onus of proving the assessment is materially incorrect. Ms Kale provides the following grounds of review:
(a) Findings on PIRS ‘Adaptation’ are demonstrably incorrect and inconsistent with her instructions, treating and medico-legal evidence.
(b) Findings on psychological injuries conflict with the weight of her treating and medico-legal evidence.
(c) Inconsistent findings were not put to Ms Kale, denying procedural fairness and causing material error.
(d) Reasons were inadequate, contrary to Rodger v De Gelder [2015] NSWCA 211.
[9] Ms Kale submits these failures mean the assessment of Ms Kale’s injuries is incorrect in several material respects and should be referred for review.
[10] Ms Kale should be assessed in Class 3 for PIRS ‘Concentration, Persistence and Pace’, as:
(a) Dr Canaris reported significant concentration and sleep issues.
(b) Dr Fukui failed to consider her pre-accident lifestyle or obtain detailed examples.
(c) Under AMA4, her impairment is consistent with Class 3, not Class 2.
(d) Inconsistencies were not put to her, breaching cl 6.41 of the Motor Accident Guidelines and principles of procedural fairness (authorities: Szqur, Frost v Kourouche).
[11] – [12] Ms Kale submits that the certificate incorrectly recorded she stopped seeing her psychologist; she continues treatment.
Ms Kale submits Dr Fukui failed to demonstrate adequate reasoning, contrary to authorities including D’Ament v Allianz [2018] NSWSC 1371 and Pham v NRMA [2014] NSWCA 22.[13] – [15] Ms Kale submits that these material errors require referral for review. Ms Kale submits Dr Fukui made causation findings without objective basis, contradicting the evidence of ongoing psychological impairment caused by the accident.
[16] – [17]Ms Kale submits there is no factual or rational basis supports the findings on PIRS ‘Concentration, Persistence and Pace’, amounting to material error. Ms Kale submits the assessment is deficient and tainted by material errors; on any view Ms Kale should have been assessed in Class 3 for ‘Concentration, Persistence and Pace’ (per Dr Canaris, 15 March 2023).
Materiality
[18] Ms Kale submits that if corrected, Ms Kale’s impairment would exceed 10% WPI, consistent with Dr Canaris’ assessment: classes 2,2,2,3,3,3; would have a median of 3 and a WPI rating of 15%.
Case Law
[19] – [21] Ms Kale relies on Dogon v Redmond [2010] NSWSC 1329 regarding the Proper Officer’s powers. This case confirms the Proper Officer must be satisfied there is reasonable cause to suspect material error. Ms Kale submits she has objectively demonstrated such cause.
[22] – [26] Ms Kale relies on Farache v MAA [2011] NSWSC 446, where failure to address causation created material error. Causation was central to that dispute. The insurer raised causation issues. The assessor failed to address them, giving rise to suspicion of oversight. Ms Kale submits that in a similar manner, Medical Assessor Fukui failed to quantify and assess in accordance with AMA4 and the Guidelines, tainting the assessment with material error.
SUMMARY OF RELEVANT DOCUMENTATION
Ambulance report
The incident occurred as a result of a motor vehicle accident on 16 March 2019, where the patient, a 65-year-old female driver, was T-boned on the passenger side and collided with a stationary vehicle on the driver’s side.
She self-extricated from the vehicle and reported pain to her cervical spine, sternum, right shoulder and arm, right lower quadrant, right shin and foot, and numbness in her right leg.
On initial assessment, she was alert, with stable vital signs (GCS 15), and able to weight bear and ambulate. No head strike or loss of consciousness was reported.
Examination revealed pain on palpation at multiple sites, but no bruising, haematomas, swelling, deformities, or fractures were noted. Right shoulder, cervical spine, and right ankle movement were largely normal.
She was administered methoxyflurane for pain (partially effective) and a short cervical collar was applied; IV access was unsuccessful. The patient was non-compliant with pain medication usage but was reassured throughout transport.
The patient was transported in a stable condition to Bankstown Hospital for further assessment and treatment.
Seatbelt was worn; airbags did not deploy.
Past medical history included hypercholesterolaemia (on Lipitor) and penicillin allergy; other medications and history were unavailable.
MEDICAL EXAMINATION BY PANEL
Ms Kale was examined via video teleconference on 20 June 2025 using the MS-Teams platform by Medical Assessor Thomas Newlyn and Medical Assessor Ankur Gupta at her daughter’s home in Green Valley.
After discussion, her daughter chose not to stay in the interview room. At the end of the assessment, her granddaughter disconnected the Teams call.
A Turkish interpreter was provided who facilitated the assessment.
HISTORY
Medical History
Ms Kale was 157 cm tall.
She weighed 75 kg on 20 June 2025. She recalled weighing 65 kg at the time of the accident. She said, "I’ve gained weight because I can’t move. The pain stops me. My left leg is very weak and the pain in my leg comes from my back."
She is right-handed.
Her hypercholesterolaemia was treated before the accident.
She reported she had a ‘slipped disc’ at L5 before the accident that did not cause much trouble.
She is allergic to penicillin.
Education, employment, chemical dependency and developmental history
After completing high school in Turkey, she then went to teachers' college to train as a kindergarten teacher.
Ms Kale said she taught kindergarten for six years in Türkiye. When asked she was not sure if it was six or eight years. She said she emigrated to Australia because of the 1981 revolution.
In Australia she began teaching casually as a preschool teacher but with her children young she could not afford to send them to preschool and so stopped working. She has not worked since then.
After her divorce she received Centrelink benefits and now receives the Age Pension.
Ms Kale did not recall any significant childhood problems. There was no childhood abuse.
Ms Kale smoked cigarettes until the accident. She did not vape to stop smoking.
She did not use alcohol or recreational drugs.
Family and relationship history
She grew up in Ankara. Her father was a cobbler. Her parents died in 1997 and 2000. She could not attend their funerals. She is the third of four, with an older brother and sister and a younger sister who is disabled and in care. Her siblings live in Türkiye.
Ms Kale said,
“I call my brother and sisters and they send messages on Facebook that I reply to. I went to Türkiye with my son in 2024 to visit my parents’ graves and pray for my father. I regretted going. The flight was difficult. I stayed with my older sister and visited my brother and younger sister.”
Ms Kale married in Türkiye in 1977 and separated and divorced in either 1992 or 1993. She said she could not remember the year. Her husband’s sister lived in Australia.
Her husband was a hairdresser but had problems working in Australia. There were multiple separations before divorce.
Ms Kale and her husband had a son and daughter.
She has three granddaughters.
Her daughter’s eldest child attends university and her younger child is in high school.
Her son’s daughter lives with her mother and attends university online.
Ms Kale sees her son, daughter and grandchildren regularly. They visit on weekends. Her grand-daughters may drive their grandmother to appointments. Ms Kale described attending a 21st birthday with her family because it was important. The party was at a club and Ms Kale left after the cake was cut. She commented that she did not go out anywhere and that if she was going out with her son she panicked in the car. Recently he had responded by making her take Ubers to appointments. She risked called a recent Guildford appointment that she attended by Uber. She sits in the back of the car and feels anxious.
Psychiatric history prior to the motor accident
When asked about a history of mental health problems before the accident Ms Kale said she was very happy. When reminded of her marital difficulties she said she did not want to talk about the past and besides it was 40 years ago. She agreed that she had been depressed. She denied taking medicine and said that she could not remember much about it. She said the depression was because of the difficulties with her husband and that she did not have a family in Australia. When asked about her 1990 suicide attempt she again said that it was long ago and she did not remember it. She said that she was not taking medicine before the accident and had been happy.
Pre-accident functioning
Ms Kale reported that before the accident she was independent and did everything on our own while now she cannot remember if she has eaten food. She lived in a Homes NSW house.
She was socially active.
She had a positive relationship with friends and her children.
She drove her car where she needed to go.
She did not have problems focusing or remembering.
She cared for her rented Homes NSW house and sometimes picked up her grandchildren from school.
History of the motor accident
The accident occurred on Saturday, 16 March 2019.
In responding to questions about the accident Ms Kale said,
“I used to be a very active person. I was coming home from a party and went through a roundabout. I don’t remember much but I was hit from the left and then hit another car. (The interpreter asked for clarification.) I was taken to hospital by ambulance. My memory is blurry. I woke up at Canterbury Hospital and stayed there for two days.
I had tendon damage in my wrist and was on crutches for 18 months. (Ms Kale showed mobile phone images of her using crutches.) My arm was in a cast for a long time and it needed to be recast. I also had wrist surgery but I don’t remember much about it; it was at a private hospital. My lower back and legs were badly affected and I couldn’t control my body. I stayed with my daughter for three or four months. I had physiotherapy for a long time and still go. It’s been six years since the accident. When insurance stopped paying, I started paying for physio myself every fortnight. (Ms Kale showed the physiotherapy appointment cards.)
I don’t need crutches anymore but I used to be much more active. These days my mood is low. I don’t enjoy going out as much as I used to. I used to go to the club and spend time with friends. Now, I only go out sometimes with my daughter. My left wrist still aches a lot."
History of symptoms following the motor accident
Asked about mental health symptoms that followed the accident Ms Kale began to show her medicine boxes. When asked to describe her symptoms she alternated symptom description with showing prescribed medicine boxes.
She said,
“After the accident, I had treatment for about two years. I saw a psychiatrist and tried different medicines but some gave me a dry mouth. (She showed a citalopram 40 mg box and a temazepam box.) I started taking them straight after the accident. Because I was on crutches I couldn’t go out without my daughter. Then I went to live with my son.
Before the accident, I had a good life. I was happy, went out a lot with my grandchildren and everything stopped suddenly. Now I can’t concentrate. (She showed a Lyrica box.) I have constant back pain and I can’t sit still or focus.
I forget to brush my teeth and sometimes forget to change my clothes. My grandchildren tell me I smell. I also have trouble sleeping. I can’t forget the headlights from the accident; it’s stuck in my head. I can’t go out in a car at night anymore. I wake up to the smallest noise and I can’t stand sirens, they make me feel like I’m losing it.
I don’t remember my dreams. I don’t enjoy anything now. I’ve felt like this for six years and I don’t have any friends left."
History of treatment following the motor accident
Ms Kale was prescribed citalopram and temazepam and has continued taking these medicines until now.
She said that she had side effects from Neulactil and stopped taking it.
She was prescribed Lyrica for her pain. She reported using Panadol Forte, Panamax 665 and Voltaren for pain symptoms.
She was prescribed ramipril for her blood pressure and Crestor for her hypercholesterolaemia. She did not tolerate Catapres.
She was prescribed Sifrol for restless legs but is no longer prescribed this medicine.
She takes magnesium for leg cramps.
She consulted Dr Shiu-Kwong (Harry) Law, psychiatrist until the insurer stopped reimbursement. Ms Kale said that Dr Law told her GP to increase the citalopram dose to 40 mg a day.
She consulted a clinical psychologist, Ms Arzu Oytam. She said she saw her for two and a half years.
Physiotherapy was prescribed.
Relevant injuries or conditions sustained since the motor accident
Ms Kale said her blood pressure had gone up after the accident.
Because of her back pain and the history of L5 problems she has been advised to lose weight and started on Xenical.
Asked about Obsessive Compulsion Disorder (OCD) reported by her psychologist
Ms Oytam Ms Kale denied any OCD symptoms. She said the pain from the accident was the most important change.
CURRENT SYMPTOMS
Ms Kale became distressed when asked about how her symptoms affected her now.
She said, “I am worse. I don’t go out and I can’t take care of my hygiene. I have seen so many doctors and hospitals. I go to see my general practitioner weekly or every 2 weeks. I have a lot of lower back pain.”
When asked what stopped her from going out Ms Kale said, “If there was not pain I would go out. But I can’t with the severe pain in my lower back”.
Current and proposed treatment
Ms Kale takes citalopram [a serotonin reuptake inhibiting antidepressant medicine], temazepam [a medium-length half-life Benzodiazepine hypnotic medicine] for her mental health symptoms.
Lyrica [the pain modulating anticonvulsant Pregabalin], Panadeine Forte [the combination analgesic medication codeine and paracetamol], Panamax 665 [the controlled release medication form of the analgesic paracetamol] and Voltaren [the non-steroidal anti-inflammatory medication diclofenac] are taken for pain.
Ms Kale said that she had been advised to have a cortisone injection in her back but was unsure if she wanted the procedure because if it did not work she would still have pain.
Ramipril [an antihypertensive ACE-inhibiting medicine] is taken to reduce blood pressure.
Crestor [the cholesterol-lowering statin medication rosuvastatin] was taken because of hypercholesterolaemia.
Magnesium is taken for muscle cramps.
Ms Kale sees her GP weekly or fortnightly.
She has physiotherapy treatment fortnightly.
Ms Kale does not consult a psychiatrist or psychologist.
Ms Kale did not expect a change in her current treatment.
Mental state examination
| Grooming | Ms Kale did not wear makeup or costume jewellery. She said that her hair has not grown since the accident and does not need to be cut. She said her hair colour was natural but that she was going grey and parted her hair to show the assessors. She demonstrated that she brushed her hair with her fingers. |
| Clothing | She wore a jumper that she had chosen and loose long pants that she preferred to wear because of her leg pain. |
| Activity | She sat from 8 AM to 9:10 AM when she reported a need to stand because of her pain. Stood again at 09:15 AM and 09:22 AM reporting increasing pain. She then took a Lyrica capsule. Around 9:35 AM she stood to show that she was wearing pants. No psychomotor retardation or agitation observed. |
| Movements | No tics or vocalisations reported. |
| Aggression | No hostile acts towards peers and property reported. |
| Impulse control | Her impulse control was average and she was not accident-prone. |
| Interaction | Her answers to questions were often unrelated to the query but were about her concerns about her inability to function as she wished. She often began to talk spontaneously about an issue without being prompted by a question. She often needed redirection and the interpreter sometimes had to repeat the question because the answer was unrelated. Her facial expression was appropriate to verbal content. |
| Eye contact | Good. |
| Facial Expression | Anxious with occasional tears. |
| Language function | Rate – Appropriate, although rapid. Volume – Average to loud. Coherence – She did not directly answer questions with focus on her on her own agenda of pain, depression and inability to do the things she could do before the accident. Her answers were often extended monologues. |
| Affect | Anxious. |
| Phobias & Obsessions | None reported |
| Dissociative | No behaviour observed or reported. |
| Preoccupations | None reported. No recurrent self-injurious behaviour patterns. |
| Perceptions | No anomalies reported. |
| Hallucinations | None reported. |
| Delusions | None reported. |
| Sensorium | Clear. |
| Memory | She often stated that she could not recall events from the past, at times remarking that it had been six years since the accident |
| Concentration | Not impaired in a clinical setting. The assessors noted no obvious concentration problems. She had documents, medicine boxes and mobile phone images she either consulted or shared with the assessors. She used her mobile phone to show her using crutches, to show her arm in plaster and her surgical scars. She showed videos of the lorikeets in the backyard. She did not have a problem in finding the documents, boxes and phone images. |
CURRENT FUNCTIONING
Ms Kale lives with her son.
She said,
"My son tells me to have a shower. So do my granddaughters. I don’t remember how often I shower. I need someone in the house when I shower because I’m scared that I’ll fall. On weekends, my grandchildren are around. I had really bad pain last September and took more Lyrica. When I’m alone at home, I can call someone if I need to. I don’t cook or eat much when I’m alone. My son comes home often because he has his own business. My daughter cooks for me and puts food in the fridge. If I need to, I can order food on an app and I’ll eat a little bit.
Sometimes I use the exercise machine but I mostly lie down and sleep a lot. When my phone rings, I don’t always want to answer or talk.
“I keep cards for my appointments and my son or daughter takes me to them. If they can’t, my son books me an Uber.”
When asked if there were any pets, Ms Kale said she and her son fed ‘the green birds outside every morning”. She then showed a video of the birds that she had on her phone.
She said that a cleaner came fortnightly. She did not go shopping with her family.
When asked about her contact with friends Ms Kale said, “My friends call and ask me to go out but I don’t go. I just want my health back and for the depression to go away. The driver ruined my life while she was eating pizza. They apologised at the hospital but it was too late. They had already ruined my life”. She became visibly distressed as she talked about the hospital visit by the driver of the at-fault car.
Ms Kale said that she panics when she is in her son’s car and that he has become irritated with her. She said that she gets upset and angry at her son and feels she cannot control her anger. Her daughter and granddaughters are supportive.
Ms Kale said she could drive to the market and store on her street if she needed to buy something. She sometimes walked to her physiotherapy appointments. She wanted to be able to visit friends and to regain her independence.
With her constant back pain Ms Kale cannot sit for long or focus. She said, “I can’t concentrate on anything. I can’t even watch TV. I forget things”. Her Aged Pension was deposited into her bank account. She had a bank app on her phone. She had arranged for accounts and rent to be paid automatically.
Ms Kale has not been in the workforce since her children were preschool age. Her physical problems after the accident meant that she began to live with her daughter and then her son. She had always been independent but now had to rely on others to take her to appointments that were needed because of her pain.
Asked about religious observance, Ms Kale said she believed in God but was not religious. She was raised Muslim. She said that she sometimes prayed. She did not wear a headscarf. Her children and her son-in-law were not religious.
Comment on consistency
Ms Kale consistently said the accident as the sole cause of her distress. She was unwilling to discuss her mental health symptoms recorded by Dr Esin Ozme’ between 1988 and 2008 saying that she had recovered her from the depression and had been happy and socially active in the years before the accident. Dr Ozme’s records do not mention mental health issues after 2008. Ms Kale answered questions seemingly based on her thoughts at the time rather than the question posed and needed redirection to focus on the task at hand. She has been consistent in reporting pain and emotional distress since the accident but is focused on her distress, so she has difficulty organising her responses to questions.
Permanent impairment
Ms Kale’s injury is permanent because of the time since the motor accident and the stability of symptoms. The impairment is unlikely to change substantially or by more than 3% in the next year with or without mental health treatment.
DSM-5-TR Psychiatric Diagnosis and reasons
| 129. The Review Panel noted the injuries listed by the parties and decided the injuries listed as psychological injury could be redefined and are incorporated into the DSM-5-TR diagnosis of chronic adjustment disorder with mixed anxiety and depressed mood, persistent. | |
Criteria: | Diagnostic Criteria for Adjustment Disorders A. The development of emotional or behavioural symptoms in response to an identifiable stressor (the 16 March 2019 accident) occurring within 3 months of the onset of the stressor. B. These symptoms or behaviours are clinically significant, as evidenced by one or both of the following: o Marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation. o Significant impairment in social or other important areas of functioning. C. The stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder. D. The symptoms do not represent normal bereavement. E. Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months. Specify whether: · With mixed anxiety and depressed mood. Specify if: · Persistent: The persistent specifier applies when the duration of the disturbance is longer than 6 months in response to a chronic stressor (persistent pain). |
Comment: | Ms Kale did not meet criteria for the diagnosis of Posttraumatic Stress Disorder because the accident was not life-threatening, intrusion symptoms are nonspecific and avoidance was caused by pain symptoms. Review of the documents in Dr Ozme’s records shows Ms Kale met DSM-5-TR diagnostic criteria for the diagnosis of Persistent Depressive Disorder between 1988 and 2008. Ms Kale denied significant mental health symptoms in the years before the accident and there are no contemporaneous records documenting a depressive disorder in the years before the accident. |
Causation and reasons
Ms Kale has a 20-year history of persistent depression between 1988 and 2008 and no depression before the 2019 accident. After the accident Ms Kale developed a chronic pain disorder that interfered with her functionality so that she became dependent on her son and daughter and now lives with them. The pain symptoms resulted in her feeling sad and she does not enjoy things she previously did. She is frequently tearful, anxious and stressed. She has trouble sleeping and concentrating and is often overwhelmed. She has withdrawn from social supports. This is in contrast to her reported behaviour in the years before the 2019 accident that caused an adjustment disorder with symptoms present at the assessment interview on
20 June 2025.
Whole person impairment
In accordance with The Guidelines the PIRS does not assess impairment from somatoform disorders or pain.
Psychiatric diagnoses
1. Adjustment Disorder with Mixed Anxiety and Depressed Mood
Psychiatric treatment description
Psychiatric consultation ended with the retirement of the consultant psychiatrist.
Psychological counselling ended when the insurer suspended payment.
Psychotropic medicines were revised by her consultant psychiatrist and continued by her General Practitioner.
Category
Class
Reason for Decision
1. Self-Care and Personal Hygiene
3
Ms Kale said she needs prompting from her son, daughter, or grandchildren to shower. She also limits showering to times when someone is home, due to concerns about falling from physical problems. She no longer cooks due to physical limitations and reports forgetting to eat, although she can order takeaway using a phone app. She stated she does not need haircuts as her hair has stopped growing and she brushes it with her fingers. Overall, there is evidence of some personal neglect and a need for prompting to maintain hygiene. These factors are consistent with moderate impairment.
2. Social and Recreational Activities
2
If it were not for her pain symptoms she would be involved in social and recreational activities. She can go to social events but is not actively involved. She reports decreased motivation and so this is a mild impairment.
3. Travel
2
She travelled to Türkiye with her son in 2024. She can drive independently to the local shopping centre to buy items she may need. She reports being an anxious passenger and so this is a mild impairment.
4. Social Functioning
2
She has lived with her son and daughter since the 16 March 2019 accident and reports her irritability and anxiety characterise the relationship with her children. She continues to have a positive relationship with her granddaughters. Her contact with her friends ceased because of her pain symptoms. Clinically this is a mild impairment.
5. Concentration, Persistence and Pace
2
With the effects of her pain she finds she cannot concentrate for long or watch TV or movies. She does answer Facebook posts from her family. Pain symptoms are the driver of her concentration difficulties as well as her inability to persist with tasks. This is a mild impairment.
6. Adaptation
2
Ms Kale was not working when the accident happened and had not worked for many years. She could maintain her home. Since the accident her pain symptoms have resulted in an inability to perform household tasks. Her motivation is reduced because of her depressed mood related to her pain. This is a mild impairment of adaptation.
List classes in ascending order: 2,2,2,2,2,3,
Median Class Value: 2
Aggregate Score: 13
% Whole Person Impairment: 7%
*%WPI = Percentage Whole Person Impairment
Apportionment
Ms Kale agreed that she had an episode of depressed mood related to the difficulties with her husband but said she could not recall the extent of her symptoms. She reluctantly agreed that she had been suicidal in 1990. However, she was insistent that she was not in treatment and not taking antidepressant medicines in the years immediately before the 16 March 2019 accident. The provided records do not record significant depressive symptoms in the years before the accident. Apportionment is not needed.
Adjustment for the effects of treatment
No adjustment is indicated, as there has been no measurable treatment response to psychiatric consultations, psychological counselling, or prescribed psychotropic medication.
Determination regarding the degree of WPI of Ms Kale because of the injuries caused by the motor accident
The total percentage WPI for assessed psychiatric injuries caused by the motor accident is 7%. Therefore, permanent impairment is not greater than 10%.
Permanent impairment ratings take symptoms into account; however, the percentage WPI impairment is not a direct measure of disability.
REASONS FOR DETERMINATION
The Panel confirmed the view of the outcome of the accident to that taken by Medical Assessor Fukui.
How the Panel dealt with the submissions
The Panel held its post-examination MRP conference on 16 July 2025.
The Panel discussed the examination and the report of Medical Assessor Newlyn.
Ms Kale at [10] of her submissions submits that her level of impairment should fit into ‘Class 3’ in relation to the PIRS Category of Concentration, Persistence and Pace, as per the findings of Dr Canaris as per his report of 15 March 2023.
Having considered this submission carefully, the Panel took the view that although there were restraints on Ms Kale’s concentration she still was able to use social media and communicate with her family.
This allocation of 2 for Concentration, Persistence and Pace was as the result of the psychiatric assessment and clinical judgment of two very experienced psychiatrists who conducted their own assessment of adaptation and gave their reasons. They obviously disagreed with Dr Canaris on this and the value they gave was the result of their own examination and assessment.
Ms Kale at [11] of her submissions submits that she continues to have ongoing psychological treatment with her psychologist.
The Panel noted that Ms Kale does not currently consult a psychiatrist or psychologist. Ms Kale sees her GP and physiotherapist either weekly or fortnightly.
The Panel took into account Ms Kale’s full pre-accident lifestyle, activities and habits. The Panel found that the extent to which these have changed since the accident is only mild in all areas except self-care and personal hygiene.
DETERMINATION
The Review Panel determines that as a result of the accident, Ms Kale sustained WPI of 7%.
The Review Panel confirms the determination of Medical Assessor Fukui, dated
30 January 2024, as a result of the accident Ms Kale sustained WPI of 7%.
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