Lafaber v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Lafaber v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 819
CLAIMANT:	Rebecca Lafaber
INSURER:	Insurance Australia Group Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Christopher Canaris
MEDICAL ASSESSOR:	Himanshu Singh
DATE OF DECISION:	23 October 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA); claimant injured in motor vehicle accident; MA determined the claimant’s permanent impairment at 7%; the claimant sought a review of the assessment under section 7.26; the Review Panel re-examined the claimant; Review Panel took into account pre-existing permanent impairment; Held – Review Panel revoked certificate of MA; substituted determination of 8% WPI.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Christopher Rikard-Bell of 18 May 2025 and substitutes the determination that the following injury was caused by the accident and give rise to a permanent impairment of 8%: · post-traumatic stress disorder.

STATEMENT OF REASONS

INTRODUCTION

The claimant, Rebecca Lafaber (Ms Lafaber), was injured in a motor accident (the accident) on 8 April 2021. Following the accident, she made a claim for damages under the Motor Accident Injuries Act 2017 (the Act) on Insurance Australia Group Limited trading as NRMA Insurance (insurer).
There is a dispute between Ms Lafaber and the insurer about whether the degree of permanent impairment as a result of psychological injury caused by the accident is greater than 10%. The dispute is a medical dispute, as defined by s 7.17 of the Act, and a medical assessment matter pursuant to Schedule 2, cl 2(a) of the Act.
The medical dispute was referred to Medical Assessor Christopher Rikard-Bell for assessment. He issued a certificate dated 18 May 2025 in which he certified that
post-traumatic stress disorder was caused by the accident and gave rise to a permanent impairment of 7%.
Ms Lafaber sought a review of the further assessment under s 7.26 of the Act. The President’s delegate determined that there was reasonable cause to suspect that the assessment was incorrect in a material respect. The review application was accepted and referred to this Review Panel.
The Review Panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the Review of the Assessment.

The Review

The Panel is to conduct the Review in accordance with s 7.26 of the Act. Section 7.26(5A) provides that the panel is to be constituted by two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) of the Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128.
Version 10 of the Motor Accident Guidelines (the Guidelines) commenced on
15 September 2025 and apply to claims arising from motor accidents occurring after
1 April 2023. As this accident occurred on 8 April 2021, prior to 1 April 2023, version 9.2 of the Guidelines apply to the Review.

DIRECTIONS

The Review Panel made these directions on 21 March 2025:
“(1) By 5:00 pm on 11 April 2025, the Claimant is to upload to the Commission's portal an indexed and paginated bundle of all the documents relied on by the Claimant in this Review in the following suggested order:
(a)Review documents - the Claimant's Submissions made to the President's delegate and the President's delegate's decision;
(b)Assessment documents - the Claimant's Submissions made to Medical Assessor Rikard-Bell and Assessor Rikard-Bell’s decision;
(c)All documents that the Claimant relied on, and which were before Assessor Rikard-Bell; and
(d)Any additional documents that the claimant seeks to rely on in the course of this Review.
(e)The GP clinical notes and reports for 2 years pre-dating and post-dating the motor accident (if not already included in the bundle).
(f)The Personal Injury Claim Form, the claimant’s statement, the Police report and Ambulance Incident report and any photographs depicting the damage to the vehicles, and where relevant, the scene of the accident (if applicable, or if not already included in the bundle).
(2) The Insurer is, by 5pm on 18 April 2025, to upload to the Commission's portal an indexed and paginated bundle of all the documents relied on by the Insurer in this Review (avoiding as far as possible duplication of documents relied on by the Claimant) adopting the suggested order in direction 1.”

DOCUMENTS PRODUCED

The parties produced the following documents to Pathway:
Claimant
(a)    submissions dated 23 March 2023 and 18 June 2024;
(b)    Commission’s correspondence;
(c)    Application for Personal Injury Benefits dated 3 May 2021;
(d)    certificate of Medical Assessor Christopher Rikard-Bell;
(e)    evidentiary statement dated 27 March 2024;
(f)    clinical Records of Hawkesbury Road Family Medical Centre, and
(g)    medical reports of Dr Richa Rastogi and Ms Kathleen McLaren.
Insurer
(a)    submissions dated 5 April 2023 and 16 July 2024;
(b)    insurer correspondence;
(c)    reports of Ms Laura Hutchinson, Care Physiotherapy, National OT,
Ms Kiera Rogerson, and multiple MRI reports;
(d)    Allied Health Recovery Requests;
(e)    medical referrals for MRIs and to see Dr Prashanth Rao;
(f)    clinical records of Marsden Specialists Paramatta, and
(g)    Commission’s Assessment of Medical Assessor Veerabangsa.

STATUTORY PROVISIONS
Permanent impairment

If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) of the Act.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1)     The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2)     Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3)     In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4)     A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with “Mental and behavioural disorders”, found in cls [6.201]-[6.228] of the Guidelines.

Pre-existing impairment

Pre-existing impairment is addressed in cls 6.31-6.33 as follows:
“Pre-existing impairment
6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.
6.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.”
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with “Mental and behavioural disorders” within the Guidelines, namely cls [6.201]-[6.228] of the Guidelines.
In order to measure impairment caused by a specific event, a 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 the Guidelines, and subtract this value from the current impairment rating: cl 6.218.

Causation

The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5    An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
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 necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular ss 5D and 5E.

ASSESSMENT UNDER REVIEW

Medical Assessor Christopher Rikard-Bell examined Ms Lafaber on
20 November 2023 and provided his certificate on 18 May 2025 which certified that the injuries caused by the accident gave rise to a permanent impairment of 13%. The Panel summarises the report below by reference to paragraph numbers:
[2]     Medical Assessor Rikard-Bell noted that the following injury was referred to him for assessment:
·psychiatric condition - post-traumatic stress disorder.
[3]-[4] Medical Assessor Rikard-Bell summarised the submissions of Ms Lafaber and the insurer.
[5]-[6] He then set out the documents and late documents considered in his certificate.
[8]     Medical Assessor Rikard-Bell took an extensive psychosocial and pre accident history; noting that Ms Lafaber is a 39-year-old woman with cerebral palsy and quadriparesis. She resides with her daughter and has been on the disability pension from the age of 16, receiving 24-hour care. Prior to the accident, Ms Lafaber claims she was functioning extremely well. She was able to socialise somewhat and would go out to meet with friends.
In terms of pre-accident impairment, Ms Lafaber required 24-hour care prior to the accident. Therefore, there was total impairment of self-care and personal hygiene. In terms of social functioning, Ms Lafaber was previously married and in a relationship which broke down after four years, however she was able to maintain a good relationship with her daughter. Therefore, there was moderate impairment of social functioning. In terms of concentration, Ms Lafaber was able to focus adequately prior to the accident and there was mild impairment of concentration, persistence and pace. In terms of social and recreational activities, Ms Lafaber was able to interact with friends, go out and she was able to enjoy herself. Therefore, there was mild impairment of social and recreational activities. In terms of adaptation, Ms Lafaber was not working and was unable to sustain employment, however she was able to stable and was enrolled in a course at TAFE. Therefore, there was moderate impairment of adaptation. In terms of travel, Ms Lafaber was able to travel without restrictions and there was no impairment of travel.
Ms Lafaber had a complicated medical history with cerebral palsy at birth affecting all four limbs resulting in next to no movement in three of her limbs and 30% movement in her right arm. The current medication includes a range of treatment for diabetes, oesophageal reflux, hypertension and mood stabilising medication, antidepressant medication and Seroquel. There was no family history of psychiatric illnesses and no drug or alcohol history.
Ms Lafaber reported anxiety and depression from the age of 16 and there was possibly a psychotic episode when pregnant with ''perinatal psychosis. I don't' have it now." The Medical Assessor noted Dr Rastogi referred to a psychosis diagnosis in 2011. There is currently treatment with the general practitioner, psychologist, the pain clinic and pain clinic psychiatrist, occupational therapy, speech therapy and physiotherapy, as well as treatment with an ophthalmologist.
[9]     The Medical Assessor then took a brief history of the accident, noting that Ms Lafaber was a passenger in a van travelling along the M4 towards Toongabbie and was stationary on an off ramp. There was a collision from behind which caused a great shock and Ms Lafaber was violently jolted around. There was no loss of consciousness, however her hoist broke.
Ms Lafaber felt trapped and instantly thought she may be killed. She realised how vulnerable she was being a quadriplegic and she was very distressed when it was suggested that she should leave her equipment on the side of the road. The police, ambulance and fire brigade arrived and eventually she was taken home without attending hospital. Ms Lafaber said, "I was shaken up." On arriving home Ms Lafaber went to bed and slept.
[10] Medical Assessor Rikard-Bell noted that Ms Lafaber reported pain in her neck, shoulders, upper, middle and lower back, hips and legs. She believed there was a severe pain reaction after the accident and she said, "I can't do what I did before."
[12] Medical Assessor Rikard-Bell set out Ms Lafaber’s current symptoms, noting that she now finds it difficult to attend activities with her daughter as there was too much pain. The vehicle she was travelling in was unable to be repaired and has not been replaced. Ms Lafaber said, "I don't want to get out of bed." Her sleep was poor and she wakes up at various times during the night. Ms Lafaber said, "the pain keeps me awake" and she needs to be repositioned during the night which keeps her awake and she is exhausted during the day. There were dreams about the accident and a fear she was going to die with sweating occurring three to four times per week. Ms Lafaber described panic attacks when getting in the car and she avoids travelling in the car, as well as activities that could cause pain.
Ms Lafaber believed her whole nervous system was damaged and she was very angry that she can no longer do what she did before the accident with socialising, going out with friends, planning to study at TAFE and planning to return to work in some capacity. Ms Lafaber was hypervigilant near cars or if listening to information about motor vehicle accidents. She had no confidence in herself and she does not feel there is a great deal of purpose. In addition, Ms Lafaber is worried she is unable to adequately attend to her daughter's needs.
[13] Ms Lafaber is currently undergoing psychological treatment with Karen McLaren.
[14]-[16] Medical Assessor Rikard-Bell set out his clinical examination, noting that Ms Lafaber presented as a woman of stated age who was interviewed at home where there was a hospital style bed with hospital equipment surrounding her in order to assist with her care. Her hair was short and black and she wore thick glasses. Ms Lafaber was sitting in a wheelchair with a headrest. Her eye contact was poor however she engaged well with the interview process and was able to express herself. Her speech was slightly ataxic, otherwise her speech was normal in tone and volume. There was no abnormality of perception. There were no hallucinations or delusions. Ms LaFaber's affect was reactive although she did seem distressed and upset about her pain. Her cognitive function appeared normal and her thoughts were logical. It was Ms LaFaber's perspective that she sustained severe pain from the motor vehicle accident which had triggered nerve pain throughout her body. Ms Lafaber said the main problem currently is the pain in her neck, shoulders, throughout her back and her spinal cord, as well as her legs. She wished there were no pain and that she felt as well as she did prior to the accident.
Currently Ms Lafaber requires 24-hour care and there is total impairment of self-care and personal hygiene.
In terms of social functioning, Ms Lafaber maintains a good relationship with her daughter, however she believes she would be unable to form a new intimate relationship and she has no current interest in forming or maintaining a new relationship. Therefore, there is severe impairment of social functioning.
In terms of concentration, Ms Lafaber suffers with a lot of pain which interferes with her concentration. Excluding symptoms of pain, there would be mild impairment of concentration, persistence and pace.
In terms of social and recreational activities, Ms Lafaber has reduced interest in interacting with others largely due to pain, although she does feel low and anxious in mood. Therefore, there is moderate impairment of social and recreational activities.
In terms of adaptation, Ms Lafaber is unable to work or study due symptoms with pain. She is no longer studying at TAFE and she has lost interest in studying. Therefore, excluding symptoms of pain there is moderate impairment of adaptation.
In terms of travel, Ms Lafaber can travel in the car occasionally, however she prefers to use public transport or by bus. Therefore, there is mild impairment of travel.
The presentation was consistent with the history provided.
[17] Medical Assessor Rikard-Bell then provided a summary of the relevant documentation considered in his assessment.
[18] The Medical Assessor set out his diagnosis and reasons, diagnosing post-traumatic stress disorder and chronic pain due to a preoccupation with pain and an exaggerated response to the symptoms of pain. The features according to DSM-5 are outlined below:
(a)a traumatic event (the motor vehicle accident);
(b)re-experiencing phenomena with nightmares and intrusive recollections of the accident;
(c)avoidant behaviour avoiding car travel or topics related to motor vehicle accidents;
(d)negative cognitions with negative view of self and self-ability
(e)marked alterations in arousal with hypervigilance and easily startled;
(f)duration of more than one month;
(g)significant impairment of functioning, and
(h)not due to substance use or other medical condition.
[19]-[20]    He then set out his causation and reasons, noting that the psychological condition is causally related to the subject accident and that the post-traumatic stress disorder was caused by the accident.
[20] Medical Assessor Rikard-Bell noted that the following injury was referred to him for assessment:
[22] He then set out his findings as to the degree of permanent impairment psychiatric rating scale (PIRS) which is reproduced below:

Psychiatric diagnoses	1. Post-Traumatic Stress Disorder	2. Pre-existing anxiety & depression
Psychiatric treatment	Psychological counselling

Category	Class	Reason for decision
Self-care and personal hygiene	5	Currently Ms Lafaber requires 24 hour care and there is total impairment of self-care and personal hygiene.
Social and recreational activities	3	In terms of social and recreational activities, Ms Lafaber has reduced interest in interacting with others largely due to pain, although she does feel low and anxious in mood. Therefore, there is moderate impairment of social and recreational activities.
Travel	2	In terms of travel, Ms Lafaber can travel in the car occasionally, however she prefers to use public transport or by bus. Therefore, there is mild impairment of travel.
Social functioning	4	In terms of social functioning, Ms Lafaber maintains a good relationship with her daughter, however she believes she would be unable to form a new intimate relationship and she has no current interest in forming or maintaining a new relationship. Therefore, there is severe impairment of social functioning.
Concentration, persistence and pace	2	In terms of concentration, Ms Lafaber suffers with a lot of pain which interferes with her concentration. Excluding symptoms of pain, there would be mild impairment of concentration, persistence and pace.
Adaptation	3	In terms of adaptation, Ms Lafaber is unable to work or study due symptoms with pain. She is no longer studying at TAFE and she has lost interest in studying. Therefore, excluding symptoms of pain there is moderate impairment of adaptation.
List classes in ascending order: 2,2,3,3,4,5
Median Class Value: 3
Aggregate Score: 19
% Whole Person Impairment: 24%

[23] Medical Assessor Rikard-Bell then set out the PIRS as to pre-existing/subsequent impairment which is reproduced below:

Psychiatric diagnoses	1. Anxiety & Depression
Psychiatric treatment	Nil

Category	Class	Reason for decision
Self care and personal hygiene	5	Ms Lafaber required 24-hour care prior to the accident. Therefore, there was total impairment of self-care and personal hygiene.
Social and recreational activities	2	In terms of social and recreational activities, Ms Lafaber was able to interact with friends, go out and she was able to enjoy herself. Therefore, there was mild impairment of social and recreational activities.
Travel	1	In terms of travel, Ms Lafaber was able to travel without restrictions and there was no impairment of travel.
Social functioning	3	In terms of social functioning, Ms Lafaber was previously married and in a relationship which broke down after four years, however she was able to maintain a good relationship with her daughter. Therefore, there was moderate impairment of social functioning.
Concentration, persistence and pace	2	In terms of concentration, Ms Lafaber was able to focus adequately prior to the accident and there was mild impairment of concentration, persistence and pace.
Adaptation	3	In terms of adaptation, Ms Lafaber was not working and was unable to sustain employment, however she was able to stable and was enrolled in a course at TAFE. Therefore, there was moderate impairment of adaptation.
List classes in ascending order: 1,2,2,3,3,5
Median Class Value: 3
Aggregate Score: 16
Pre-existing % Whole Person Impairment: 17%

[26] Medical Assessor Rikard-Bell concluded that Ms Lafaber had a 24% total WPI, with 17% being from pre-existing/subsequent causes, which is a degree of permanent impairment caused by the motor accident of 7%.

EVIDENCE AVAILABLE TO THE REVIEW PANEL

Claimant’s evidentiary statement dated 27 March 2023:
[7]     Since birth, I have been diagnosed with Cerebral Palsy and I have been required to use a wheelchair.
[8]     In 20111 was diagnosed with Paranoid Schizophrenia and I sought treatment with a psychiatrist for treatment on a regular basis. I was prescribed Seroquel 75mg and I have been taking this medication for over ten years for the management of my Schizophrenia.
[9]     Prior to the accident, I was also diagnosed with hypertension and type 2 diabetes controlled with oral medication.
[10] Before the accident I had no prior injuries or disabilities which prevented me from participating in employment and enjoying life on an unrestricted basis.
[11] On 8 April 2021, I was involved in a motor vehicle accident ('The Accident') which resulted in causing me traumatic physical and psychological injuries. These injuries have had a devastating impact on my life.
[12] On the given day, I was seated in my wheelchair in the rear end portion of a van, which was being driven by my carer. As our vehicle approached the M2 Motorway ramp, west of Pennant Hills Road, Carlingford, the traffic ahead of us came to a halt and our vehicle came to a stop. Unfortunately, the vehicle behind us failed to stop on time and consequently, rear ended our vehicle. Due to force of the impact, our vehicle was propelled forward and further collided with the car in front of us.
[13] As a result of the accident, emergency services arrived at the scene of the accident and I was required to be cut from the vehicle and excavated. The hydraulic electric ramp in the rear of our van was smashed and the rear window was shattered as a result of the accident, I was conveyed by ambulance to Westmead Hospital for observation and treatment.
[14] As a result of the accident, I sustained injuries to the following body parts:
(a)neck;
(b)back;
(c)bilateral shoulders - right side rotator cuff injury with intrasubstance tear and left shoulder intrasubstance tear of the supraspinatus;
(d)bilateral hips right hip- tearing of the labral complex and trochanteric bursitis;
(e)bilateral knees - left knee joint effusion;
(f)left rib cage - lump;
(g)left eye - blurred/kaleidoscope vision, and
(h)psychological injuries.
[15] Shortly following the accident, I consulted my General Practitioner Dr Prashanta Saha, who referred me for an MRI scan of the left shoulder, right knee and right hip. He also referred me to the Westmead Hospital Emergency Department.
[16] On 16 May 2021, I attended Westmead Hospital as I was experiencing ongoing symptoms of blurred vision, increasing headaches, neck pain, left clavicular pain and left chest wall pain. I underwent a CT scan of the brain, cervical spine and chest and was also prescribed Endone for pain management. I was discharged the same day and was requested to follow up with my GP in one week for review and management of my symptoms.
[17] On 26 April 2021, I began consulting Psychologist, Ms Kathleen McLaren for the management of my psychological injuries and from thereon the sessions were ongoing on a weekly basis. To date, I continue to consult her under this arrangement for my psychological treatment.
[18] In May 2021, I commenced consultations at the Marsden Eye Specialists rooms in Parramatta for my deteriorating eyesight and headaches. I underwent various tests and was recommended to follow up in a year time. In May 2022, I again visited the eye clinic and was advised to have my refraction done again with an Optometrist and follow up with the clinic in 6-12 months time.
[19] In May 2021, I also started consulting Ashley Jenkins (Speech Pathologist) of Talkfeed Speech Pathology Services on a fortnightly basis. Due to my disability, she assisted with setting me up with a communication device which I'm able to use in situations when I am unable to speak due to being really tired and fatigued. This can also sometimes be caused as a result of my chronic pain as it impacts my daily functioning. In addition, she referred me to vision Australia for my vision for my blurry vision. I'm next scheduled to consult her on 21 March 2023
[20] On 3 June 2021, I was admitted to the Westmead ED as I experienced severe upper and lower limb tingling sensation with associated intermittent muscle spasms. I was also struggling with my vision and became extremely worried. I was seen by a Neurologist, who recommended me to undergo an MRI scan of the brain and thoracic spine. The following day, I consulted my GP, Dr Saha and he referred me for the scans. As the Insurer initially declined funding the scans, I was unable to undergo the scans until early 2023, when the decision of the insurer was overturned by the Personal Injury Commission {PIC). I am currently on the waiting list to consult the Rapid Access Neurological Clinic for further treatment.
[21] In July 2021, I commenced physiotherapy for my neck and left shoulder, right hip and back on a weekly basis. Initially, the Insurer covered some of the sessions, however once they started declining the sessions, I began consulting a different physiotherapist funded through NDIS, who I continue to consult on a fortnightly basis to date.
[22] Following the accident, Dr Saha also referred me to the Pain Clinic at Westmead Hospital, however I was required to be placed on the waiting list as there were no availabilities for a consult. In January 2023 I finally managed to secure a consultation and attended the Pain Clinic where I was prescribed Jelep Duloxetine 30mg for trial. Overall, I do not think that this medication has assisted with reducing my pain symptoms and instead, I feel that it has impacted my mental health negatively. I am scheduled to attend the Pain Clinic again on 17 April 2023. The Pain Clinic also assisted me in finding a psychiatrist for my treatment and I am yet to consult one on 17 April 2023.
[23] In October 2022, I consulted Ophthalmologist Dr H. Cass of Vision Australia, for suspecting glaucoma and migraine/kaleidoscope vision. I underwent a visual assessment and was prescribed visual aids including spectacles and an LED magnifier for my eyesight.
[24] I currently consume the following medications for the management of my accident-related injuries:
(a)Jelep duloxetine 30mg;
(b)Sendomigrane S00cmg; and
(c)Apo-quetiapine 70mg.
[25] Prior to the accident, I was unemployed and in receipt of Disability Support Pension since I was 16 years. I was also the full-time carer of my Autistic daughter.
[26] In August 2022, I commenced a Diploma in Auditing and Compliance at Newcastle Tafe. It is an online course that I am completing on a full-time basis. As a result of my injuries, I struggle to read the screen and as such, my Occupational Therapist from Vision Australia has assisted me by setting up a program for me that dictates the words on the screen as I am unable to see them. Since then, it has become easier for me to complete the course, but I continue to struggle with my concentration levels, forgetfulness and pain symptoms.
[30] Prior to the accident, I used to have a carer to assist me with my daily activities for 12 hours each day. Whilst I have ways been restricted due my physical disability, I generally managed my selfcare activities such as showering, consuming my meals, shopping and assisting with the preparation of meals. Prior to the accident, I was the primary carer for my daughter, and I used to assist Chloe with her self-care requirements such as helping her change her clothes and feeding her meals.
[31] Overall, if I had to describe my pre-accident life, I would say that I was living life to the fullest, enjoying time with my family and friends. I also had strong ambitions of pursuing a career in the auditing and compliance field.
[32] As a result of my accident-related injuries, I have become heavily reliant on my carer for my selfcare requirements. Since the accident, I have lost grip and strength of my right arm, and as a result, I am unable to clean myself after using the toilet and even shower myself. Since the accident, I have become so helpless that I am unable to even brush my teeth and have to rely on a mouthpiece toothbrush.
[33] Since the accident, I have also become very forgetful. On most days, I forget to eat my meals and I have lost my appetite. I tend to only eat when my carer reminds me that I haven't eaten for the whole day and she now needs to feed me. I struggle to maintain a healthy diet and generally consume only one meal a day as a result.
[34] Since the accident, I have no longer been able to provide care for my daughter and I have been seeking support from my carer who provides us assistance for 24 hours each day. This has been really devastating for me as my daughter has always been my first priority and since the accident, my ability to be a good mother to her and care for her has been completely impacted. I constantly feel that I have let down my daughter and she no longer has a mother that she can rely on.
[35] The accident has also impacted my eyesight and I struggle to read a book or even see colours properly. As a result, I constantly require the use of a magnifying glass and eyesight glasses. This has been very difficult for me as I have to rely on vision aids in my daily life, which is a constant reminder of how much my life has been impacted since the accident and how it will never be the same.
[36] Since the accident, I no longer enjoy any recreational activities with my daughter such as going to the park, shopping centre and cafes. I am also no longer able to accompany her to school. This is primarily because I'm always in pain and tend to get tired very easily from the smallest of tasks such as having a shower or from sitting in my wheelchair for longer than two hours due my hips and back injury. As a result, I no longer find social activities pleasurable, and I spend the majority of my time at home alone in front of the television. This has created a barrier between my daughter and I as we sadly no longer spend quality time together like we used to.
[37] Nowadays, I have noticed that I tend to get irritated and frustrated very easily. This especially occurs when I am unable to do simple task that I was able to do prior to the motor vehicle accident with ease, such as holding or preparing a cup of coffee. I constantly spend time overthinking about my life and the negative impact of the car accident.
[38] Since the accident, I have also refrained from meeting up with my friends and attending social gatherings. Not only do my physical injuries make it very difficult for me to travel because of the pain symptoms, but the accident has also impacted me psychologically. Nowadays, I tend to isolate myself and avoid participating in activities that I previously enjoyed. This is primarily because I don't have the motivation to see my friends and overall, I no longer have the confidence to hold up a conversation with them.
[39] I have regular intrusive memories of the accident with the sound of the class shattering in the car. I frequently have nightmares of being involved in an accident and I wake up sweaty and distressed. Since the accident, I feel very anxious when I am travelling in a car as it triggers memories of the motor vehicle accident. Also, I generally avoid leaving the house unless I have medical appointments to attend or if I have no other choice.
[40] Since the accident, I have also been experiencing suicidal thoughts on a frequent basis. On most days, my pain aggravates to the point where I feel like ending my life. Instead, I just tend to isolate myself and take frequent naps to avoid dwelling over these negative thoughts. On most days, I feel like giving up but then I think of my daughter and how she will have no one if I am gone.
[41] The accident has changed my life completely. Whilst I have strong ambitions of completing my Diploma in Auditing and Compliance and securing a role in the industry, I have grave concerns that my disabilities will prevent me from achieving this. It also deeply saddens me that I am unable to look after my daughter and fulfil my obligations as a mother.
Application for Personal Injury Benefits dated 3 May 2021:
“As a wheelchair bound person, I was in my vehicle as a passenger with my carer driving coming onto the M2 Motorway Westbound of Pennant Hills Rd, Carlingford. Traffic ahead stopped suddenly, my driver had to brake fairly quickly, the vehicle behind did not slow or stop and slammed into rear of my vehicle and pushed us sideways into vehicle ahead.
The accident threw me forward/back + forward again. At the time emotions were hysterical. Since the accident, I have had kaleidoscope vision left eye, severe neck, shoulder and back pain, and increased pain in my hips/knees and bruising/lump on LH ribcage.”

Report of Kathleen McLaren, Psychologist, various dates

18 November 2021 – noted Ms Lafaber was involved in an accident on 8 April 2021 as a passenger.
13 July 2022 – noted post-traumatic stress disorder, however the psychological symptoms had not stabilised.
4 April 2024 – Ms McLaren diagnosed post-traumatic stress disorder according to the DSM 5.

Certificate of Ahamed Veerabangsa dated 28 October 2022

Dr Veerabangsa determined that the following treatment and care relates to the injuries caused by the motor accident:
• whether an MRI scan to the brain relates to the injury caused by the accident, and
• whether an MRI scan to the thoracic spine relates to the injury caused by the accident.
The following treatment and care is reasonable and necessary in the circumstances:
•whether an MRI scan to the brain provided by Dr Saha is reasonable and necessary in the circumstances, and
•whether an MRI scan to the thoracic spine provided by Dr Saha is reasonable and necessary in the circumstances.

Report of Dr Helene Cass, Marsden Eye specialists, dated 18 May 2022

The report found no abnormality in Ms Lafaber’s eyes that could be explained to the accident, although there was suspicion of glaucoma noted.
Report of Dr Richa Rastogi, psychiatrist, dated 10 November 2022:
“Causation – Her current psychological conditions are caused as a result of the motor vehicle accident.
Diagnosis –
(1) Post traumatic Stress Disorder in partial recovery, and
(2) Adjustment Disorder with anxious distress. Ms Lafaber was involved in a motor vehicle accident resulting in chronic pain and deconditioning that has further caused deterioration of her mental state and adjustment disorder. Her pain has been treated conservatively with limited progress and she continues to [be] impacted in her functioning causing hopelessness, worthlessness and burden on others. Her pain is perpetuating her adjustment disorder and magnifying her impairments. Her current functional impairments are associated with PTSD with symptoms of intrusive nightmares, arousal, avoidance of being a passenger, excessive fears and catastrophic thinking with reactivity. She reported emotional dysregulation, startled responses and avoidance of high stimulus environment with high levels of irritability Her sleep, appetite and motivation were poor. She is aroused with avoidance and is socially restricted to do things. She has residual avoidance behaviours and gets easily triggered with ongoing restrictions.
She Fulfills DSM V diagnosis of PTSD characterised by:
Criteria A- exposure to life threatening event, accident where she felt her life was in danger;
Criteria B- recurrent intrusive dreams, flashbacks, dreams of accident and physiological reactivity;
Criteria C- persistent avoidance of being in car, avoiding accident site, inability to recall certain aspects of accident, decreased interest in activities, restricted range of affect;
Criteria D- insomnia, irritability, difficulty with concentration, startled;
Criteria E- lasting for more than a month; and
Criteria F- Causing significant distress.
Prognosis – Her prognosis is reasonable with ongoing support and treatment. [Her injuries have] affected her ability to engage socially due to her anxiety travelling and using public transport as well as pain. She is more home bound and avoids social situations.”

Report of Melanie Homes, occupational therapist, dated 21 October 2020

This report notes Ms Lafaber’s need for 24/7 care and support with:
“Full assistance to complete all personal care (showering, managing incontinence etc.) and daily living tasks, community access (for appointments and leisure activities), domestic tasks and medication management.
Rebecca requires full assistance with transport due to her functional impairments.
Inability to move legs due to lack of active range of movement; Spasticity of her left side (and no functional use of left hand); Decreased strength and movement in her upper limbs; Poor seated balance (due to muscle weakness); Inability to walk or stand (due to muscle weakness); Decreased sensation from the waist down to her feet (reportedly becoming worse due to poor positioning in her wheelchair); Scoliosis of the spine (reportedly getting worse due to poor positioning in her wheelchair); Back spasms (3-4 times per day); Constant pain in pelvis, legs, arms, neck and spine (ranging from 6/10 – 10/10 daily); Feeling of pressure build up in the head (from 9am getting worse as day goes on); Decreased temperature regulation; Speech and swallowing difficulties due to poor muscle control of the mouth; Dysarthria and dysphasia (Speech Pathologist Report) resulting in aspiration daily (approximately three times per day/night) and potential to choke; and Anxiety when unable to help herself.”

Report of Kiera Rogerson, physiotherapist, dated 26 October 2020

Ms Lafaber “requires 24-hour support daily for activities including personal care, meal preparation, transfers, dressing and grooming.”
Weakness in the lower limbs; left shoulder and neck pain with reduced range of motion; “slight decrease in her bilateral knee and hip pain” due to prolonged sitting; right wrist and hand pain due to overuse due to left hand dysfunction.
Report of Kristie-Lee Evans, occupational therapist, dated 24 December 2020:
“CANS level 7: cannot be alone, needs support 24 hours a day
observed reduced functional movement to both upper limbs which indicates significant support need’s in order to engage in everyday tasks such as meal preparation (including being able to get a drink out of the fridge), cleaning tasks, transfers (requiring the use of a portable hoist), showering, dressing, toileting (incontinence management throughout the day), eating (assistance to eat), shopping, set-up support for leisure tasks (such as painting), and supporting her child care activities as and where required. As such Rebecca’s model of care has been reviewed and Rebecca is recommended by OT to receive 24 hours of support and monitoring completed by qualified care support staff (with regular education and formal training in the management of individuals with complex support needs), in order to maintain living in her current housing situation with her daughter Chloe.
Domestic ADL’s …Rebecca has reported a significant deterioration to her strength and that this has impacted on her ability to engage in light house-hold management and/or meal preparation tasks. For example, Rebecca was unable to demonstrate tasks such as preparing a simple meal or getting herself a glass of water, due to impaired upper limb strength (bilaterally) impacting on her ability to open cupboards, obtain glassware (pick up a glass cup on the counter) and/or fill the kettle. In addition, Rebecca reported she can no longer open the fridge door and relies on support staff or her daughter Chloe to assist with these tasks. Meal prep/cooking: Full assistance required; Cleaning: Full assistance required; Laundry: Full assistance required; Bins: Full assistance required; Garden: Full assistance required; Petcare: Full assistance required.
Personal ADL’s …Rebecca reports a functional difficulty of 94% (extreme functional impact) in the domain of self-care. Showering: Rebecca is assessed to require the use of suitable mobility aids when showering and toileting (tilt-in-space shower commode) and requires physical assistance to attend to bathing, dressing, drying and hair-washing tasks. Dressing: Full assistance from care support. Drying: Full assistance from care support. Toileting: Use of mobile shower commode for toileting over toilet bowl as well as full assistance for post-toileting hygiene. Secondary to incontinence Rebecca has a full bladder/bowel routine currently managed with the use of continence aids (with frequent pad changes required during the day) Personal grooming: Assistance required to set-up toothbrush, complete brushing hair, and clipping nails. […] …OT strongly supports the provision of active overnight supports in order to reduce the risk of injury and/or death caused by difficulty alerting staff in time (when in need of emergency intervention through the night.
Rebecca reported that she currently utilises a wheelchair accessible vehicle in order to access the community and that she has her care/support workers drive her for all community tasks including taking her daughter to school or other activities. Shopping: Assistance for management of shopping tasks provided by care support. Banking: maintains independence using online banking. Appointments: Assistance for transport. Transport or travel: Driving assistance required.
Cognitive / Behavioural
As per the results of the WHODAS, Rebecca has recorded a 25% overall functional impact in the domain of cognition indicating a moderate functional impact. In discussing cognitive functioning Rebecca has admitted to feeling extremely ‘overloaded’ in the past few months, and especially in the recent week. At the time of the assessment conducted Rebecca had reported a full change to her roster of care/support model which had had a big impact on her cognitive fatigue and anxiety levels. […]
Psychological / Emotional
Rebecca reports to experience psychological concerns including anxiety, low mood/depression and paranoid schizophrenia. Rebecca presents with complex psychological needs further complicated by a history of poor in home support and a resulting reluctance towards medical care follow-up (likely due to reported distrust, frustration and previous disappointment from the medical system, as per discussion with Ashleigh Jenkins on 23 December 2020).
Rebecca reports engagement by both psychology and psychiatry through her local medical centre (Hawkesbury) however this is currently only input provided every 2-3 months at the time of the assessment. Increased psychological support is recommended by the OT in order to ensure adequate input is provided on a regular basis due to increased anxiety and ongoing disability-related health issues. OT supports a minimum of once fortnightly input by a qualified psychologist for Rebecca to be able to appropriately manage her mental health symptoms and reduce the risk of further psychological decline.”

MRI reports – various dates

Knee dated 27 May 2021:
Findings: The anterior and posterior cruciate ligaments are intact. The femoral shaft and proximal tibia appear gracile. A small knee joint effusion is present.
Conclusion: Marginal osteophyte along the lateral margin of the patellofemoral articulation. Shallow trochlear groove and patellar apex. Oedema is seen at the superior margin of Hoffa’s fat pad immediately inferior to the patella.
Left shoulder dated 26 May 2021:
Findings: 1. Supraspinatus: An intrasubstance tear is noted 2. Infraspinatus: No focal tear 3. Subscapularis: No focal tear 4. Teres minor: No focal tear 5. Long head of biceps: A tiny sheath effusion is noted. The biceps tendon is normally situated within the bicipital groove. No tendinopathy or tear. Bursa: No bursal effusion or thickening is seen. Musculature: There is made of T2 hyperintense signal involving the posterior deltoid musculature which may reflect contusion or tear. Mild atrophy of the rotator cuff muscles.
Impression:
1.      Oedema involving the posterior deltoid musculature may reflect an intrasubstance tear or contusion;
2.      No evidence of rotator cuff tendon tear. Mild rotator muscle atrophy, and
3.      Intrasubstance tear supraspinatus.
Lumbar spine dated 28 June 2021:
Findings: Lordosis is maintained. There is no fracture. No evidence of bone oedema. No listhesis. Conus terminates at approximately L1 level. The cauda equina nerve roots are within normal limits. The intervertebral discs are within normal limits. No exiting neural foramina stenoses identified. The sacroiliac joints appear within normal limits.
Comment: No suspicious lumbar spine abnormality has been identified. No evidence of neural impingement is seen.
Cervical spine dated 29 November 2021:
Findings: Lordosis is preserved. There is no abnormal bone oedema. No posterior fossa lesion in the scanned fields. The cervical cord is moderately effaced by a disc bulge of C5/6 eccentric to the left side. There is no abnormal cord oedema. The volume of the cervical cord is within normal limits.
At C2/3, there is no central canal or foraminal narrowing; At C3/4, there is no central canal or foraminal narrowing.; At C4/5, there is no central canal or foraminal narrowing.; At C5/6, there is disc dehydration with broad based eccentric disc bulge effacing the central canal on the left side; causing likely impingement. No exiting foraminal narrowing has been identified; At C6/7, there is no central canal or foraminal narrowing; and at C7/T1, there is no central canal or foraminal narrowing.Comment: Broad based disc bulge slightly eccentric to the left causes moderate central canal narrowing and effacement of the thecal sac. No significant cord oedema and cord volume is maintained. There is no evidence of bony oedema. No exiting neural impingement identified. Cervical spinal surgeon opinion is suggested.
Right hip dated 26 May 2021:
Findings: There is a broad dysplastic bump along the anterior margin of the femoral head/neck junction resulting in cam impingement type anatomy. The acetabular labrum anterosuperiorly appears partly deficient and torn. The labrum superiorly is degenerate and partly replaced by osteophyte formation. Articular cartilage along the acetabular roof anterosuperiorly adjacent to the chondrolabral junction shows some minor thinning but without extension down to bone. Femoral head cartilage appears maintained. There is no effusion or marrow oedema. There is thickening and oedema of the trochanteric bursal complex. Gluteal tendon insertions are intact. The hamstring and iliopsoas insertions are intact.
Comment: Degeneration and tearing of the labral complex with background impingement anatomy. Trochanteric bursitis.

SUBMISSIONS
Submissions of the claimant dated 28 March 2023

The Panel summarises the submissions of Ms Lafaber dated 28 March 2023 by reference to paragraph numbers:
[1]-[3] Ms Lafaber submits that the insurer has communicated a decision which materially impacts her rights to compensation under the Act and submits that the decision is incorrect and should be overturned.
The insurer’s decision referred for Commission assessment
[4]-[6] On 12 November 2022, Ms Lafaber requested the insurer to concede that her level of permanent impairment exceeds 10% as a result of the accident. By correspondence dated 21 March 2023, the insurer advised it does not concede that Ms Lafaber’s physical and psychiatric injuries exceed 10% permanent impairment. She disagrees and seeks Commission determination of that issue.
Alternative decision sought
[7]     Ms Lafaber seeks a Commission determination that:
(a)    her injuries are causally related to the motor accident, and
(b)    her injuries exceed 10% permanent impairment.
Issues under review
[8]     Ms Lafaber submits that the insurer failed to consider or give appropriate weight to the report of Dr Richa Rastogi dated 10 November 2022, which assesses her psychiatric impairment as greater than 10%.
Reasons why the decision should be changed
[9]-[10] Ms Lafaber submits that the insurer’s determination is incorrect which impacts her right to compensation. She further submits that under s 6.4 of the Act, the insurer has a duty to resolve the claim justly and expeditiously, which it could do by conceding her entitlement to non-economic loss.
[11] Ms Lafaber submits that the insurer failed to properly consider the medico-legal reports of Dr Richa Rastogi dated 10 November 2022.
[12] Ms Lafaber relies on Dr Teoh’s report of 10 November 2022 diagnosing post-traumatic stress disorder and adjustment disorder with anxious distress.
[13] Based on this diagnosis, Dr Rastogi assessed 15% permanent impairment, including Class 2 impairments in self-care, social/recreational activities, travel, and relationships, and Class 3 impairments in concentration and adaptation.
[14] Ms Lafaber submits that Dr Rastogi’s findings of severe psychological sequelae are supported by psychologist Kathleen McLaren’s report (13 July 2022), which records her fear of travelling in vehicles and concludes a direct causal link between the motor accident and her psychological ill-health.
[15] Ms Lafaber submits that, contrary to the insurer’s opinion, the medical evidence of Dr Rastogi and Ms McLaren demonstrates that her permanent impairment is greater than 10%.
Rights reserved
[20] Ms Lafaber reserves the right to provide further submissions or evidence relevant to this dispute.

Submissions of the insurer dated 5 April 2023

The Panel summarises the submissions of the insurer dated 5 April 2023 by reference to paragraph numbers:
Nature of dispute
[1]-[2] Ms Lafaber was involved in a motor vehicle accident on 8 April 2021. Her Application for Personal Injury Benefits of 3 May 2021 listed injuries including hysterical emotions, kaleidoscope vision in the left eye, neck, shoulder and back pain, hip and knee pain, and rib bruising. It was noted she was born with cerebral palsy.
[3] The insurer’s 28-week liability notice determined that Ms Lafaber had sustained minor injuries.
[4]-[6] On 12 November 2022, Ms Lafaber’s solicitors requested the insurer concede that her psychiatric injuries exceeded 10% WPI, entitling her to non-economic loss. On 21 March 2023, the insurer rejected that request, stating the psychiatric injuries did not exceed 10% WPI. No internal review was requested or conducted regarding that decision.
[7]-[9] Her representatives subsequently lodged an application with the Commission. An earlier internal review dated 8 August 2022 affirmed a prior decision that the WPI did not exceed 10%, in response to a
4 May 2022 request. The Commission application dated
30 March 2023 sought assessment limited to psychiatric conditions (post-traumatic stress disorder and adjustment disorder).
Treating medical evidence
[10] The claim form recorded Ms Lafaber as a rear-seat passenger in a car hit from behind; she did not attend hospital post-accident.
[11] An occupational therapy report of Laura Hutchinson dated
15 March 2017 recorded quadriplegic cerebral palsy, living independent with her daughter, and care needs for transfers, personal care, and meals.
[12] A physiotherapy report by Care dated 26 October 2020 documented ongoing therapy for pain management, lower-limb strength, and mobility, with continued 24-hour support for daily living and community access.
[13] An occupational therapy functional assessment dated
24 December 2020 confirmed diagnoses of cerebral palsy, anxiety, depression, and paranoid schizophrenia, with multidisciplinary treatment and 24-hour support needs.
[14] An occupational therapy progress report dated 21 October 2020 recorded isolation and limited community access adversely affecting mental health, recommending increased community access funding.
[15] A Certificate of Capacity by Dr Prashanta Saha dated 29 April 2021 confirmed the accident and referred Ms Lafaber for physiotherapy, noting pre-existing right-knee and left-shoulder pathology.
[16] Treating psychologist Kathleen McLaren on 13 July 2022 diagnosed PTSD, noting weekly therapy since April 2021, chronic pain-related exhaustion, and diminished self-care and social engagement. Symptoms were not yet stabilised.
[17] Earlier reports by Ms McLaren of 8 August 2021 and 20 May 2022 noted significant emotional trauma from prior carer abuse and Ms Lafaber’s wish to relocate for wellbeing.
[18] Treating psychiatrist Dr Richa Rastogi on 10 November 2022 recorded long-standing depression and schizophrenia predating the accident, diagnosed PTSD (partial recovery) and Adjustment Disorder, and stated symptoms had stabilised. She assessed:
•self-care – Class 2; Social/Recreational – Class 2; Travel – Class 2; Social Functioning – Class 2; Concentration – Class 3; Adaptation – Class 3.
•Total 14% WPI (2% pre-existing, 1% treatment effect).
[19] The insurer reserves its right to make further submissions if additional records become available.
Submissions
(A)    Stabilisation
[20] The insurer submits the evidence did not establish stabilisation of Ms Lafaber’s psychological condition.
[21]-[22] Section 6.19 of the Guidelines requires impairment to be static, well-stabilised and unlikely to change substantially. Although Dr Rastogi found stabilisation, the insurer submits this was inconsistent with Ms McLaren’s July 2022 report, which stated symptoms were not stabilised. Accordingly, a Permanent Impairment Assessment was premature.
(B)    Pre-Existing Impairment
[23]-[24] Under s 6.31 of the Guidelines, objective evidence of pre-existing symptomatic impairment must be identified and deducted from the current WPI. Ms Lafaber had diagnosed anxiety, depression, and paranoid schizophrenia prior to the accident, under treatment by a psychologist and psychiatrist.
[25] Dr Rastogi allowed 2% WPI for pre-existing impairment and pain; the insurer submits this did not accord with the Guideline methodology (ss 6.31 and 6.218).
[26] Should the Medical Assessor proceed; the insurer submits an assessment of pre-existing PIRS classes may be drawn from prior evidence:
•self-care – Class 2 (24-hour support for daily living);
•social/Recreational – Class 2 (community access only with carer support);
•travel – Class 2 (driven by support workers for all tasks);
•social Functioning – Class 1 (reliant on support services for parenting role);
•concentration/Persistence/Pace – Class 1 (normal cognitive function observed);
•adaptation – Class 2 (requiring 24-hour support to maintain independent living with child), and
•the insurer submits these equate to a median Class 2 and aggregate score of 10, or approximately 5% WPI, plus 1% for treatment effect (6% total pre-existing WPI).
(C)    post-traumatic stress disorder and adjustment disorder
[27]-[29] The insurer submits that, given the lack of stabilisation (s 6.19 of the Guidelines), Dr Rastogi’s assessment was premature and should not have been undertaken. Alternatively, if a permanent impairment assessment is performed, the insurer submits a deduction for pre-existing impairment should be applied. Accepting Dr Rastogi’s assessment of 15% WPI and deducting the proposed 6% pre-existing WPI would yield a net impairment of 7% WPI, which does not exceed the 10% threshold.

Submissions of the claimant dated 18 June 2024

The Panel summarises the submissions of Ms Lafaber dated 18 June 2024 by reference to paragraph numbers:

Background

[1]-[6] Ms Lafaber sought a review of the assessment of Assessor Christopher Rikard-Bell dated 18 May 2024 pursuant to s 7.26 of the Act on the basis that the assessment is incorrect in a material respect. She submits that this application satisfies the definition of “in a material respect” as set out in Meeuwissen v Boden [2010] NSWCA 253 and within s 7.26 of the Act. The Certificate concerns the assessment of the claimant’s psychological injuries for whole person impairment (WPI). Medical Assessor Rikard-Bell determined that the claimant’s psychological injuries (post-traumatic stress disorder) give rise to a 7 % WPI, falling below the 10 % threshold under the Act. The Review Application was made within 28 days of service of the assessment pursuant to Procedural Direction PIC7.

Framework for Review Application

[18] Section 7.26 of the Act permits referral of a medical assessment to a Review Panel where there is reasonable cause to suspect that the assessment was incorrect in a material respect.
[a]     In Craig v South Australia (1995) 184 CLR 163, jurisdictional error includes where a tribunal identifies the wrong issue, asks a wrong question, ignores relevant material, or relies on irrelevant material, thereby exceeding its authority.
[b]     In Meeuwissen v Boden [2010] NSWCA 253, the Court held that “what must be incorrect in a material respect is the medical assessment itself, not merely the certificate,” and that the decision-maker need only identify possible error, not make a full assessment.
[c]     Accordingly, Ms Lafaber submits that a finding of material error does not require proof that the certificate would necessarily have been different absent the error.

Error 1 – Incorrect WPI Assessment for Pre-Existing Psychiatric Injuries

(A) Self-Care and Personal Hygiene
[18] The assessor awarded a 5 % WPI for pre-existing self-care and personal hygiene, the same as post-accident.
[19]-[20] Prior to the accident, the claimant maintained independent function, handling self-care, shopping, cooking, and public transport, with a carer assisting 12 hours daily. Following the accident, Ms Lafaber submits that she requires 24-hour assistance and is no longer able to care for her daughter.
[21] Under Table 15 of the Guidelines (PIRS), Class 5 applies only where the person requires help with basic functions such as feeding and toileting.
[22] Ms Lafaber submits that she was not totally impaired pre-accident and that the assessor erred in attributing identical pre- and post-accident percentages.

(B) Social and Recreational Activities
[23] The assessor attributed 2 % WPI for pre-existing social and recreational activity.
[24] Ms Lafaber submits that prior to the accident the claimant maintained an active social life, regularly socialising with friends and family despite physical limitations. Dr Richa Rastogi’s report dated 10 November 2022 (A4) records that the claimant “travelled independently by public transport, enjoyed coffee with friends, and visited Westfield Parramatta and the club on her own.”
[25] The accident occurred while the claimant was returning from the Central Coast after visiting relatives, evidencing ongoing social engagement.
[26] Although the assessor acknowledged the claimant’s capacity to interact socially, he gave no reasons for the 2 % rating. Ms Lafaber submits that any physical limitations did not justify a pre-accident WPI deduction.

(C) Adaptation
[27]-[30] The assessor attributed 3 % WPI for pre-existing adaptation, the same as post-accident. Ms Lafaber submits this is incorrect. Prior to the accident, the claimant completed TAFE studies and maintained employment, as noted in Dr Rastogi’s report dated 10 November 2023. Since the accident, she has been unable to study or work due to reduced functioning. Ms Kathleen McLaren’s report of 4 April 2024 confirms new post-accident symptoms including vision deficits and tickertape synaesthesia associated with post-traumatic stress disorder.

Submissions of the insurer dated 16 July 2024

The Panel summarises the submissions of the insurer dated 16 July 2024 by reference to paragraph numbers:
General submissions
[5] The insurer notes the claimant’s references to 5%, 2%, and 3% WPI appear to be PIRS classifications rather than actual WPI findings.
[6]-[7] The insurer refers to Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, noting that a Medical Assessor must form their own opinion rather than choose between competing views. The insurer submits these principles were followed in Fitzpatrick [2015] NSWSC 1108 and Pinarbasi [2023] NSWSC 80, which emphasise that an assessor’s task is to form their own opinion based on all available material.
[8] The insurer submits Pinarbasi and Marsh [2022] NSWCA 31 warn against suspecting material error merely because an assessor reaches a different opinion from the parties’ experts.
[9] The insurer submits the assessor complied with their obligations, taking a comprehensive history, treatment chronology, current presentation, diagnosis, causation, and PIRS assessments.
[10] The insurer submits, consistent with Alawaia [2016] NSWSC 1875, that the weight given to evidence is a matter for the decision-maker.
[11] The insurer highlights c 6.21 of the Guidelines requires assessment as at the time of examination, explaining potential score variation.
[12]-[13] The insurer notes cl 6.217 of the Guidelines emphasises that the psychiatrist’s clinical judgment is the most important tool in applying the PIRS scale. The insurer submits different doctors may categorise impairment differently, given the illustrative and subjective nature of the criteria under cl 6.220.
(A) Self-Care and Personal Hygiene
[15] The insurer submits Ms Lafaber’s evidentiary statement was not before the assessor and cannot be relied upon to establish material error.
[16]-[17] The insurer notes the assessor recorded the claimant as requiring 24-hour care prior to the accident, indicating total impairment in this domain and submits that was no evidence before the assessor suggesting this was inaccurate.
[18] The insurer references multiple reports (Rastogi 2022; Hutchinson 2017; Holmes 2020; Rogerson 2020; Evans 2020; Veerabangsa 2022) confirming the claimant required 24-hour care.
[19]-[22] The insurer submits the claimant’s assertions at [20] of her statement are unsupported by medical evidence. The insurer submits, consistent with Mandoukos and Henderson [2013] NSWCA 480, that it is not the President’s Delegate’s role to discover alternate interpretations of the records. The insurer submits it was open to the assessor to find Class 5 impairment, having regard to the claimant’s life circumstances and that disagreement over the PIRS class does not establish reasonable cause to suspect material error.
(B) Social and Recreational Activities
[23]-[25] The insurer submits it was open to the assessor to find mild impairment in this domain. The insurer notes the claimant relied on a 2022 report suggesting pre-accident independence with transport. The insurer highlights later reports by Holmes (2020) and Evans (2020) showed that Ms Lafaber required full assistance with transport and community access.
[26]-[27] The insurer submits the evidence does not support independence and that assistance was required for community participation and that mere disagreement with the assessor’s professional judgment does not amount to material error.
(C) Adaptation
[28] The insurer highlights the assessor found moderate impairment pre-accident as Ms Lafaber was unable to sustain employment but could study at TAFE.
[29]-[30] The insurer notes the assessor found current moderate impairment (excluding pain), as the claimant could no longer study due to psychological symptoms and so the insurer submits the Medical Assessor correctly excluded physical pain when rating psychological adaptation.
[31] The insurer submits Ms Lafaber’s arguments do not show that the assessor failed to consider functioning or the illustrative criteria.
[32] The insurer submits subjective claims of worsening without supporting medical evidence cannot give rise to suspicion of material error.
Conclusion on material error
[33]-[34] The insurer submits there is no cause to suspect material error; the assessor reviewed all relevant documentation and provided consistent reasons and that the findings comply with NRMA v Keen [2021] NSWCA 287.
[35] The insurer submits the claimant has not provided sufficient grounds under s 7.26 of the Act or Meeuwissen v Boden [2010] NSWCA 253 to justify referral to a Review Panel.
Review Panel
[37]-[38] Should a review be granted, the insurer refers to prior submissions and submits Ms Lafaber had significant pre-existing physical impairments affecting all limbs, sensation, and speech, causing extensive dependency.
[39]-[40] The insurer highlights medical reports documenting anxiety, low mood, cognitive fatigue, and complex psychological needs pre-accident and submits that pre-accident records show progressive deterioration and increasing support needs, including a recommendation for 24-hour care.
[41]-[42] The insurer notes post-accident imaging revealed no new or traumatic pathology and submits there was no evidence of traumatic ocular injury.
[43]-[44] The insurer submits any aggravation of pre-existing conditions would have resolved over time and that ongoing pain and dysfunction reflect the natural progression of pre-existing conditions.
[45] The insurer submits physical effects from the accident should be disregarded as transient, citing Dungan v Padash [2021] NSWCA 66.
[46] The insurer notes the claimant’s study difficulties in 2022 must be viewed in light of deterioration since 2015.
Subjective reporting
[47]-[49] The insurer notes the claimant’s self-report of only 12 hours’ pre-accident care and submits this is inconsistent with medical records evidencing 24-hour dependence. The insurer further submits caution must be exercised in relying on self-reporting given the progressive deterioration pre-accident.
Final Conclusion
[50] The insurer reiterates prior submissions regarding the claimant’s psychological PIRS.
[51]-[52] The insurer submits the claimant’s care needs and condition were worsening before the accident and that no new pathology was caused, and any aggravation resolved.
[53]-[55] The insurer submits caution must be exercised with respect to subjective accounts inconsistent with records and that the assessor must disregard pain and physical disability when rating psychological PIRS per cls 6.214–6.215. The insurer further submits the assessor appropriately considered cl 6.220 and the claimant’s unique life circumstances at the time of the subject accident.

RE-EXAMINATION BY THE PANEL

The medical members of the Review Panel assessed Ms Lafaber by audio-visual link on 18 June 2025 at 2.30pm. Their findings are reproduced below.

Psychosocial history and pre-accident history

The claimant is a 42-year-old single mother and parent of a 13-year-old daughter. She is on the disability support pension as well as a carer’s allowance for her daughter who has level 2 autism.
She has cerebral palsy. She has to have full personal care for transfers and is unable to walk and uses a wheelchair.
She had been “not great” psychologically with long standing anxiety and depression. She “would have anxiety but I’d still go out in the community”. She had been on Seroquel and a small dose of an antianxiety medication the name of which she could not recall.
Before her accident, she “didn’t need 24-hour care – I could go out by myself…”. She would go out clubbing and could go out in her own. She used to pay wheelchair sports, go out to lunch, to the movies, bowling, to the beach, and the like.
The Panel noted a range of physical problems including diabetes type 2, hypertension, gastro-oesophageal reflux disease, migraine, asthma, and iron deficiency.
The Panel noted a history of significant adversity including abuse from her parents when young. She had never been in the paid workforce although she had completed courses in business administration and IT at TAFE. She had been in a four-year relationship with the father of her daughter Chloe who had an autism diagnosis.

History of the accident

The accident was on 8 April 2021. She was in her modified vehicle and her carer was driving home from the Central Coast. She was in her wheelchair in the back of her vehicle. The car was on an off ramp and a P-plater hit her vehicle at speed. She was thrust forward. Windows were smashed and she had to be cut out of the car.
Police and ambulance attended but she did not go to hospital. She went home via a disability taxi.

History of symptoms and treatment following the accident

Her vision was blurry and “I had kaleidoscope vision”. She was sent to an eye clinic in Parramatta. She said her left eye cannot focus properly making it difficult for her to get about. She has also been diagnosed with vision migraines in which she would “see black spot” and says she has to “sit in the dark.”
She said: “This accident really knocked me – I was so independent – I raised my daughter on my own – I can’t cross the road on my own.”
She has “nerve damage” which is “on the top of my body and my legs” and her “thoracic spine is thinning out and I’ve got a lot of nerve pain in my shoulders”.
She is “not great mentally – I don’t get out as much – you get scared going in a car and stopping at traffic lights” and is fearful of another accident.
She “can’t go out” unless she has a car because of her nerve pain which makes her “angry and frustrated and I get tried so easily from it”.
She has:
“severe panic attacks – I get trigger memories of the car accident and I’m literally constantly in pain – I sleep most of the day – I have to really push myself – because of the pain – the pressure in my brain – I forget things.”
She said of the accident, “I wish it never happened – it wasn’t my fault”.
She gets “trigger memories” when in front of traffic lights. She might get memories “sometimes when I’m doing some colouring in or I’m with my daughter – it all comes back – also the pain that I’m in triggers me and I’m not sleeping well so I’m constantly tired”.
She is not sleeping well because she has “post-traumatic visions” and “sometimes it’s so bad that I end up being sick and I vomit”.
She added, “When I do get in a vehicle, I get suffocated”.
It seems she had a battle with the insurer over treatment. She spoke of “an infrared laser treatment that works on the nerves” which again was paid for out of her NDIS plan “but it should be coming out of the insurance”. She had to stop the treatment and has not had it for about 6 months as her NDIS plan would not cover it.
She has visual aids which she has had to get paid for out of her NDIS plan because the insurer would not pain.
She has accommodating paralysis in her left eye as well as glaucoma for which she has to have drops.
She was started on painkillers, but this apparently affected her mental health sending her mental health “spiralling – I was suicidal – I’ve been suicidal with the pain as well”.
She said her “whole life has stopped” since the accident.
She is on Seroquel (quetiapine) 75 mg daily and Lamictal (lamotrigine). This has been prescribed by her psychiatrist. The Lamictal had been stated about 12 months. Over the last month, she had been started on Valium (diazepam) 2 mg as needed which she might take around twice a week.
She sees her psychologist every fortnight and sometimes more often “if I’m really bad – like last week I had really bad pain – I was sad and depressed and suicidal”. She would “talk about stuff – my pain – my daughter – have I been going out – meditation videos – breathing techniques”.
She reiterated, “The pain’s really getting to me – I’m suicidal”. She has been “cutting myself” and last did so about two weeks ago.

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

There were no further accidents. The Panel noted correspondence dated August 2021 stating that she had experienced abuse at the hands of one of her carers and that her home had become a source of trauma because of which she wanted to change accommodation.

Mental state examination

Ms Lafaber was examined by MS Teams over a period of one and a half hours with a good audiovisual connection. She was in the bedroom of her home in Toongabbie sitting in her wheelchair. She was on her own but had a carer in her home doing housework. Medical Assessors Singh and Canaris were in their respective offices. She presented as a woman of appearance consistent with her stated age who was reasonably groomed. Her speech was dysarthric consistent with her cerebral palsy diagnosis. She provided the history documented above. Her account was strongly pain focused and much focused on her perception of himself as stuck in her situation. Her overall account of herself was somewhat chaotic and repetitive and much focused on her need for various treatments which she was not receiving. Her overall account however was broadly coherent and internally consistent. When asked as to how she would function if she were free of pain, she responded saying, “If I didn’t have pain, I’d be going out – I would just go and pick up my daughter from daycare”. Her mood was dysphoric with a congruent affect, and she was at times agitated although evidence of psychosis or cognitive impairment was not apparent.

Current functioning

She said the accident “has put a lot of physical barriers on me and a lot of mental strain pain-wise and I have to look after my daughter as well…”.
She uses her wheelchair at home and does not walk because of her cerebral palsy. She needs assistance with transfers and community access. She requires 24-hour care. She needs assistance with showering and changing her clothes and has full support with personal care including bowel care via the NDIS. She does not enjoy getting personal care because of pain and finds that “everything is pressure – I need to sleep – I get angry – I start to swear, or I want to hurt myself – everything is hard, and it never used to be hard”. She used to be able to cook for herself before her accident and had seven hours a day personal support. She was more able to get around in her wheelchair but now is limited because of pain.
She used to be able to travel locally in her wheelchair and to take taxis or public transport and she could travel as far afield as the city or Parramatta. She was able to travel on a plane to Brisbane and overseas accompanied by a carer to assist with personal care. She has not been able to catch a flight explaining that she would not be able to sit in a plane seat because of her pain. She had been on a cruise “but that was a struggle”. Her irritability with noise contributed. She is no longer able to leave her home by herself but says she would be able to leave her home on her own if she was free of pain. She is also very anxious when she goes out because if fear of having another accident or even if crossing the road because she cannot see properly.
She described herself as now “99% dependent on others in the community whereas before it was 1% – I used to be able to cross the road – do my own shopping – go to my daughters school…”.
She goes out “not much anymore – I sleep – and if I do go out – I have to really push myself”. She might go out “every 3 months like to a movie and to do shopping now is a struggle for me”. She would sleep “the majority of the time or I try to sleep – I listen to my music”. Pain is a major contributor to her limitations in this regard.
She was not in a relationship at the time of her accident and had broken up with the father of her daughter when she was aged one year. She would like to be in a relationship “but intimacy is a problem because of nerves and to get into a relationship, you have to mingle… to mingle with people is too hard – I can’t focus on conversations because of pain…”. She gets on “good” with her daughter apart from teenage struggles and she has to help her with her autism related issues including sensory issues, behavioural issues, meltdowns, and the like. Her daughter is also on the NDIS, and she gets one day a week as well as an extra day a fortnight. She has behavioural support. However, her funding is limited. She has to push herself to help her daughter despite the pain – her daughter’s father is still in the picture but does very little by way of support. Her social network is otherwise very limited – her parents are elderly, have their health issues, and “my mother wasn’t very good to me” and she has no support network apart from her daughter although this had been the case even before the accident. She said, “I still have friends, but I haven’t seen them since the accident”.

She had been doing a course in auditing and compliance but had to quit because she “couldn’t concentrate – because of my vision and my migraines – I couldn’t complete it”. She might watch a TV show but after about 5 minutes gets distracted. She is “irritated by sounds” saying “some noises trigger my migraines”. She “used to read but [now] I can’t see the words” saying she would sometimes use her iPad but can only manage to do so for about 20 minutes “because of my vision”.
She was caring for her daughter in that she would:
“take her to preschool – taking her to playdates – putting her to bed – reading to her – taking her to her medical appointments. She would walk her to school and then go to college to do her diploma in community services. She would do homework. Her carer would help her with meal preparation. Her carers would mop the floor and do her washing ‘but I used to be able to cook’.”

Comments on consistency

As noted above, her account of herself was internally consistent. However, the Panel noted the inconsistency between her account of her pre-accident functioning and the documentation on hand. The Panel attempted to discuss this with her but noted her insistence on her account of her functioning.

Summary of relevant documentation

The Panel noted the application for personal injury benefits which refers to physical injuries but also stated that at the time of the accident her emotions were “hysterical”.
The Panel noted the claimant’s statement.
The Panel noted general practice consultation notes. These relate predominantly to physical issues including visual difficulties and pain with scattered references to being anxious and stressed for example after she had gone to the emergency Department of Westmead Hospital but discharged herself because the hospital seemed to be taking a long time to address her issues. Elsewhere, her mood is described as stable. That said, there is a mental health care plan for an exacerbation of anxiety and depression. Prescriptions for escitalopram and Seroquel were noted. There was correspondence from a neurologist noting the traumatic nature of the accident. There was a referral also to Dr Philip Boyce of Westmead Hospital for management of an exacerbation of anxiety/stress following her motor vehicle accident and later a referral to the Merrylands Community Mental Health Team as Dr Boyce had retired for management of anxiety and depression. There were also a mental health care plan and a referral to Dr Usman Malik, psychiatrist, of The Hills Clinic.
The Panel noted the report of Dr Richa Rastogi, IME psychiatrist, dated 10 November 2022. Dr Rastogi noted a prior history of depression and a diagnosis of paranoid schizophrenia before the birth of her daughter for which she had been treated with diazepam and Seroquel apparently making a good recovery apart from a mild relapse when she stopped the medication. She had functioned well on Seroquel (quetiapine) 75 mg daily over many years. She had also been on Epilim (valproate) for many years. Dr Rastogi diagnosed post-traumatic stress disorder in partial recovery and an adjustment disorder with anxious distress in the setting of chronic pain and deconditioning. She rated her at 14% WPI comprising 15% all up with a 2% or 1/10 deduction for pre-existing impairment and a 1% uplift for treatment effects. She rated her at Class 2 for self-care and personal hygiene, social and recreational activities, travel, and social functioning and Class 3 for concentration, persistence, and pace and adaptation. While Dr Rastogi rated her as Class 2 for social and recreational activities on the PIRS table, she described her as having moderate impairment in this category suggesting that Class 3 was the intended rating.
Comment: The Panel noted that Dr Rastogi’s assessment of WPI did not distinguish between impairment arising from psychological problems and impairment related to physical problems including her cerebral palsy and pain. It noted, moreover, that Dr Rastogi’s 1/10 deduction for pre-existing impairment was not in keeping with the requirements of motor accident legislation.
The Panel noted a series of reports from Kathleen Maclaren, psychologist, in which she was described as severely traumatised by her accident with frequent nightmares and high levels of anxiety with physical concomitants when in a car or stationary at traffic lights. The contribution of pain to her limitations in terms of social and recreational activities was noted. A letter dated 8 August 2021 noted that she had experienced significant abuse at the hands of one of the carers and hence her house was now an enduring source of trauma supporting an application to move to other accommodation.
The Panel noted the certificate of Medical Assessor Rikard-Bell dated 18 May 2024. Medical Assessor Rikard-Bell made a diagnosis of post-traumatic stress disorder assessing the claimant’s impairment at 7%. He rated her as Class 2 for travel and concentration, persistence, and pace, Class 3 for social and recreational activities, Class 4 for social functioning, and Class 5 for self-care and personal hygiene. This yielded a WPI of 24%. However, he assessed her pre-accident impairment at 17% rating her as Class 1 for travel, Class 2 for social and recreational activities and concentration, persistence, and pace, Class 3 for social functioning and adaptation, and Class 5 for self-care and personal hygiene. He made no adjustment for treatment effects.
The Panel noted the claimant’s and insurer’s respective submissions. It particularly noted assertions on behalf of the claimant in relation to pre-accident functioning and insurer’s submissions highlighting her high level of dependence for example in self-care and allied tasks related to other aspects of her activities of daily living. The insurer further submits that limitations secondary to pain needed to be considered.
To this end, the Panel noted a range of reports relating to her pre-injury functioning such as that of Melanie Homes, OT, dated 21 October 2020 and Kristie-Lee Evans dated 24 December 2020 relating to physical diagnoses, her prior history of depression, anxiety, and schizophrenia, and associated psychological symptoms such as difficulty sleeping, racing thoughts, anxiety and worry about safety, anxiety related to choking, social isolation, and difficulty coping with multiple stressors as well as distress of not being able to do activities she wanted. Pain attributable to back spasms was also present. It similarly noted correspondence from Laura Hutchinson, OT, from the Cerebral Palsy Alliance dated 15 March 2017 in relation to NDIS funding, and a physiotherapy progress report dated 26 October 2020.

Diagnosis and reasons

The Panel determined that the claimant’s presentation was consistent with a diagnosis of post-traumatic stress disorder and somatic symptom disorder with predominant pain.
In terms of DSM-5-TR criteria for post-traumatic stress disorder, it noted that the accident as described and as recorded in the documentation on hand was consistent with her Criterion A event. The claimant further described a range of intrusion symptoms including vivid recall of the accident and high levels of anxiety when in cars (Criterion B). While she has to go out in cars, she tries to avoid doing so because of her anxiety and his reluctance to venture out of her home on her own because of her fear of another accident (Criterion C). There was evidence of negative alterations in cognitions and mood manifested in her perception of her life as having “stopped” because of the accident coupled with suicidal ideation and markedly decreased interest in activities she previously enjoyed (Criterion D). There was evidence of marked alterations and arousal and reactivity manifest in panic attacks, hypervigilance, problems with concentration, and sleep disturbance (Criterion E). Her symptoms have been continuously present for well over four years (Criterion F), cause her clinically significant distress and psychosocial impairment as manifested in her social withdrawal and anxiety in cars (Criterion G), and were not attributable to the physiological effects of a substance or to another medical condition (Criterion H).
In terms of DSM-5-TR criteria for somatic symptom disorder with predominant pain, her concerns over pain had come to greatly disrupt her life (Criterion A) and there was certainly evidence of excessive thoughts, feelings, or behaviours related to this including a persistently high level of anxiety about her pain (Criterion B) all of which had been present now for over four years (Criterion C).
While the Panel noted that she had in the past attracted other diagnoses such as schizophrenia, these appeared to be in long-standing remission and the Panel did not see a need to revisit these.

Causation and reasons

While the claimant had had anxiety and depression before the subject accident, her post-traumatic symptoms were very specific to that event which as noted above was the kind of occurrence that carried an inherent probability of precipitating this condition. The claimant’s physical vulnerability because of her pre-existing problems would have added to psychological vulnerability. Consequently, the accident was a substantial cause of her post-traumatic stress disorder.
While she did have pain before the subject accident, it did not appear from the documentation on hand that it dominated her life to the extent apparent at the current assessment. Moreover, post-traumatic stress disorder can be associated with significantly heightened somatic concerns. Consequently, the emergence of somatic symptom disorder with predominant pain is substantially attributable to the subject accident.
There was no evidence that her schizophrenia which had been in sustained remission was in any way aggravated by the subject accident.

Permanency of impairment - PIRS

Ms Lafaber’s symptoms have been continuously present for over four years. She has been in treatment with a psychologist and is on an appropriate psychotropic regime. Her level of impairment is unlikely to change substantially or by more than 3% over the ensuing year.

Psychiatric diagnoses	1. Post-traumatic stress disorder	2. Somatic symptom disorder with predominant pain (not assessable for whole person impairment)
Psychiatric diagnoses	3. Schizophrenia in remission (pre-existing)	4.
Psychiatric treatment description	She sees a psychologist and psychiatrist and has been prescribed quetiapine, lamotrigine, and as needed diazepam.

Category	Class	Reason for Decision
1. Self-Care and Personal Hygiene	2	She uses her wheelchair at home and does not walk because of her cerebral palsy. She a needs assistance with transfers and community access. She requires 24-hour care. She needs assistance with showering and changing her clothes and has full support with personal care including bowel care via the NDIS. She does not enjoy getting personal care because of pain and finds that “everything is pressure – I need to sleep – I get angry – I start to swear, or I want to hurt myself – everything is hard, and it never used to be hard”. She used to be able to cook for herself before her accident and had 7 hours a day personal support. She was more able to get around in her wheelchair but now is limited because of pain. Comment: While she is dependent on others for her self-care, she no longer enjoys receiving personal care because of pain which is not assessable under the PIRS. However, her frustration with his situation indicates a contribution from psychological difficulties consistent with Class 2.
2. Social and Recreational Activities	2	She goes out “not much anymore – I sleep – and if I do go out – I have to really push myself”. She might go out “every 3 months like to a movie and to do shopping now is a struggle for me”. She would sleep “the majority of the time or I try to sleep – I listen to my music”. Pain is a major contributor to her limitations in this regard. Comment: The Panel noted the contribution of pain which was not assessable under the PIRS. With the exclusion of the contribution of pain, her impairment in this category was rated as Class 2.
3. Travel	2	She used to be able to travel locally in her wheelchair and to take taxis or public transport and she could travel as far afield as the city or Parramatta. She was able to travel on a plane to Brisbane and overseas accompanied by a care to assist with personal care. She has not been able to catch a flight explaining that she would not be able to sit in a plane seat because of her pain. She had been on a cruise “but that was a struggle”. Her irritability with noise contributed. She is no longer able to leave her home by herself but says she would be able to leave her home on her own if she was free of pain. She is also very anxious when she goes out because if fear of having another accident or even if crossing the road because she cannot see properly. Comment: Again, pain which is not assessable has contributed significantly to her limitations in this regard. With the exclusion of the contribution of pain, her impairment in this category was rated as Class 2.
4. Social Functioning	2	She was not in a relationship at the time of her accident and had broken up with the father of her daughter when she was aged one year. She would like to be in a relationship “but intimacy is a problem because of nerves and to get into a relationship, you have to mingle… to mingle with people is too hard – I can’t focus on conversations because of pain…”. She gets on “good” with her daughter apart from teenage struggles and she has to help her with her autism related issues including sensory issues, behavioural issues, meltdowns, and the like. Her daughter is also on the NDIS, and she gets one day a week as well as an extra day a fortnight. She has behavioural support. However, her funding is limited. She has to push herself to help her daughter despite the pain – her daughter’s father is still in the picture but does very little by way of support. Her social network is otherwise very limited – her parents are elderly, have their health issues, and “my mother wasn’t very good to me” and she has no support network apart from her daughter although this had been the case even before the accident. She said, “I still have friends, but I haven’t seen them since the accident”. Comment: Her relationship with her daughter is fundamentally intact. Again, pain which is not assessable has contributed to her limitations in relation to friendships in socialising.
5. Concentration, Persistence and Pace	3	She had been doing a course in auditing and compliance but had to quit because she “couldn’t concentrate – because of my vision and my migraines – I couldn’t complete it”. She might watch a TV show but after about 5 minutes gets distracted. She is “irritated by sounds” saying “some noises trigger my migraines”. She “used to read but [now] I can’t see the words” saying she would sometimes use her iPad but can only manage to do so for about 20 minutes “because of my vision”. Comment: Pain and physical problems such as her visual difficulties which are not assessable have significantly contributed to her impairment in this category. At the same time, the Panel noted her repetitive and at times chaotic presentation.
6. Adaptation	2	She was caring for her daughter in that she would “take her to preschool – taking her to playdates – putting her to bed – reading to her – taking her to her medical appointments. She would walk her to school and then go to college to do her diploma in community services. She would do homework. Her carer would help her with meal preparation. Her carers would mop the floor and do her washing “but I used to be able to cook”.
List classes in ascending order: 2, 2, 2, 2, 2, 3
Median Class Value: 2
Aggregate Score: 13
% Whole Person Impairment: 7%

PIRS – pre-existing/subsequent impairment

The Panel noted that her pre-existing impairment related predominantly to her cerebral palsy which was not assessable under the PIRS.

Psychiatric diagnoses	1. Schizophrenia in remission	2.
Psychiatric diagnoses	3.	4.
Psychiatric treatment description	Antipsychotic medication

Category	Class	Reason for Decision
1. Self-Care and Personal Hygiene	1	She attended to her self-care within the limits caused by her long-standing physical difficulties.
2. Social and Recreational Activities	1	She went out and socialised within the limits caused by her physical difficulties. The Panel noted comments in the documentation on social isolation pre-accident but considered this to be attributable to her long-standing physical problems.
3. Travel	1	She was able to leave her home on her own within the limits caused by her long-standing physical difficulties.
4. Social Functioning	1	She attended to the care of her daughter again within limits arising from her long-standing physical difficulties. The Panel noted that she was distant from her parents, but this had been a long-standing issue.
5. Concentration, Persistence and Pace	1	She denied difficulties in this category.
6. Adaptation	1	She functioned as a mother and homemaker within the limits caused by her long-standing physical difficulties.
List classes in ascending order: 1, 1, 1, 1, 1, 1
Median Class Value: 1
Aggregate Score: 6
% Whole Person Impairment: 0%

Apportionment and effects of treatment

The claimant’s pre-accident injuries were predominantly physical with 0% attributable to pre-accident psychological problems.
The Panel has added 1% by way of adjustment for treatment effects.

Comment and Conclusions

There was an 8% degree of permanent impairment caused by the accident. The Panel respectfully notes that its assessment of WPI and assessment of pre-existing impairment was calculated very differently from Medical Assessor Rikard-Bell’s as it excluded the contribution of impairments attributable to pain.

CONCLUSION

The Panel revokes the certificate of Medical Assessor Christopher Rikard-Bell of
18 May 2025 and substitutes the determination that the following injury was caused by the accident and give rise to a permanent impairment of 8%:
· post-traumatic stress disorder.

[2025] NSWPICMP 819

23 October 2025