Lam v Cic Allianz Insurance Limited
[2023] NSWPICMP 678
•18 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Lam v CIC Allianz Insurance Limited [2023] NSWPICMP 678 |
| CLAIMANT: | Elizabeth Lam |
| INSURER: | CIC Allianz Insurance |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Glen Smith |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 18 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of certificate and reasons of Medical Assessor (MA) Jones on application by the claimant; the MA found that the claimant had an adjustment disorder with depressed mood and mixed anxiety and a whole person impairment (WPI) of 7%; claimant injured in an accident on 31 March 2017 and her car was written off for insurance purposes; claimant suffered psychiatric disabilities causing her to reduce working hours and suffered anxiety when driving; arguments between medicolegal experts regarding the correct application of Psychiatric Impairment Rating Scale classifications; claimant’s medico legal expert assessed WPI at 15%; claimant suffered ongoing pain and physical disability as a result of the accident; Panel MA’s examined the claimant and found that she suffered from anxiety and depressive symptoms; Panel concluded that the claimant had an adjustment disorder with a period of driving phobia which was partially remitted; claimant assessed as having a WPI of 7%; Held – certificate of MA Jones affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION DETERMINATION 1. The Panel affirms the certificate of Medical Assessor Jones of 10 May 2022. 2. The claimant has an Adjustment Disorder with a period of driving phobia which is partially remitted 3. The claimant has a whole person impairment of 7%. |
STATEMENT OF REASONS
INTRODUCTION
This is a review of a certificate and reasons of Medical Assessor Jones (the Medical Assessor) dated 10 May 2022.
The Medical Assessor found that Elizabeth Lam (the claimant) had an adjustment disorder with depressed mood and mixed anxiety and had a whole person impairment (WPI) of 7%.
The claimant has sought a review of the certificate and reasons of the Medical Assessor.
The following injuries were referred by the Personal Injury Commission for further assessment:
• Adjustment Disorder with Anxiety and Depressed Mood.
This is a dispute between the claimant and the insurer about:
• the degree of permanent impairment under s 58(1)(d) of the Motor Accidents Compensation Act 2017 (the Act).
The accident
The accident occurred on 31 March 2017 at approximately 5.00pm. The claimant was the driver of her car wearing a seatbelt. The insured vehicle collided with right-hand side of her car causing her to spin around 360°. Airbags were apparently not deployed. The car was a write off for insurance purposes.
Documentation
The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
Claimant’s submissions
The claimant submits that the Medical Assessor erred in his assessment of the claimant’s concentration, persistence and pace (category 5).
The claimant says that the Medical Assessor assessed the claimant at class 2 under this heading. The claimant submits that the Medical Assessor should have assessed the claimant at class 3 for this category and had he done so, the claimant would have been assessed at 15% WPI instead of 7% WPI.
The claimant says that in his report, the Medical Assessor took the following history in relation to concentration, persistence and pace:
“At page 2, final paragraph under the heading History Dr Jones noted as follows:
‘Ms Lam works in a family-owned security-based electronics business. Her husband does the installation work and Ms Lam is responsible for all other operations of the company. It was a sole trading company 14 years ago and about 7 years ago became a partnership company when she joined with her husband. She said recently the children have been helping out with the business. They subcontract for larger jobs…….’
At page 3, paragraph 2, Dr Jones noted as follows:
‘Ms Lam reported she is not working as much as she did prior to the accident. She works 2 or 3 hours a day in the business. She has tried to get back to normal hours at work however her progress fluctuates and she said she gets dragged backwards and her husband has to pick up the slack. She said that it is generally “up and down”.’
At page 6, paragraph 15 Dr Jones took the following history:
‘I asked Ms Lam how she passes time and she said she will get up and have a cup of coffee. She said it takes her a little while to get going but the calls start to come in through to the business. She then makes a few calls but feels anxious because she starts to get behind and feels she is not on top of things. She tries to put things into perspective, gets back to people as best she can, and her husband fixes up her loose ends at the end of the day.’”
The claimant submits that the Medical Assessor had the benefit of a report from Dr Lee dated 10 July 2020. The claimant says that Dr Lee assessed her as having 15% WPI. The claimant says that the only difference between the assessment of the psychiatric impairment rating scale (PIRS) category between the Medical Assessor and Dr Lee was under the category of concentration, persistence and pace.
The claimant submits that Dr Lee assessed the claimant at class 3 and noted as follows:
“Finds it difficult to follow complex instructions and is finding it difficult to take work calls and complete business quotes for her husband.”
The claimant says that the Medical Assessor assessed the claimant at class 2 for the same category and noted as follows:
“Ms Lam concentrated well in the assessment and is coping with the work hours in her (and her husband’s) business. There is some impairment.
However, utilizing clinical judgment this is consistent with class 2 mild impairment.”The claimant submits that the Medical Assessor erred in assessing the claimant at class 2 given the history that he had taken from the claimant.
The claimant submits that the Medical Assessor erred in finding that the claimant was coping with the hours in her and her husband’s business. The claimant says that this does not align with the history taken that she takes a while to get going and she makes a few calls but feels anxious because she starts to get behind and feels she is not on top of things. The claimant was reported to say “She tries to put things into perspective, gets back to people as best she can, and her husband fixes up her loose ends at the end of the day”.
Having taken such a history, the claimant submits that a class 3 assessment was more appropriate under this category.
Further, the claimant submits that the Medical Assessor erred in not providing his path of reasoning of properly explaining why he assessed the claimant at class 2 as opposed to class 3 given the history he took from the claimant. The claimant says that at best, the Medical Assessor, at coming to his assessment of class 2 noted as follows:
“There is some impairment however, utilizing clinical judgment this is consistent with class 2 mild impairment.”
The claimant submits that the Medical Assessor has not satisfactorily explained how he concluded that the claimant was class 2 and not class 3.
The claimant submits that the certificate of the Medical Assessor is incorrect in a material respect.
The claimant, in her submissions for a further assessment of her psychological injury, referred to a certificate of Medical Assessor Synnott dated 5 February 2019. It was said that the Medical Assessor diagnosed the claimant as suffering from an adjustment disorder with anxiety and depressed mood. In that certificate, WPI was assessed at 5%.
The insurers submissions
Regarding the alleged error in assessment PIRS category of ‘concentration, persistence and pace’, the insurer referred to the submission of the claimant that the Medical Assessor erred in assessing this category. The insurer noted that the claimant said that in light of the history taken from the claimant, a class 3 assessment was more appropriate.
The insurer submitted that the Medical Assessor has not made an error and his class 2 assessment is consistent with the history obtained from the claimant and his clinical examination findings.
The insurer referred to clause 1.209 and 1.210 of the Motor Accident Permanent Impairment Guidelines (Guidelines) which it says defines the PIRS categories of ‘concentration, persistence an pace’ and ‘adaptation’ as follows:
“Concentration, persistence and pace is defined as the ability to sustain focused attention, for long enough to permit the timely completion of tasks commonly found in work settings.”
The insurer says that adaptation (also called deterioration or de-compensation in work or work-like settings) refers to the repeated failure to adapt to stressful circumstances.
The insurer also refers to the examples provided, in Tables 15 and 16 of the Guidelines, for the different class levels in the areas of ‘concentration, persistence and pace’ and ‘adaptation’.
Having regard to the definitions and class examples, the insurer submitted that the history obtained by the Medical Assessor, referred to by the claimant at pages 1 and 2 of her submissions, is more relevant to the PIRS category of ‘adaptation’ as opposed to ‘concentration, persistence and pace’.
The insurer submitted that the claimant’s review application is essentially attempting to rely on impairment, which is more relevant to the claimant’s ‘adaptation’ functioning, to assert that the claimant should have been assessed with a class 3 impairment in the area of ‘concentration, persistence and pace’. The insurer noted that the Medical Assessor had already assessed a class 3 or moderate impairment in respect of ‘adaptation’.
The insurer further noted that on mental state examination, the Medical Assessor found the claimant to be ‘cooperative and attentive’ and ‘engaging in the interview’. The claimant also reported working two or three hours a day in her business and being able to make calls and getting back to people as best as she could.
The insurer sbmitted that it is evident that the claimant retains the ability to sustain focused attention to permit the completion of tasks. The insurer referred to the claimant however reportedly struggling to ‘adapt’ to stressful circumstances such as her feeling of not being on top of things.
The insurer relies on the examples provided in Table 15 of the Guidelines and submits that the Medical Assessor correctly assessed a class 2 / mild impairment in the area of ‘concentration, persistence and pace’ as the claimant’s functioning aligned more with the examples provided for a class 2 rating as opposed to a class 3 rating.
The insurer submitted that furthermore, clause 1.217 of the Guidelines states the following regarding the PIRS:
“The scale must be used by a properly trained medical assessor. The psychiatrist’s clinical judgment is the most important tool in the application of the scale. The impairment rating must be consistent with a recognised psychiatric diagnosis, and based on the psychiatrist’s clinical experience”.
The insurer submits that the Medical Assessor correctly applied the PIRS and provided sufficient and clear reasons for assessing a mild impairment in the category of ‘concentration, persistence and pace’.
The insurer says that the Medical Assessor explained that the claimant ‘concentrated well in the assessment and is coping with the work hours in her (and her husband’s) business. There is some impairment however, utilising clinical judgment, this is consistent with a class 2 mild impairment’.
The insurer submits that, in accordance with clause 1.217, the Medical Assessor used his clinical judgment and clinical experience in his application of the PIRS and simply found that the claimant only had a mild impairment in her “concentration, persistence and pace”. The insurer says that this determination was open to the Medical Assessor to make and is not inconsistent with the Medical Assessor’s clinical findings and the history obtained from the claimant.
Finally, the insurer submits that there was no error in the assessment.
In summary, the insurer submits that the Medical Assessor considered all relevant evidence, he correctly applied the PIRS using his clinical judgment and experience and provided sufficient and clear reasons for his conclusions.
The insurer says that the Medical Assessor simply arrived at a different conclusion from that of the claimant.
WPI assessment submissions of insurer
Concerning the original application for a WPI assessment, the following submissions were made by the claimant.
The insurer relied on the medical report of Dr Virgona dated 1 February 2018 and submitted that the claimant’s WPI was below 10%.
The insurer referred to the PIRS scale in its submissions regarding the claimant’s WPI.
Concerning self-care and personal hygiene, the Insurer submitted that the claimant had a class 1 score in relation to self-care and personal hygiene.
The insurer said that no deficit in this area was mentioned in the report of Dr Virgona. The insurer noted that Dr Lee made a class 1 finding in his medical report dated 8 November 2017.
Regarding social and recreational activities, the insurer submitted the claimant may attract a class 1 or 2 score for this classification.
The insurer said that Dr Virgona noted that the claimant ‘has become mildly socially withdrawn'. In the days before the assessment with Dr Virgona, the claimant was noted to have recently met up with three friends for an outing. The insurer noted that the claimant stated that she remained in contact with her friendship group with via the messaging platform, WhatsApp.
The insurer said that Dr Lee allocated a class 3 score to the claimant for social and recreational activities. The insurer said that no evidence was presented in his report to support this allocation. The insurer said that Dr Lee’s only remark was that the claimant ‘Is reluctant to socialise’.
The insurer submitted that this is unsatisfactory for a class 3 finding. The insurer says that a claimant who is reluctant to socialise may well be awarded a class 2 or class 1 score per the PIRS descriptor for social and recreational activities.
Regarding the classification for travel, the insurer submitted that the claimant had a minor impairment with regard to travel.
Dr Virgona noted that the claimant was 'anxious with driving’ and 'only drives in the local area. The insurer says that these comments may accord with a class 2 finding. The insurer noted though that Dr Virgona did not allocate a PIRS score as, in his opinion, the claimant’s condition had not stabilised at the time of assessment.
The insurer says that Dr Virgona also noted the claimant’s emotional prognosis at the time of assessment showed positive prospects of improvement. The insurer submitted the Medical Assessor should consider this finding of Dr Virgona when assessing travel under the PIRS.
With regard to social functioning the insurer submitted the claimant did not have a deficit in regard to any psychiatric injury sustained in the accident.
The insurer submitted that the reports of Dr Virgona and Dr Lee put forward no evidence for a score other than a class 1 PIRS to be attributed to social functioning.
Concerning concentration, persistence and pace, the insurer submitted that the claimant had a minor to mild impairment in regard to concentration, persistence and pace.
The insurer said that Dr Virgona noted that despite the claimant feeling under pressure in her occupation, she stated ‘I do get back to every email, every phone call.’ The insurer submits that the claimant appears to be able to maintain levels of concentration, notwithstanding some very mild difficulties at work.
Dr Lee allocated a PIRS class 3 score noting the claimant “cannot cope with studies. Tends to give up easily and works much slower than normal”. The insurer said that there was no record of the claimant undertaking a course that required study since the accident in either the report of Dr Lee or the report of Dr Virgona.
The insurer submitted that the clinical records of Dr Luong did not record a disruption to study.
The insurer submitted Dr Lee’s allocation of a class 3 score appeared inconsistent with the medical material.
The insurer submitted, based on the report of Dr Virgona, that if any score for concentration, persistence and pace was to be allocated due to the accident, it should be in the minor or mild impairment range.
About the classification of adaptation, the insurer submitted that the claimant’s adaption was in the class 1 range for adaptation.
The insurer said that both Dr Virgona and Dr Lee recorded in their reports the claimant was working in the vicinity of 30-35 hours per week. Similar entries could be found in the clinical notes of Dr Luong, as recently as 4 September 2018.
The insurer referred to Dr Lee reporting that the claimant ‘is not coping with her regular work.’ The insurer submitted that this is not a consistent finding with the PIRS. The insurer says that a class 3 impairment would require the claimant to be unable to work in the pre accident position and perform less than 20 hours per week in a different position.
The insurer submitted that the claimant was working 30-35 hours in the same roles as she was undertaking at the time of the motor vehicle accident. The insurer said that her role at her work appeared to remain unchanged since the accident.
Review of documentation
Report of Dr Howe Synnott dated 5 February 2019 -the doctor noted that following the accident, for some time the claimant did no more than 20 hours a week at work before gradually increasing to 30-35 hours a week in pre-injury duties. However, the claimant reported physical restriction in her capacity to do household chores and activities in her personal life and requiring assistance from her husband and children. Dr Howe Synott said that it was possibly November 2017 when she first talked to a general practitioner (GP) about her psychological symptoms but had little in the way of further discussions. Since November 2018 she has been consulting a psychologist - and found that of benefit. She saw a psychiatrist for an assessment but not for treatment; she did not take psychotropic medication. He assigned a diagnosis of Adjustment Disorder with Anxiety and Depressed Mood. He determined the WPI to be 5%.
Dr Howe Synott provided a further report by way of a Medical Assessment Service certificate dated 7 May 2020. He said that prior to the accident the claimant had been fit and healthy with no significant medical or surgical problems.
On specific enquiry, she described experiencing the following symptoms to a significant degree at times since the subject accident: depression, thoughts of suicide (not acted on); poor sleep (pain and thinking and worrying) and nightmares about motor vehicle accidents, anxiety and nervousness and difficulty relaxing; impaired concentration and memory; loss of motivation and interest; social withdrawal; irritability; increased appetite; upset by reminders/cues (TV programs about motor vehicle accidents, driving past an accident, talking about it such as at this medical examination); flashbacks (distressing memories of the accident); nervous and anxious in cars and alerts her husband to potential dangers when he is driving; none of the following – psychotic symptoms, alcohol/drug abuse (she was drinking more than usual – up to two standard measures on many days).
The claimant said it was probably November 2017 when she first talked to a GP about her psychological symptoms, and she had further discussions with that GP until his death in 2019; more recently she has contacted another GP. She was previously consulting a psychologist, Dr Truong – but stopped over a year ago; in the last few weeks, she has consulted another psychologist on one occasion; she has not consulted a psychiatrist. For some time, she has been taking low dose amitriptyline 10mg every second day – it is of no benefit.
Dr Howe Synott said that in his opinion, in relation to the accident, the claimant described experiencing sufficient psychiatric symptoms to meet the diagnostic criteria of an adjustment disorder with anxiety and depressed mood.
Report of Dr Lee dated 8 November 2017 - e noted the claimant had "mild depression" following the birth of her eldest child but did not require any treatment. He noted she persisted with work in her business and had a sense of duty towards it – although depressed and in pain. He did not consider her fit to perform all the duties inherent in her pre-injury work due to the combination of pain, depression and anxiety; she was partly fit for work. He assigned a diagnosis of Adjustment Disorder with Anxiety and Depressed Mood. He determined her WPI to be 11%.
Dr Lee provided a further report of 10 July 2020. He provided a diagnosis of an adjustment disorder. He assessed the claimant as having a 15% WPI.
The records of psychologist, Flora Truong, reveal that the claimant underwent six sessions to develop strategies to manage her pain, to assist with headaches, shoulder, arm and lower back pain using pacing strategies. She was also provided with strategies to cope with irritability, binge eating, anhedonia, frustration, hypervigilance and becoming easily teary, and exaggerated startle response at noises.
Progress notes of the Merrylands Med Clinic and Specialist Centre- the following notes are significant:
21 April 2017: this is three weeks following the accident on 31 March 2017; it described the subject accident and subsequent physical symptoms; it notes she was "panicking and shocked" and became "hypersensitive".
16 June 2017: describes her physical and psychological symptoms (anxiety, concerns about her recovery).
4 August 2017: notes 'Adjustment Disorder', GP counselling and support given.
8 September 2017: describes various physical symptoms and also irritable and anxiety. 20 October 2017: referral to psychologist for symptoms of stress disorder and anxiety.
7 November 2017: psychologist appointment 17 November 2017 Campsie Clinic. Counselling some concerns regarding recovery and future capacity. Advised relaxation skills to manage her anxiety and irritability.
Report of Dr Virgona dated 1 February 2018 - the doctor noted the subject accident and subsequent physical and psychological symptoms – and the impact of the symptoms on her post accident life. He notes her "blues" after the birth of her son. In the opinion of Dr Virgona, the claimant had obsessive compulsive personality traits. Regarding the subject accident she described symptoms consistent with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. It was his opinion the disorder had not stabilised and was yet to have treatment – her function was likely to improve in the next 12 months. He said there were no specific occupational constraints as a result of her psychological symptoms. She was psychiatrically fit for activities of daily life (ADLs) but with a minor negative impact on driving.
Report of Dr Virgona 5 September 2019 - he documented the course of her physical and psychiatric symptoms since the previous assessment. He described her activities during the day and her work history. He confirmed the diagnosis as chronic adjustment disorder with mixed anxiety and depressed mood in a reaction to the accident and its consequences. He said that her personality was probably a factor in the severity of her psychological reaction. In his opinion, she had been under-treated, hence the chronicity of her symptoms. Dr Virgona suggested the claimant be prescribed an SSRl-type (selective serotonin reuptake inhibitor) antidepressant, and this would help her to be more amenable to psychological therapy and a further six sessions would be reasonable. In his opinion, her psychiatric symptoms did not lead to any requirement such as domestic/handyman assistance. At that stage, she was working in her usual role although efficiency varied, and the pain was the major issue in her reduced efficiency.
In another report of Dr Virgona dated 27 April 2021, he disagreed that the claimant had moderate impairments in concentration or earning capacity as a result of her psychiatric symptoms. He said that she was working in her usual role, her efficiency varied but she got it done. Dr Virgona said that pain was the main issue in her reduced concentration and work efficiency but it was likely that her psychiatric symptoms led to an additional, mild negative impact on work performance.
Dr Giblin provided a report of 5 October 2017. He said that based upon her history and examination, the claimant had the provisional diagnosis of a soft tissue injury to her neck with referred symptoms towards the left shoulder and a soft tissue injury to her low back. He said these injuries were reasonably causally related to the subject motor vehicle accident. He assessed 7% WPI for her physical injuries.
Dr Keller, orthopaedic surgeon for the insurer, was unable to find objective evidence of physical complaints that caused any impairment or restriction in earning capacity.
Dr Davis, in his report of 14 July 2020 said there was evidence to confirm that there were some degenerative changes present in her upper and lower spine prior to the accident although they were asymptomatic at the time. He said that the accident had therefore contributed to aggravating, accelerating, exacerbating and resulting in deterioration of that condition. He assessed 14% WPI for her physical injuries.
Medical Assessor Jones provided a diagnosis of the claimant having symptoms as consistent with having a chronic adjustment disorder with depressed mood and mixed anxiety. He said that this was consistent with the other assessments and documentation available to him. He also said that the adjustment disorder persisted because of chronic pain.
The Medical Assessor said that the claimant had sufficient symptoms to satisfy diagnostic criteria under DSM-5 (diagnostic and statistical manual of mental disorders, 5th edition).
Regarding causation, the Medical Assessor said that the claimant had no pre-existing psychiatric disorder. The timing, nature and development of her symptoms was consistent with the accident and subsequent physical injuries being the cause of her ongoing adjustment disorder.
The Medical Assessor said that the following injuries were caused by the motor accident:
Chronic Adjustment Disorder with Depressed Mood and Mixed Anxiety.
The Medical Assessor assessed WPI on the basis of the PIRS as follows;
Psychiatric diagnoses 1. Chronic Adjustment Disorder with Depressed Mood and Mixed Anxiety Psychiatric treatment description Nil currently Category Class Reason for Decision 1. Self-Care and Personal Hygiene 2 Mild impairment.
There were no gross signs of neglect at assessment. Ms Lam would be able to live independently with minimal support, in my opinion. She has some physical limitations however she reported low motivation with showering and utilising clinical judgement there is psychiatric impairment consistent with Class 2 mild impairment.
2. Social and Recreational Activities 3 Moderate impairment.
Ms Lam reported minimal day-to-day social or recreational activities. She has little in the way of interests, hobbies or day-to-day activities from which she gets enjoyment. Utilising clinical judgement, there is a Class 3 moderate impairment here.
3. Travel 2 Mild impairment.
Ms Lam has been able to return to driving independently, albeit locally. She can travel as a passenger and by public transport however she experiences anxiety with travel.
4. Social Functioning 2 Mild impairment.
There appears to be some strain in Ms Lam’s relationships however she is maintaining strong relationships with her family members. She has socially withdrawn otherwise, consistent with Class 2, mild impairment.
5. Concentration, Persistence and Pace 2 Mild impairment.
Ms Lam concentrated well in the assessment and is coping with the work hours in her (and her husband’s) business. There is some impairment however, utilising clinical judgement, this is consistent with Class 2 mild impairment.
6. Adaptation 3 Moderate impairment.
Ms Lam can function from a psychiatric perspective, up to half time, in a reduced demand environment. She is currently functioning 10 to 15 hours per week, based on her report, in her role working in the family business. Utilising clinical judgement, there is a Class 3 moderate impairment.
List classes in ascending order: 2, 2, 2, 2, 3, 3 Median Class Value: 2 Aggregate Score: 14 % Whole Person Impairment: 7%
Panel examination
The claimant was examined by Medical Assessor Smith and Medical Assessor Hong. Their report follows the Personal Injury Commission certificate by Medical Assessor Matthew Jones, 10 May 2022, noted the subject accident and diagnosed Adjustment disorder, with WPI 7%. He provided a PIRS 232 223.
“Application for personal injury benefits form noted accident and the other driver attempted to turn right and caused the subject accident. She has suffered a psychological injury.
Medical certificate noted Endep, physical injuries, Dr B H Luong, GP. 4/5/17.
Dr Leonard Lee IME psychiatrist reported on 10/7/20, noted she consulted a psychologist, Dr Trang (Comment: Ms Flora Truong is her psychologist) for Cognitive behavioural therapy, she has depressed mood, pain, anxiety. He diagnosed Adjustment disorder and provided a PIRS 232 233 and noted she has difficulties following complex instructions, difficult to take work calls and completing business quotes for her husband. The final WPI was 15%.
Comment:
Dr Leonard Lee rated Ms Lam's concentration, persistence and pace as 3, in both of his assessments, and said she cannot cope with studies, tends to give up easily and works much slower than usual. His further report stated she finds it difficult to follow complex instructions and is finding it difficult to take work calls and complete business quotes for her husband. The Panel noted she could read and absorb material that is more than newspapers. She could focus on intellectually demanding tasks for more than 30 minutes and can follow complex instructions, such as her new work requirement and she focused well during the assessment today, which is by nature a cognitively demanding process with complex instructions. Therefore, the Panel rated 2.
Ms Flora Truong, psychologist file:·They had reviews between 18/3/19 and 26/2/18 and she wrote:
·26/2/18, session 1, no abuse, no drug and alcohol, no trauma. She noted the subject accident. Ms Lam had other accidents, never as significant as this one. Drives but avoids the location of the accident. She has whiplash injury, constant headaches, appetite ok, overeat at times, a loss of interest e.g. socializing with client/friend for coffee.
·26/3/18, going ‘crazy’ because daughter last in class, moody, thinks she has Bipolar disorder, lost control of emotion, hopeless, daughter tested negative for dyslexia.
·30/4/18, husband wants attention and he is like a child. Children understand and are supportive. The last 4 days, hide, cry, constant headaches. 3 overseas visitors this week, stressors, uncle passed away, father dementia.
·7/9/18, session 1, 71kg, obese. Endep, Duromine. Driving now, has coffee with clients.
·5/11/18, difficult to get up out of bed, motivation problems, sleep problems 3-4 hours, frustrated, irritable, anhedonia, withdrawal socially and does not engage in hobbies, drives short distances, e.g. drive children to sports, flashbacks, his view that, startle responses, other stressors, responsibility at work, children, taxes, unbalanced in her weeks.
·18/3/19, session 6 headaches, shoulder lower back pain, attends social outings with family/friend 2-3 times per week, as a goal Adjustment disorder with anxiety and depression. Other psychological health- entries were noted in the few months around this time
Ms Flora Truong, psychologist letter, 27/2/18, reported she has traumatic and psychological sequelae as a result of the subject accident, with reduced driving, more dependent on husband, and this affected social and vocational functioning e.g. meeting clients.
Allied health recovery request form from Ms Truong, diagnosed Adjustment disorder with anxiety and depression. there is no past psychiatric history.
Combined GP records:·27/11/15, 67kg
·21/4/17, 3 weeks post-MVA. The treatment focussed on Ms Lam's physical injuries over time.
·4/9/18 working 30 -35 hours per week, depending on pain level.
·15/11/19, depressive symptoms, concentration and memory problems, lethargy, motivation problems, sleep problems. no visual hallucination. No suicidal ideation. work tolerance affected.
·26/11/19, mental health care plan done.
Mental health care plan PTSD, anxiety and depression, insomnia, post-MVA. 26/11/19, from Dr Dang Vu Tran.
Dr Angelo Virgona IME psychiatrist reported on 5/9/19, noted she entertains the client, e.g. yum cha, her husband insisted on holidays, January 2018 went to New Zealand, fly drive holiday, hot bath good for pain, Cruise to New Caledonia, Vanuatu, wonderful. Bali in January this year. Business is doing very well but she struggles to keep up and so feels exhausted. He disagreed with Dr Lee regarding moderate impairment and reduced earning capacity, pain is the main issue and psychologically, there mild impact on work performance.
Dr John Davis, Occupational physician, 15/7/20, assessed her physical injuries at 10%.
Dr Lee IME psychiatrist provided a report dated 8/11/17, diagnosed Adjustment disorder, he provided a PIRS 132 133, 11%. He said she cannot cope with studies, tends to give up easily and works much slower.
Police report noted there were two vehicles involved in the accident.
Medical Assessment Service certificate by Assessor Dr Inglis Howe Synnott, 7/5/20, noted she probably had 2 minor accidents previously. In July 2019, reduced work from 30-35 hours per week to 20 hours per week due to pain and psychological symptoms. She has significant difficulties with concentration problems, reads for 15 minutes a day, shares managing finances with husband, despite her described difficulties, during assessment, he noted she gave a clear and coherent history, maintained focus and recalled details. He assessed her as having 5% WPI.
Reasons1. Who attended the assessment
Video assessment.
Ms Lam was at home and stated her children were at home sleeping.
Drs Hong and Smith were in their Sydney offices.
History2. Psychosocial history and pre-accident history
In terms of developmental history, Ms Lam was born in Vietnam and went to Malaysia and was in a refugee camp for a year, before coming to Australia when she was 5 years old with her parents. She grew up with her parents and was the eldest of four children. Her father was a businessman and she said they escaped when the Communists took over and she has a very patchy memory of her early life, there are a lot of blanks and it feels like a dream. She said she remembered being scared as a child, but she never sought psychological help, never had counselling or attended refugee counselling services.
In terms of general medical history, she does not have a cardiac or liver disease. When she was 13, she had surgery for her thyroid. She does not know what the thyroid condition was and does not need to take medication for it.
She does not use recreational drugs and does not abuse alcohol.
She does not have a forensic history.
In terms of family history, she said that everybody works hard and gets on with life, and apart from her father, who has dementia, there are no other mental health diagnoses.
She said at school she was very popular and everybody knew her. She was very sociable.
After high school she did several studies, she did a diploma in business and a Strata Management Certificate, and did licensing. She started a Bachelor of Science Degree but did not complete it.
In terms of work history, she worked in a jewellery shop and had several jobs before working in strata management for four years. Her husband started a security firm as a hobby business about 15 years ago. As the business grew, she left strata management and joined the family business in 2014. She said her husband has an engineering background and did installation, and she did everything else. She was doing book-keeping, talking to customers, developing new customer relationships, scheduling work and stocking.
Ms Lam does not have a past psychiatric diagnosis.
She had a car accident previously and said that her car was fixed and she was back on the road, and did not suffer any psychological difficulties from that accident. She did not remember when that accident was and reported she never needed any treatment for it.
After her son was born, she said she did not know what to do and had no confidence, as she was a first-time mother. She recalled she was very protective and maybe overdid it. She saw her GP, who noted she had postpartum blues. She remembered being told to relax by her GP and had no other treatment. She said she then felt better and went back to work.
In terms of other stressors, the Panel noted in her file, that Ms Lam had stated that her husband wanted attention and there was some marital tension. She discussed her daughter not doing well at school and her tutor thought that she might have dyslexia. She was tested and does not have dyslexia. She stated her daughter is doing very well now.3. History of the motor accident
On 31 March 2017, Ms Lam was driving and taking her two children to swim squad practice. They were near the junction of Cumberland Highway and Canley Vale Road and her son was the front passenger. She remembered it was a nice day and she was driving straight and suddenly, her car spun 360 degrees. She said she knew she had a good car, being a BMW, but she had no control of the car and felt scared and ‘really lost it’ and stated she could not believe what had happened. It felt like a movie and everything became very slow and there was no sound. She remembered having slammed her head against the glass in the door and her head hurt. She remembered turning to check her children. Her son said he was okay. Some people came to help and opened her son's door. The airbags were not deployed and her car was later written off by the insurer.
She remembered she was anxious because it was in peak hour traffic and there were a lot of cars honking. She then cried because she saw a mother and daughter at the traffic light and thought that she could have hit them. She thought that her children and herself could have died in the accident, or from the airbags if the airbags had deployed. She remembered that the other driver asked her if she was okay and she nodded, but she did not know what she was nodding about.
Ms Lam called her husband who came to pick them up, as he was only a suburb away. There was a tow truck in the traffic, who came to help and towed her car. She went home and then went to the GP who wanted her to wear a neck brace, and she went to Liverpool Hospital and was investigated for a few hours after that. There was no fracture but she said that even now, she is still suffering constant headaches and neck tension. She is not having active treatment now and said that she has given up on treatment. She takes Endep, Nurofen and Panadol when needed for headache, and takes Endep for her emotions too.
She did not sustain a brain injury.4. History of symptoms and treatment following the motor accident
Ms Lam remembered being anxious and did not drive for six months after the subject accident, and then she started driving again. Her driving has improved and she said she drives to work in Burwood, but she would make one stop during the trip. She said she can go past the location of the accident, but she tries to avoid it if she can. She said she carries one or two extra shirts in the car because she becomes very sweaty in the car.
5. Details of any relevant injuries or conditions sustained since the motor accident
Ms Lam has not had further car accidents or sustained other psychological injuries.
6. Current symptoms
She reported that she still has depression and anxiety and her symptoms have not resolved since the accident. She feels nervous and suddenly will be sad and then happy at the same time. She said she feels very emotional and has a racing heart when anxious. She said she dwells on things that happened in the accident and her husband thinks she should ‘snap out of it’.
She has reduced enjoyment and motivation. She described having reduced concentration and memory. Her energy levels are low. Her weight fluctuated during 2023. She reported having intermittent sleep difficulties, due to headaches and shoulder pain. She feels anxious and has been irritable.7. Current and proposed treatment
Ms Lam is currently taking:
·Endep 10 mg as needed for anxiety. She said that when she went to her daughter's graduation, she took it as a ‘boost’ to help manage her emotions.
·Panadol, Nurofen and Endep, as needed for pain.
She consulted Ms Flora Truong, psychologist for 10 sessions and ceased in early 2019. She consulted another psychologist and could not recall the name of that person, for 5 sessions but she had no further treatment approval. She has never consulted a psychiatrist. She said she took a ‘happy pill’ antidepressant, around 2 years ago.
Ms Lam has never had a psychiatric admission.
There are no proposed treatments.
Clinical Examination
8. Mental State examination
She wore glasses and had dark-coloured hair, and wore light cosmetics and lipsticks. She presented as bright and appropriately reactive, at times anxious. She gestured regularly. She engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. She was not restricted in her affect. She was tearful briefly. She spoke spontaneously and fluently. She was consistently attentive and focused throughout the assessment. She spoke with a steady pace. There was no overt cognitive impairment.
9. Current functioning
Ms Lam is 55 and living with her husband. They have two children at home, a 19-year-old son at his second year of university, and an 18-year-old daughter, who has just finished Year 12.
She has been together with a husband for almost 30 years and has been married for more than 20 years, and the relationship has become emotionally distant over time. She said they tend to do their own thing now. She feels irritable and feels like her husband has had enough of her, and does not want to listen to her anymore and this causes arguments, which makes her feel ‘upset, insecure and hurt’.
She said that her self-care varies a lot. She used to be 158cm, but thinks she has shrunk and is now 155cm. She said that she was normally 58kg. She gained about 10kg since the accident. She said she would be happy at 65kg and she is not sure what her current weight is. She said her weight fluctuated between 60 and 68kg in 2023 and it is like a yo-yo, and she does not know why. She said she constantly puts effort into her weight management. She takes walks, walks the dog and tries to do gardening and stretching. However, she is not eating regular meals.
Ms Lam does the household cleaning, but thinks her home is a mess and she stated that she does the housework slowly.
In terms of cooking and shopping, she said everybody shares it at home. She said she might only cook once this week. She buys what the children ask her to buy, for example, if they ask for steak she will get it. She said her husband often cooks and feeds himself.
She said her children complained that she stinks so she will have a shower, and if they do not prompt her she will only shower every three days when her hair becomes oily.
After she finishes work, she will come home and feel tired and go to sleep. She does not read books and will read short articles online, read the news headlines and the school newsletter to find out what is going on with her children. At work, she tends to the work emails.
In terms of holidays, Ms Lam confirmed that after the accident she has been on cruises and went to Bali and Malaysia. The last trip was just before the COVID pandemic, and she went to Malaysia. She said they had not done any trips since and she is not sure why. She later said that she does not want to go on holiday.
She said she used to have a lot of friends because she was a business manager for more than 10 years, but now she has no interest to meet her friends, and she thought this may be partly because of her age. She only has contact with two friends now, but they are very busy. She said she does not eat out with her friends, because the two friends have different dietary requirements, so they just visit each other's homes. She does not know how often this may be, and she said this is occasional or rare.
Ms Lam reported that there is a nine-year gap with her younger siblings and she does not want to burden them with her problems. They communicate by group chats.
The Panel asked her about having contact with her parents and she said ‘yes and no’, and said that the last time she saw them was three weeks ago. She said when she sees her mother, her mother helps her more than she helps her mother.
In terms of employment after the subject accident, she continued working in the family business on reduced hours. She found she struggled with the work. She said her husband was not happy with her performance and complained that she was too slow and criticised her. She felt blamed, so she decided to leave the family business about 10 months ago.
She started working in April 2023 as an assistant building manager in Burwood. She works seven hours a day, three days a week and is based in a commercial and residential building. She said she is like a concierge and sits at the front desk, and is the first contact for residents with any kind of problems, for example, anything that has to be fixed or if access to locations in the building is needed. She will organise contractors to do the repairs as needed. She said it is a good job because it is flexible hours. She reports to the strata manager and said that when the manager is away, she will step up into that role too. She has had good feedback and her manager stated she is doing a good job. She also explained that previously she was a strata manager, which is more demanding work and she understands the process very well.10. Comments of consistency
There was no inconsistency identified.
Determinations
11. Diagnosis and reasons
Ms Lam described having been exposed to trauma in her earlier life and came to Australia as a refugee. She is considered a vulnerable individual and has experienced postpartum blues - her symptoms were transient and this is common in the general population, and is not a psychiatric diagnosis. She did not have a distinct psychiatric injury and continued to adapt well to her life.
She reported that after the accident on 31 March 2017, she suffered persistent stress and anxiety, with dysregulated low moods. She reported major driving anxiety for six months, which has improved but not completely resolved. Overall, her psychological condition is consistent with an Adjustment disorder, and there was a period of driving phobia which is partially remitted.12. Causation and reasons
Ms Lam has experienced transient mood symptoms and did not have a previous psychiatric diagnosis. She described the onset of anxiety and depressive symptoms as a direct result of the subject accident and there are no other relevant causation factors identified, therefore, her psychiatric injury has been caused by the subject accident.
Ms Lam's psychological impairment is permanent and well-established, and would not change substantially by more than 3% in the next 12 months with or without treatment.13. Degree of permanent impairment Psychiatric Impairment Rating Scale
Current PIRS
Category Class 1. Self Care and Personal Hygiene 2 Ms Lam skips meals and cooks less over time. Her weight fluctuated by 8kg during 2023, even though she exercises. She omits showering for days and would shower every 3 days without prompting. She attends to household chores and shopping. She presented well on assessment with good grooming.
She is capable of independent living without regular support.2. Social and Recreational Activities 3 She rarely attends recreational activities. She enjoys visiting her friends and having her friends visit her, but this happens only occasionally or rarely. 3. Travel
2 Ms Lam is anxious as a driver and only drives short distances. 4. Social Functioning
2 Ms Lam's relationship with her husband has deteriorated without separation or domestic violence.
She has lost friends and only maintains contact with 2 friends now.
The relationship with her siblings and parents is less close over time.5. Concentration, Persistence and Pace 2 Ms Lam reported having reduced concentration. She can focus on intellectually demanding tasks for more than 30 minutes and focussed well during the assessment. 6. Adaptation
3 She cannot perform full-time work or perform her normal work. She can manage lower-stress employment at around 20 hours per week. List classes in ascending order: 222 233 Median Class Value: 2 Aggregate Score: 14 % Whole Person Impairment: 7 % *%WPI = Percentage Whole Person Impairment
14.Psychiatric Impairment Rating Scale - Pre-existing/subsequent impairment
Ms Lam has not sustained a subsequent injury.
She has no past psychiatric diagnosis or impairment.15.Apportionment
Nil.
16.Effects of Treatment
0%. She does not take regular psychotropic medications now.
Final WPI = 7%83.The Panel adopts the report and findings of Medical Assessor Smith and Medical Assessor Hong.
Causation
The claimant was involved in an accident 31 March 2017. The impact was such that it caused her car to spin 360°.
The claimant was driving her car with her two children when the collision occurred.
Since November 2017 the claimant has been consulting a psychologist however, since April 2017, the clinical notes of the claimant’s GP record the claimant as feeling panicked and shocked and hypersensitive. In August 2017 she was noted as having an adjustment disorder.
There is no medical opinion or evidence to suggest that the claimant’s psychiatric condition does not arise from the accident.
Physically the claimant suffers chronic pain. Regarding this, the Medical Assessor said that the claimant had an adjustment disorder which persisted because of her chronic pain.
The Panel is satisfied that the claimant’s current psychiatric condition and diagnosis is causally related to the accident on 31 March 2017 and there is more than a negligible contribution from the subject accident to her current psychological injury.
CONCLUSION
As a result of the accident on 31 March 2017, the claimant has an Adjustment Disorder with a period of driving phobia which is partially remitted.
The claimant has WPI of 7%.
DETERMINATION
The Panel affirms the certificate of Medical Assessor Jones of 10 May 2022.
The claimant has an Adjustment Disorder with a period of driving phobia which is partially remitted.1052
The claimant has a WPI of 7%.
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