Kemp v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 260
•29 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Kemp v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 260 |
| CLAIMANT: | Shakira Kemp |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Christopher Canaris |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 29 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review of Medical Assessor Rickard-Bell’s assessment of 7% whole person impairment (WPI); claimant aged 13 at time of accident; rear seat passenger involved in head on collision; claimant sustained physical injuries (30 minutes loss of vision and hearing and sore right hip) and developed psychological response within two months; claimant alleged school performance deteriorated after the accident and that she could not work more than 20 hours a week due to tiredness; insurer agreed claimant had developed a psychological injury; Held – claimant’s expert’s report had little weight due to not having all the relevant documents; the claimant’s evidence about school reports and results was inconsistent with the records; most areas of impairment class 2 mild impairment; WPI was 7%; no issue of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate issued by Medical Assessor Rickard-Bell on 21 March 2023. 2. Agrees that the degree of the claimant’s whole person impairment resulting from the injuries sustained in the accident on 1 January 2018 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Shakira Kemp was involved in a motor accident on 1 January 2018 at the age of 13. She was the rear-seat passenger in a car. A vehicle overtaking a truck on the other side of the road crossed onto the incorrect side of the road and collided head on with the vehicle the claimant and her mother were travelling in.
Ms Kemp says she injured her hip in the accident and developed a psychological or psychiatric injury as a result. Ms Kemp made a claim for damages with NRMA, the third-party insurer of the vehicle that she says caused the accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 21 March 2023, Medical Assessor Rickard-Bell determined that the claimant did not have a WPI of greater than 10% (he found 7%).
The claimant then lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 21 March 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 13 November 2023 the President’s delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Ms Kemp’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In accordance with the common law as modified by the MAI Act, an injured person can make a claim for damages for both economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Dispute resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Rickard-Bell’s, further medical assessments and the review of medical assessments by this Panel[3].
[3] Sections 7.20, 7.24 and 7.26.
Applications for review are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)).
If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
The Guidelines include a chapter entitled “Mental and behavioural disorders” and require the assessment to be undertaking in accordance with the psychiatric impairment rating scale (PIRS) and says that the AMA4 Guides are to be used as “background or reference only”.[5]
[5] Clause 6.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with the current edition of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD).[6]
[6] Clause 6.213 of the Guidelines.
The PIRS provides[7] for the consideration of any psychiatric condition present before the accident in question:
“In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”
[7] Clause 6.218 of the Guidelines.
The PIRS provides in clause 6.219 for six areas of function:
1.219.1 self-care and personal hygiene;
1.219.2 social and recreational activities;
1.219.3 travel;
1.219.4 social functioning (relationships);
1.219.5 concentration persistence and pace, and
1.219.6 adaptation.
The PIRS then provides at 6.220 for five classes with a descriptor for each which is “illustrative rather than literal criteria” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury”.
The impairment percentage may be adjusted for treatment[8] that is treatment such as medication being consumed to treat the psychiatric condition.
[8] See clauses 6.222-6.223 of the Guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage.[9]
[9] See clauses 6.225-6.228 and Table 17.
ASSESSMENT UNDER REVIEW
Medical Assessor Rickard-Bell examined the claimant (in the presence of her father) on 16 December 2022 and issued his reasons on 8 January 2023.
The claimant was, at the time 18 years of age and had recently completed year 12. She was working part time in a jewellery store.
At the time of the accident the claimant was in year 7 at school and was doing well. She had no previous mental health issues.
The claimant was a rear seat passenger in a vehicle driven by her mother’s partner at the time. Her mother was in the front seat. The claimant was asleep at the time.
The claimant’s physical injuries included a sore hip and as a result the claimant said she stopped attending the gym, stopped dancing and ceased playing netball. The claimant also had psychological treatment in 2019, 2020 and 2021 but the claimant had not received any treatment for the past 12 months.
The claimant had a boyfriend.
The claimant reported some disturbed nights but mainly anxiety.
After reviewing the documentation, Medical Assessor Rickard-Bell diagnosed a post-traumatic stress disorder caused by the accident. In assessing WPI he determined:
(a) self-care and personal hygiene – class 2 mild impairment on the basis that sometimes the claimant needed reminding to shower;
(b) social and recreational activities – class 2 mild impairment on the basis of a lot of anxiety in social situations and self-medicates with alcohol;
(c) travel – class 2 mild impairment on the basis she has anxiety in the car and has delayed her P plates because she has not yet achieved the requisite number of hours;
(d) social functioning – class 2 a mild impairment because she is more reliant on her boyfriend. She relates well to her father and mother who she phones most days and sees twice a week;
(e)
concentration persistence and pace – class 3 impairment due to lack of focus and difficulty staying on task – procrastinates and cannot read for more than
20- minutes, and
(f) adaptation – class 2 impairment – the claimant was able to finish school with some improvement in grades. There were difficulties with one job (too many shifts) but has been working in a jewellery store for 6 months – mid impairment.
The results were therefore 2, 2, 2, 2, 2 and 3. The median score was 2 and the aggregate score was 13 which resulted in a WPI of 7%.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant submits that there were the following errors in the assessment:
(a) social and recreational activities should have been a class 3 on the basis the claimant did not go out much, needs a support person (boyfriend) to go out and is not actively involved;
(b) adaptation should also have been a class 3 on the basis the claimant could not cope with the KFC job due to her psychological injuries. She says she started studying after her HSC but ceased after two months due to her psychological injuries, and
(c) social functioning should have been assessed as class 3 because the claimant does not see her mother twice a week because they live in different states. The claimant also says she has a deteriorating relationship with her father and others.
Insurer’s submissions
The insurer submits at [2.3] that the impairment class descriptors are, in accordance with cl 6.220 of the Guidelines “illustrative rather than literal criteria.”
The insurer analyses each of the alleged errors with the criteria and suggests the Medical Assessor has exercised his judgment in assessing the various classes of impairment.
The insurer also points to the claimant’s statement dated 7 February 2023 which she now relies on which is dated after the medical assessment examination and it (and the information contained in it) was clearly not before the Medical Assessor. The insurer says the Medical Assessor was required to undertake an assessment of the claimant as she presented and based on the history she gave at the time of the assessment.
Procedural matters
First directions
The Panel issued directions to the parties on 5 December 2023 seeking a bundle of relevant documents from each party.
The claimant uploaded an indexed and paginated bundle of documents comprising 72 pages on 2 February 2024.
The insurer uploaded a bundle of documents comprising 448 pages on 5 February 2024. The index to that bundle listed two items only, the four pages of submissions relating to the review and the 444 pages of documents that comprises the original application for assessment. The Panel directed the insurer to provide a further indexed and paginated bundle which was received on 27 April 2024.
The Panel met on 20 February 2024 and reported to the parties on 22 February 2024. The parties were asked to confirm that there was no issue of causation of the claimant’s psychological injury but that the real dispute between the parties was the degree of impairment. In the absence of a response the Panel advised it would proceed on the basis there is no issue of causation. On 12 April 2024 the insurer advised the Panel that it did not dispute causation.
The Panel directed the claimant to provide, by 15 March 2024, her Naplan results for the school years 3, 5, 7 and 9 as well as details of the university subjects she said in her statement that she had attempted. No written response was received to the enquiry about the university courses.
On 23 April 2024 the claimant’s solicitor advised the Panel through a message in the portal “these have not yet been received and they will be uploaded as soon as they are to hand.” No time frame was set by the claimant’s solicitor and no request for a deferral of the Panel’s decision was made by the claimant. The Panel has one of the claimant’s Naplan reports in the insurer’s bundle.[10] In the light of this, the school records and the information provided by the claimant at the re-examination, the Panel is not of the view that it would be further assisted by the claimant’s additional Naplan results.
REVIEW OF THE EVIDENCE
[10] Year 5, 2015 at page 232.
Claim form and claim documents
The claimant’s application for statutory benefits was completed by her father.[11] He records the claimant’s injuries as:
“…vision impairment (initial lack of vision), hearing impairment, speech impairment (initial loss of voice), lower back, right hip, right leg, psychological sequala [sic].”
[11] Page 12 of the insurer’s revised bundle.
On 14 January 2018 Dr Noori completed the certificate of fitness documenting low back pain and muscular pain and that she had advised pain killers and physiotherapist review.
The claimant provided a statement after the medical assessment by Medical Assessor Rickard-Bell. She explains:
(a) she self-medicates with alcohol to attend most social gatherings, that she avoids most social gatherings, and she is quiet and keeps to herself. She says she does not go out without her boyfriend;
(b) her mother lives in Sydney and she lives in Queensland so cannot see her mother twice a week. She says she does not get on with her father and has fewer friends as time goes on;
(c) she says she tried to study university subjects but could not and her stress and anxiety made it hard to focus on work and complete assignments, and
(d) she is lost about the future – she could not “cope” with the KFC work when she got busy and workload as high. She says she has been unable to hold down a full-time job and she can only work 9-16 hours a week and could not cope with more.
Treating medical records and reports
Ambulance and hospital
The ambulance report[12] notes the accident occurred at about 11.00pm at night. The claimant denied a loss of consciousness but said she lost her vision and she had back pain radiating to the neck and lateral right thigh pain radiating to the pelvis.
[12] Page 21 of the insurer’s bundle.
The discharge summary from the hospital[13] noted the claimant was “very fortunate and has only suffered bruising, predominantly of her trunk”.
[13] Page 26 of the insurer’s bundle.
Psychologists and psychiatrist
The claimant saw Ms Wagner, psychologist on 15 March 2018. The claimant reported to her that she was tired and wakes up at night looking at the ceiling. She reported “night terrors” and she was given strategies to help her “live in the moment.”
The claimant was next seen by Ms Wagner on 10 May 2018. The handwritten notes suggest the claimant was running and walking and doing sits ups and squats. Socially she was “with friends” and on weekends she goes to the beach, lunch and watches Disney movies.
She was reported as eating well and was given help with “focussing on living mindfully.”
There are much more extensive notes on 26 June 2018. The claimant was said to have stopped having nightmares and later “no fear of driving in cars anymore”. She described a cruise she had taken and she went to the movies, theatre and comedy shows on that cruise.
Physically the notes record pain in the hip but the claimant was able to run, dance and play sport.
The claimant was seen by a social worker at Headspace Harvey Bay on 21 January 2019.[14] The motor accident is mentioned, and the summary of problems noted “anxious” and “Dad thinks she’s changed.” Under the heading “Conduct difficulties and risk taking” the claimant was said to have self-harmed “last year” with scissors on the leg due to things building up and dealing with her parents. Later in the notes this is said to have occurred at the end of 2017 due to “a lot of pressure from parents – felt worthless”
[14] The records are provided at page 141 of the insurer’s bundle. The social worker’s name has been redacted.
The claimant is reported as having anxiety in large groups and “sometimes socially.” The author of the notes also records broken sleep, waking four times and the claimant feels tired. Ms Kemp had nightmare about cars.
Also in the handwritten notes is the last nightmare occurred last year (2018 December), that her depressive symptoms lasted a couple of days and go away when she is “hanging out with friends.”
There was a second session on 4 February 2019 with fewer notes. The claimant was said to have been provided with “harm reduction for risky behaviours in relationships and under the influence.” She was given information on domestic violence red flags in a relationship and the file was closed.
Dr Gilbert interviewed the claimant on 6 May 2019 having been referred by the GP[15]. The claimant was, at that time, 14. She was not on any medication and was not seeing a psychologist.
[15] Page 42 of the claimant’s bundle.
The claimant complained of blurred vision which had been investigated. She told Dr Gilbert about the car accident saying, “she could not see or hear for about 30 minutes.” The claimant reported bad dreams which were getting better. People have told her she is not the same since the accident. She had headaches, reported poor school performance, ongoing back pain and a fear of car travel. Her father says she is more argumentative.
He reports “there are no symptoms of anxiety.” The claimant did say she was not happy most of the time although “she enjoys being with her friends … and going out.”
Dr Gilbert diagnosed post-traumatic stress disorder and a stress adjustment reaction, recommended psychological treatment and review in two weeks.
In a second letter dated 22 May 2019, Dr Gilbert notes that the claimant’s father was refusing medication for his daughter. He notes her “main symptoms at this time are cognitive disruption and difficulties which have been noted by her teachers at school”. She was said to be a previously a high functioning student, but now is easily distracted and has difficulties.
Ms Gaze psychologist provided a report to NRMA dated 6 April 2020.[16] She provided 11 counselling sessions from 12 June 2019 to 21 January 2020. She takes a history from the claimant of nightmares, she was easy to startle, she is a very different girl, her school results declined. She was diagnosed with a post-traumatic stress disorder and adjustment disorder.
[16] Page 47 of the claimant’s bundle.
The claimant progressed and developed the ability to talk about the accident in detail. Her nightmares were said to have ceased and her difficulties in getting to sleep no longer related to the accident but school and other issues. Ms Gaze reported a number of near miss type accidents and blow ups with her mother which were causing stress. She chose to fly down to Sydney and holiday with her mother rather than driving mainly due to her physical symptoms although she was fearful of driving past the scene of the accident. The claimant was said to have driven to and from Brisbane without issue “and had experienced no anxiety and no panic and no problems at all with being in a car in the previous 6 weeks.”
What was a problem was the continued lack of activity due to her physical symptoms. A further eight sessions were requested by Ms Gaze in order to deal with this.
On 1 December 2020, Ms Laughton of Clinical Psychology solutions in Queensland sent an Allied Health Recovery Request form to the insurer seeking approval for eight sessions of counselling.
Ms Laughton commenced treating the claimant on 1 December 2020. The claimant attended with her father who was concerned the claimant was “very moody, distant and has been this way since the vehicle accident.” On 16 December 2020 there were concerns with her boyfriend and control issues. There is reference to anxiety in vehicles depending on who is driving, but it was better than in the past.
On 19 February 2021 Ms Laughton followed up with the claimant after a phone call from her father. It is recorded “No anxiety or trauma reported as remaining following her vehicle accident, stated her main issues are now due to living situation and friendships. Shakira stated she does not require any further appointments at this time and felt she was coping well.”
On 12 March 2021 most of the issues discussed were relationship issues (boyfriend and father).
Medico-legal reports
Dr Rastogi, psychiatrist of Medimind provided a report to the claimant’s solicitors dated 31 March 2021.[17]
[17] Page 28 of the claimant’s bundle.
He had a limited number of documents namely clinical notes, the medical certificate which accompanied the claim form, and a physiotherapist’s report.
Dr Rastogi recorded the claimant’s injuries including an injury to her right hip and a whiplash injury to her neck and lower back. He notes the claimant had to stop netball and dancing that that she would have excruciating pain in her hip while walking.
Ms Kemp reported to Dr Rastogi that she had intrusive dreams, was easily startled, daydreamed about the accident and had impaired focus and concentration.
Ms Kemp had obtained her learner license but had anxiety with driving. She said her academic performance was deteriorating and she was getting “E” in all her subjects. She wanted to study forensic criminology and had to drop to lower levels of English and maths because she was failing.
She relied on her father for transport, avoided shopping and high stimulus environment. She visits her boyfriend’s home but rarely goes out alone. She did not like going to Sydney as it reminds her of the accident.
She trained at KFC but lasted four weeks because she did not cope and tried working in a café but found it overwhelming as she did not like associating with people.
She reported showering and eating meals but skipped dinner and relied on her father. She relied on her father for driving and had limited social interaction. Her relationships were strained due to irritability and frustration. He concentration was lapsing, and she was missing two to three school days on average.
Dr Rastogi diagnosed a post-traumatic stress disorder and adjustment disorder. He noted she had chronic pain and advised that the claimant was vocationally disadvantaged as a result. He assessed her impairment as 15%.
The claimant was seen by Dr Smith, orthopaedic surgeon for the insurer in respect of her physical injuries.[18] She reported her neck pain had cleared up but she has had continued low back pain worse with sitting and pain in the right hip worse with activity. He noted an osteochondroma on her wrist was removed. His opinion was, “I cannot find anything wrong with her on today’s clinical examination. There was no objective evidence of any disability of note from an organic point of view …”
[18] Page 74 of the insurer’s bundle.
Dr Kneebone, psychiatrist saw the claimant for the insurer, and he completed a report dated 7 June 2021.[19] He had much of the documentation that is before the Panel including the claimant’s school reports.
[19] Page 78 of the insurer’s bundle.
The claimant reported right hip pain, lower back pain and clicking in her hip as her physical problems. She was hypervigilant, irritable, had impaired concentration and panic anxiety.
The claimant gave a consistent history of the car accident and the loss of vision and hearing for 30 minutes. She says she had to be cut free from the car. The claimant told Dr Kneebone that her had frequent absences from school and she reported her results declined.
The claimant reported being independent in self-care but relying on her father for meals. The claimant said she is less outgoing but regularly visits her boyfriend and sees friend and has a driving less on once every three weeks. She restricted driving to the local area and flew to Sydney on her own to visit her mother in 2020. The claimant said her relationships were strained. The claimant also reported loss of focus and was easily distracted. The claimant said she was missing school one and a half days a week.
The claimant denied any previous mental health issues.
Dr Kneebone considered she had an adjustment disorder and did not meet the criteria of a post-traumatic stress disorder. He assessed her impairment as 7% WPI.
Other assessments
Medical Assessor Buckley certified on 8 March 2019[20] that the claimant sustained soft tissue injures which were minor injuries. There is a reference in that decision to an MRI of the claimant’s brain on 28 February 2018 with no abnormality detected and that her hearing and vision were tested, and no abnormality was found.
[20] Page 25 of the insurer’s bundle.
Medical Assessor Shaikh examined the claimant and issued a certificate dated 15 April 2019[21]. The dispute he was asked to assess was whether the claimant sustained a minor or non-minor psychological injury for the purposes of her statutory benefits claim.
[21] Page 21 of the claimant’s bundle.
He had a report of emotional distress and sleep disturbance after the accident, daytime recall and anxiety. He also has a history of deteriorating grades at school and of the claimant visiting the school counselling service on 20 occasions in year 8.
Physically the claimant reported pain in her hip and back which led to her quitting netball and dance.
He has a history that she goes to the beach but spends time in her room. She was maintaining self-care showering regularly. She reported getting along well with her father and spending time with her mother on holidays flying on her own to get there. She got on well with friends and had sleepovers.
Her father said her performance at school was deteriorating and she was increasingly irritable at home.
Medical Assessor Shaikh addressed each of the DSM criteria for post-traumatic stress disorder and considered she did not meet the criteria for a Major Depressive Disorder. He found she did have a post-traumatic stress disorder which was a non-minor (now non-threshold) injury.
School and employment records
There are records from KFC showing that the claimant worked in the week ending 6 December 2020 until 22 August 2021 which the Panel notes is a period of eight months not four weeks as recorded by Dr Rastogi.
In her interview at KFC (November 2020) she described herself as “bubbly outgoing funny” and she said she was good at communicating.
The claimant’s resume identifies volunteer work with “Jane’s cleaning company.”
School records have been summarised by the insurer in its submissions and this summary has not been corrected by the claimant or otherwise submitted as inaccurate:
(a) the claimant scored mainly C and Ds before and after the accident and there was no real change. The Panel notes the results do not indicate the claimant’s performance “dropped massively” as recorded by Dr Rastogi;
(b) the claimant did not have “all E’s” as reported by Dr Rastogi, she obtained only one E, in the subject of music in 2019;
(c) the claimant was not doing high level English and maths before the accident and there is no evidence that she had to drop back to lower level subjects;
(d) the claimant studied English, maths, science and vocation subjects of hospitality and certificate III in early childhood education, and
(e) absentee records which the Panel notes do not establish she was missing two to three days per week in the first year after the accident. There were absences but some of these related to holidays and attendances at medical examinations for the purpose of the claim.
It has previously been noted that the claimant has not provided any evidence of university or bridging courses that she says she had attempted in her statement.
RE-EXAMINATION FINDINGS
The Panel examined Ms Kemp via audio-visual link through the MS Teams platform on 15 April 2024. Ms Kemp was at home and Medical Assessors Hong and Canaris were in their respective rooms. The technical quality of the audio-visual link was sufficient to undertake the examination.
Ms Kemp was assessed on her own. She said her father was also at home in another room.
History provided by the claimant
Ms Kemp is currently 19 years old and living in Queensland with her father, who is retired.
She had an accident on 1 January 2018 when she was 13 and had finished year 7 and was about to start year 8.
Psychosocial history and pre-accident history
Ms Kemp was born in Fiji and came to Australia with her parents when she was five. Her parents separated when she was seven, and she reported that she is the only child from that union. She has about 12 stepsiblings but is not very close to them.
She recalled she was happy in her childhood. Initially, she lived with her mother in Sydney and then in Fiji for a while, and said living with her mother did not work out and in 2016, she went to live with her father. Ms Kemp reported she has had no problems adjusting to the moves and changes in her peer group, because she liked to meet new people. She said that in the first 13 years of her life, she was always a positive person, there was nothing in her life that would make her feel sad as a child. She was sporty and enjoyed netball, Oztag and dancing. She said she had never seen a counsellor before the accident.
The Panel discussed with Ms Kemp that one year after the subject accident, she attended Headspace and the history recorded in their report, suggested that in 2017 before the subject accident, she had stressors at home and pressure from her parents, and she felt worthless, which led to her cutting herself with a pair of scissors. Ms Kemp says that history is correct and does not know why they recorded it. She said she might have been annoyed with her parents, but she never cut herself before the accident. She confirmed her parents never got along and sometimes they were angry at her before the subject accident. Ms Kemp said her father was in the army and they fight and argue all the time since the accident. There was no home pressure as recorded in the Headspace documents.
The Panel confirmed she had a normal developmental history.
In terms of general medical history, she does not have cardiac, respiratory or liver disease. She has asthma and had an osteochondroma removed, she stated after the subject accident but not related to the accident. There are no vision or hearing problems now.
Ms Kemp is not aware of a family history of mental illness and she does not have a forensic history.
History of the motor accident
On the day of the accident Ms Kemp recalled she was going to Hervey Bay. Her mother’s partner was driving and her mother was in the front passenger seat. Ms Kemp was in the backseat. She had put her earphones in and was dozing off when she heard a massive bang. She opened her eyes, but she could not see or hear. She called out to her mother. Gradually her vision returned but it took a long time. Ms Kemp remembered she could not open her door and then a woman came to help her get out and get away from the car as they were worried the car would blow up. Ms Kemp was put in the ambulance and remembered by then, her vision had come back. She spent a night in Lismore Hospital.
Ms Kemp reported that she suffered from a right hip problem ever since the accident. For a while it was “super bad,” and she stated she had lots of scans and an MRI but even now, her doctors do not know what the hip problem is. She said the pain is only there with exertion now, and it prevents her from doing any kind of sporting activity. Ms Kemp said she would love to play sports and netball again, but physically she cannot, as she cannot extend her hip properly. Ms Kemp has not tried running for a long time and says when she walks after
15-20 minutes, she has a clicking sound and becomes very sore. She has not had any surgical treatment as a result of the accident.
History of symptoms and treatment following the motor accident
Ms Kemp said that before the accident she had no anxiety, no depression and she was not scared but depression and anxiety started immediately after the accident. She recalled when she went back to school, which was late February or early March 2018, her anxiety was bad, and a year later in early 2019, she went to Headspace and that was her first contact with a mental health service. Ms Kemp said she did not relate to the Headspace counsellor, which is why she went to see a “proper” psychologist after that.
Ms Kemp reported when she was 17 or 18, in 2021 or 2022, she started drinking alcohol. She said at that time she felt she had to drink to go to parties or social events. At one point she would have six shots in a session. She has cut back her alcohol consumption and when she drinks, she only has two glasses of wine now. Ms Kemp recalled that when her boyfriend’s family had a birthday party for his grandmother recently, she drank wine. When her brother came to visit Harvey Bay, she also drank wine and about four weeks ago she drank at home as well.
She experimented with cannabis twice when she was 16. She stated this was because all her friends did it, but she suffered anxiety attacks, so she did not go back to using it. She has not used any other recreational drugs.
Ms Kemp said there were no problems at home or with her mental health before the subject accident, but suddenly it all changed after the accident. She said she was happy and then became a person who was always in her room, and she could not explain it. She said that by year 9, she was not socialising and was distancing herself from her friends.
The Panel discussed with Ms Kemp the Headspace records which suggested that there was home stress, but that her depression went away when she was hanging out with her friends. This seemed to suggest the stress was related to her parents. Ms Kemp said that by year 9, she was not socialising and was distancing herself from everybody. She had some difficulties reconciling the history recorded. She said over time she withdrew from people so that now she has only two friends and her boyfriend. Ms Kemp thinks that all this changed when she was in year 9 (not after the accident when she was in year 8) but cannot explain why it changed or how this change related to the accident, other than saying that since the accident, she is not herself.
History of any relevant injuries or conditions sustained since the motor accident
The claimant denied any other accident, injuries or conditions and in particular notes no other psychological injuries have been reported.
Current symptoms
Ms Kemp reported that she goes through waves of depression. Depression can be there for a few days to weeks. During severe depression, she stays in bed, she does not want to eat, does not want to shower and she suffers from anxiety.
She worries about her future. She is anxious when driving and also in crowded places. She said she gets angry, and she does not want to cause a scene in public but when she is at home she has thrown things like books and deodorant. She yells.
Ms Kemp described dysregulated emotions with elements of anxiety, depression and irritability. Her symptoms fluctuate over time.
She has not engaged in self-harm behaviour since the accident but has suicidal ideation sometimes.
She reported sleep problems since the accident and more recently, sleeping only five hours a night and she reported having nightmares whenever she drives any great distance.
She reported her weight was stable and she felt healthy in 2023, but in 2024, she lost 3kg from stress, as she has been trying to do her driver's licence test. She is hypervigilant on the road.
She reports some somatic symptoms of anxiety e.g. sweatiness.
Current and proposed treatment
Ms Kemp took a few antidepressant medications and her file noted Fluoxetine. She said she was worse on these medications and has not taken any for several years now.
She attended Headspace once then consulted Tracy for seven or eight sessions, psychologist and then saw Dr Alastair Gilbert, psychiatrist for two or three sessions. She remembered she saw another psychologist, a lady with dogs. Since February 2024, she has been consulting a psychologist named Trish, and has had a couple of sessions with her.
Ms Kemp has never had a psychiatric admission.
Clinical Examination
Mental State examination
Ms Kemp had long dark hair and a nose ring. She wore bangles and a necklace and was neatly attired. She was assessed for 1 hour and 30 minutes.
Ms Kemp was cooperative and there was no psychomotor slowing or abnormal movements. She was not restricted in her affect and appeared bright and reactive, and she laughed regularly. She spoke spontaneously and fluently. She was not thought disordered and there was no major cognitive impairment observed.
Current functioning
Ms Kemp started doing her learner licence when she was 16 but only completed 50 of the 100 hours required before the learner can attempt P-plate. She said she obtained an exemption from the 100 hours because her father could not drive her or give her lessons and she had nobody else to supervise her driving. She was allowed to sit the P-plate test in August 2023, but she failed. The instructor asked her to turn right but she said she forgot to do it. Ms Kemp said she is anxious driving, but she is very safe and may be overly cautious. Even when she is a passenger, she becomes anxious.
In terms of education and employment history, Ms Kemp said that when she was at school, she became interested in criminology and wanted to study it at university, but after the accident her grades deteriorated, and she could not go to university. She said that since the accident, she had a persisting problem with her attention, which is why she could not pursue her dreams and aspirations. She said she had to go from general English and maths into essential maths and English, which is easier because she had received Es before she changed.
The Medical Assessors discussed with her, her grades in Year 5, Years 7, 8, 9 and 10 as noted in the supplied school reports which suggested some deterioration but not a major deterioration and did not indicate a change in English or maths. The claimant offered no comment.
She reported in Queensland, they did not provide an Australian Tertiary Admission Rank (ATAR) but she did obtain Queensland Certificate of Education. She said that she had done just enough for a pass. She thinks she has achieved 21 and a pass is 20. She said that since year 12 and she has not done any study or attempted any study which the Panel notes is inconsistent with her statement. Ms Kemp could not explain this.
Ms Kemp reported that her first job was in a café. She stopped after one week because the boss was rude to her. Ms Kemp reported when she was at school, she worked at KFC for less than one year. She worked after school hours and on the weekends, but it was difficult because it involved lifting heavy boxes. Ms Kemp also found that she could not multitask with the headset she was required to wear.
She said she works in a boutique jewellery store in a shopping centre now. She said she does not like to go to the shopping centre because there are crowds there. She stated there are very few customers at the store, only 40-50 people in a day, which is why she can cope. She has been there for a year and two months now. She said she works four to five hours a day, less than 20 hours a week. She finds she struggles after working four days and she is often in bed because she is so tired from work and lack of sleep. Ms Kemp attends to customer service and stocking the shop. It does not involve heavy lifting. She has not attempted to find other work or increase her hours.
On Ms Kemp's days off, she is often in bed. She does some washing, hangs up the washing and does the dishes. She does not cook. Ms Kemp said she might only shower three or four times a week.
Ms Kemp has been with her boyfriend for four years. They have never lived together. She said that she tends to nitpick him, and he does not like it, so they have separated a couple of times, but they are back together now.
In terms of trips away, Ms Kemp reported that she visits her mother in Sydney two or three times a year and she went to Vanuatu on a cruise with her father in 2019. She went to Fiji in 2022 with her mother. She had a trip with her boyfriend to New Zealand in early 2023. She reported no difficulties with any of these trips.
She has two good friends, but they live far away. She has known them since primary school and high school, and they mostly have contact by phone and text.
CONSIDERATION OF THE EVIDENCE
Is Dr Rastogi’s evidence reliable?
The Panel notes that Dr Rastogi examined the claimant on 31 March 2021. While he had the report of Dr Gilbert, psychiatrist and the records of Ms Laughton, psychologist, it does not appear he had the records of Headspace, Ms Wagner (from 2018) or Ms Gaze (from 2020). He also does not have the claimant’s school records.
He says the claimant had only worked four weeks at KFC. The claimant had as at 31 March 2021 been working at KFC for four months and worked a further five months.
Dr Rastogi has a history of the claimant’s school performance decreasing “massively” since the accident and that her results were “all E’s”. This is not borne out by a study of the results.
There is no supplementary report from Dr Rastogi or any analysis of the records from KFC and the claimant’s school alternate to that provided by the insurer.
The Panel gives the report of Dr Rastogi little weight.
Is Ms Kemp’s evidence consistent?
The Panel discussed with Ms Kemp inconsistencies in her recalled psychiatric history before the subject accident and the Headspace records. The medical members of the Panel note Headspace specialises in assessing young people and that histories recorded by medical and allied health practitioners are usually accurate. The Panel is aware of the Court of Appeal decision of (Davis v Council of the City of Wagga Wagga[22]) and the observation that “busy doctors sometimes misunderstand or mis-record histories …”
[22] [2004] NSWCA 34 at [35] (Davis)
The Panel notes the records are handwritten on what appears to be a form used to prompt topics of discussion in order to facilitate a patient interview. There are details in that form that are otherwise consistent with the claimant’s history in respect of the accident and relationships.
The Panel has not been provided with any pre-accident GP or other records which might assist in testing the accuracy or otherwise of the Headspace record and the school records do not assist either.
The Panel is of the view that the Headspace annotation, if accurate, does not necessarily indicate a pre-existing impairment symptomatic immediately before the car accident and therefore these notes are not relevant to the ultimate WPI outcome in the light of the WPI finding the Panel has made. If accurate, it does suggest there is an issue with the reliability of the claimant’s evidence.
Ms Kemp’s history provided to the Medical Assessors is that she said she experienced depressive symptoms after the subject accident, which improved when spending time with her friends, however, she reported that more than a year after the accident she became withdrawn from her friends. She gave no particular reason or trigger identified for this change, one year after the accident. The records of the various psychologists the claimant has seen, documented at paragraphs 47-67 above, suggest the accident became less of an issue within 12 months of the accident and that the claimant’s relationship issues with her boyfriend and family became more of an issue. The notes on 26 June 2018 for example suggest the claimant was not having nightmares or difficulty in a vehicle at that time, Ms Gaze recorded initial problems that had improved and the claimant’s own report to her on 19 February 2021 suggested there were no ongoing effects of the accident.
It is the clinical judgment of the medical assessors that psychological symptoms from a traumatic event such as an accident can and do vary over time and that this could account for the variation in the claimant’s reports of her mental state.
The Panel notes the inconsistencies in the claimant’s reports of a deterioration in her school performance after the accident but that the records themselves do not support this. The Panel is of the view that the documentary school records are likely to be more accurate than the claimant’s recollection of them and will give them more weight.
The Panel also notes the claimant’s signed statement suggests she attempted courses after finishing year 12, whereas the claimant was adamant at the re-examination that she had not done any study since leaving school. This significant inconsistency has not been resolved.
All in all, the Panel considers that these inconsistencies do not suggest the claimant’s evidence as a whole should be rejected but that her evidence should be carefully considered and corroboration sought from the records.
ASSESSMENT OF PERMANENT IMPAIRMENT
Diagnosis, causation and reasons
The Panel notes the insurer’s concession that causation of a psychological injury is not disputed.
After the accident, Ms Kemp described having depression and anxiety immediately, sought treatment within three months of the accident and then Headspace and had further treatment with Ms Gaze after that. Her psychological symptoms have fluctuated over time but the Panel accepts they have not resolved completely.
Had the insurer not conceded injury, the Panel would have been satisfied on the basis of the documentation before us that the claimant sustained a psychological injury as a result of the accident.
It is the Panel’s view that Ms Kemp’s psychological symptoms have fulfilled all of the DSM-5-TR diagnostic criteria for the following reasons:
(a) the subject incident is consistent with a criterion A stressor, as she was young and was injured during a head-on collision and she was frightened and fearful.
(b) She developed intrusive memories and nightmares about the accident (criterion B), persistent avoidance of situations and anxiety when exposed to reminders of the subject accident such as the location of it (criterion C), persistent negative cognitions and low moods, including negative beliefs and fear (criterion D).
(c) She has physiological hyper-arousal with disturbed sleep, concentration problems, irritability and excessive safety concerns on the road reported to various practitioners (criterion E).
(d) Her symptoms have persisted longer than four weeks (criterion F) and are associated with functional impairment (criterion G).
(e) Finally, the Panel has not identified another medical or psychiatric condition that better explains her trauma symptoms (criterion H).
The Panel has assessed WPI utilising the PIRS taking into account cl 6.21 of the Guidelines that “the evaluation should only consider the impairment as it is at the time of the assessment”.
Impairment assessment rating
Category Class 1. Self-care and personal hygiene
2
It is the clinical judgment of the medical members of the Panel that there is a class 2 mild impairment.
She attends to some household chores and is independent in all activities of self-care and personal hygiene and does not need prompting. Ms Kemp said she showers only three or four days per week when she is depressed. She does not eat when she is down in mood.
2. Social and Recreational Activities
2
It is the clinical judgment of the medical members of the Panel that there is a class 2 mild impairment.
She participates in different activities with different people and no longer needs a support person in order to go out. She also said she no longer needs alcohol in order to go out or participate in activities.
Overall, she appears to have limited activities however it is difficult to assess as she was only 13 at the time of the accident. On balance the Panel is satisfied there is a mild impairment.
3. Travel
2
It is the clinical judgment of the medical members of the Panel that there is a class 2 mild impairment.
Ms Kemp has travelled overseas three times and interstate regularly since the accident. She did not report any difficulty with these trips.
She reports being anxious on the road. She undertook 50 of the required 100 hours of supervised driving and was able to sit for her driver license, although she failed the test.
4. Social Functioning
2
It is the clinical judgment of the medical members of the Panel that there is a class 2 mild impairment.
Ms Kemp's relationship with her partner is good now but has fluctuated she says because of her moods. They have been together for four years. She is anxious and says she is socially avoidant and has ceased contact with some of her friends although this appears to have occurred more than a year after the accident.
She has two close friends, but they live far away.
The relationship with her parents is said to be good. She said she has never been close to her stepsiblings.
5. Concentration, persistence and pace
3
It is the clinical judgment of the medical members of the Panel that there is a class 3 moderate impairment.
Ms Kemp reported having poor concentration which the Panel notes would be affected by the claimant’s reported poor sleep and tiredness.
Ms Kemp says she struggled with learning and some school subjects after the accident although the documentary evidence does not support this. Her school performance was mixed before the accident and has certainly not improved since the accident which might have been possible with age-related maturity.
She achieved a pass in her final exam and was able to focus for the duration of the over one-hour long re-examination however the re-examination is a one-off event and exam results are less of a true measure of this category than the claimant’s “real world” functioning. The Panel considered the class was almost a 2.
6. Adaptation
3
It is the clinical judgment of the medical members of the Panel that there is a class 3 moderate impairment.
The claimant was 13 and not working at the time of the accident which makes assessing the class of impairment difficult.
Ms Kemp has been able to secure three different jobs after the accident and managed part-time hospitality work at KFC and now part-time retail work in a jewellery store for a combined period of more than two years. She says she cannot perform full-time work, although concedes she has never attempted full-time work. She says this is because she is “tired” and that her tiredness is due to broken sleep. The Panel is satisfied that this is due to her psychological symptoms including nightmares about the accident and is therefore related to the accident.
The Panel considered whether the impairment should be class 2 or 3. As one of the indicators for a class 2 impairment is “Able to work full time in a different environment”. The Panel considered that class was not appropriate and that, on balance, the claimant should be assessed as class 3.
List classes in ascending order: 2, 2, 2, 2, 3, 3
Median Class Value: 2
Aggregate Score: 14
% Whole Person Impairment: 7 %
Adjustments
Pre-existing/subsequent impairment
The Panel notes the insurer has conceded causation of injury and in any event has previously expressed the view there is no reliable evidence of a pre-existing symptomatic psychological impairment.
Ms Kemp has not sustained a subsequent injury.
There is therefore no reason therefore to adjust the WPI for pre-existing or subsequent conditions.
Effect of treatment
The claimant has had treatment in the past but is not having any treatment now either by way of counselling or medication. There is no reason therefore to adjust the claimant’s WPI for the effect of treatment.
CONCLUSION
The Panel has arrived at the same conclusion as Medical Assessor Rikard-Bell both in terms of diagnosis (post-traumatic stress disorder) and degree (7% WPI).
It therefore follows that his certificate should be affirmed.