Kamara v Allianz Australia Insurance Limited
[2023] NSWPICMP 439
•6 September 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Kamara v Allianz Australia Insurance Limited [2023] NSWPICMP 439 |
| CLAIMANT: | Hawa Kamara |
INSURER: | Allianz Australia Insurance Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Michael Hong |
MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 6 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 23 August 2020; claimant’s vehicle rear ended pushing her vehicle into the car in front; assessment of permanent impairment of psychological condition; claimant’s psychological conditions diagnosed under the current edition of the International Statistical Classification of Diseases & Related Health Problems (ICD) rather than Diagnostic & Statistical Manual of Mental Disorders (DSM) pursuant to clause 6.213 of the Guidelines; evidence of prior psychological symptoms; pre-existing condition assessed at 0%; unrelated ectopic procedure immediately following motor accident; psychological effects of that procedure not related to motor accident; Held – claimant assessed at 7% permanent impairment due to psychological injury; medical assessment confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: The Panel revokes the certificate dated 3 November 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which is NOT GREATER THAN 10%: (a) exacerbation of mixed depressive and anxiety disorder; (b) exacerbation of post-traumatic stress disorder, and (c) onset of alcohol dependence with current use and is continuous. |
REASONS
BACKGROUND
On 23 August 2020 Ms Hawa Kamara (the claimant) was rear ended by the insured vehicle pushing her vehicle into the car in front.[1]
[1] Insurer’s bundle, p 14.
Allianz Australia Insurance Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Kamara any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant alleges that the motor accident caused physical injuries including a ruptured ectopic pregnancy.
The issue in this medical dispute is whether Ms Kamara’s “degree of permanent impairment as a result of the psychological injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Chew and dated 3 November 2022 (the medical assessment).[4] The Medical Assessor assessed the degree of permanent impairment at 7%. The details of that assessment are set out later in these Reasons.
THE REVIEW
[4] Insurer’s bundle, p 3.
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[5]
[5] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[6]
[6] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[7]
[7] 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.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[9] As part of the “new assessment”, by letter dated
18 May 2023 the claimant requested that “a re-examination of her psychiatric injuries take place”.[9] Section 7.26(6) of the MAI Act.
The parties otherwise filed bundles of documents for the Panel’s consideration.
The insurer filed extensive late documents pertaining to the claimant’s pre-existing condition.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[10] In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[10] See s 3B(2) of the Civil Liability Act 2002.
[11] [2021] NSWSC 13 (Raina) at [65].
Further, clauses 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor found that the motor accident caused post-traumatic stress disorder and assessed permanent impairment at 7%.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
General medical records
A report by Ms Azzi, psychologist dated 25 September 2013 referred to counselling under a Mental Health Plan for depression and anxiety.[12] Symptoms included difficulty concentrating and sleeping with heightened anxiety and panic attacks.
[12] Insurer’s bundle, p 565.
In August 2014 Ms Azzi noted that the claimant was receiving further treatment for depression and anxiety following abuse form an ex-partner.[13]
[13] Insurer’s bundle, p 577.
In December 2014 and March 2016 Mr Metry, psychologist diagnosed the claimant with a major depressive disorder.[14] Hospital records in March 2016 noted a history of depression.[15]
[14] Insurer’s bundle, p 593 and p 515.
[15] Insurer’s bundle, p 520.
In October 2017 the Obstetrics Registrar noted a history of persistent psychosis and treated by a psychiatrist.[16]
[16] Insurer’s bundle, p 496.
A care plan for physiotherapy in May 2020 with a review in July 2020 noted various diagnoses including depression.[17]
[17] Insurer’s bundle, p 730.
General practitioner records
Clinical notes of the general practitioner (GP) in September 2013 referred to a history of “depression for months”.[18] The GP note in August 2014 referred to the claimant being in a violent relationship and loss of friendships.[19]
[18] Insurer’s bundle, p 546.
[19] Insurer’s bundle, p 549.
The GP note dated 31 October 2014 referred to depression.[20] Avanza was prescribed in November with a history of stress and anxiety and “due for mental care plan”.
[20] Insurer’s bundle, p 172.
On 27 January 2016 the GP noted depression and a mental care plan.[21]
[21] Insurer’s bundle, p 178.
On 28 August 2019 a psychologist noted financial difficulties and marital problems with previous admission for depressions and anxiety “several years ago”.[22] DASS 21 findings were reported as normal.
[22] Insurer’s bundle, p 198.
On 16 January 2020 the claimant reported domestic violence with “anxiety and depression”.[23]
[23] Insurer’s bundle, p 200.
Medical records post-accident
The ambulance record dated 24 August 2020 (7am) noted the claimant woke at 5am in obvious distress with lower abdominal pain. Pain was also reported in the lower back and right shoulder.[24] The hospital discharge summary confirmed ruptured ectopic pregnancy in the right fallopian tube.[25] The hospital discharge summary referred to a low-speed motor accident the previous day with shoulder pain.[26]
[24] Insurer’s bundle, p 106.
[25] Insurer’s bundle, p 163.
[26] Insurer’s bundle, p 167.
On 8 September 2020 the GP referred the claimant for treatment noted that she suffered from anxiety secondary to recent traumatic events.[27]
[27] Insurer’s bundle, p 741.
Subsequent clinical notes such as those dated 23 September 2020[28] and 12 October 2020[29] refer to the claimant’s loss of focus and concentration.
[28] Claimant’s bundle, p 623.
[29] Claimant’s bundle, p 626.
On 18 November 2020 the GP noted that the claimant suffered from “PTSD and low mood after recent ruptured ectopic pregnancy”.[30]
[30] Insurer’s bundle, p 797.
In a report dated 9 December 2020, Dr Grant Walker, neurologist noted neck and low back pain following the motor accident with subsequent pelvic bleeding.[31] The doctor noted the claimant had “become quite depressed and forgetful”. History included depression and sickie cell anaemia and employment as a disability support worker prior to the motor accident.
[31] Insurer’s bundle, p 884.
Dr Walker opined that the claimant’s mental health was “the main problem at the moment” with no foreseeable resolution of headaches.
Ms Adriana Zapata-Delgado, psychologist, treated the claimant in late 2020.[32] The psychologist opined that the claimant presented with symptoms of post-traumatic stress disorder and major depressive disorder.
[32] Insurer’s bundle, p 928.
In a report dated 16 January 2023 Ms El-Hassan, psychologist, noted that the claimant presented with severe trauma following the motor accident which impacted the claimant’s “physical and mental well-being”.[33] The psychologist opined that the claimant’s poor mental state and limited access to family and friends had “impacted her ability to work, study and complete assignments/tasks successfully”.
[33] Claimant’s bundle, p 147.
Qualified opinions
Dr Kai Chow, psychiatrist, was qualified by the insurer and provided a report dated
29 September 2021.[34] The doctor opined that the motor accident had aggravated the underlying major depressive disorder.[34] Insurer’s bundle, p 937.
Dr Yajuvendra Bisht was qualified by the claimant and provided a report dated
16 June 2022.[35] The doctor diagnosed post-traumatic stress disorder and major depressive disorder and opined that maximum medical improvement had not been attained.[35] Claimant’s bundle, p 47.
Other medical assessments
Medical Assessor Izzo provided a certificate dated 30 June 2022 when he found the ruptured ectopic pregnancy was not caused by the motor accident.
Medical Assessor Cameron provided a certificiate dated 20 December 2020 when he found soft tissue injuries to the back and neck caused by the motor accident. The doctor noted that the scarring from the surgery for the ectopic rupture was not caused by the motor accident.
SUBMISSIONS
Claimant’s submissions dated 30 November 2022[36]
[36] Claimant’s bundle, p 21.
These submissions were filed seeking a review of the medical assessment.
The claimant submitted that the Medical Assessor erred in assessing “Concentration, Persistence and Pace”, “Social Functioning” and “Social and Recreational Activities”.
The claimant submitted that there was no explanation for an assessment of mild impairment to concentration. Reference was made to the history recorded by Dr Bisht in the report dated 16 June 2022 and observations made by Dr Chow in his report dated 29 September 2021. It was submitted that the Medical Assessor failed to obtain a proper history pertaining to impairment of concentration.
The claimant made joint submissions on the Medical Assessor’s findings for “Social and recreational activities” and “Social functioning”.
The claimant submitted that the only history obtained was that the claimant had isolated herself from friends and family. Reference was also made to the histories recorded by Dr Bisht and Dr Chow for these categories which show the lack of detail recorded by the Medical Assessor.
Insurer’s submissions dated 23 April 2021[37]
[37] Insurer’s bundle, p 960.
The insurer noted that the claimant had been diagnosed with post-traumatic stress disorder and major depressions and disputed that the “claimant’s symptom meet the requisite criteria for a DSM-5 diagnosis for PTSD”.
Insurer’s submissions dated 17 March 2022[38]
[38] Insurer’s bundle, p 11.
These submissions noted that the insurer had accepted a non-minor psychological injury pursuant to a notice dated 2 November 2021.
Insurer’s submissions dated 8 December 2022[39]
[39] Insurer’s bundle, p 2.
These submissions opposed the application to review the medical assessment. The insurer submitted that the absence of detail in the medical assessment does not mean that there was no regard to classes in each of the psychiatric injury rating scale (PIRS) categories.
The insurer referred to records of pre-existing conditions including:
(a) Bankstown Family Medical Practice – notes of treatment in 2011;
(b) Banks House – treatment in 2011;
(c) Dr Azzi – treatment in 2014;
(d) Bankstown Medical Centre – treatment in 2013 including significant detail in an entry on 29 July 2013;
(e) Ms Azzi, psychologist, report dated 25 September 2013;
(f) Restwell Street Medical Centre notes commencing October 2014 including a mental health plan in 2014, letter to Centrelink dated 19 January 2016 referring to depression;
(g) Dr Metry, psychologist, dated 11 March 2016 referring to a long history of depression and anxiety;
(h) Bankstown Hospital letter dated 17 October 2017 referring to an obstetric history of persistent psychosis and treatment by a psychiatrist;
(i) Mental Health Care Plan dated 14 March 2019;
(j) Ms Ghada Tiba, psychologist in August 2019;
(k) 3 December 2019 – anxiety related to son’s behaviour;
(l) 16 January 2020 – family violence, and
(m) 4 August 2020 – claimant not working.
The insurer submitted that if the review proceeds, then the pre-accident psychiatric history should be closely examined.
Insurer’s internal review dated 17 February 2022[40]
[40] Insurer’s bundle, p 949.
The insurer’s internal review concluded that ongoing psychological treatment from
Dr Chow indicated that the injuries had not stabilised for the purposes of assessing permanent impairment.
RE-EXAMINATION
Ms Kamara was examined by both Medical Assessors on 25 August 2023.The examination report is as follows:
“The Treating medical records and reports
2. The complete medical record from Bankstown hospital was reviewed in AD15, first date of admission to Banks House as a psychiatric inpatient for mental health services by the claimant was documented as occurring on 24 December 2012.
3. A complete mental health summary of the claimant’s presenting mental state was documented in AD15 page 1957. The full document will not be reproduced. Nursing handover notes dated 26-12-2020 at AD15 page 1964, document concerns from the nursing staff that the claimant would consume increased amounts of alcoholic beverages at times of distress. The diagnosis of alcohol use disorder was not made during this initial presentation.
4. A handwritten summary was provided, AD15 pages 1340 to 1346.
5. Important matters arising from this handwritten document included:
6. The claimant experienced childhood sexual assault, and mistreatment as well as witnessing members of her community being shot by rebels in the Liberian civil war between 1989 until 1997.
7. The significant matters of concern regarding the pre-existing history have been summarised by the Bankstown Hospital Administrative document, AD15 page 1836. This stated the claimant’s confirmed diagnoses as:
·Mixed anxiety and depressive disorder on 06-06-2016; Final Confirmation
·Posttraumatic stress disorder dated on 06-06-2016; Final Confirmation
Comment Dr Baker
I note that the Bankstown Hospital Administrative document had used the Australian standard diagnostic coding system ICD. To enable continuity of assessment of pre-existing diagnosis the Panel used this system.
8. There was no diagnosis of alcohol use disorder made prior to this motor accident on 23-08-2020. The matter of increasing and hazardous use of alcohol is mentioned in treating psychologist clinical notes dated 17-08-2022. Dr Bisht psychiatrist IME report dated 16-06-2022, A8, ‘She drinks alcohol every day. She was unable to quantify the amount. She told me – ‘When you are not happy, you drink’. The IME did not provide an estimate of whole person impairment.
9. Restwell Street Medical Centre clinical notes A36, documented that the claimant had her first motor accident in Sydney prior to the subject motor accident on 19-12-2015.
10. The medical record at that time documented that the claimant was pregnant. She had pain from the accident related to her neck, and lower back. She was treated conservatively and did not have any surgical or psychiatric treatment for that motor accident.
11. The treating psychologist in AD2 documented the claimant ‘currently presents with severe trauma after being part of a traumatic car accident in August 2020. This traumatic event has significantly impacted her physical and mental well-being…’
12. The occupational physician IME Dr Low report dated 19-04-2022, AD5, documented:
· ‘She confirmed that her abdomen impacted into the steering wheel.’
· ‘In addition to her physical symptoms, Ms Kamara stated that she has remained under the care of psychiatrist, Dr Adriana Zapata-Delgado.’
Comment Dr Baker
I note from reading the medical record that Dr Adriana Zapata-Delgado was a clinical psychologist.
· The occupational physician documented an extensive pain history suffered by the claimant after the motor accident.
· Reading of the medical record demonstrated that the claimant had suffered from recurrent pain in various parts of her body due to mild sickle cell disease as diagnosed by the haematological team at Bankstown hospital in 2011, AD15 page1045.
· The claimant was treated for mild sickle cell disease prior to arrival in Australia in 2008.
· The claimant reported pain in her neck ranging between 5 – 7 /10 on a visual analogue scale and 10/10 for lumbar spine pain on a daily basis. She was assessed as being able to sit for about 30 minutes and walk for about 15 minutes. She stated that when her symptoms are severe, she may rely on the use of a walking stick. She stated that she can feel unsteady on her feet and finds herself holding onto furniture as she moves around her home. She reported ongoing difficulty with bending/ twisting activities. She reported difficulty with any heavy lifting.’
· The occupational physician IME documented: ‘Ms Kamara’s prognosis is considered poor. She presents with significant pain and disability despite the significant passage of time and treatment to date. Furthermore she has co-morbid psychosocial symptoms presenting a further poor prognostic factor.’
Other physical conditions
13. The claimant was diagnosed with other conditions prior to the motor accident on 23 August 2020 - 5 June 2015: Goitre; Pregnancy induced diabetes during antenatal period of her two children; 4 August 2016: Bronchial asthma; 19 October 2017: HBS.
14. The claimant’s medical record noted a Client reference number and confirms the claimant having need for support from services that include Centrelink.
15. The matter of domestic violence is first documented in handwritten records forwarded at AD15 pages 1340 to 1346. At that time a domestic violence court matter from 2010 was noted. The claimant did not progress with pressing charges against the offender.
Another more recent episode of domestic violence was documented by the local medical practitioner January 2020 prior to the motor accident in August of the same year. The claimant was noted to have anxiety and depression from this incident. The incident had not impaired the claimant from forming new intimate relationships as she was pregnant prior to the subject motor accident.
16. The claimant has an extensive history of psychiatric illness, with numerous hospital admissions to Mental Health Units. She had an established diagnosis of posttraumatic stress disorder as well as mixed anxiety and depressive disorder, confirmed in 2016 by administration documents.
After arrival to Australia the claimant experienced domestic violence on at least two well documented occasions.
Alcohol usage was initially noted as of concern in nursing notes in 2012. The diagnosis of Alcohol use disorder was first documented by IME psychiatrist
Dr Chow in 2021.Physical pain is well documented in the record from 2011. Sickle cell disease is known to cause acute physical pain, as documented by the haematological team at time of acute crisis.
Chronic Primary pain was described by Dr Low, as follows: ‘Ms Kamara’s prognosis is considered poor. She presents with significant pain and disability despite the significant passage of time and treatment to date. Furthermore she has co-morbid psychosocial symptoms presenting a further poor prognostic factor.’
MEDICO-LEGAL REPORTS
17. Dr Y. Bisht IME psychiatrist report dated 16 June 2022.
Dr Bisht stated in his report the following: ‘Yes, she suffers from non-minor injury in accordance with the Motor Accident Injuries Act 2017, considering the severity, scope, and impact of her symptoms. Her diagnosis is post-traumatic stress disorder and major depressive disorder, as per DSM 5.’
Comment Dr Baker
I note that Dr Bisht does not provide an estimate of whole person impairment.
18. Dr K.T. (Frank) Chow report dated 29 September 2021
Dr Chow documented the details of the motor accident that was similar to the NSW Police report.
Dr Chow diagnosed the claimant as suffering from pre-existing depression and anxiety together with marriage relationship difficulties and domestic violence issue.
On 23 August 2020, she was involved in a motor vehicle accident and the following day she presented to the hospital with PV bleeding and abdominal pain. She was later found to have a ruptured ectopic pregnancy. She was rushed to surgery and later she came home but was re-admitted due to complication.
Dr Chow diagnosed DMS-5 criteria posttraumatic stress disorder, major depressive disorder. alcohol use disorder.
19. Dr K.T. (Frank) Chow report dated 19 October 2021
Dr Chow stated in response to the supplementary question: ‘Ms Kamara has a history of depression and anxiety therefore I do consider the underlying condition
of major depressive disorder has been aggravated.’
Comment Dr Baker
I note that Dr Chow does not provide an estimate of whole person impairment. Neither IME psychiatrist provide an estimate of the claimant’s whole person impairment.
PERSONAL INJURY COMMISSION CERTIFICATES
Assessor Cameron Combined Certificate dated 20 December 2022. AD7
20. Assessor Cameron documented: Using the Combined Values Chart at page 322 of American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition, the combined permanent impairment is 5%.
Assessor Cameron Medical Assessment – Permanent Impairment (Physical) Certificate dated 20 December 2022. AD8
21. Assessor Cameron documented: ‘All the injuries referred to me for assessment have been assessed and determined not caused by the motor accident.
An assessment of the degree of permanent impairment of these injuries is therefore not required.’
Assessor Cameron documented:
‘2. The following injuries were referred by the Personal Injury Commission for assessment:
· Skin – scarring - due to surgery from ruptured ectopic pregnancy.’
Assessor Izzo Medical Assessment – Permanent Impairment (Physical) Certificate dated 30 June 2022. AD9
22. Assessor Izzo documented: ‘The following injuries caused by the motor accident give rise to a permanent impairment of 0% and is not GREATER THAN 10%:
· surgery and scarring
· trauma injury
· ruptured ectopic pregnancy
Assessor Izzo documented:
‘15. Causation and reasons:
Whilst in a way there was a pre-existing condition, that is, the ectopic pregnancy, however there is no evidence that the rupture of the ectopic pregnancy was caused by the MVA.’
PIC Certificate Assessor Gerald Chew dated 4 August 2022. A5
23. The assessor determined the following in his certificate:
The following injuries caused by the motor accident give rise to a permanent impairment of 7% and IS NOT GREATER THAN 10%.
· Post Traumatic Stress Disorder.
RE-EXAMINATION FINDINGS
General remarks
24. The claimant attended a videoconference medical examination with Medical Assessors Baker and Hong on behalf of the Panel. She attended alone and was located at her lawyer’s offices. She had attended by taxi. The lawyer had text messaged her the venue address and the claimant showed the driver.
25. The claimant appeared sullen and depressed at initial observation by the panel. She had her arms crossed and was looking down at the floor.
26. The claimant required time to settle. Once settled she was able to report various aspects of her history before and since the motor accident on 23 August 2020. In general, the history provided was consistent with the documented narratives of the motor accident and injuries sustained by all other authors.
27. The claimant was invited to speak about culturally sensitive matters, should she deem it appropriate. The claimant accepted the claimant’s discretion when she elected not to speak about the loss of her baby. The claimant demonstrated a mood congruent tearful affect whilst she explained she remained depressed about her loss.
Psychosocial history and pre-accident history
28. The claimant’s complex early developmental history was confirmed and will not be reiterated in this re-examination.
29. The matters of relevance to the re-examination included:
•A prior motor accident in 2015.
•An established pre-existing diagnosis of Posttraumatic stress disorder due to her early life living in Liberia, and Guinea, confirmed in 2016.
•An established pre-existing diagnosis of Mixed anxiety and depressive disorder that was present and recurrent at least since 2016.
•Repeated episodes of domestic violence where the claimant was the victim.
•No diagnosis of alcohol use disorder prior to IME Dr Chow’s diagnosis in 2021.
30. The claimant enters Australia in 2008. Due to difficulties with the immigrating family remanent, the claimant goes to Sydney to rejoin one of her sisters. Only one of her sisters lives in NSW. The claimant after separating from the father of her children, moved to live with her sister in Merrylands, prior to the motor accident in 2020.
31. The claimant reported that she had recovered from her injuries in the January 2020 domestic violence incident.
32. On direct enquiry at the assessment, she stated that she was well prior to the motor accident in 2020. She stated she had stopped taking antidepressant medication a few years prior to the motor accident in 2020. She reported having completed her prerequisite training, and was employed for 7 hours per shift; three shifts per week for Devotion Care. She had placed her children in the care of their father whilst she was at work. She had recently commenced work for this employer prior to the motor accident. She was caring for an elderly disabled woman, in the woman’s home. The claimant reported enjoying this work and was hopeful she would be able to work indefinitely. The father of her children was not working.
33. The claimant reported that she had desired a family. She had two sons and was hopeful that she would have a daughter to complete her family.
History of the motor accident.
34. When asked to recount the accident, the claimant immediately responded with anger and becoming withdrawn. She required reassurance and time to settle. She took a small half-filled bottle of alcoholic beverage out of her pocket. She showed it to the camera. It was not possible to read the label. She was encouraged to use her psychological skills to settle.
35. The claimant provided a brief version of the event. She stated in a second angry outburst, ‘It’s in your book!’. On settling the claimant provided a similar version of events that she had provided in the NSW Police report dated 27 October 2020, A43.
36. The claimant said she was travelling to the father of her children’s home after work. Whilst in transit she was behind another car. The driver at fault had driven into the claimant’s car. The claimant’s car was shunted into the car in front. She exited the car unaided. She was not knocked unconscious. The claimant stated that her car was ‘in smoke’. She did not known if the airbags deployed. She said she did not know what to do next. She was in shock.
37. The claimant rang the father of her children. He attended the scene. ‘Police and Ambulance were not contacted as P5 criteria was met’ as reported in the Police report. Her car was towed, and the claimant spent the night at the father of her children’s house.
38. The claimant reported that she was trying to sleep. She woke with abdominal pain. She called the ambulance. The ambulance was dispatched at about 7:05 am according to the electronic record. The claimant was transferred to Bankstown Hospital. She had an emergency operation to stop her bleeding and remove an ectopic pregnancy. The claimant stated she was fearful of the operation. She was not able to provide further explanation at the assessment. Review of the Haematological record in 2011 provided some understanding why the claimant was fearful. The document dated 24-10-2011, AD15, page 1045 by Dr Ghadri documented: ‘In summary, Hawa has mild sickle cell disease possibly with co-existing alpha thalassaemia…We also discussed the possible high-risk periods of pregnancy and surrounding any operations…’ This notation demonstrated that the claimant knew she was in a high-risk life-threatening period on finding that she was both pregnant and in emergency need of surgical treatment. The claimant had lost 2.5 litres of blood.
39. On direct enquiry at the time of the assessment the claimant confirmed that at the time of the motor accident she did not know that she was pregnant. She said at the time she was in hospital she immediately believed the effects of the motor accident had placed her life at risk.
History of symptoms and treatment following the motor accident
40. The claimant reported the first experience of pain in her neck and right shoulder on the evening of the motor accident. She reported that she was angry that the other driver had driven into her car. She was angry her car was towed. She had financial difficulties. She was unsure if the car could be replaced. She described that she commenced experiencing increased anxiety. She described her mood became sad and then depressed. She began to experience pain constantly.
41. The claimant stated that on discharge from hospital she went to live with the father of her children. She was provided with her own room. The father and the two boys shared their own bedroom.
42. The claimant attended her local medical practitioner. She was referred to a clinical psychologist. She was prescribed mirtazapine 30mg at night. The claimant stated she remained on the medication. She also continued attending her psychologist Ms El-Hassan. The psychologist treats the claimant on an ongoing basis and the claimant attends, either in person or via videoconference. The claimant stated that she did not know what her problem was before she was told that she had “PTSD”.
43. Review of the treating psychologist notes identify the claimant drinking alcohol to manage her emotions as well as receiving EMDR and CBT for her injuries. It is unclear from the documents whether the treating psychologist was fully aware of the pre-existing history of confirmed posttraumatic stress disorder or mixed anxiety and depressive disorder confirmed in 2016.
44. The claimant was not treated by a private or community psychiatrist. The reference to Dr Adriana Zapata-Delgado as a psychiatrist is not confirmed by her documentation, where she self identifies as a psychologist.
45. The claimant attended Bankstown Hospital on 20 September 2020 with ongoing psychological and psychiatric issues and she was prescribed medication prior to being discharged. On direct enquiry the claimant confirmed that she had not been admitted as a psychiatric inpatient after the motor accident in August 2020.
ICD11 MG30.0 Chronic primary pain
46. The claimant stated she was suffering from chronic pain. She stated that her anxiety and depressed mood exacerbated her pain experience. The claimant’s chronic pain is experienced in more than one anatomical region. She reports pain in her shoulder, legs, neck, and back. She also reported experiencing pain in her hands. The claimant described that the chronic pain had, in the past, caused overwhelming emotional distress, however in more recent times the pain had settled but never fully resolved. Whilst the pain experience may have settled in relation to her back and legs, the claimant reported that she was still experiencing pain at the time of this assessment.
47. The claimant reported she had been prescribed and supplied three different types of codeine. She reported that one supply had been sent from the United Kingdom. She was unable to report the dosage of these tablets. She was also prescribed Endone 5 mg tablets and Crysanal a form of Naproxen. She stated she used the medication to treat her back pain. She stated she was able to walk without a stick due to the pain medication. The claimant confirmed she had not been referred to a pain management clinic.
48. The claimant stated she was able to lift light objects but not heavy items. The heavier items were lifted by the children’s father. She was able to describe that her chronic primary pain was exacerbated by anxiety and her depressed mood. She did describe that her chronic primary pain interfered with her daily functioning. She had a reduced activity of daily life activities and reduced participation in social roles and work. She confirmed alcohol consumption helped reduce her chronic primary pain.
ICD11 code 6B20 post-traumatic stress disorder exacerbation
49. The claimant was distressed and irritable after she was asked to talk about the symptoms of her psychiatric conditions. She used avoidant strategies and attempted to avoid thinking about the motor accident. She stated she was never able to feel happy. She said she drank to induce sleep. She had poor concentration. She confirmed she had lost her interest and joy in playing with her children. She felt estranged from her sons who had been her best friends prior to the motor accident. The claimant showed shame and withdrew whilst she was attempting to explain how she was no longer fully independent as she had been prior to the motor accident. She reported intrusive distressing memories of the motor accident and loss of her full independence by the writing off of her car.
50. The claimant had directly experienced the motor accident. Her understanding of the effects of the motor accident included the emergency operation and surgical removal of the ectopic pregnancy. The claimant explained that as part of her psychological and medical treatment. She had a markedly reduced capacity to have a future child. She said she was told she had a '20% chance of falling pregnant’ due to the surgical operation to remove the ectopic pregnancy.
51. The panel is aware and we accept that there is no medical explanation between the ectopic pregnancy, the emergency surgical treatment, and the related subject accident. The psychological effect of her ectopic pregnancy is not caused by the subject accident as the ectopic pregnancy is not caused by the subject accident. The Panel noted her current psychological injury, is an exacerbation of pre-existing PTSD, and is separate to the effects of her ectopic pregnancy.
52. The claimant had a pre-existing posttraumatic stress disorder and mixed anxiety and depressive disorder. Whilst the physical impact of this motor accident may not have been sufficient to reach a Category A stressor for a newly diagnosed posttraumatic stress disorder, attributable to the motor accident. The shock, anxiety, loss of the car, loss of full independence and onset of financial distress and need to find new living arrangements with the father of her children is sufficient to cause an exacerbation of her pre-existing posttraumatic stress disorder.
53. The panel confirms that at the time of this re-examination the claimant’s exacerbation of post-traumatic stress disorder is due to the effects of the psychological injury caused by the motor accident as documented by
Dr Chow IME and Dr Bisht IME.ICD11 code 6A73 Mixed depressive and anxiety disorder exacerbation
54. The relapse of the claimant’s pre-existing depressive disorder was diagnosed by Dr Chow IME in A9 report dated 19 October 2021. He stated ‘Ms Kamara has a history of depression and anxiety, therefore I do consider the underlying condition of major depressive disorder has been aggravated.’
55. The panel confirmed that the claimant does meet criteria for DSM5 code 296.32 Major depressive disorder of recurrent type of mild severity, as documented by Dr Chow IME and Dr Bisht IME.
56. The panel noted the claimant suffered from a depressed mood, loss of interest in playing with her children, poor concentration, loss of energy, ideas of worthlessness and inappropriate guilt as well as poor sleep.
57. The cause of the exacerbation of the claimant’s pre-existing Mixed depressive and anxiety disorder due to the effects of the psychological injury was the motor accident.
ICD11 code 6C40.20 Alcohol dependence, current use, continuous
58. The panel noted that Dr Chow IME was the first person to diagnose an alcohol use disorder.
59. The panel noted that the claimant had first been noted to have increased consumption of alcoholic beverages in 2012 whilst emotionally distressed.
60. The panel noted that in the medical record that police had found the claimant locked in her room with an empty bottle of vodka, whilst sending text messages to her partner that she intended to kill herself in May 2015.
61. The panel noted that the claimant showed a half-filled small bottle of an unknown alcoholic beverage at the time of the assessment. The claimant confirmed she would drink alcohol most days. The claimant confirmed she drank alcohol to achieve a desired effect of not thinking about the motor accident. The claimant did not report a history of alcohol withdrawal symptoms. The claimant confirmed that alcohol did interfere with her capacity to care for her children. The claimant confirmed that she would drink alcohol most days and that she was capable of purchasing alcohol alone if required.
62. The panel confirmed the diagnosis, Alcohol dependence with current and continuous use was due to the effects of the psychological injury caused by the motor accident.
MENTAL STATE EXAMINATION
63. The claimant presented as an agitated and distressed woman who was difficult to engage in the initial phase of the re-examination. She had crossed her arms and was looking at the floor. She was wearing a suitable attire. Her hair was dressed. She was not wearing any veil. The claimant spoke softly and was asked to repeat her answers as it was difficult to fully hear her responses. Rapport was difficult to establish and was repaired on multiple occasions during the assessment.
64. The claimant had angry outbursts during the re-examination. She at times yelled at the camera. At other times she made angry remarks such as, ‘It’s in you book, isn’t it!’ She was slow in her responses to questions. Psychological support was provided by the panel. Rapport was re-established and the claimant used psychological skills she had learnt from her psychologist to settle and progress after incidents of overwhelming emotion experienced by the claimant as she responded to questions about the motor accident.
65. The claimant stood up and stretched her back, leant over the table and moved freely in the room when she reported she had back pain.
66. The claimant was orientated in time, place and person. She had good capacity to recall what had happened during the motor accident. She provided a reasoned explanation as to how she travelled and the lack of support she had received from the father of her children in attending the re-examination venue by taxi, alone.
67. The claimant did not report thoughts of self-harm or plans to harm herself at this time. She did not report delusional ideas or psychotic symptoms. Her judgment was fair. She reported a depressed mood. Her affect was reactive and mood congruent. She required emotional support to explain her losses, emotions and living circumstances after the motor accident. She frequently displayed shame and reported guilt for not having recovered.
CURRENT AND PROPOSED TREATMENT.
68. The claimant attended her treating medical team regularly. She reported having a good relationship with her general medical practitioner and her psychologist. She did not have a pain management physician. She had been prescribed Endone 5mg as required by her medical team. She reported having Codeine tablets sent from the UK as well as Codeine tablets prescribed by her local medical practitioner. She reported she also used Lyrica and Naprosyn tablets for pain. She was unable to report the quantity or frequency of usage of her pain medication.
69. The claimant was prescribed Mirtazapine 30mg at night for exacerbation of her mixed depressive and anxiety disorder as well as her exacerbation of posttraumatic stress disorder.
70. The claimant continued to attend her psychologist for cognitive behavioural therapy and trauma focused psychological treatment.
71. The claimant was not admitted to psychiatric hospital for the psychological injury caused by this motor accident.
COMMENTS ON CONSISTENCY
72. The claimant was consistent with her presentation and report of her exacerbation of post-traumatic stress disorder, exacerbation of her major depressive disorder and onset of alcohol use disorder, co-existent with her physical injuries and chronic primary pain experience. She did not exaggerate or minimise her condition. She was depressed, frank and felt fatigued whilst providing her history of the motor accident.
DIAGNOSIS
PRELIMINARY MATTERS
73. Guideline 6.213 provides for the assessment of impairment due to mental or behavioural disorders in accordance with the current edition of the DSM or ICD. As the current edition of the ICD is more recent (published in January 2022), the Panel prefers to consider it. The panel notes that ICD is the same system used by Bankstown Hospital in making the pre-existing diagnoses.
PRE-EXISTING PSYCHIATRIC CONDITION
74. The panel confirmed a documented history or pre-existing:
·ICD11 code 6A73 Mixed depressive and anxiety disorder
·ICD11 code 6B20 post-traumatic stress disorder
75. Posttraumatic stress disorder and Mixed anxiety with depressive disorder was first found at Bankstown hospital and confirmed in administrative documents in June 2016.
76. The panel did not find a pre-existing history of Alcohol dependence prior to the motor accident in 2020. The panel did find evidence of concern from nursing staff in 2012 and a prior episode of excessive alcohol abuse in the context of a self-harm threat in 2015. The first medical practitioner to diagnosis an alcohol use disorder was Dr Chow IME in 2021. The panel confirmed the diagnosis of ICD11 code 6C40.20 Alcohol dependence with current use and continuous at the time of this re-examination. The claimant showed a half-filled small bottle of brown coloured liquid that she identified as an alcoholic beverage. She confirmed she had drunk alcohol in the morning prior to the assessment. The claimant reported she drank alcohol to reduce her anxiety, depression and re-experiencing of the motor accident.
CURRENT DIAGNOSIS
77. The panel re-considered the current diagnosis of the claimant at the time of the re-examination.
78. The current diagnosis confirmed by the panel is:
(a)Exacerbation of ICD11 code 6A73 Mixed depressive and anxiety disorder
(b)Exacerbation of ICD11 code 6B20 post-traumatic stress disorder
(c)Onset of ICD11 code 6C40.20 Alcohol dependence with current use and is continuous
79. The panel noted that the claimant also had a ICD11 MG30.0 Chronic primary pain condition. As explained in Guideline 6.215 the PIRS must not be used to measure impairment due to somatoform disorders or pain.
80. The diagnosis of chronic primary pain incorporates the loss of adaptation, social functioning and work capacity. It best defines the observation made by Dr Low at point 8 in his report.
IMPAIRMENT ASSESSMENT
FUNCTIONING BEFORE THE MOTOR ACCIDENT
SELFCARE AND PERSONAL HYGIENE
81. THE CLAIMANT WAS INDEPENDENT IN HER CAPACITY TO FUNCTION. SHE WAS ABLE TO PURCHASE, CARRY AND ORGANISE A LARGE GROCERY SHOP ALONE. SHE WAS ABLE TO MANAGE HER HOME CLEANING, WASHING, AND COOKING ALONE. SHE WAS ABLE TO MAINTAIN HER OWN MEDICAL CARE ALONE.
82. IT IS THE CLINICAL JUDGMENT OF THE MEDICAL MEMBERS OF THE PANEL THAT BEFORE THE MOTOR ACCIDENT THE CLAIMANT’S CLASS OF FUNCTIONING WAS CLASS 1.
SOCIAL AND RECREATIONAL ACTIVITIES
83. THE CLAIMANT WOULD FREQUENTLY SPEND TIME AND PLAY WITH HER CHILDREN. SHE WOULD SHARE CAKES AND HAVE CELEBRATIONS WITH HER CHILDREN AT SPECIAL TIMES IN THE YEAR AND ON THE DAY OF THEIR BIRTHDAYS.
84. IT IS THE CLINICAL JUDGMENT OF THE MEDICAL MEMBERS OF THE PANEL THAT BEFORE THE MOTOR ACCIDENT THE CLAIMANT’S FUNCTIONING IN THIS AREA WAS CLASS 1.
TRAVEL
85. THE CLAIMANT WAS ABLE TO TRAVEL WITHOUT IMPAIRMENT PRIOR TO THE MOTOR ACCIDENT. SHE WAS ABLE TO DRIVE TO VARIOUS LOCATIONS WITHIN THE SYDNEY METROPOLITAN AREA TO ATTEND COURSES, SCHOOLS AND WORKPLACES WITHOUT IMPAIRMENT.
86. IT IS THE CLINICAL JUDGMENT OF THE MEDICAL MEMBERS OF THE PANEL THAT BEFORE THE MOTOR ACCIDENT THE CLAIMANT’S CLASS OF FUNCTIONING IN THE AREA OF TRAVEL WAS CLASS 1.
SOCIAL FUNCTIONING
87. BEFORE THE ACCIDENT, THE CLAIMANT’S PRIMARY RELATIONSHIP WITH THE FATHER OF HER CHILDREN WAS DAMAGED BY REPORTED DOMESTIC VIOLENCE. THE CLAIMANT HAD SHIFTED TO THE SAFETY OF HER SISTER’S HOUSE IN MERRYLANDS WITH HER CHILDREN. IMMEDIATELY BEFORE THE MOTOR ACCIDENT THE CLAIMANT’S RELATIONSHIP WITH THE FATHER OF HER CHILDREN WAS SAID TO HAVE IMPROVED. SHE HAD ALLOWED HER CHILDREN TO BE CARED FOR BY THEIR FATHER WHILST SHE WAS AT WORK.
88. THE CLAIMANT’S RELATIONSHIP WITH HER CHILDREN WAS MOTHERLY SUPPORTIVE AND AFFECTIONATE PRIOR TO THE MOTOR ACCIDENT. SHE REPORTED THAT SHE ENJOYED CARING FOR HER CHILDREN. SHE HOPED SHE WOULD HAVE A DAUGHTER ONE DAY.
89. THE CLAIMANT DECLINED FROM ELABORATING WHETHER SHE WAS ATTEMPTING TO ESTABLISH A NEW INTIMATE RELATIONSHIP, PRIOR TO THE MOTOR ACCIDENT. SHE WAS UNAWARE THAT SHE WAS PREGNANT PRIOR TO THE MOTOR ACCIDENT.
90. THE CLINICAL JUDGMENT OF THE MEDICAL MEMBERS OF THE PANEL THAT BEFORE THE MOTOR ACCIDENT THE CLAIMANT’S CLASS OF FUNCTIONING WAS CLASS 1. THE CLAIMANT STATING THAT THE SITUATION BETWEEN HER AND THE FATHER OF HER CHILDREN HAD IMPROVED, AS WELL AS THE CLAIMANT HAVING PARTICIPATED IN INTIMACY BEFORE THE MOTOR ACCIDENT.
CONCENTRATION PERSISTENCE AND PACE
91. THE CLAIMANT WAS ABLE TO PARTICIPATE AND PERFORM ALL THE NECESSARY TRAINING REQUIRED FOR HER TO WIN HER JOB WITH DEVOTION CARE. SHE WAS ABLE TO WORK IN HER ROLE FOR DEVOTION CARE COMPLETING THE NECESSARY DOCUMENTATION AND PROGRAMMED DUTIES WITHOUT DIFFICULTY BEFORE THE MOTOR ACCIDENT.
92. IT IS THE CLINICAL JUDGMENT OF THE MEDICAL MEMBERS OF THE PANEL THAT BEFORE THE MOTOR ACCIDENT THE CLAIMANT’S CLASS OF FUNCTIONING IN THIS AREA WAS CLASS 1.
ADAPTATION
93. THE EVIDENCE SUGGESTS THE CLAIMANT WAS ABLE TO PERFORM MORE THAN 21 HOURS PER WEEK IN HER WORK ROLE FOR DEVOTION CARE. SHE WAS WORKING THREE, SEVEN-HOUR SHIFTS PER WEEK AS AN INITIAL WORKLOAD. THE CLAIMANT WAS ABLE TO FUNCTION AS A MOTHER TO HER CHILDREN AND WAS IN TRANSIT TO COLLECT HER CHILDREN FROM THEIR FATHER WHEN THE MOTOR ACCIDENT OCCURRED.
94. IT IS THE CLINICAL JUDGMENT OF THE MEDICAL MEMBERS OF THE PANEL THAT BEFORE THE MOTOR ACCIDENT THE CLAIMANT’S CLASS OF FUNCTIONING IN ADAPTATION WAS CLASS 1.
CURRENT FUNCTIONING
Selfcare and Personal Hygiene
95. The claimant lacked motivation when attempting to cook and was less interested in her selfcare and personal hygiene after the motor accident. The claimant said that she cooked less and was less interested in her food. She said she did not require prompting to shower. She was observed in the re-examination to have her hair dressed. She was able to manage her medical regime of pharmacotherapy and had brought her medication boxes with her to the re-examination. She acknowledged that she was able to attend the local shops alone and that she was able to buy her shopping. She was able to wash and lift light laundry items as required.
96. IT IS THE CLINICAL JUDGMENT OF THE MEDICAL MEMBERS OF THE PANEL THAT THE CLAIMANT’S POST MOTOR ACCIDENT CLASS OF FUNCTIONING SHOULD BE ASSESSED AS CLASS 1 AT THE TIME OF THE RE-EXAMINATION.
97. MENTAL AND BEHAVIOURAL FUNCTIONING DUE TO PAIN WAS EXCLUDED FROM PIRS ASSESSMENT. THE CLAIMANT ACKNOWLEDGED THAT SHE WOULD NOT CARRY HEAVY ITEMS AS THIS ACTIVITY WOULD CAUSE PAIN. SHE WAS ABLE TO WALK WITHOUT THE AID OF A WALKING STICK AT THE TIME OF THIS ASSESSMENT. SHE NO LONGER REQUIRED A SHOWER CHAIR. SHE STATED THAT SHE IS UNABLE TO CLEAN BATHROOMS, CHANGE BEDSHEETS OR CARRY HEAVY SHOPPING BAGS. THE ABOVE SELF-CARE AND PERSONAL HYGIENE ACTIVITIES DUE TO PAIN WERE NOT INCLUDED IN THE PIRS ASSESSMENT.
SOCIAL AND RECREATIONAL ACTIVITIES
98. THE CLAIMANT ACKNOWLEDGED THAT SHE HAD LESS INTEREST IN PLAYING WITH HER CHILDREN AFTER THE MOTOR ACCIDENT. SHE STATED SHE HAD LESS INTEREST IN WATCHING TELEVISION. SHE HAD LESS INTEREST AND ENJOYMENT FROM TALKING WITH HER SISTER. SHE WAS NOT INTERESTED IN BUYING GIFTS OR HAVING CELEBRATIONS WITH HER CHILDREN ON THEIR BIRTHDAYS.
99. IT IS THE CLINICAL JUDGMENT OF THE MEDICAL MEMBERS OF THE PANEL THAT THE CLAIMANT’S POST MOTOR ACCIDENT CLASS OF FUNCTIONING IN THIS AREA SHOULD BE ASSESSED AS CLASS 2 AT THE TIME OF THE RE-EXAMINATION.
100. MENTAL AND BEHAVIOURAL FUNCTIONING DUE TO PAIN HAS BEEN EXCLUDED FROM THE PIRS ASSESSMENT OF WPI FOR THIS TABLE. THE CLAIMANT SAID SHE WOULD GO TO HER ROOM FOR QUIET TIME IF HER PAIN WAS MORE SEVERE AND NOT PARTICIPATE IN THE CHILDREN’S ACTIVITIES AND RECREATION. SHE REPORTED THAT IF HER DEPRESSED OR ANXIOUS MOOD EXACERBATED HER PAIN, SHE WOULD ISOLATE HERSELF. THE TIME SPENT ISOLATED DUE TO PAIN WAS NOT INCLUDED IN THE PIRS ASSESSMENT. THERE ARE SIGNIFICANT PHYSICAL LIMITATIONS DUE TO PAIN AND NUMBNESS AFFECTING HER FINGERS OF BOTH HANDS.
Travel
101. THE CLAIMANT WAS ABLE TO DRIVE TO HER LOCAL SHOPPING CENTRE TO PURCHASE GROCERIES. SHE WAS ABLE TO DRIVE TO HER LOCAL MEDICAL PRACTICE AFTER THE MOTOR ACCIDENT. SHE SAID SHE HAD RESTRICTED HER DRIVING AS SHE HAD A NEAR-MISS EVENT WHILST DRIVING. SHE SAID SHE HAD NOT STOPPED DRIVING AS SHE HAD TO PURCHASE SPECIFIC ITEMS FROM THE SHOPS HERSELF. SHE COULD NOT DRIVE LONG DISTANCE OR TO UNFAMILIAR LOCATIONS DUE TO HER ANXIETY WHILST DRIVING.
102. IT IS THE CLINICAL JUDGMENT OF THE MEDICAL MEMBERS OF THE PANEL THAT THE CLAIMANT’S POST MOTOR ACCIDENT CLASS OF FUNCTIONING WAS CLASS 2, AT THE TIME OF THE RE-EXAMINATION.
103. MENTAL AND BEHAVIOURAL FUNCTIONING DUE TO PAIN HAS BEEN EXCLUDED FROM THE PIRS ASSESSMENT OF IMPAIRMENT. THE CLAIMANT STATED PAIN DID NOT RESTRICT HER CAPACITY TO DRIVE OR TRAVEL LOCALLY.
Social functioning
104. THE CLAIMANT REPORTED THAT SHE HAD RETURNED TO LIVE WITH THE FATHER OF HER CHILDREN AFTER DISCHARGE FROM HOSPITAL IN RELATION TO THE EMERGENCY SURGICAL TREATMENT.
105. THE CLAIMANT SAID SHE SLEPT IN HER OWN ROOM. SHE REPORTED THAT THE FATHER OF HER CHILDREN AND HER SONS SLEPT IN THEIR OWN BEDROOM. SHE SAID SHE HAD POOR SLEEP. SHE REPORTED WAKING THROUGHOUT THE NIGHT AND RESTLESS SLEEP. SHE STATED SHE USED ALCOHOL TO INITIATE SLEEP. SHE REPORTED THAT SHE HAD NOT BEEN EXPOSED TO ANY DOMESTIC VIOLENCE AFTER THE MOTOR ACCIDENT. SHE SAID THE RELATIONSHIP BETWEEN HER, AND THE FATHER OF HER CHILDREN WAS STRAINED.
106. THE CLAIMANT STATED SHE WAS NOT EXPECTING TO BE ESTRANGED OR BECOME HOMELESS.
107. THE CLAIMANT REPORTED THAT SHE STILL WAS IRRITABLE AND WAS VERBALLY ANGRY TOWARDS THE FATHER OF HER CHILDREN.
108. THE CLAIMANT STATED SHE WAS LESS INTERESTED IN HER SONS. SHE SAID HER RELATIONSHIP WITH HER SONS WAS STRAINED.
109. THE CLAIMANT NO LONGER ENJOYED SOCIALISING WITH HER SISTER AND HER SISTER’S HUSBAND AND FAMILY.
110. IT IS THE CLINICAL JUDGMENT OF THE MEDICAL MEMBERS OF THE PANEL THAT THE CLAIMANT’S POST MOTOR ACCIDENT CLASS OF FUNCTIONING IN THIS AREA WAS CLASS 2 AT THE TIME OF THE RE-EXAMINATION.
111. MENTAL AND BEHAVIOURAL FUNCTIONING DUE TO PAIN HAS BEEN EXCLUDED FROM THE PIRS ASSESSMENT OF IMPAIRMENT. THE CLAIMANT HAD REPORTED THAT IT WAS NOT DUE TO THE PAIN THAT SHE HAD LOST INTEREST IN HER CHILDREN AND SISTER’S FAMILY. SHE SAID THAT IT WAS NOT DUE TO PAIN THAT HER RELATIONSHIP WITH THE FATHER OF HER CHILDREN WAS STRAINED.
Concentration persistence and pace
112. THE CLAIMANT WAS OBSERVED TO HAVE AN IMPAIRED CONCENTRATION, SLOWED PACE AND A LACK OF PERSISTENCE IN THE RE-EXAMINATION. SHE REPORTED RELIVING THE MOTOR ACCIDENT, SUFFERING FROM FEAR OF REMINDERS ABOUT THE MOTOR ACCIDENT AND BECOMING FATIGUED BY HAVING TO REPEATEDLY RESETTLE HERSELF WHILST AGITATED, ANGRY AND IRRITABLE.
113. AT THE TIME OF THIS ASSESSMENT THE CLAIMANT WAS ATTENDING UNIVERSITY, VIA DISTANT EDUCATION. SHE HAD COMPLETED TWO MODULES IN THE FIRST SEMESTER OF UNIVERSITY IN 2023 SUCCESSFULLY. SHE HAD CONTINUED TO STUDY IN HER CHOSEN COURSE AT THE TIME OF THIS RE-EXAMINATION. SHE SAID SHE WAS SLOWER IN HER PACE OF STUDY. SHE SAID THAT SHE HAD NOT REQUIRED EXTRA TIME TO COMPLETE HER STUDIES, HOWEVER SHE WAS AWARE SHE COULD BE GIVEN REASONABLE ADJUSTMENTS IF REQUIRED. SHE SAID SHE WAS LESS INTERESTED IN HER STUDY. SHE REPORTED THAT SHE FELT THAT THE STUDY WAS OF NO VALUE TO HER.
114. IT IS THE CLINICAL JUDGMENT OF THE MEDICAL MEMBERS OF THE PANEL THAT THE CLAIMANT’S POST MOTOR ACCIDENT CLASS OF FUNCTIONING IN THIS AREA SHOULD BE ASSESSED AS CLASS 2, AT THE TIME OF THE RE-EXAMINATION.
115. MENTAL AND BEHAVIOURAL FUNCTIONING DUE TO PAIN HAS BEEN EXCLUDED FROM THE PIRS ASSESSMENT OF WPI. THE CLAIMANT DID REPORT PAIN IN HER LUMBAR SPINE REACHING HIGH LEVELS WHILST SHE SAT TO STUDY. IN THE RE-EXAMINATION THE CLAIMANT SAT FOR UP TO 30 MINUTES BEFORE STANDING, STRETCHING AND BENDING OVER TO SUPPORT HER BACK BY LEANING ON THE TABLE IN FRONT OF HER. THE CLAIMANT REPORTED PAIN AT THIS TIME IN THE RE-EXAMINATION. SHE STATED LUMBAR PAIN CAUSED HER LOSS OF CONCENTRATION, PERSISTENCE AND PACE IN HER STUDY. SHE STATED THAT IF SHE WAS EXPERIENCING PAIN SHE WOULD GO TO HER ROOM AND REST.
Adaptation
116. THE EVIDENCE SHOWED THAT THE CLAIMANT WAS LESS ABLE TO ADAPT TO HER ROLE AS MOTHER AFTER THE MOTOR ACCIDENT. THE CLAIMANT REPORTS SHE WAS UNABLE TO ADAPT TO THE INCREASED DEMANDS OF HER GROWING CHILDREN. SHE FELT FEAR, SHAME AND GUILT THAT SHE WAS UNABLE TO FUNCTION AS MOTHER. THE CLAIMANT’S CAPACITY TO ENGAGE IN PLAY WITH HER CHILDREN AND SUPERVISE AS A MOTHER WAS IMPAIRED BY THE PSYCHOLOGICAL EFFECTS OF THE MOTOR ACCIDENT.
117. T IS THE CLINICAL JUDGMENT OF THE MEDICAL MEMBERS OF THE PANEL THAT THE CLAIMANT’S POST MOTOR ACCIDENT CLASS OF FUNCTIONING FOR ADAPTION WAS CLASS 3. AT THE TIME OF THE RE-EXAMINATION THE CLAMANT COULD NOT RETURN TO HER PRIOR EMPLOYMENT AND HER ROLE AS MOTHER HAD BEEN REDUCED DUE TO THE MOTOR ACCIDENT. SHE IS ABLE TO ENGAGE IN AGE-APPROPRIATE LIFE ROLES AROUND 20 HOURS PER WEEK.
118. MENTAL AND BEHAVIOURAL FUNCTIONING DUE TO PAIN HAS BEEN EXCLUDED FROM THE PIRS ASSESSMENT OF WPI. THE CLAIMANT REPORTED THAT SHE COULD NOT RETURN TO WORK SINCE THE MOTOR ACCIDENT. SHE HAD REQUIRED A WALKING STICK AND WOULD NOT BE ABLE TO PERFORM HER DUTIES AT WORK. HER PHYSICAL MOBILITY WAS STILL RESTRICTED BY HER PAIN.
THE PSYCHIATRIC IMPAIRMENT RATING SCALE ASSESSMENT TABLE
Current Impairment
Psychiatric diagnoses
a) Exacerbation of ICD11 code 6A73 Mixed depressive and anxiety disorder
b) Exacerbation of ICD11 code 6B20 post-traumatic stress disorder
c) Onset of ICD11 code 6C40.20 Alcohol dependence with current use and is continuous at the time of this assessment.
Psychiatric treatment description
The medication Mirtazapine 30mg at night is an evidence-based treatment in conjunction with EMDR, relaxation techniques and controlled breathing as evidenced-based psychological treatment for the psychological injury caused by the motor accident.
Category
Class
Reason for Decision
1. Self Care and Personal Hygiene
1
The claimant lacked motivation when attempting to cook and was less interested in her selfcare and personal hygiene after the motor accident. The claimant said that she cooked less and was less interested in her food. She said she did not require prompting to shower. She was observed in the re-examination to have her hair dressed. She was able to manage her medical regime of pharmacotherapy and had brought her medication boxes with her to the re-examination. She acknowledged that she was able to attend the local shops alone and that she was able to buy her shopping. She was able to wash and lift light laundry items as required.
2. Social and Recreational Activities
2
The claimant acknowledged that she had less interest in playing with her children after the motor accident. She stated she had less interest in watching television. She had less interest and enjoyment from talking with her sister. She was not interested in buying gifts or having celebrations with her children on their birthdays.
3. Travel
2
The claimant was able to drive to her local shopping centre to purchase groceries. She was able to drive to her local medical practice after the motor accident. She said she had restricted her driving as she had a near-miss event whilst driving. She said she had not stopped driving as she had to purchase specific items from the shops herself. She could not drive long distance or to unfamiliar locations due to her anxiety whilst driving.
4. Social Functioning
2
The claimant reported that she had returned to live with the father. She said the relationship between her, and the father of her children was strained. The claimant she was not expecting to be estranged or become homeless. The claimant reported that she still was irritable and was verbally angry towards the father of her children. The claimant stated she was less interested in her sons. She said her relationship with her sons was strained.
5.Concentration, Persistence and Pace
1
At the time of this assessment the claimant was attending university, via distant education. She had completed two modules in the first semester of university in 2023 successfully. She had continued to study in her chosen course at the time of this re-examination. She said that she had not required extra time to complete her studies, however she was aware she could be given reasonable adjustments if required. She said she was slower in her pace of study. She said she was less interested in her study.
6. Adaptation
3
THE EVIDENCE SHOWED THAT THE CLAIMANT WAS LESS ABLE TO ADAPT TO HER ROLE AS MOTHER AFTER THE MOTOR ACCIDENT. THE CLAIMANT REPORTS SHE WAS UNABLE TO ADAPT TO THE INCREASED DEMANDS OF HER GROWING CHILDREN. SHE FELT FEAR, SHAME AND GUILT THAT SHE WAS UNABLE TO FUNCTION AS MOTHER. THE CLAIMANT’S CAPACITY TO ENGAGE IN PLAY WITH HER CHILDREN AND SUPERVISE AS A MOTHER WAS IMPAIRED BY THE PSYCHOLOGICAL EFFECTS OF THE MOTOR ACCIDENT. SHE IS ABLE TO ENGAGE IN AGE-APPROPRIATE LIFE ROLES AROUND 20 HOURS PER WEEK.
List classes in ascending order: 1, 1, 2, 2, 2, 3
Median Class Value: 2
Aggregate Score: 11 in accordance with table 6.17 this converts to a WPI of 5%
The psychiatric impairment rating scale assessment table
Pre-existing Impairment
Psychiatric diagnoses
a) Mixed depressive and anxiety disorder
b) Post-traumatic stress disorder
Psychiatric treatment description
Various antidepressant treatment. Inpatient and outpatient evidence-based treatment. In conjunction with EMDR, relaxation techniques and controlled breathing as evidenced-based psychological treatment for the pre-existing psychological injury,
Category
Class
Reason for Decision
1. Self Care and Personal Hygiene
1
The claimant was independent in her capacity to function. She was able to purchase, carry and organise a large grocery shop alone. She was able to manage her home cleaning, washing, and cooking alone. She was able to maintain her own medical care alone.
2. Social and Recreational Activities
1
The claimant would frequently spend time and play with her children. She would share cake and have celebrations with her children at special times in the year and on the day of their birthdays.
3. Travel
1
The claimant was able to travel without impairment prior to the motor accident. She was able to drive to various locations within the Sydney metropolitan area to attend courses, schools and workplaces without impairment.
4. Social Functioning
1
The relationship with the father of her children was problematic, but this was not caused by her psychological injury. The claimant’s relationship with her children was motherly supportive and affectionate prior to the motor accident. She reported that she enjoyed caring for her children. She hoped she would have a daughter one day.
5.Concentration, Persistence and Pace
1
The claimant was able to participate and perform all the necessary training required for her to win her job with Devotion Care. She was able to work in her role for devotion care completing the necessary documentation and programmed duties without difficulty.
6. Adaptation
1
THE CLAIMANT WAS ABLE TO PERFORM MORE THAN 21 HOURS PER WEEK IN HER WORK ROLE FOR DEVOTION CARE. SHE WAS WORKING THREE; SEVEN-HOUR SHIFTS PER WEEK AS AN INITIAL WORKLOAD. THE CLAIMANT WAS ABLE TO FUNCTION AS A MOTHER TO HER CHILDREN AND WAS IN TRANSIT TO COLLECT HER CHILDREN FROM THEIR FATHER WHEN THE MOTOR ACCIDENT OCCURRED.
List classes in ascending order: 1, 1, 1, 1, 1, 1
Median Class Value: 1
Aggregate Score: 6 in accordance with table 6.17 this converts to a WPI of 0%
119.The Panel has considered whether the impairment assessment should be adjusted for the effect of treatment. Clause 6.222 of the Guidelines provides that an adjustment may be made if all of the following requirements are met:
(a) there is research based evidence that the prescribed treatment is effective for the psychiatric condition;
(b) the treatment has been appropriate and the example is given that medication has been taken in the appropriate dose and duration;
(c) clinical evidence shows that the treatment has been effective in that the person’s symptoms or functioning has improved, and
(d) it is the clinical judgment of the Panel that ceasing treatment will cause the symptoms to deteriorate or worsen.
120. The Panel finds the claimant had improved and accepted the advice of her psychologist by returning to study prior to this re-examination. The claimant had been successful in the first semester of 2023 and was continuing her study in the second semester of 2023. There is, therefore, clear clinical evidence that the treatment has had some affect in improving her psychiatric injury. The panel adjusted the whole person impairment by 2% WPI for these reasons.
The summary of permanent impairment assessed by the Panel is:
·Current % permanent impairment 5%
·Pre-existing/subsequent % permanent impairment 0%
·Adjustments % for effects of treatment 2%
·Percentage WPI 7%
CONCLUSION
121. The Panel is satisfied the claimant has a psychiatric condition recognised by the current (11th edition) International Statistical Classification of Diseases and Related Health Problems, namely a post-traumatic stress disorder, and Mixed depressive and anxiety disorder was exacerbated by the motor accident.
122. The Panel is satisfied the claimant developed the onset of Alcohol dependence with current use and is continuous from after the motor accident to the date of this assessment.
123. The Panel is satisfied that the current psychological condition of the claimant is an injury caused by the motor accident on 23 August 2020.
124. The Panel is further satisfied that this injury has resulted in a permanent impairment which is not greater than 10% (7%).”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[41]
[41] Section 7.26(6) of the Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[42] and Insurance Australia Ltd v Marsh.[43]
[42] [2021] NSWCA 287 at [40], [41] and [45].
[43] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the detailed and substantive examination report provided by the Medical Assessors. In these circumstances it is unnecessary to add any further reasons save as to note that an aggravation, exacerbation or acceleration of a psychological condition is an injury within the meaning of the MAI Act.[44] The Medical Assessors have explained how the motor accident exacerbated the claimant’s post-traumatic stress condition and mixed depressive and anxiety disorder and caused an onset of alcohol dependence.
[44] Todev v AAI Ltd [2023] NSWSC 836 at [53].
We otherwise emphasise our conclusion[45] that we have not considered the psychological effects of the ectopic pregnancy as it is unrelated to the motor accident.
[45] See Medical Assessors reasons at paragraph 54, [51].
CONCLUSION
The Panel has come to a different conclusion to that of Medical Assessor Chew. Whilst the final whole person impairment was numerically the same, the explanation as to the findings of the Panel are qualitatively different in the understanding of this psychological injury suffered by the claimant at the time of this re-examination.
Accordingly, the certificate is revoked, and a new certificate issued.
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