Keriakos v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Keriakos v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 538
CLAIMANT:	Mervat Keriakos
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	5 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review under section 7.26 of both a threshold injury decision and a whole person impairment (WPI) assessment; claimant working in shop when car crashed through the front of the building; claimant said she developed a psychological injury as a result; claimant disclosed previous physical problems and previous episodes of depression; claimant did not have medical attention for psychological symptoms for a year after the accident; insurer disputed causation; Held – claimant could have and did sustain a psychological injury aggravating a previous condition; claimant had an aggravation of persistent depressive disorder which is a non-threshold injury; AAI Limited v Hoblos and Todev v AAI Limited t/as GIO followed; WPI due to car accident not greater than 10%; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Sidorov in proceedings numbered M10471549/21 and the certificate of Medical Assessor Sidorov in proceedings numbered M10442525/21. 2. Certifies that the psychological injury sustained by Ms Keriakos in the motor accident of 29 June 2018 is not a threshold injury. 3. Certifies that the degree of Ms Keriakos’ permanent impairment resulting from the psychological injury caused by the accident is 6% which is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Mervat Keriakos was involved in a motor accident on 29 June 2018. She was at work in a shop when a car crashed through the front of the shop.
The claimant says she sustained a psychological injury in the accident. She made a claim for statutory benefits and then damages against NRMA, the third-party insurer of the car, the driver of which apparently pressed the accelerator instead of the brake causing the accident.
Two medical disputes have arisen in connection with Ms Keriakos’ claims and those disputes were referred to the Personal Injury Commission (Commission) for assessment as follows:
(a) proceedings numbered M10471549/21 - a dispute about the extent of the claimant’s injuries and whether they were threshold (formerly termed “minor”) injuries, and
(b) proceedings numbered M10442525/21 - a dispute about the degree of the claimant’s whole person impairment (WPI) resulting from those injuries.
On 11 May 2023 Medical Assessor Sidorov determined that the claimant’s psychiatric injury was a threshold injury for the purposes of the legislation and that it gave rise to no assessable impairment.
The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decisions. On 3 July 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and the delegate allowed the Review and on 15 March 2024 convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

General

Ms Keriakos’ claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). The legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.

Statutory benefits

Statutory benefits include weekly income benefits for those who are earners and treatment and care expenses for almost all claimants.
There are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries,[1] the injured person cannot receive statutory benefits beyond 26 weeks after the accident[2] and they cannot recover damages.
[1] At the time the dispute arose between the claimant and the insurer the terminology in the legislation was of “minor injury”. With amendments that came into effect on 1 April 2023, the terminology changed to “threshold injury” for all motor accidents, claims and disputes.
[2] 52 weeks for persons injured in accident occurring after 1 April 2023.

Damages

In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[3] 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.
[3] 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.[4]
[4] 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 Sidorov’s, further medical assessments and the review of medical assessments by this Panel.[5]
[5] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment 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 (or the reply) 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.

ASSESSMENT UNDER REVIEW

Medical Assessor Sidorov examined the claimant on 19 April 2023. He considered both proceedings together and issued a single document comprising:
(a)    certification of the threshold injury dispute;
(b)    certification of the WPI dispute, and
(c)    reasons for both decisions.
Medical Assessor Sidorov confirms at [2] that he was asked to assess the claimant’s psychiatric condition said to be post-traumatic stress disorder.
Medical Assessor Sidorov noted the claimant was 60 years of age working full time in a warehouse. He has a history that she previously worked for her husband, stopped work for a month after the accident and returned on a part-time basis. The claimant denied any physical health issues or mental health issues before the accident.
The circumstances of the accident were that she was sitting in her husband’s shop when a car “broke into the shop”. Medical Assessors Sidorov has a history of the claimant hitting her head and that she lost consciousness for about five minutes. Police attended but no ambulance and she did not go to hospital.
The claimant told Medical Assessor Sidorov that she attended her general practitioner (GP) and was referred for X-rays. As she was struggling with memory and developed insomnia, she was referred to a psychologist or psychiatrist. She said she had phone sessions which were not useful, so she stopped.
The claimant reported “significant memory problems” which are getting worse, and this makes her anxious and she is sometimes unable to sleep. There was no evidence of a “low mood or disabling anxiety” and no evidence of any trauma related symptoms.
Medical Assessor Sidorov had a history that the claimant was not having psychiatric or psychological treatment, and none was proposed.
Medical Assessor Sidorov noted no evidence of self-neglect, the claimant was co-operative, there was no evidence of thought disorder or psychotic symptoms and she was oriented and had good insight and judgment. He has history of the claimant being independent at home but that she loses her way when driving which upsets her.
The claimant said her husband left her in the context of her memory issues and she finds it difficult reading but works full time packaging in a warehouse.
Medical Assessor Sidorov asked the claimant why she presented to Dr Girgis for the first time on 4 July 2019 (a year after the accident) and the claimant could not explain. She was asked about being prescribed antidepressant medication in 2011 and she thought that might have been when her brother died.
Medical Assessor Sidorov found, based on her presentation and documentation that “she did not meet the diagnostic criteria for a psychiatric disorder” but that she has some anxiety and mood symptoms. He noted “cognitive deficits of uncertain aetiology”. He found her mood and anxiety symptoms caused by the accident.
Because he found there was no psychiatric disorder, he found the injury was a threshold injury and there was no assessable impairment.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant submits that Medical Assessor Sidorov erred in suggesting the claimant did not receive any medical attention for psychological symptoms until seeing Dr Girgis on

4 July 2019.
The claimant points to a handwritten entry (7 August 2018) from Dr Ali that the claimant was shocked and unable to work for two days after the accident and had anxiety and nightmares for days.
The claimant says the Medical Assessor did not refer to Dr Ali’s notes.
The claimant’s submissions dated 16 August 2021 in support of the original application for medical assessment are brief and rely on the report of Dr Rastogi and his finding as to injury.

Insurer’s submissions

The insurer submits that Dr Ali is at the same practice as Dr Nazir and that the Medical Assessor has referred to Dr Nazir’s notes which is also a reference to Dr Ali’s notes.
The insurer notes that the Medical Assessor in his diagnosis and reasons section recorded the development of anxiety and mood symptoms but determined that it did not meet the criteria for a psychiatric disorder.
The insurer notes that the claimant attended on Drs Ali and Nazir on 25 occasions between the date of the accident and 20 March 2020 but only one entry referred to psychological symptoms.
The insurer also submits the claimant did see a psychologist who diagnosed an adjustment disorder.
The insurer’s submissions in the original assessment (concerning threshold injuries) refers to the AHRR of Ms Naithani who diagnosed an adjustment disorder. The insurer noted a medical examination had been arranged with Dr Jones on 21 September 2021 and it had requested records from Dr Nazir, Dr Girgis’ practice, Medicare and Centrelink.
The insurer’s original submissions in the WPI assessment note that causation is in issue as well as the degree of WPI. The insurer advised the claimant was to be examined by

Dr Whetton on 17 December 2021 and noted that documents had yet to be obtained from Medicare and Centrelink.

Procedural matters

On 21 March 2024, the Panel issued directions to the parties primarily for bundles of documents noting that while the Panel had access to the original file that was before Medical Assessor Sidorov, the Panel did not have up to date records.
The Panel confirmed with the parties that the Panel was considering two disputes and two assessments, the threshold injury dispute and the degree of WPI resulting from the claimant’s injuries.
The Panel met on 28 May 2024 and reported to the parties. The Panel requested the claimant clarify:
(a) whether she had any physical injuries as a result of the accident and any medical assessment of those injuries, and
(b) whether the claimant had seen a psychologist on referral from Dr Ali or Dr Nazir as well as Ms Naithani who the claimant saw on referral from Dr Girgis.
The Panel advised of the re-examination date and issued directions seeking any updated records from Drs Ali and Nazir.
On 24 June 2024, the Panel was advised the claimant had not seen a psychologist other than Ms Naithani and she provided updated records from Dr Ali and Dr Nazir.
On 27 June 2024 the insurer confirmed no physical assessment had taken place as the claimant did not sustain any physical injury as a result of the accident.
The insurer also submitted that the updated clinical records indicated the claimant attended the practice regularly in relation to a “multitude of health problems with no relationship to the accident”. The insurer points out the claimant did not report psychological problems to that practice during this period. The insurer submits:
“… the material before the Commission would support the contention the claimant does not suffer from a recognised psychiatric illness as a result of the accident and if she had one at some stage since the accident it was an adjustment disorder.”

REVIEW OF THE EVIDENCE

Claim form and claim documents

The certificate of capacity completed by Dr Nazir[6] records a diagnosis of “shock, stress and anxiety (nightmares)”. The doctor said he will organise further counselling if needed and said he would review the claimant on 7 September 2018. He also records “patient stayed home for 2 days is working now”.
[6] Page 151 of the claimant’s bundle.
There is an allied health recovery request (AHRR) completed by Anupama Naithani on

29 August 2019 noting a diagnosis of “adjustment disorder mixed with anxiety and depression”. In terms of current signs and symptoms she notes:
“feeling stressed, nervous, anxious. Poor concentration, making mistake while dealing with customers, upset for no reason. Hypervigilant – watching at car park. Disturbed sleep waking up few times at night. Left side of the face – numbness, headaches. Nightmare of the accident. Feeling tired. Avoidance / withdrawn – not going out. Fear of recurrence of incident.”
Ms Naithani records her first service was on 4 July 2019 and that at the time of the AHRR she had undertaken two sessions with the claimant. The claimant was referred by Dr Girgis.
The second certificate of capacity was completed by Dr Girgis on 23 September 2019. The diagnosis was of “stress/anxiety/depression/headache”. The claimant had first been seen at the practice on 4 July 2019. The history given in the certificate is:
“On 3/7/18 an incident occurred when she was working as a shop assistant [Newsagency / Tobacconist] in a shop in Queen Street when unexpectedly a car plowed into the shop [instead of braking pressed on accelerator]. Car broken the front glass and entered the shop and hit the counter and patient was behind it – she endured physical injuries [knees / shoulders and scattered broekn glasses]. Patient shocked and since then has been suffering from issues with sleep, dreams of event which causes her to wake up and is anxious. Said there were 2 children insdie the car as well as a male driver.”
Dr Girgis advised counselling with a psychologist, Endep and Lovan.
There is a statement from the claimant dated 27 June 2021.[7] The claimant says that before the accident she worked 40 hours a week or more at her husband’s business. She denies ever having any mental health problems before the accident or seeing a psychologist.
[7] Page 168 of the claimant’s bundle.
She gives a history of the accident [11 – 16], but no history of physical symptoms or a loss of consciousness. She said at [18] and [19] she developed symptoms including a fear of going to work, nightmares and thoughts of the accident. She said at [21] she did not work for a week.
The claimant said she went to see Dr Nazir on 7 August 2018 [23] and that she was referred to a psychologist who she saw for 10 sessions [24]. Because she was not getting better, she went to Dr Girgis.
She says she is anxious and has dreams about the accident [27] and that Dr Girgis has recommended she work fewer hours [27].
She says she has stopped seeing the psychologist in early 2020 [29] but still takes Endep and Lovan [30].
Ms Keriakos says that “I still suffer [from] severe stress, anxiety and depression” [31] and then when she is stressed, she gets a severe headache [32]. She says she is nervous in the car with someone else driving [33] and that she has reduced her hours at work and as a result her husband sold the business [34] – [35]. The claimant says she is not planning on working any longer.

Treating medical records and reports

Drs Ali and Nazir

The notes from the Tulloch Close Family Medical Practice (Dr Nazir and Dr Ali) commence with entries in February 2011. There is reference to right hip and knee pain in May 2011 and the claimant was taking Mobic and Lovan (antidepressant). In December 2011 the claimant attended complaining of lumbar pain and there was a broad-based posterior disc prolapse.
Tramadol and Lovan were prescribed in 2012 and 2013. The claimant saw Dr Bazina, neurosurgeon for treatment of back pain in 2011, 2012 and 2013. In January 2014 the claimant sought a mobility parking permit as the claimant appears to have been suffering from back pain radiating into the legs.
On 1 November 2014 is an entry “antidepressants on Lovan for many years” and there are notes of back pain and a referral to a neurosurgeon. Tramal and Lyrica were prescribed at this time.
The claimant saw Dr Donellan, neurosurgeon in 2014 and 2015 for her back pain and he recommended surgery. In his letter to Dr Ali of 8 December 2014[8] he notes “her background is unremarkable apart from a long history [of] anxiety and depression”.
[8] Page 12 of the updated bundle of records from Drs Ali and Nazir.
There are suggestions of obesity in the notes and that in September 2015 the claimant had a sleeve gastrectomy and was losing weight. She complained of insomnia since the surgery and Normison was prescribed.
In 2016 and 2017 there were further complaints of pain and scripts.
In April 2018 the claimant returned to Dr Donnellan who again suggested surgery (laminectomy and fusion).
The accident occurred on 3 July 2018. On 4 July 2018 the claimant attended the medical practice for an upper respiratory tract infection and her scripts but there does not seem to be a mention of the accident. On 11 July 2018 the claimant attended again for a B12 injection in her right arm.
The handwritten entry on 7 August 2018 reads:
“On 3/7/18 [at] newsagency, car crashed into front of the shop shopw window [at] low speed. Accidentaly. Got shocked and distressed was unable to work for next 2 days. Had lot of anxiety – nightmares for days now getting better. Certificate of capacity (workcover – CTP) ?? [at] patients request. Counselled. If further ongoing concern consider formal counselling.”
The claimant next attended on 20 October 2018 for a B12 injection, and she complained of feeling tired and lethargy on and off and had eye discomfort. On 16 November 2018

Ms Keriakos attended again with mild headache and a copy of her certificate of capacity was given.
An MRI of the claimant’s brain was performed on 10 December 2018 (page 189) due to “unexplained headaches and dizziness. Abnormal sensation”.
The claimant attended Liverpool hospital emergency department on 13 December 2018[9] with headaches for the last six weeks present all day. She reported disturbed sleep “but this appears to be due to chronic back pain, rather than headache”. She described a low mood affected by her pain. The claimant was keen to try an antidepressant and she was commenced on Fluoxetine. She had given the hospital a history that Rosuvastatin was her only medication.
[9] The discharge summary is at page 138 of the insurer’s bundle.

The claimant appears to have been referred to Dr Griffith, neurologist who saw the claimant on 26 February 2019 (page 195). The claimant reported a headache earlier in the year and then mid-frontal intermittent headaches began a week or two later. She could go for a day without pain, but it increased when she opened her eyes. He noted the MRI results and an MR angiogram which was normal.
The claimant said that when her headaches increase this caused confusion and she had difficulty concentrating, using a computer and forgetting information.
Dr Griffiths records “she has insomnia and a past history of depression, 5 years ago being on Lovan for anxiety and depression. She had headaches at that time”. According to the history given the claimant took Lovan for about two or three years and her symptoms resolved.
The claimant recounted “significant stress related to family issues and business issues, in the newsagency where she works”. He felt she had chronic migraine on a background of depression, anxiety and reduced concentration and he commenced her on Endep and ordered an EEG. There is no further report from Dr Griffiths.
There are no records that the Panel can ascertain after August 2018 referring to symptoms of anxiety or stress and no record of a referral to a psychologist.
The claimant saw Associate Professor Sheridan, neurosurgeon primarily for her headaches on 7 March 2019. He also recommended the L4/5 laminectomy and fusion and booked her in for surgery. On 13 January 2020 the claimant had the surgery. There were complications with a further attendance at hospital for neuropathic pain in February 2020. While the hospital records note that the claimant’s GP practice was the Medical Centre Casula Central, Dr Sheridan reported to Dr Ali of the Tulloch Street practice on 12 May 2020 noting the claimant had recovered well, was having some pain down the left leg and was unfit for work for the next six months.
The updated notes from Drs Ali and Nazir indicate several unrelated conditions, some musculoskeletal conditions as well as ongoing scripts for Endep.

Dr Girgis

The claimant attended the Royale Medical Centre and saw Dr Girgis for the first time on

4 July 2019 and his clinical note is the same as the information contained in the certificate of capacity he completed. The claimant saw the psychologic Ms Naithani on the same day (at the same practice). The claimant returned to Dr Girgis on 29 August 2019 complaining of anxiety and insomnia and the claimant attended Ms Naithani reporting memory lapses and a fear of dementia on the same day.
The claimant returned to see the psychologist on 5 September 2019 and Dr Girgis on

23 September 2019. The claimant next attended on 15 May 2020 for neuropathic pain, and he took a history of the L4-5 fusion. There are no further relevant records from Dr Girgis’ practice. According to these records the claimant attended on Ms Naithani only three times.

Casula Medical Centre

Records have been provided from the Casula Central Medical Centre. These commence with an attendance with Dr Hassan on 22 January 2020 for a change of dressing following her laminectomy and fusion. Ms Keriakos was then seen on 3 June 2020 by

Dr Hassan for a change in medication. There were no attendances at this practice in 2021 and in 2022 no attendances of relevance. There were attendances in 2023 for various physical arthritic type complaints in her hands and particularly in her feet. There was a script written for Endep on 27 November 2023 noting a specialist had given her this medication for prevention of migraine. There is no mention of the accident or of anxiety or depression in these records.

Advanced Health Medical Centre

Records have also been produced by Advanced Health Medical Centre in Bankstown. The claimant first attended Dr Mikhail on 28 July 2021 for COVID-19 vaccines. The claimant attended for neuropathic pain (2 October 2021) and requested Ozempic

(23 October 2021) and was prescribed Lyrica on 9 November 2021 and then Mobic in December 2021 and Endep in March 2022. The claimant attended Dr Mikhail again for Lyrica and Mobic in September 2022 and for Mobic and Endep in November 2022.

Family Medical Centre

The Family Medical Centre Campbelltown has produced records which commence on

26 April 2018. The claimant attended here for chest pain, muscle cramping and urinary issues in 2018, left scapular pain and eye issues in 2019, tennis elbow and sore little toe and thumb after a fall in November 2020. There have been no further attendances at this practice and no mention of the accident or anxiety and depression.

Medico-legal reports

Dr Rastogi provided a report dated 27 July 2021. She says she conducted a 75-minute telehealth session. She had before her a statement from the claimant, a liability notice and the clinical records of Dr Nazir.
Dr Rastogi has a history of the claimant living with her husband and that her husband owns a petrol station franchise. At the time of the accident, she worked in her husband’s previous business a tobacconist shop in Campbelltown which was sold in January 2021. Dr Rastogi has a history of the claimant having not worked since then.
Dr Rastogi has a history of the accident but no history of a head injury or loss of consciousness. The claimant told him she was standing behind the counter at the shop when the car came into the shop. Dr Rastogi does have a history that, “she was in complete shock and in daze”.
Dr Rastogi records that the claimant could not go to work for four weeks and was having nightmares, flashbacks and poor sleep. She was said to be angry irritable and would wake up with sweating palpitations and arousal. She would cry.
Dr Rastogi says the claimant saw her GP who diagnosed anxiety and panic attacks and referred her to a psychologist. Dr Rastogi refers to the certificate of capacity. Dr Rastogi has a history of the claimant avoiding being in a car, hypervigilant and easily startled. She did resume driving but only to familiar places. She blamed herself for the loss of the business.
The claimant reported poor sleep “trapped with anxiety”. Dr Rastogi documents a strain in the marital relationship.
Dr Rastogi has a history of the claimant taking Lovan and Sertraline and seeing a psychologist regularly (12 sessions).
Dr Rastogi diagnosed a mild post-traumatic stress disorder and sets out the criteria and how she fulfils them. Dr Rastogi says her prognosis is guarded. Dr Rastogi assessed WPI at 13%.
Dr Whetton provided a report for the insurer dated 2 May 2022. He had the clinical notes of Dr Girgis, Dr Ali and Dr Nazir as well as the report of Dr Griffith.
He has a consistent history of the accident, but the claimant told him that “she jumped back to avoid the entering vehicle and in the process hit a metal cabinet and this led to injuries to her head and back”. She reported being “knocked out” briefly and that she was in pain and shock.
She reported that night and over the following days she was shocked, terrified and had nightmares. She said she attended her GP and was referred to a psychologist who she saw once or twice a week.
The claimant complained of developing memory problems and having difficulty concentrating. She said she was away from work for two weeks and while she returned to work she was not performing well and the business was sold in early 2020. She says she was working on a casual basis about 30 hours a week in packaging.
The claimant reported migraine headaches, nightmares, fear of driving, anxiety and panic and difficulty breathing.
She said she attended her GP every fortnight, but she had not seen a psychologist for over two years. She was taking Crestor, Lovan, Endep, Lyrica and Mobic.
The claimant said when her father died, she experienced depression and was prescribed medication.
Dr Whetton considered the GP notes and records a history of back pain to 2013, the gastric sleeve surgery in 2015 and low white blood cell count.
She says she and her husband separated two years ago. She reported waking two or three times in the night feeling uncomfortable and has nightmares once or twice a week.
Dr Whetton accepted her history of anxiety symptoms but did not consider she was depressed. He considered the anxiety affected her concentration.
He found she did not fulfil the requirements of a post-traumatic stress disorder and felt the most appropriate diagnosis was of a chronic adjustment disorder with anxiety.

RE-EXAMINATION FINDINGS

The claimant was re-examined by Medical Assessors Hong and Baker using MS Team. The claimant was alone before her computer but an Arabic interpreter was available by phone.

Psychosocial history and pre-accident history

The claimant is a 62-year-old separated woman. The claimant was born in Egypt. She was married for seven years before entering Australia in 1996. She had three children to her marriage. Her eldest daughter is 32 years of age, and her second daughter is 30. She lives with her son aged who is 28 years. The plan when they arrived in Australia was for her husband to study chemistry in Australia. The family settled in the Fairfield region of Western Sydney.
The claimant separated from her husband before the re-examination. He lives in Sydney and is aged 67 years. He continues to manage the petrol station that was one of the family businesses. The tobacconist and newsagency the claimant was working in before the motor accident had ceased trading. The claimant had returned to fulltime work as a pick and pack worker in a warehouse since September 2023. She remained working at the time of the re-examination.
The claimant reported that her father died in Australia unexpectantly from a heart attack 15 days after the birth of her son in 1996. He was aged 75 years. Her mother was aged 80 years when she died in Egypt, about 14 years ago. She has three sisters and one brother who died about 15 years ago.
The claimant reported she was educated for 12 years and attended an Egyptian Government primary and senior school. She progressed to university. She studied social work and completed her social worker’s degree. She worked in Egypt utilising these skills before immigrating to Australia. She chose not to continue this work in Australia as she felt her English was not strong enough to assist others as a social worker.
The claimant commenced working in packing with a pharmaceutical factory after arriving in Australia. She also worked as a cook in a Lebanese restaurant. Her husband purchased a tobacconist / newsagency and she then worked in this family business until the accident, on a full-time basis. After the accident, she stopped work for about two days and then returned to the shop on a part-time basis.

Past medical history

The claimant reported a complex past medical history.
Ms Keriakos experienced her first documented history of depression after the birth of her son. While visiting Australia, her father died suddenly about 15 days after her son was born in 1996. She reported that her other children told her that they recalled that she did not talk and that she could only work part time during this period. She reported that she recovered from this episode of depression.
It is documented by her general practitioner that Ms Keriakos had another episode of depression in about 2014. She was treated with Fluoxetine a one half 20mg tablet daily. In 2015 her dose of Fluoxetine is said to have been increased to Fluoxetine 20mg daily. She was documented by Dr Griffith, neurologist on 26 February 2019, as having experienced depression for five years previously. This is consistent with the medical records.
The claimant confirmed this history and said that she had suffered from persistent depressed mood since about 2014. She had remained on her antidepressant medication and continued treatment but ceased the low dose of Fluoxetine as she could discern no clinical improvement. She remained depressed and she relied on her psychological skills to maintain her capacity to work. She remained depressed at the time of the review.
The claimant said she had attended a haematologist as she was found to have a low neutrophil count in 2011. She was diagnosed with benign familial neutropenia. She had no specific treatment for this condition as it was not associated with any specific increased frequency of infections.
The claimant reported that she had suffered from a long history of back pain that had affected her since about 2012. She reported she had multiple conservative treatments including, physiotherapy, injections into the L5 level of the spine and various analgesics including non-steroidal analgesics like Celebrex and Tramadol. In January 2020 she had a laminectomy and fusion of L4/L5 joint. The surgery was reported by her surgeon as successful. She says she has had less pain in her left leg. Ms Keriakos reported that in about 2022 she had developed cervical neck pain, however she was still capable of working in her role in a warehouse as a pick and pack worker.
The claimant said she had suffered from excessive weight since about 2015. During this year she was documented as being 84.6kg with a BMI 38.6. She had a successful gastric sleeve procedure and her weight reduced significantly. The claimant in 2023 had returned to her general medical practitioner for further weight reduction with Ozempic 0.5mg weekly by subcutaneous injection. She reported that she preferred to pursue a goal of weight reduction to relieve her neck and back pain than to use either more pharmacotherapy or surgical treatment. She was expecting to continue her weight reduction program at the time of the review.
The claimant reported she had also been diagnosed with psoriasis. She said that she was not prescribed any specific treatment at the time of review. She was of the opinion that the condition was mild.
The claimant reported a significant family history of cardiac disease. She reported her father died unexpectedly in 1996 from myocardial infarction. She said her brother had also died however she was unsure of the confirmed diagnosis. She reported having her dyslipidaemia (high cholesterol which is a known risk factor for myocardial infarction) to be routinely treated with Crestor.
The claimant also had her gastro-oesophageal reflux disease (GORD) treated with pharmacotherapy (Nexium) after a positive helicobacter pylori result.
The claimant denied smoking tobacco cigarettes, drinking alcohol or using illicit drugs. She did not gamble. The claimant does not drink caffeinated drinks. She reported increased anxiety and panic if she drank caffeinated drinks. She did not report any allergies.
The claimant denied any previous personal injury insurance claims. She also denied any history of criminal charges or convictions.

History of the motor accident

The claimant was working in her usual role at the family tobacconist / news agency and was alone in the shop at the time of the motor accident her son having left. Ms Keriakos reported that she had been shocked and frightened by the car crashing through the front of the shop.
The claimant said she remembers hearing a “bang”. She said she remembered hitting her head on a cabinet. She said she might have had a brief period of unconsciousness. She said she was concerned for a child she could see in the back of the car. She said that the driver had made an error and had accelerated over the gutter before crashing through the shopfront.
The claimant said everything was broken in the shop. She was preparing to close the shop for the day. She said she had a tremor affecting her body. She stated that she did not call for an ambulance. She reported that bystanders called the NSW Police who did attend the scene of the accident.
The claimant then said she called her husband who was working at the petrol station. He did not leave the station. He did call for friends to attend the shop and secure it for the night.
The claimant returned home with her son. She got home at about 8:00pm. She did not work for two days and the shop front was repaired during this time. Her symptoms did not settle. She stayed at home waiting for her symptoms to settle. She said she then attended the GP about two weeks later. The Panel notes this is the 7 August 2018 attendance with Dr Ali. The claimant returned to work on a part time bases.

History of symptoms and treatment following the motor accident

The claimant reported that her mood deteriorated further after she returned to work at the shop. She suffered from a depressed mood nearly every day for most of the day. She felt she had lost self-esteem as she would make frequent errors. She said she would be placed under pressure from customers who would say she had given them the wrong amount of change for their purchases. The claimant reported her concentration deteriorated and she would have difficulty sleeping due to recurrent depressive ruminations and nightmares about the motor accident.
The claimant reported her relationship with her husband deteriorated as she would make frequent errors. The shop was “losing money” and she felt guilty. The claimant’s husband would argue that she was responsible for the underperforming business. The claimant reported she lacked energy and would fatigue quickly. She said she had “trouble handling the cash.” She reported the customers were complaining to her husband about her errors. She said she felt that she was responsible for losing money every day.
The claimant reported her ongoing depression to her neurologist Dr Griffith on

26 February 2019, and then her new GP Dr Girgis in July 2019. Her depression persisted and after about 18 months, the tobacconist / newsagency business is closed. Her husband then separated from her and her life became very bad. She said she “hurt on the inside”. She said she became tearful and distressed.
The claimant said her husband yelled at her a lot and that he was unsupportive, and she would not have him back.
The claimant reported she was referred to a psychologist. She said she had to use a telephone as the COVID-19 restrictions were enforced. She attended the psychologist for three sessions. She did not find the sessions beneficial. She stopped attending.

Details of any relevant injuries or conditions sustained since the motor accident

The claimant reported that since the motor accident she had increased pain in her cervical spine. She had experienced repeated headaches. She continued her analgesic medication and continued working fulltime.

Current symptoms

The claimant reported the following symptoms which the Medical Assessors noted are consistent with a depressive disorder which has persisted since the motor accident:
(a) a depressed mood for most of the day, for more days than not that was exacerbated by the motor accident in 2018.
(b) whilst depressed the claimant continued to experience the following symptoms:
(i)overeating with increased weight, beyond her usual weight problems;
(ii)insomnia with poor sleep, and difficulty initiating and remaining asleep;
(iii)low energy with frequent fatigue;
(iv)low self-esteem due to her inability to fully recover from her psychological injury, and
(v)poor concentration with indecisiveness in making decisions.

Current and proposed treatment

The claimant said that her capacity to work was the best treatment for her condition. She was not using any antidepressant medication to treat her persistent depression.
The claimant was continuing to use Endep (amitriptyline) 10mg at night to help relieve her headache before sleep.
The claimant also was prescribed NSAID and paracetamol for pain when she was symptomatic.
The claimant had not had any psychiatric treatment. The claimant had not been admitted to psychiatric hospital for this psychological injury.
The claimant had not been referred for repetitive transcranial magnetic stimulation (rTMS) or any other evidence-based brain stimulation therapy for this psychological injury.
The claimant attends her GP for follow up and monitoring of her mental state.

Mental state examination

The claimant presented as a groomed woman who looked her stated age. Rapport was able to be established and sustained throughout the re-examination. The claimant spoke at a slow rate of speech. Her volume of speech was soft, slow and repetitive in depressive themes of having lost her husband. She was tearful. She reported a depressed mood, with loss of hope for her marriage. She reported low energy and frequent episodes of fatigue. She did not appear psychomotor agitated throughout the assessment. She complained of intrusive depressive worries and ruminations for her finances, paying her mortgage and supporting herself. She stated her self-esteem was broken by her psychological injury. She held a bleak outlook for her future. There were no psychotic symptoms such as delusions or hallucinations. She was oriented to time, place and person. There was no evidence of formal thought disorder. She could not concentrate for more than a few minutes before her content of speech wandered off topic. She said she did not have any suicidal thoughts. She did not report suicidal plans. She had no history of self-harm. Her judgment was fair. She was insightful into her condition.

Past and current functioning

Self-care and personal hygiene

The claimant was independent in her self-care and personal hygiene before the motor accident. She could cook her own food, maintain her personal care without assistance. She could wash her laundry and dishes. She was able to clean her home and maintain the house without external assistance.
The claimant at this re-examination was independent in her self-care and personal hygiene. She was able to maintain her independence in maintaining her regime to enable her to lose weight, with the use of her Ozempic. She was able to clean her house. She was able to wash her clothes. She was able to live independently with minor deficit attributable to normal variation in the general population.

Social and recreational activities

The claimant reported that before the motor accident she was able to instigate, prepare and participate in family celebrations. She would participate in festivals with her adult children. She would celebrate birthdays, Christmas and anniversaries within her family each year.
The claimant reported that after the motor accident she had lost interest in celebrating with her adult children or grandchildren. She said she did not participate in 2023 Christmas or birthday celebrations with her adult children. She was involved with her grandchildren however was less able to enjoy play and joined in less with her grandchildren’s life and development. The claimant said she would attend her local church and be visited by her daughter on the weekend, on occasions.

Travel

The claimant reported she could travel independently before the motor accident without her experiencing any psychological symptoms. She could travel by public transport without the need for a support person.
The claimant said that after the motor accident was able to leave the family home without support. The claimant could travel in her local and restricted area. She reported that she was restricted in her travel as she would sometimes “lose her way and this would cause her to become tearful and upset”.

Social functioning

The claimant reported she had been married to her husband for many years before the motor accident. She said she was working in the family business, at the tobacconist / newsagency. She said her relationship with her husband was strong, as he was also working at the petrol station as a manager.
The claimant reported that she lost her husband because of the motor accident. She reported frequent arguments. She said she would not have her husband back in the home as he was not supportive of her and failed to understand how hurt she was emotionally. The claimant said they were permanently separated with no prospect of reconciliation.

Concentration, persistence and pace

The claimant reported that before the motor accident she would easily cook traditional food for her family. She could easily read and speak Arabic. She could concentrate and manage the complex needs of purchasing stock and selling items. She was able to complete the necessary cash management processes without difficulty.
The claimant reported that she could not concentrate to perform the cash management processes. She said she made errors. She said that in her new role she still made errors. She said her performance and persistence was good enough. She said she was slower in her pace of reading and required to re-read documents before she comprehended their meaning. She reported her depressed mood made her indecisive and slow with her decision making.

Adaptation

The claimant reported that she was working fulltime in her role as a shop keeper in the family’s small business. She said she was able to work and manage the customers that purchased from her store without difficulty.
The claimant reported that she was able to work fulltime hours in a different environment that was less skilful. She said she recommenced fulltime work in about September 2023. She was expecting to remain in this role for the indefinite future.

Comments of consistency

While the Panel notes the claimant had given some inconsistent histories in the past (the time off work for example had varied, from a few days, to weeks to months), the Panel was of the view that the claimant provided a generally consistent history. In particular, the Panel notes that the claimant fully disclosed her pre-existing mental health conditions and physical symptoms.
Rapport was established. The claimant required regular assistance from the interpreter to clarify meanings of questions. The claimant was able to confirm specific details put to her during the assessment. She spoke fully about her physical conditions.
She reported that she was planning to fully recover however she was slow in her capacity to work to the same extent as she had before the motor accident.

Diagnosis and reasons

It is the clinical judgment of the medical members of the Panel that the claimant suffers from an aggravation of persistent depressive disorder in accordance with DSM-5T-R (page 168). The criteria and the Medical Assessors’ comments are provided below:
(a)    Criterion A - a depressed mood for most of the day, for more days than not that was exacerbated by the motor accident in 2018.
(b)    Criterion B - whilst depressed the claimant continued to experience the following symptoms:
(i)overeating with increased weight;
(ii)insomnia with poor sleep, and difficulty initiating and remaining asleep;
(iii)low energy with frequent fatigue;
(iv)low self-esteem due to her inability to fully recover from her psychological injury, and
(v)poor concentration with indecisiveness in making decisions.
(c)    Criterion C - during the last 2-year period of the disturbance, the individual has never been without the symptoms in Criteria A and B for more than two months. This criterion is evidenced by the claimant having a persistent depressive disorder prior to the motor accident and then aggravated by the motor accident in 2018 without entering remission until the date of the review.
(d)    Criterion D – the criteria for a major depressive disorder may be continuously present for two years. This criterion has not been met by the claimant it is now six years since the accident.
(e)    Criterion E - there has never been a manic episode or hypomanic episode, and criteria never been met for cyclothymic disorder. This criterion is evidenced by the claimant only having a prior depressive disorder.
(f)    Criterion F - the disturbance is not better explained by a persistent schizoaffective disorder, schizophrenia, delusional disorder, or other specified or unspecified schizophrenia spectrum and other psychotic disorder. This criterion is evidenced by the claimant never having these conditions recorded in the medical record or present at the re-examination.
(g)    Criterion G - the symptoms are not attributable to the physiological effects of a substance or another medical condition. This criterion is evidenced by the claimant not using illicit substances, alcohol, tobacco or suffering from endocrine conditions such as hypothyroidism.
(h)    Criterion H - the symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning. This criterion is evidenced by the claimant having impaired functioning in social, social and recreational activities and adaptation at the time of the re-examination.

Causation and reasons

The claimant had suffered from a previous depressive disorder about the time of the unexpected death of her father in 1996. The Panel accepts her evidence that she recovered in her mental state. The earliest handwritten records that are available, while not easy to read do not suggest any complaints before 2014.
The claimant was diagnosed with the onset of this persistent depressive disorder in 2014. Her condition deteriorated in 2015. The medical practitioner increased her initial dose of fluoxetine 20mg, ½ tablet to one tablet daily (i.e. 20mg). Despite this diagnosis, the evidence suggests the claimant was able to work, sustain her long-term marital relationship and care for herself, and family whilst mildly symptomatic until the motor accident in July 2018.
Because of the effects of the motor accident the claimant became impaired in her capacity to enjoy social and recreational events and festivals with her family. The claimant says she had difficulty with cash management skills and she was unable to sustain her marriage.
The test of causation set out in the Guidelines is as follows:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
It is the clinical judgment of the Medical Assessors that the claimant’s persistent depressive disorder could have been aggravated by the motor accident. The claimant was at her usual place of work when a car crashed suddenly through the building. She says she hit her head and may have been unconscious. She reports physical symptoms after the accident. While she had long term back pain before the accident this increased after the accident (but is unrelated to the accident), she has other physical conditions and she has developed significant neck pain (also unrelated to the accident). While these physical symptoms have contributed to her current presentation, the Medical Assessors are of the view that the shocking nature of the accident could have contributed to the worsening of her depressive state.
The question remains whether, as a matter of fact, the accident did contribute in a more than negligible way to the worsening of her depressive condition. The insurer has raised an issue of causation in that the clinical records of Drs Ali and Nazir show that the claimant attended upon them more than 20 times between the date of accident and 20 March 2020 however psychological symptoms were only mentioned on 7 August 2018. The claimant also reported her ongoing depression to her neurologist Dr Griffith on 26 February 2019. The Panel notes the claimant did report psychological symptoms to Dr Girgis at a different practice in

July 2019. The Medical Assessors in their clinical experience note that psychological symptoms take time to develop and there is often a reluctance to report them and the gap in reported symptoms is not clinically significant in the circumstances of this particular claimant. A significant cause of the claimant’s continued depression is the loss of her marriage which she attributed to her difficulties with memory and concentration since the accident.
The Panel finds that the motor accident did aggravate the claimant’s persistent depressive disorder from which she has remained impaired at the time of this review.

IS THE CLAIMANT’S INJURY A THRESHOLD INJURY?

A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury” and a “a psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulation) says a threshold injury includes an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the method of assessment for threshold or non-threshold injuries. The Guidelines[10] provide:
“[5.10] In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
[5.11]The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.”
[10] The current version of the Guidelines is version 9, effective January 2023.
A persistent depressive disorder diagnosed in accordance with the Guidelines under DSM-5-TR is not a threshold injury identified in the Regulation.
The Panel notes the reasoning of the Medical Review Panel in AAI Ltd v Hoblos[11] that the psychological effects on an injured person are evaluated in determining whether the motor accident caused or materially contributed to a psychiatric condition, including by way of aggravation. The Panel also notes that the Supreme Court in Todev v AAI Limited t/as GIO has held that a psychological injury was established if the motor accident aggravated, accelerated, or exacerbated a psychological condition.
[11] [2023] NSWPICMP 210.
The Panel has diagnosed an aggravation of persistent depressive disorder. Ms Keriakos’ injury is not a threshold injury.

WHAT IS THE DEGREE OF IMPAIRMENT?

Is the impairment permanent?

There is no dispute between the parties that any impairment caused by the accident is not permanent. The subject motor accident occurred on 19 July 2018. The claimant had suffered a psychological injury, aggravation of persistent depressive disorder and the resulting impairment has become static or well stabilised. In the clinical judgment of the Medical Assessors the claimant’s impairment is unlikely to change by more than 3% in the next 12 months despite medical treatment. Her impairment is permanent.

How is permanent impairment assessed?

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 that the AMA4 Guides are to be used as “background or reference only”.[12]
[12] Clause 6.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with whatever the current edition of either the DSM or the International Statistical Classification of Diseases and Related Health Problems (ICD).[13]
[13] Clause 6.213 of the Guidelines.
The PIRS provides[14] 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.”
[14] Clause 6.218 of the Guidelines.
The PIRS provides in cl 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 cl 6.220 for five classes with a descriptor for each which is “illustrative rather than literal criteria” and which is based on:
“1. … 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 may be adjusted for treatment[15] that is treatment such as medication being consumed to treat the psychiatric condition.
[15] See cls 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.[16]
[16] See cls 6.225 – 6.228 and table 17.

What is the degree of impairment?

Adopting the assessment form recommended in Figure 6.2 the claimant’s current impairment is assessed as follows:

Psychiatric diagnoses

Aggravation of Persistent depressive disorder DSM5TR F34.1

Psychiatric treatment description

The claimant received psychological treatment. The claimant stopped her use of Fluoxetine as the medication provided no reported clinician benefit.

The claimant attends her general practitioner for follow up and monitoring of her mental state.

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	1	The claimant at the re-examination was independent in her self-care and personal hygiene. She was able to maintain her independence in maintaining her regime to enable her to lose weight, with the use of her Ozempic. She was able to clean her house. She was able to wash her clothes. She was able to live independently with minor deficit attributable to normal variation in the general population.
2. Social and Recreational Activities	2	The claimant reported that after the motor accident she had lost interest in celebrating with her adult children or grandchildren. She said she had not participated in in 2023 Christmas or birthday celebrations with her adult children. While she was involved with her grandchildren she was less able to enjoy play and joined in less with her grandchildren’s life and development. The claimant has continued to attend her local church and be visited by her daughter on the weekend, on occasions. Ms Keriakos is mildly impaired.
3. Travel	2	Since the motor accident the claimant has been able to leave the family home without support. The claimant could travel in her local and restricted area. She reported that she was restricted in her travel as she would sometimes “lose her way and this would cause her to become tearful and upset.” Ns Keriakos is mildly impaired.
4. Social Functioning	3	The claimant reported that she lost her husband because of the motor accident. She reported that she was repeatedly and frequently yelled at by her husband. She said she could not have her husband back in the home as he was not supportive of her and failed to understand how the accident had affected her. The claimant said they were permanently separated with no prospect of reconciliation. The claimant is moderately impaired.
5. Concentration, Persistence and Pace	2	The claimant reported that she could not concentrate to perform the cash management processes in the shop where she worked. She said she made errors. She said that in her new role she still made errors but her performance and persistence was good enough. She said she was slower in her pace of reading and required to re-read documents before she comprehended their meaning. She reported her depressed mood made her indecisive and slow with her decision making. While there is no evidence of performance issues in her current workplace, the Panel accepts she is mildly impaired on the basis of her history.
6. Adaptation	2	The claimant reported that she was able to work fulltime hours in a different environment that was less skilful. She said she recommenced fulltime work in about September 2023. She was expecting to remain in this role for the indefinite future.
List classes in ascending order: 1, 2, 2, 2, 2, 3
Median Class Value: 2
Aggregate Score: 12
% Whole Person Impairment: 6%

In accordance with cl 6.218 and utilising the same assessment form, the Medical Assessors have assessed the claimant’s pre-existing impairment.

Psychiatric diagnoses	Persistent depressive disorder DSM5TR F34.1
Psychiatric treatment description	The claimant received psychological and psychiatric treatment from her general practitioner. She was prescribed Fluoxetine between 10 to 20mg daily. According to the records before the Panel she was no longer receiving treatment at the time of the subject injury.

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	1	The claimant was independent in her self-care and personal hygiene prior to the motor accident. She could cook her own food, maintain her personal care without assistance. She could wash her laundry and dishes. She was able to clean her home and maintain the house without external assistance.
2. Social and Recreational Activities	1	The claimant reported that prior to the motor accident she was able to instigate, prepare and participate in family celebrations. She would participate in festivals with her adult children. She would celebrate birthdays, Christmas and anniversaries within her family each year.
3. Travel	1	The claimant reported she could travel independently prior to the motor accident without experiencing any psychological symptoms. She could travel by public transport without the need for a support person.
4. Social Functioning	1	The claimant reported she had been married to her husband for many years prior to the motor accident. She said she was working in the family business, at the tobacconist / newsagency. She said her relationship with her husband was strong, as he was also working at the petrol station as a manager.
5. Concentration, Persistence and Pace	1	The claimant reported that before the motor accident she would easily cook her traditional food for her family. She could easily read and speak Arabic. She could concentrate and manage the needs of purchasing stock and selling items. She was able to complete the necessary cash management processes in the shop without difficulty.
6. Adaptation	1	The claimant reported that she was working fulltime in her role as a shop keeper in the family’s small business. She said she was able to work and manage the customers that purchased from her store without difficulty.
List classes in ascending order: 1, 1, 1, 1, 1, 1
Median Class Value: 1
Aggregate Score: 1, 1, 1, 1, 1, 1
Pre-existing % Whole Person Impairment: 0%.

The claimant had the pre-existing condition persistent depressive disorder which under the PIRS attracts a 0% WPI.
After the accident the claimant’s pre-existing physical conditions (such as her back) appear to have deteriorated (unrelated to the accident) and she may have developed additional issues (such as her neck). While these may be contributing to the claimant’s depressive state, in the light of the assessment of the degree of WPI, the Panel does not consider it necessary to further engage with an apportionment for that contribution.
As the claimant is having no treatment there is no need to make an adjustment for the effects of treatment.

CONCLUSION

The Panel is satisfied that the claimant has a non-threshold psychiatric injury and that the degree of permanent impairment caused by the motor accident is 6%.
The Panel has arrived at a different decision to Medical Assessor Sidorov, it follows therefore that his certificate must be revoked and a fresh certificate issued.

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Citations

Keriakos v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 538

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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AAI Ltd v Hoblos [2023] NSWPICMP 210

[2024] NSWPICMP 538

5 August 2024