Magick v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Magick v AAI Limited t/as GIO [2024] NSWPICMP 628
CLAIMANT:	Amie Eliza Magick
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Elizabeth Medland
MEDICAL ASSESSOR:	Christopher Canaris
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	5 September 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; whether claimant suffers from a psychological injury caused by the motor accident that is greater than 10% whole person impairment (WPI); claimant was the driver of a motor vehicle that was involved in a “T-bone” accident; significant and lengthy history of pre-existing psychological issues and complaint; Medical Assessor certified the injuries referred for assessment as not being caused by the motor accident and therefore no assessment of whole person impairment was made; Held – Medical Assessment Certificate revoked; claimant suffered psychological injury caused by the motor accident (exacerbation of pre-existing conditions); WPI assessed as 15%, with a pre-existing WPI of 7% and WPI caused by the motor accident assessed as 8%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Medical Assessment – Permanent Impairment Issued under Part 3.4 of the Motor Accidents Compensation Act1999 1. The Review Panel revokes the certificate of Medical Assessor Matthew Jones dated 18 January 2023 and issues a new certificate as follows. 2. The following injuries caused by the motor accident give rise to a permanent impairment of 8%, which is NOT GREATER than 10%: · exacerbation of pre-existing polysubstance use disorder; · exacerbation of pre-existing post-traumatic stress disorder; · exacerbation of pre-existing general personality disorder with borderline and antisocial traits, and · somatic symptom disorder with predominant pain.

STATEMENT OF REASONS

INTRODUCTION

This is an application by the claimant, Amie Eliza Magick, to review a medical assessment of Medical Assessor Matthew Jones (the Medical Assessor) dated 18 January 2023.
On 16 September 2014 the claimant suffered injury when she was involved in a motor vehicle accident as a driver of a motor vehicle.
The claimant lodged a personal injury claim form (the claim) with AAI Limited t/as GIO (the insurer) who are the compulsory third party (CTP) insurer of the other vehicle involved in the accident.
The claim is governed by the provisions of the Motor Accidents Compensation Act1999 (MAC Act).
A dispute has arisen between the parties as to whether the claimant has suffered a psychological injury as a result of a motor accident for the purposes of the MAC Act. Further, whether any such injury gives rise to a whole person impairment that is greater than 10%.
No damages for non-economic loss can be awarded unless the degree of permanent impairment as a result of an injury caused by the motor accident is greater than 10%.[1]
[1] Section 131 of the MAC Act.
The claimant lodged an application with the Personal Injury Commission (Commission) seeking a determination of the dispute.
The claimant seeks a review of the findings of Medical Assessor Matthew. He determined that the claimant’s alleged psychological injuries listed as: exacerbation of pre-existing diazepam dependence, opioid analgesic use disorder, methamphetamine use disorder in remission and specific phobia car travel were not caused by the subject motor vehicle accident and determined that there were no grounds for assessment of whole person impairment.
The claimant subsequently lodged an application for review with the Commission. The President’s delegate in a determination dated 18 April 2023 agreed that there is reasonable cause to suspect the medical assessment is incorrect in a material respect and the matter was later referred to this Review Panel.
Clause 14F of Schedule 1 of the Personal Injury Commission Act2020 (PIC Act) provides that the new review provisions apply in relation to a decision of a new decision maker. A new decision maker is defined in Schedule 1 cl14A(1) of the PIC Act. As the medical assessment, the subject of this review was made on or after 1 March 2021 the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a Panel reviewing the decision of a single Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
The Panel met via preliminary conference on 9 April 2024 and determined that an examination was required. An examination was arranged to occur in person on 16 July 2024 to be conducted by Medical Assessor Christopher Canaris and Medical Assessor Michael Hong via audio visual link (AVL).
The Panel reconvened via preliminary conference on 31 July 2024.

THE GUIDELINES

The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Permanent Impairment Guidelines (Guidelines).[2]
[2] Section 133 of the MAC Act.
The Guidelines set out the requirements of an assessment of permanent impairment of a psychological injury at cls 1.201 to 1.288.
Causation of injury is addressed from cl 1.5 of the Guidelines. Clause 1.6 and 1.7 provides:
“1.6 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.
1.7 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.”
In determining the issue of causation, the Panel is to also have regard to s 5D of the Civil Liability Act 2002 (CL Act):[3]
[3] See s 3B(2) of the CL Act.
“5D   General principles
(1)    A determination that negligence caused particular harm comprises the following elements—
(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2)    In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3)    If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4)    For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

MEDICAL ASSESSMENT UNDER REVIEW

Medical Assessor Jones noted the very large amount of material that documents a complex psychological history. He stated:
“Obviously, Ms Magick’s is a complex case and I have only assessed her on one occasion, however there is likely a history of Attention-Deficit Hyperactivity Disorder, history of substance abuse, domestic violence, likely Cluster B personality vulnerabilities and long-term problems with anxiety and depression.”
It was concluded by Medical Assessor Jones, after taking into account “all factors”, the passage of time and significant subsequent events that there is no current psychiatric disorder caused by the motor accident.
In respect of the injuries specifically referred for assessment, Medical Assessor Jones opined there is no exacerbation of pre-existing diazepam dependence. There was no longer an opioid analgesic use disorder. Any methamphetamine use has not been active for several years and therefore is not an active disorder. In respect of car travel specific phobia, the Medical Assessor concluded that the current level of anxiety is insufficient to be considered a specific disorder.

OTHER MEDICAL ASSESSMENTS

Medical Certificate dated 13 September 2020 of Medical Assessor Melissa Barrett

Medical Assessor Barrett found that none of the injuries referred for assessment by the claimant were attributable to the motor accident. However, the Medical Assessor diagnosed the claimant with the disorders that were subsequently referred to Medical Assessor Jones for assessment.
An assessment of whole person impairment of 41% was certified as a result of the diagnosed psychological disorders.

Medical Certificate dated 7 January 2019 of Medical Assessor Rosenthal

The Medical Assessor certified the claimant as suffering soft tissue injuries to her cervical spine, lumbar spine, right shoulder and right hip. Those injures as not giving rise to a permanent impairment greater than 10%.

SUBMISSIONS

Insurer’s submissions dated 20 April 2021

These submissions were lodged by the insurer in support of an application for further assessment in respect of a medical certificate of Medical Assessor Barrett. The insurer states that subsequent to the certificate additional relevant information was received, that was capable of having a material effect on the outcome of the previous assessment. This includes medico-legal reports of Dr Rikard-Bell. In addition, the insurer relies upon the Procare desktop investigation report.
The insurer submits that the documentation discloses observations which were not previously considered by Medical Assessor Barrett, which may indicate that the original assessment may be incorrect.

Claimant’s submissions dated 11 June 2021

In response to the insurer’s application for further assessment the claimant submits the further material is not the required class of material required under the legislation.

Insurer’s submissions dated 6 October 2022

These submissions were lodged following the President’s delegate accepting the application for further assessment.
The submissions refer to a number of additional documents, largely comprising of medical clinical files. Following summarisation of the material, the insurer submits that the claimant has an extensive and well documented pre-existing history of psychological complaints. Further, the conditions were not caused by the accident, but did continue following the accident.

Claimant’s submissions dated 10 March 2023

These submissions are in support of the claimant’s application for review of the medical assessment of Medical Assessor Jones.
The claimant submits that the Medical Assessor conflated the issues of causation with the assessment of current functioning.
It is submitted that there was no consideration as whether the pre-existing conditions have been exacerbated by the motor accident. Further that cl 1.218 of the Guidelines ought to have been applied.
It is further noted that the assessment of no psychological injury does not accord with either party’s medicolegal evidence.

Insurer’s submissions dated 5 April 2023

The insurer submits that Medical Assessor Jones opinion ought to be preferred over that of Medical Assessor Barrett in circumstances where he considered over 3,300 pages of relevant material, with most not being before Medical Assessor Barrett.
The insurer refers to the Guidelines (incorrectly referred to as the Motor Accident Guidelines which are subordinate to the Motor Accident Injuries Act2017), in respect of the test for causation and submits that the test is not satisfied.
The insurer goes on to conclude:
“In the circumstances of a relatively minor motor vehicle accident in which the insurer submits the claimant sustained no serious or lasting physical injury, the insurer disputes that the claimant’s psychiatric presentation relates to the motor accident and says that same was, in all likelihood, a continuation of her pre-existing conditions compounded by multiple unrelated stressors.”

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/considered it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The Panel took note of the detailed claimant’s and insurance’s submissions at various times in the claimant’s progress through the CTP system.
The Panel noted the patient health summary of Jover Service Trust (general practice) as printed on 29 November 2020 covering presentations from 2002 to 2017. Significant prescriptions included Panadeine forte on 10 October 2002, 28 July 2007,

1 September 2011, 31 January 2012, 18 April 2012, 20 May 2012, 17 June 2012,

14 September 2012, 13 September 2016, 7 February 2017, 15 March 2017, 2 May 2017,

29 May 2017, 26 July 2017, 8 September 2017, 11 September 2017, 28 September 2017, and 17 November 2017, Targin 4 August 2016, and prescriptions for Valium (diazepam) 5 mg on 12 November 2004, 8 May 2007, 16 May 2007, 5 June 2007, 19 July 2007,

5 November 2007, 26 November 2007, 31 January 2008, 3 June 2008, 30 July 2008,

20 August 2008, 2 September 2008, 28 October 2008, 12 November 2008,

12 December 2008, 22 January 2009, 28 January 2009, 4 March 2009, 15 March 2009,

3 June 2009, 12 June 2009, 19 October 2009, 25 August 2010, 11 November 2010,

12 February 2011, 20 February 2011, 10 July 2011, 31 January 2012, 18 April 2012,

20 May 2012, 17 June 2012, 4 September 2012, 14 September 2012, 14 November 2013, 27 May 2014, 3 August 2016, 18 August 2016, 13 September 2016, 1 December 2016,

7 February 2017, 15 March 2017, 4 April 2017, 2 May 2017, 29 May 2017, 26 July 2017,

8 September 2017, 11 September 2017, 28 September 2017, and 17 November 2017.
There were also significant prescriptions in the period preceding the accident for nicotine replacement therapy and medication to assist in ceasing nicotine such as Champix. The Panel did not attempt the mammoth task of correlating every prescription with the surgical consults.
In terms of surgery consultations, she was noted on 12 November 2004 to have had Aropax ceased. On 8 May 2007, she was reported to be drinking around eight standard drinks at a time on a drinking day happening one to two days a month. She told her general practitioner (GP) that she had quit pot about four and a half weeks previously and that she had been having problems with insomnia. She had been arrested on the previous Sunday night and had a lot of bruising over her right arm.
She mentioned post-traumatic stress disorder in relation to having been bashed by someone for which she had had victims’ compensation she had also problems with anxiety and depression for which she had been on Aropax on Zoloft as well as medication for insomnia “but nothing works”. She said she had been in counselling for about a year and a half but had not been going to work in consequence of which a GP mental health plan was prepared.
On 14 May 200, she reported being “stressed with work due to apparent unfair dismissal” and on 16 May 2007 again complained of stress at work and with her unfair dismissal claim also saying that she had lost her Valium.
On 18 July 2007, she presented as pregnant, and 19 July she said that she had had a termination but was feeling sick.
On 3 August 2007, she presented with bleeding and pain following her termination.
On 26 November 2007, she presented with multiple contusions with a bilateral periorbital haematoma following an alleged assault by her ex-boyfriend three days previously.
On 12 November 2008, she was noted to have moved back to Stanmore Park from Wollongong following a domestic assault by an ex-boyfriend. She said she had been seeing a psychologist who had given her breathing exercises, but she could not manage to do them. She had seen her ex-boyfriend yesterday in her car - he tried to attack the car and then sent an abusive text to her mobile threatening to stab her new boyfriend in the face.
On 12 December 2008, she was noted to be seeing a Jennifer Bray, a psychologist at Gymea with a reference to victims’ compensation. A comment was made as to a past history of anxiety and addictive personality. She said she had used Valium three tablets daily about 1 ½ years previously and currently using to Valium at night. She had also said that she had had tablets from a previous prescription for Valium stolen. She again presented on

31 March 2009 saying she had lost previous prescriptions (she had had a prescription of Valium approximately two weeks previously).
On 11 October 2009, she said she had a court attendance the following day in relation to a breach of AVO.
A letter from a gynaecologist dated 1 March 2010 noted she had had a termination of pregnancy at seven weeks gestation. On 11 November 2010, she was noted to have been recently discharged from Shellharbour Hospital for detoxification.
On 20 February 2011, she said she had quit marijuana and had put on a lot of weight.
On 4 September 2012, she presented complaining that she had been bullied at work. She felt she was being belittled saying she was the only female employee. She said that she suffered from post-traumatic stress disorder since she was young but was not keen to have a mental health assessment.
On 27 May 2014, she presented saying she had lost her job and lost her home saying that the landlords had decided to renovate. She also had broken up with her boyfriend. She said she had seen Edwina Birch for previous post-traumatic stress disorder adding that she had had medication in the past but had not taken it because she did not agree with it and felt it was not the way to treat depression but at the same time saying that she took Valium mainly for sleep and post-traumatic stress anxiety. A referral was printed to a psychiatrist,

Dr Christopher McDowell.
On 24 September 2017, she presented saying that she was going to travel to China, Hong Kong Island, and in the US asking for vaccinations.
On 3 August 2016, she presented with a patellar fracture following her recent motor vehicle accident saying that she had been taking Targin and diazepam for pain.

On 18 August 2016, there is a note saying that she needed to see Dr Greg Wilkins (psychiatrist) regarding her ADHD. She was going to court and needed previous mental health assessment plans printed and a mental health summary.
On 1 December 2016, she presented complaining of chronic pain in her cervical, thoracic, and lumbar spine following her 2014 motor vehicle accident. She managed her pain with diazepam and cannabis and had been caught with cannabis in her car which was for her personal use for management of pain and insomnia.
On 6 December 2016, she presented seeking medical marijuana.
On 15 March 2017, she requested a referral for a psychologist and was noted to be going to see Sam Borenstein. She reported that she had issues with anxiety driving.
On 4 April 2017, she presented stating that she had been king hit on the right side of her face at a friend’s house and that she had alcohol in her system at the time.
On 2 May 2017, she presented tired and fatigued with some low mood which seemed to be related to not working although she was “not keen to treat this at present”. She was noted to be seeing a psychologist and it was suggested that she might benefit from seeing a psychiatrist who dealt with ADHD in adults.
On 12 May 2017, she sent an email to the practice in relation to medical certificates which she had asked to be emailed to her saying that the practice was making her condition worse and that she would escalate her complaint.
On 15 June 2017, she presented giving a history of several domestic violence incidents. The question of a Centrelink certificate issued by Dr Kemper came up and it was suggested that she attend on Dr Kemper for a further certificate. In response, she became aggressive and angry storming out and threatening to sue for medical negligence possibly relating to a misdiagnosis and loss of the fallopian tube in the setting of an ectopic pregnancy.
On 28 September 2017, she presented requesting a letter for housing saying she was unable to live in a high-density area because of drug use saying that she had stopped using ice eight months ago while mentioning physical problems from her car accident four years previously.
The Panel noted sundry certificates, mental health plans, Centrelink certificates and the like.
The Panel noted the complete record of the Miranda Medical Centre as printed on

15 December 2020. A letter dated 2 December 2019 noted diagnoses of benzodiazepine use disorder, stimulant use disorder in remission, and symptoms of major depressive disorder in the context of pain secondary to her motor vehicle accident five years previously.
She was noted on 17 September 2019 to be off ice for the previous 18 months and not drinking. She had been on the disability support pension for the previous two years. She complained of wanting to stay home in bed having lost her independence and crying saying, “I take such amounts of Valium” although she was trying not to take it anymore. She was noted also to seeing a counsellor at Enough Is Enough for Victims of Crime.
A letter from Dr Elena Shcherbak, psychiatrist, dated 20 September 2019 refers to the subject motor vehicle accident which “changed her life with loss of employment and deterioration to her physical and psychological well-being” for which she had started to use ice to manage her back pain although she had stopped this for the last 18 months. She appears to have given a somewhat inconsistent history of her diazepam use and the diagnostic formulation was one of benzodiazepine use disorder, stimulant use disorder in remission, and symptoms of depression and anxiety with a comment that “most probably pain and substance use are major precipitating and maintaining factors”.
The Panel noted the GP mental health care plan dated 15 March 2017 presumably relating to the referral to Sam Borenstein. In addition to mentioning the subject motor vehicle accident and to her not having driven since that event, there was a reference to a recent court case involving multiple charges of which one was upheld involving Facebook messaging.
The panel also noted a police FACTS SHEET relating to charges of dishonestly obtaining financial advantage by deception, stalking, and intimidating, and using a carriage service to menace/harass/offend additionally.
There were sundry Centrelink certificates as well as WorkCover certificates relating to her workplace injury in 2012.
The Panel noted that the report of Dr Graham George, IME psychiatrist, dated

10 October 2012 in relation to her 2012 workers compensation claim noted a forensic history. Dr George noted that she had been using diazepam in the setting of her workplace stressors. He considered there was no psychiatric diagnosis at the time of leaving work in the last week or two of her employment. He suggested she might have had antisocial personality traits when younger. He noted also that she had managed to gain a full-time position within two weeks of being terminated from her job.
The Panel noted a referral to Dr Stephen Dragutinovich dated 18 March 2006 listing diagnoses of “anxiety/depression/adjustment disorder”.
The Panel noted an Employer’s Report of Injury form for QBE Workers Compensation dated 20 March 2006 with the injury documented as “stress”.
The Panel noted a Job Capacity Assessment Report dated 1 September 2010 which refers to barriers to finding work including an anxiety disorder, financial difficulties, family relationship breakdown, and domestic violence. She is noted to have last worked six weeks previously but to have lost her job and to be going through an unfair dismissal claim. She is noted that before that time she had worked as an assistant manager for a warehouse distribution company for 12 months.
The Panel noted a presentation to Shellharbour Hospital Emergency Department on

24 November 2007. She had been brought in by ambulance followed an alleged assault (she was allegedly punched in the face by her boyfriend) and had been seen at the Wollongong Hospital. The ambulance, however, had bypassed the Wollongong Hospital because she had been abusive to staff. Police were noted to be in attendance. She was initially uncooperative and requesting a Valium which was not given as she had admitted to having ingested a large quantity of Valium, had had a head injury, and was going back to police cells. A past history of post-traumatic stress disorder was noted, and she was described as smelling of alcohol, agitated, nervous, uncooperative, and tearful and to be crying with no reason. She had haematoma on her forehead with abrasions and refused to have blood taken or to wait for a CT scan of the head.
The Panel noted the discharge summary of Shellharbour Hospital dated 6 November 2010. She had presented with “suicidal thoughts”. She had lost her job the previous August being fired after five weeks and was currently on workers compensation. She reported that it had been an unfair dismissal and that she had been depressed because of this. She was on Zyprexa prescribed by her GP but had not seen a psychiatrist or psychologist. She reported increasing suicidal thoughts over the previous month saying she was looking around for rope in the house or places to crash a car while driving as well as thinking about an overdose. She was noted to have a history of heavy cannabis use which she had been using on and off for about 10 years and daily over the last three months consuming about 4g a day. She also drank up to a cask day of wine. She gave a long history of depression. Her parents had divorced when she was in year six and she had cut her forearm superficially around the time. She was subsequently expelled from a Christian school for which she may have had some counselling, and she reported a physical assault when she was 15 years old and when she was 20 years old. She had apparently tried to hang herself when she was 15 years old but was found by her mother just as she was putting the rope around her neck. She was documented as very agitated, teary at times, but to be cooperative in seeking help. She was to be reviewed by the psychiatric registrar and clinical nurse consultant in psychiatry and she was commenced on the alcohol withdrawal scale with as needed diazepam. A final diagnosis of cannabis use disorder and alcohol withdrawal was made. She discharged herself to the care of her mother against medical advice. However, a referral to Drug and Alcohol Rehabilitation Services was made.
She said in relation to this admission that she had lied and amplified her problems because she was told she was not suited for admission, “and I started to tell them things so I would get a break”. She said, “I just wanted to get some peace from my ex-partner – the police were not good with domestic violence back then”. She added that she was subsequently “able to get myself out – I realised that the place was not for me”.
The Panel noted the psychiatric reports of Kedesh Rehabilitation Services with an initial contact on 6 November 2010 with the last assessment on 10 November 2010. History documented at Shellharbour Hospital is reiterated. She is described as motivated to do something about her substance problems. The claimant, however, had no recall of Kedesh.
The Panel noted an Employment Services Assessment Report dated 17 February 2012 relating to a change of circumstances. She had had a recent chest infection. She had recently moved from a rural area to increase employment opportunities. She was reported to have poor coping with multiple stressors impacting on sleep, endurance, and capacity to focus on work-related activities. She was considered to be likely to benefit from a three-month temporary reduced work capacity certification.
The Panel noted a presentation to St Vincent’s Hospital on 6 June 2015 to which she had presented with facial abrasions and swelling after jumping into a swimming pool while intoxicated. She was noted to be teary but was removed by security guard because of aggressive behaviour in threatening staff.
The Panel noted a later presentation to St Vincent’s Hospital between 28 and

29 August 2015 where she had presented with right flank pain and was found to have a kidney stone.
The Panel noted the ambulance record dated 25 July 2016 following a motor vehicle accident. The claimant said that she was the driver of a vehicle which had run up the back of a parked vehicle at approximately 50kmph. She was taken to hospital. She had a deep right intra-patellar wound with a possible patellar tendon injury. The accident apparently happened after she had had a fight with her mother and was emotional and anxious and did not see the parked car in the street. She was agitated, refused Endone, and then demanded diazepam shouting that she needed it. She apparently said, “I am an alcoholic, but I did not drink today” and denied any previous alcohol withdrawal seizures or admissions and illicit drug use that day. She was noted to be aggressive, threatening, and uncooperative although she accepted urine drug testing. She eventually left discharging herself against medical advice.
The Panel noted an ambulance record dated 11 June 2017 following an intentional overdose of 35 X 5 mg Valium for which she had written a suicide note. Her partner had found her on the floor. She was noted to be behaving erratically at the scene and had to be restrained by ambulance and police in the emergency department. The Wollongong Hospital emergency department notes document that she ran out of the building after requesting to use the bathroom. Police were called and she was sectioned.
The Panel noted a discharge referral dated 10 February 2021 relating to the acute care through the Sutherland Community Health Services at the Sutherland Hospital. She had self-referred looking for a mental health care plan but after being initially redirected towards her GP became acutely distressed with passive suicidality. She reported ongoing suicidal ideation in relation to a legal case arising from a motor vehicle accident in 2014. She had had to undergo continuous medical examinations. She said she was isolating and did not leave her room. She described herself as depressed with current themes of hopelessness, helplessness, and worthlessness. She spoke of feeling remorseful for not having conceived a child and married at her age which she attributed to the physical complications from her motor vehicle accident in 2014. A history of depression, anxiety, ADHD, and post-traumatic stress disorder was noted with a past history of a suicide attempt following an overdose of 35 5 mg Valium tablets at an unspecified date. Subsequent phone calls and messages from the Acute Care Team culminated with the claimant informing that she had secured an appointment with a private psychologist.
The Panel noted variously dated requests to withdraw from courses at TAFE because of mental health issues.
The Panel also noted an application for enrolment in a diploma of beauty therapy dated

3 February 2020 under the auspices of provisions for Aboriginal and Torres Strait Islanders. A referee statement describes her as a mature age learner who had created her portfolio noting that she had attended classes giving her full attention and was very committed and attentive to detail. The application appears to have related to a work development order in relation to outstanding fines of almost $18,000 with the latest fine being on 10 September 2018. Fines prior to the subject motor vehicle accident had included offences such as “excluded person fail to leave premises when required”, “obtain money/valuable things/financial advantage by deception”, “drive with low range concentration of alcohol”, “travel on train without valid ticket”, “not comply conditions of license”, “person on train not make ticket available for inspection”, “shoplifting (under 300 dollars)”, as well as sundry traffic offences. There were significant fines following the subject motor vehicle accident including traffic offences including exceeding the speed limit over 20 kmph on

30 January 2016 and 10 kmph on 1 December 2015 as well as driving with an expired driver’s licence, not giving particulars to police, and driving under the influence of alcohol. There were subsequent fines for larceny on 6 August 2017 and 14 February 2018 and a fine for possession of a prohibited drug on 20 February 2018.
There were sundry email exchanges arising from her beauty therapy course relating inter alia to a complaint about her with some concerns being expressed about her mental health. At the same time, she made a number of accusations towards other students. The Panel noted that some of the emails prepared by the claimant were lengthy and detailed. She seemed to be saying that she was being falsely accused inter alia of a range of breaches of social media policy while saying that her situation was poorly managed as a person with disabilities. There are sundry references to her court claim (presumably the subject motor vehicle accident).
The Panel took note of her criminal history as per NSW Police Force from 12 October 2009. Much of this appeared to have been covered in other documentation. In relation to post-accident incidents, she appears to have been a victim including episodes of domestic violence. In some instances, she is listed as a person of interest, or a person named. Although a detailed narrative is not supplied in relation to some offences, the claimant’s role in these was also not immediately clear because of redactions. However, the Panel was left with the impression of significant chaos and interpersonal conflict in many instances. The Panel also noted instances of shoplifting as well as possession of drugs. It also noted the frequency of interactions with police and a number of instances in which she had been very abusive in her dealings with them. However, interactions with the police before the subject motor vehicle accident were also reasonably frequent.
The Panel noted the discharge referral of the Sutherland Hospital dated 20 August 2022 which she had presented with an anal fissure induced by constipation caused by analgesics for her regular pelvic menstrual pain. She had been brought in by ambulance. She was noted to be on cannabis oil and codeine for pain against the background of endometriosis with an ablation procedure at Prince of Wales Hospital. Other diagnoses noted included asthma, fallopian tube ectopic pregnancy 10 years previously, irritable bowel syndrome, and anaemia. There was reference to a chronic pain syndrome since the motor vehicle accident in 2014 and was noted to have been recently assessed at a pain clinic at St George Hospital for assistance with decreasing pharmacotherapy. She was noted to have anxiety and a previous substance use disorder.
The Panel noted the report of Dr Jeff Bertucen, IME psychiatrist, dated 25 August 2017.

Dr Bertucen noted her highly emotional and labile presentation in which she frequently lost the thread of conversations threatening several times to leave the interview. She stated that she was in considerable pain remaining in a highly agitated state. Dr Bertucen was not convinced that the claimant had a psychiatric condition substantially caused by the motor vehicle accident although there was considerable evidence in her file that she had suffered from symptoms of fluctuating anxiety and depressed mood prior to the accident attracting a range of diagnoses such as post-traumatic stress disorder, generalised anxiety disorder and depression, and ADHD. He noted that the claimant had been able to make a trip to China within several months of the subject accident and he took the view that there was no evidence of an appreciable degree of psychiatric impairment attributable to the subject incident.
The Panel noted the report of Sam Borenstein, clinical psychologist, dated 20 March 2017. Mr Borenstein had previously assessed in February 2017 preparing a detailed report to the court. Mr Borenstein noted that she had “self-medicated with marijuana over a period of time to assist in the management of PTSD symptoms and chronic pain consequent to accidents in which she was involved in over the years” becoming addicted to ice when she moved to Bondi in 2014. There was a subsequent offence leading to charges when she apparently tried to protect a friend’s daughter.
The Panel noted the transcript of the records of Sam Borenstein from 26 March 2017 to

9 May 2017 with a long entry with an unknown date which appeared to relate to her criminal charges.
The Panel noted a medical certificate of Dr Anna Kendrick dated 4 August 2017 in relation to a Housing Pathways. She cites the report of Sam Borenstein and the diagnoses contained herein and states that because of her conditions, shared housing was inappropriate as it would exacerbate her complex psychological disorder. She noted that she was anxious and tearful in the consultation in relation to her housing situation.
The panel noted the patient health summary of Bondi Junction Medical Practice as printed on 28 April 2021. She presented for the first time on 16 June 2015 and gave a history of having been assaulted to the point of needing plastic surgery, having been abused by another woman, having been bashed as a child and assaulted by six girls, that she had an abusive relationship with a partner who was a boxer, and that she needed a doctor who understood her situation. She was prescribed diazepam on several occasions and later down the track said that she had been “cutting down” on Valium. She did not mention the accident until

9 October 2017. She admitted to smoking ice because of severe pain because of which she spiralled downwards but had now been clean for eight months while taking Valium 15 mg daily and Panadeine forte.
The Panel noted the reports of Dr Chris Rikard-Bell, IME psychiatrist, who formed of the view that she suffered from post-traumatic stress disorder, persistent depressive disorder, and substance use disorder and considered that her current disabilities were an exacerbation of a pre-existing condition. He noted that she had been fired from her job in March 2014. He rated her at 8% whole person impairment finding her overall level of impairment was 19% but deducting 11% for pre-existing impairment.

In a supplementary report dated 12 January 2021, Dr Rikard-Bell took note of a desktop investigation report and stood by his conclusions as to whole person impairment noting that the desktop report raised concerns about the accuracy of the information provided by the claimant.
Dr Rikard-Bell prepared a supplementary report dated 20 September 2023 based on a document review. He noted a diagnosis in 1993 of irritable bowel syndrome, and 1994 diagnosis of ADHD under Dr Kit Chee, a 1999 assaulted by Pacific Islanders at Cronulla high school on two occasions resulting in homeschooling with depression at school in 1999 following which she saw Edwina Birch, psychologist, and left school in year 10. There was an ectopic pregnancy in 2002 and in 2003 she had had some lacerations from a glass door incident. She had a tailbone injury from a violent relationship. She had an admission to Shellharbour Hospital with injuries to her forehead and in 2010, she had a voluntary admission to the psychiatric unit at Shellharbour. In 2012 she sustained sexual harassment [presumably at work] and had treatment for anxiety and depression with Dr Khan in 2013. The 2014 motor vehicle accident was noted and in 2015 she had abdominal surgery and in 2015 had no surgery at Prince of Wales Hospital with kidney stones at St Vincent’s Hospital in 2015. In 2016, she sustained a wound to her knee in a motor vehicle accident with three days in hospital. Dr Rikard-Bell then said he was unable to provide a reliable opinion because of the “complexity and inconsistencies which were noted by Assessor Barrett on 13 September 2020”.
The Panel noted the desktop report dated 19 November 2019.
The Panel noted the consultation notes of Enough Is Enough Anti Violence Movement Inc. A note on 6 November 2019 noted that her mood was euthymic and that her speech, affect, and mood were congruent to content. A note on 12 December 2019 noted her focus on “getting back to how I was before the MVA” while noting a “General improvement in stress levels following involvement from older adult mental health with regards to supporting mother”. A letter dated 15 January 2019 noted that the claimant had reported “significant stress and anxiety resulting from her caring role for her mother experiencing mental health deterioration”. It reported “long-term symptoms of anxiety, trauma and depression with multiple precipitants including witness physical assault, relationship breakdowns, family dynamics, polysubstance abuse, homelessness and the impact of the MVA in 2014 that has led to chronic back pain”. She was noted to be “going through a protracted legal campaign for compensation” though on the positive side she was “no longer using ice” and had “secured stable accommodation with Housing NSW”. A “letter of support” dated

3 March 2020 from Enough Is Enough commented on ongoing intimidation and verbal abuse from her neighbour from June 2018 onwards occurring on an intermittent basis since.
The certificate of Medical Assessor Melissa Barrett dated 13 September 2020 determined that the subject motor vehicle accident gave rise to a permanent impairment greater than 10%. Listed injuries comprised exacerbation of pre-existing diazepam dependence, opioid analgesic use disorder, methamphetamine use disorder, in remission, and specific phobia (car travel). Medical Assessor Barrett noted that the claimant had acknowledged some depression at the age of 18 years in the context of a nine-month relationship characterised by domestic violence. She also gave a history of post-traumatic stress disorder occurring at the age of 16 years in 2000 following a serious assault by a random gang. She also was diagnosed with ADHD at the age of 10 years giving a history of having been bullied at school. She sustained physical injuries including significant pain in the accident and avoided driving for a period of “possibly some years after the accident”. Sometime after the accident, she tried methamphetamine and found herself smoking daily for about 18 months saying that it had made her confident and that she had returned to driving whilst using methamphetamine. She had a further motor vehicle accident while intoxicated with methamphetamine fracturing her patella and afterwards decided to cease methamphetamine. She resumed driving around 2019 but felt more comfortable as a driver than a passenger. However, she had persisting low mood feeling useless and a burden with lack of confidence, disturbed sleep and occasional but infrequent nightmares, reduced energy because of pain and using Valium to get herself out of bed, with some loss of concentration. She had some contact with a psychiatrist and had been prescribed duloxetine briefly which she did not tolerate because of nausea and was now seeing a psychologist weekly while continuing to use diazepam 25 mg daily as well as three to four tablets of Mersyndol forte daily. Dr Barrett noted other reports suggesting inconsistencies in her history with evidence of daily marijuana use by the age of 21 years as well as an admission to a psychiatric hospital in 2010 with anxiety and depression. There was also history suggestive of significant diazepam use before the accident, chronic pain presentations before the accident, and a history of self-harm, eating disorder, and multiple presentations with anxiety and depression. There was a subsequent admission to hospital in April 2017 with facial pain following an assault two days previously and was noted to be agitated and aggressive in the ambulance while admitting to polypharmacy and recreational drug ingestion including alcohol, diazepam, and amphetamines. Medical Assessor Barrett assessed her at 30% whole person impairment rating her as Class 3 for self-care and personal functioning, Class 4 for social and recreational activities, Class 2 for travel, Class 4 for social functioning, Class 3 for concentration, persistence, and pace and Class 4 for adaptation. She deducted 11% for pre-existing impairment rating her as Class 2 for self-care and personal hygiene, Class 1 for social and recreational activities, Class 1 for travel, Class 3 for social functioning, Class 3 for concentration, persistence, and pace, and Class 3 for adaptation. She made no adjustment for treatment effects.
The Panel noted the certificate of Medical Assessor Rosenthal in relation to soft tissue injuries of her cervical and lumbar spine and soft tissue injuries to her right shoulder and right hip which gave rise to an impairment not greater than 10%.
The Panel noted the medicolegal report dated 27 April 2021 by Dr Nigel Menogue, occupational physician, which related to her physical injuries. Dr Menogue noted that she was “quite teary during parts of the assessment and clearly [was] concerned about her ongoing psychological state” while noting that “She did acknowledge that she has had a troubled life and also notes that she is dependent on Valium [which has been the case for many years prior to the subject accident]”. He noted that she had become dependent on ice and had not sought any medical management of any type in the years 2015 and 2016, until the intervening accident on 24 August 2016.
The Panel noted the certificate of Medical Assessor Jones dated 18 January 2023. Medical Assessor Jones took a lengthy history of substance use, her involvement when younger in a domestic violence relationship, and a forensic history. He noted a diagnosis of ADHD in childhood. He took a history of her relationships which had been problematic. He noted her prior history of being assaulted and a workers compensation claim related to bullying and harassment in 2012. He took a history of the subject motor vehicle accident, her physical injuries, and major problems since that time including and ice addiction, a period of sex work, and the near fatal intentional high-speed motor vehicle accident in 2016. He noted that she had ceased using amphetamines, that she regularly saw a psychologist, that she was on regular diazepam which she had significantly reduced, and that she took significant quantities of Mersyndol forte and Panadeine forte for pain but that she took no other psychotropic medications. He noted her limitations with respect to current functioning. He noted her to be labile, emotionally demonstrative, and at times teary and irritable at interview and that she said that she had felt as though she was being attacked. Medical Assessor Jones considered that there was no evidence of an opioid use disorder as her opioid use was seemingly appropriate. There was no evidence of ongoing methamphetamine use and her down scaling of her benzodiazepine use was not consistent with a benzodiazepine use disorder. He did not consider her difficulties with travel to be sufficient for a diagnosis of a specific phobia. He concluded that there was no evidence of a psychiatric disorder attributable to the subject motor vehicle accident but considered that she had a likely history of attention deficit hyperactivity disorder, a history of substance abuse, domestic violence, likely Cluster B personality vulnerabilities, and long-term problems with anxiety and depression.

EXAMINATION

Background

The claimant is a 40-year-old single disability support pensioner. She has been on the disability support pension for seven or eight years. She lives on her own. Her mother who is 77 years old is her full-time carer.

Motor vehicle accident

On the day in question, she was driving along Taren Point Road. A car came through an intersection and t-boned her. She recalls thinking, “Shit, he’s going to hit me… I woke in the service station… I was taken to St George Hospital – they were taking a long time – I called my mum because they were taking a long time”.
She has only a fragmented recall of the accident. Her airbags deployed. Both cars were written off.

Injuries and treatment

She had two black eyes as well as bruising on her hip and along her right-hand side. She “also had whiplash”. She thinks she may have lost consciousness briefly saying she has been told she was pulled out of the car (but does not actually recall this).
She continues to have back pain and pins and needles down the right side of her body. She is “constantly in pain – I just don’t have the funds to get proper treatment”.
She has had occasional appointments with physiotherapists and massages but has not had consistent treatment.
She takes Mersyndol forte and Valium. She uses four to eight tablets a day. She takes three to four Valium daily for her anxiety “and it increases a bit when I have appointments coming up”.
She says of her anxiety, “I shake, and I shudder… I can’t breathe… like I’m going to have a heart attack… it’s better with the Valium – I think the Valium helps with my pain a little bit”.
She sees a psychologist every month though before she had been seeing her weekly for two or three years which was “when I was on a suicide prevention plan – since I got a dog [in October 2023], my mental health has improved a lot”.
She “started using ice (methamphetamine) after the accident… on the recommendation that it was a good painkiller – but it was the worst drug I’ve ever had… it turned me into someone I don’t recognise – I had a car accident on ice… I had tried to kill myself” . She portrayed herself as a confident and outgoing woman before the accident who attended to her appearance.
She maintained that ice gave her the confidence to drive without fear “but it made me into a demon… I had no pain, but I had no soul”.
She used “a lot of ice” and a few weeks after starting on it, worked for about a year in the sex industry supporting her drug habit. She “was awake 21 days once” saying, “I was brought up in a Christian home – I went to a private school” and spoke of her shame at her involvement in the sex industry.
She met her partner coming out of the industry. He was also a dealer “and we did get off it together but unfortunately he didn’t want to stay with me” speaking of her 2016 accident. She recalled waking up in hospital and saw her mother and father there “and from that point forward, I quit ice”.
Her partner was “nearly jailed” for having a large quantity of ice. They separated around 2019 or 2020.
She said, “I wanted to make clear that I never touched ice before the accident…”. She “definitely had used marijuana before the accident – I’d smoke a joint at a barbeque… I’d have a couple of Valium… I definitely did dabble in it when I was younger”. She added, “I knew that to get Valium, I had to tell doctors that I wanted to get off pot… prescription drugs were quite popular back then”. It was clear that whatever her pattern of use, she was prepared to divert medications obtained on prescription.
She admitted she “used to drink a lot – not every day – I would go to clubs and pubs – I was very social”. She would have consumed “four or five drinks – I was definitely not an alcoholic – I probably would have way too many drinks but not every day – maybe four, five, six – maybe seven…”.
She said, “I did have a bit of anxiety before the accident – I didn’t have an easy life before the accident…”.
She said, “I was diagnosed with ADHD when I was young – I wouldn’t even take dexamphetamine”.
The Panel asked the claimant about her concentration. She said in relation to TV, “If it’s a good series, I might watch the whole thing but sometimes I have to go back and watch it again”. She does not read but has never been much of a reader.
She had worked before her accident in the motor trade industry. She quit her job to join her brother in developing wearable technology and travelled to China with him. She had had to postpone the trip till a month or two after her accident but left “because I couldn't sleep – the beds were hard… I left to be with my sister – she was in Malibu – she had a health retreat and after I had a lot of treatment, I was able to come back home, and I moved to Bondi… I didn’t want to drive but I wanted to get work and I wasn’t successful with that… then I started smoking ice and three weeks later I was working in a brothel”. She said tearfully, “I just want to work… it’s not good not to work… I tried to get a job with a butcher… I’m in Housing at the moment and I’m so frightened of losing my home… my mum took me to a dental assistant role, and I went to the interview, but I told my mum I couldn't do it… I’ve never not worked for longer than six months… I’ve done a lot of temp work for the government… I would even clean toilets which I’ve done…”.

Mental state examination

The claimant was assessed a face-to-face at the examination rooms of the Commission with Medical Assessor Canaris and with Medical Assessor Hong in attendance by Microsoft Teams. She presented as a casually attired woman wearing a tracksuit with her hair done up in a bun. She brought a small dog with her which sat on the floor and which she at times held on her lap. She provided the history documented above. Her narrative while coherent and initially internally consistent but was not consistent in relation to pre-existing psychiatric history and it was evident to the Panel that she was minimising prior difficulties. Inconsistencies became more apparent as the Panel attempted to engage her in relation to this issue, but she became increasingly distressed in the process.
She was often teary and labile in affect as she provided the history. She said of the accident, “This accident has been the most damaging impact of anything in my life – nothing has held me back like this”. She spoke of her shame particularly in relation to her time as a sex worker and spoke of “the repeated assessments” and “wrong records”. She said, “I haven’t had an easy life, but it doesn’t take away from what the accident took away from me – my childbearing years…”.
Because of her distress, the Panel discussed the Medical Assessors’ roles and duty of care and she was offered the option of terminating the assessment but indicated she wanted to proceed.
There was no evidence of psychosis or cognitive impairment. The Panel noted her capacity to provide a reasonably detailed history extending over many years period.

COMMENTS ON CONSISTENCY

The Panel noted significant inconsistencies particularly in relation to prior psychiatric history. As noted above, the Panel attempted to engage her on this issue several times in the face of increasing distress.
While acknowledging past difficulties, she maintained that she was “able to pull myself together and get on with life… I did dabble with marijuana, but I won’t even touch now – I’ve been prescribed marijuana, but I won’t even touch it now”.
She was asked about the 2017 criminal matter. She responded,
“I was hanging out with a girl that was on ice – I didn’t know she was on ice – she had a daughter and I found heroin needles in her school bag – I could have gone to DOCS but I went to her parents [the young girls grandparents] she asked if she could put my bank details into her Centrelink account – she then said I’d hacked Centrelink – she was trying to get back at me two weeks later I had the police knocking on my door… It was just prior to my accident where I tried to kill myself – I did not want to deal with the court, so I just pleaded guilty – I never hacked into the account – I had to go to a psychiatrist because of that charge – I had a full analysis from a psych for that – I think my lawyer wanted me to plead something for mental health.”
The Panel drew her attention to material from before her accident including depression, anxiety, and post-traumatic stress disorder. She was “bashed by a gang” and references to panic attacks, treatment with Aropax which she said she never took and that she took Valium, had been homeless, lost her job, and saw a psychologist called Edwina Birch in 2014. She denied seeing Edwina Birch in that year saying it was “a lie”. She said she had not seen Edwina Birch except for her Victims Compensation. She said she had not seen Edwina Birch since around 2000. Her attention was drawn to domestic violence charges and fraud charges. She admitted was charged with using Centrelink but with not declaring her income to Centrelink and maintained she had never been charged with domestic violence. Her attention was drawn to the report of Dr Graham George in 2012 and diagnoses in relation to domestic violence. She maintained she had not been homeless but had ended her lease to go to China and maintained she had never been prescribed Valium.
Her attention was drawn to other stresses in her life. She had been assaulted by “some pretty shitty people” when she was smoking ice. She acknowledged that she had had a violent ex-partner. She was asked why she thought the accident had been so damaging. She responded, “Firstly, because I got on ice because of the pain – I lost my childbearing years… also all these appointments I’ve had to go through… I’m surrounded by shame guilt… every assessor has brought up something from my past…”. She was very teary and agitated when questioned on this score.
The Panel discussed her file in relation to life stressors after the subject accident, with several assaults in 2015, 2017, 2018 and an Apprehended Violence Order, and car accident in 2017, difficulties when an ex-partner found her, references to criminal matters for which she was charged, however, despite several attempts, the Panel could not gain clarity of how these events affected her psychological health.
She started her sex work some three weeks after she started to smoke ice which she did for about nine months to a year.

Current functioning

She “does not really shower much… I have got better… maybe once every fortnight or week and a half… I just don’t care anymore”. She does not shave her legs, do her eyebrows, or put make up on saying she does not see anyone. She thinks she may have showered two weeks before today but had washed her face this morning. She would change her clothes daily explaining that she tosses and turns at night as well as sweating. Her appetite and weight are “up and down” saying she was 62kg had gained some weight after she got her dog and “ballooned up to 90 kg” but been started on Ozempic and now weighs around 75kg. She explained she did not eat well and often ate out of boredom and resorted to comfort food. She does not cook at all and relies on her mother though she has started doing her own shopping online and has been buying much more “crap”. Her mother does all the cleaning, washing, and putting clothes away “and I don’t know what I’d do without mum”.

She has been getting out a little bit more since getting her dog. She goes for walks along a track near her home. Her dog has given her “purpose to get up in the morning”. She does not go out otherwise and has “completely shut myself off form the world”. She does not go out to clubs, pubs, movies, or sporting events saying she does not want to talk about how she has been functioning.
She is “OK now – I will drive” though she “was pretty bad until about four years ago – that was a reason I got back into a vehicle – I wanted to do more what with my mum – I’m OK in a car now”. She can drive “three or four K” on her own “with Wolfie [her dog] in the car”. She said her mother passed on her old car to her and had done at best very limited driving and is very anxious when she sees a car at an intersection looking as if it would emerge “and I something like that happens, I have to pull up by the side of the road”.
She feels “a massive burden” to her mother. She is very appreciative of her mother’s support saying, “She’s my lifesaver”. She has no friends in her life. She did have a partner who left her six years ago “because I was too unstable”. She has no thoughts of getting into a relationship (“How am I supposed to meet anyone? I’ve always wanted a family and I feel like this case has taken away my childbearing years…”).
The Panel asked after concentration. She said, “If it’s a good [TV] series, I might watch the whole thing but sometimes I have to go back and watch it again”. She does not read but has never been much of a reader. The panel noted her capacity to provide a coherent history save for times when she became agitated and distressed particularly when being pressed about inconsistencies between her narrative and the documentation on hand.
The Panel asked her what work of any she had done since the motor vehicle accident. She said, “I haven’t done any work – I tried to do volunteering… I did get offered a couple of roles at a place I used to work at, but I was on ice…”. The Panel accepted that her levels of distress and dysfunction very likely rendered her effectively unemployable.

Diagnosis and reasons

The claimant’s diagnosis is first and foremost one of polysubstance use disorder. Current substances comprise diazepam and codeine and following the accident included predominantly ice (methamphetamine) while before the accident she had used predominantly marijuana, diazepam, and alcohol. Her present substance use has lessened in recent years, and she no longer uses ice. However, her substance use disorder is not in remission as her current use is still hazardous. A strict application of DSM-5-TR would require the Panel to specify how the claimant meets criteria for each and every substance that has been problematic for her, as she simply exchanged one illicit substance or non-prescribed substance for another. The Panel simply notes that the claimant has persistently and to this day used hazardous quantities of substances despite significant harms over an extended period and seems never to have had a significant period in which she was free of substances.
Pain has been a persisting concern, and she states that one of the reasons she used ice was because it alleviated her pain. She consequently warrants a diagnosis of somatic symptom disorder with predominant pain. This diagnosis does not imply that her pain is without pathophysiological basis but reflects rather the extent to which pain dominates her life. The panel notes for the record the following DSM-5-TR criteria for the diagnosis:
“A. One or more somatic symptoms that are distressing or result in significant disruption of daily life.
B. Excessive thoughts, feelings, or behaviors related to the somatic symptoms or associated health concerns as manifested by at least one of the following:
1.   Disproportionate and persistent thoughts about the seriousness of one’s symptoms.
2.   Persistently high level of anxiety about health or symptoms.
3.   Excessive time and energy devoted to these symptoms or health concerns.
C. Although any one somatic symptom may not be continuously present, the state of being symptomatic is persistent (typically more than 6 months).
Specify if: With predominant pain (previously pain disorder): This specifier is for individuals whose somatic symptoms predominantly involve pain.
Specify if: Persistent: A persistent course is characterized by severe symptoms, marked impairment, and long duration (more than 6 months).
Specify current severity: Mild: Only one of the symptoms specified in Criterion B is fulfilled.
Moderate: Two or more of the symptoms specified in Criterion B are fulfilled.
Severe: Two or more of the symptoms specified in Criterion B are fulfilled, plus there are multiple somatic complaints (or one very severe somatic symptom).”
She had attracted diagnoses of post-traumatic stress disorder before the subject accident and had certainly has had her share of traumatic events. She provided the history of worsening panic following the subject motor vehicle accident and panic attacks persist to this day and appeared to be the main drivers for her diazepam use. She had provided a history to other assessors and clinicians of nightmares related to the accident and the Panel noted her reported anxiety in cars and avoidance of driving while acknowledging that there had been some inconsistency in the documentation in relation to this history. The Panel noted DSM-5-TR criteria for the diagnosis:
“A.     Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
1.     Directly experiencing the traumatic event(s).
2.     Witnessing, in person, the event(s) as it occurred to others.
3.     Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
4.     Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse).
Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.
B.     Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
1.     Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).
2.     Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s).
3.     Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.)
4.     Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
5.     Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
C.     Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:
1.     Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
2.     Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
D.     Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1.     Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs).
2.     Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., “I am bad,” “No one can be trusted,” “The world is completely dangerous,” “My whole nervous system is permanently ruined”).
3.     Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.
4.     Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
5.     Markedly diminished interest or participation in significant activities.
6.     Feelings of detachment or estrangement from others.
7.     Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).
E.     Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1.     Irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects.
2.     Reckless or self-destructive behavior.
3.     Hypervigilance.
4.     Exaggerated startle response.
5.     Problems with concentration.
6.     Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).
F.     Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month.
G.     The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
H.     The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.”
In relation to Criterion H, the Panel was of the view that post-traumatic stress disorder symptoms as described at various times in her life were not attributable to her substance use but considered that post-traumatic stress disorder symptoms were at least to some extent drivers of her substance use.
There was evidence of a diagnosis of ADHD in childhood which may well have persisted into adult life but the extent of its presence to date was too difficult to ascertain given her anxiety and the chaos that had come to dominate her life. The Panel has consequently not made this diagnosis.
There was evidence of long-standing personality dysfunction evident from early adolescence onwards with a dramatic and erratic way of being best classified as a general personality disorder with borderline and antisocial (Cluster B) traits. In terms of DSM-5-TR, the manual describes general personality disorder as follows:
“A.     An enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture. This pattern is manifested in two (or more) of the following areas:
1.     Cognition (i.e., ways of perceiving and interpreting self, other people, and events).
2.     Affectivity (i.e., the range, intensity, lability, and appropriateness of emotional response).
3.     Interpersonal functioning.
4.     Impulse control.
B.    The enduring pattern is inflexible and pervasive across a broad range of personal and social situations.
C.    The enduring pattern leads to clinically significant distress or impairment in social, occupational, or other important areas of functioning.
D.    The pattern is stable and of long duration, and its onset can be traced back at least to adolescence or early adulthood.
E.    The enduring pattern is not better explained as a manifestation or consequence of another mental disorder.
F.    The enduring pattern is not attributable to the physiological effects of a substance (e.g., a drug of abuse, a medication) or another medical condition (e.g., head trauma).”
Cluster B includes antisocial, borderline, histrionic, and narcissistic personality disorders. Individuals with these disorders often appear dramatic, emotional, or erratic. The claimant has mixed features and hence the Panel has not made a diagnosis of a specific personality disorder but rather noted predominant antisocial and borderline traits.

CAUSATION AND REASONS

Her polysubstance use disorder was pre-existing. The natural history of substance use disorders can involve significant fluctuation over the life cycle. Nevertheless, it appeared from her account that it had been significantly aggravated in the aftermath of the motor vehicle accident because of her resort to ice which brought in its train other harms such as working in the sex industry which has been a cause of very considerable shame to her. She identifies the ice as assisting her with pain relief and dealing with the anxiety associated with driving. Accordingly, the Panel is satisfied that the claimant has suffered a material aggravation of the pre-existing condition, which is to be considered an injury for the purposes of the MAC Act.
Her post-traumatic stress disorder was pre-existing but on balance there was evidence that it had become more severe in the aftermath of the accident with symptoms specifically referable to that event. The accident as described was an event that carried an inherent likelihood of precipitating such a condition independent of any pre-existing disorder. Accordingly, the Panel is satisfied that the claimant has suffered a material aggravation of the pre-existing condition, which is to be considered an injury for the purposes of the MAC Act.
Her somatic symptom disorder with predominant pain was not in evidence before the accident and appears specifically referable to that event.
Her Cluster B personality disorder is pre-existing, but Cluster B personality traits may have been amplified in the setting of worsening polysubstance use. Accordingly, the Panel is satisfied that the claimant has suffered a material aggravation of the pre-existing condition, which is to be considered an injury for the purposes of the MAC Act.
While the panel did not make a diagnosis of ADHD, it noted that this condition if present would quite likely have contributed to her pre-accident substance use and would be a factor in her post-accident substance use. It would not make the management of her post-accident injuries any easier but would in itself be a predominantly static condition.

WHOLE PERSON IMPAIRMENT

Self-Care and Personal Hygiene - Class 2

She “does not really shower much… I have got better… maybe once every fortnight or week and a half… I just don’t care anymore”. She does not shave her legs, do her eyebrows, or put make up on” saying she does not see anyone. She thinks she may have showered two weeks before today but had washed her face this morning. She would change her clothes daily explaining that she tosses and turns at night as well as sweating. Her appetite and weight are “up and down” saying she was 62 kg had gained some weight after she got her dog and “ballooned up to 90 kg” but been started on Ozempic and now weighs around 75 kg. She explained she did not eat well and often ate out of boredom and resorted to comfort food. She does not cook at all and relies on her mother though she has started doing her own shopping online and has been buying much more “crap”. Her mother does all the cleaning, washing, and putting clothes away “and I don’t know what I’d do without mum”. The Panel noted her reliance on takeaway food and buying things online as she does not cook, she is not showering regularly and no longer attentive to her appearance, but presented reasonably well-groomed during the assessment, and is capable of independent self-care and personal hygiene without support with a mild level of neglect, therefore, the Panel rated 2.

Social and Recreational Activities - Class 3

She has been getting out a little bit more since getting her dog. She enjoys going for walks along a track near her home. She does not go out otherwise and has “completely shut myself off from the world”. She does not go out to clubs, pubs, movies, or sporting events saying she does not want to talk about how she has been functioning.

Travel - Class 2

She is “OK now – I will drive” though she “was pretty bad until about four years ago – that was a reason I got back into a vehicle – I wanted to do more what with my mum – I’m OK in a car now”. She can drive “three or four K” on her own “with Wolfie [her dog] in the car”. She said her mother passed on her old car onto her and had done at best very limited driving and is very anxious when she sees a car at an intersection looking as if it would emerge “and I something like that happens, I have to pull up by the side of the road”.

Social functioning - Class 3

She feels “a massive burden” to her mother. She is very appreciative of her mother’s support saying, “She’s my lifesaver”. She has no friends in her life. She did have a partner who left her six years ago “because I was too unstable”. She has no thoughts of getting into a relationship (“How am I supposed to meet anyone? I’ve always wanted a family and I feel like this case has taken away my childbearing years…”).
Comment: The Panel noted in this context that there was evidence of friendships (even if dysfunctional) in the documentation and the enduring stability of her relationship with her mother. However, there seemed no realistic prospect of forming new relationships. Using clinical judgement, the Panel rated her as Class 3.

Concentration, Persistence, and Pace - Class 2

The Panel asked her about her concentration. She said, “If it’s a good series, I might watch the whole thing but sometimes I have to go back and watch it again”. She can focus more than 30 minutes. She does not read but has never been much of a reader. The panel noted her capacity to provide a coherent history save for times when she became agitated and distressed particularly when being pressed about inconsistencies between her narrative and the documentation on hand, and that she focussed well for most of the assessment.

Adaptation - Class 3

The Panel asked her what work of any she had done since the motor vehicle accident. She said, “I haven’t done any work – I tried to do volunteering… I did get offered a couple of roles at a place I used to work at, but I was on ice…”. Her physical injuries are not assessable in the psychiatric impairment rating scale (PIRS) and from a psychological perspective, she can engage in some age-appropriate life roles at reduced capacity, and this is consistent with 3.
Classes in ascending order
2, 2, 2, 3, 3, 3.
Median class
3
Aggregate
15
Whole person impairment = 15%

PRE-EXISTING IMPAIRMENT

The claimant contended that despite her previous difficulties she had been a well-functioning woman before the subject motor vehicle accident. The Panel came to the view that she was unable to give a reliable account of her functioning at the time. Consequently, using clinical judgement, it estimated her functioning from information available in the documentary evidence.

Self-care and personal hygiene - Class 2

The Panel noted her extensive difficulties with substances and numerous other difficulties which included anxiety, and weight changes and suicidal ideation over time. Clinical experience would suggest some level of difficulty in this category as a consequence of all these problems (and particularly because of substance use problems). For example, the claimant in 2010 was reported to be drinking up to a cask of wine a day as well as using cannabis heavily. The Panel consequently rated her as Class 2.

Social and recreational activities - Class 2

Travel - Class 1

The Panel could find no evidence suggesting any impairment in this category.

Social functioning - Class 3

The Panel took note of her criminal history as per NSW Police Force from 12 October 2009. Much of this appeared to have been covered in other documentation. In some instances, she is listed as a person of interest, or a person named. Although a detailed narrative is supplied in relation to some offences, the claimant’s role in these was not immediately clear because of redactions and her provided history was inadequate in this category. The Panel concluded there was evidence of major social functioning impairment, as she had come to the attention of the police in multiple matters with separations and interpersonal instability due to her behaviour and pre-existing personality disorder with borderline and antisocial traits.

Concentration, Persistence, and Pace - Class 2

The Panel took note of her prior history of ADHD. While it did not make the diagnosis of ADHD, it accepted that problems in this category were likely to be present while also noting her reportedly heavy use of alcohol and diazepam before the subject accident. Reported levels of substance use as evidenced by the documentation would, on their own, be likely to be associated with Class 2 in this category.

Adaptation - Class 3

The claimant was not working at the time of the accident although she had been in a number of roles over the years. The Panel noted a Job Capacity Assessment Report dated

1 September 2010 which refers to barriers to finding work including an anxiety disorder, financial difficulties, family relationship breakdown, and domestic violence. She is noted to have last worked six weeks previously but to have lost her job and to be going through an unfair dismissal claim. It was noted that before that time she had worked as an assistant manager for a warehouse distribution company for 12 months. It also noted an Employment Services Assessment Report dated 17 February 2012 relating to a change of circumstances. She had had a recent chest infection. She had recently moved from a rural area to increase employment opportunities. She was reported to have poor coping with multiple stressors impacting on sleep, endurance, and capacity to focus on work-related activities. She was considered to be likely to benefit from a three-month temporary reduced work capacity certification.
Classes in ascending order
1, 2, 2, 2, 3, 3
Median class
2
Aggregate
13
Pre-existing whole person impairment = 7%

Subsequent whole person impairment

The Panel considered the contribution of events giving rise to subsequent impairment. However, meaningfully distinguishing between these and consequences of the accident was too difficult a task.

Treatment effects

There was no evidence of any treatment effects.

Final whole person impairment

Eight per cent.

CONCLUSION

The Panel was satisfied that the claimant has suffered psychological injury caused by the motor accident. The diagnoses are set out above. The Panel concluded that the whole person impairment related to the subject motor accident is 8%, which is NOT GREATER than 10%.
The Panel revokes the medical assessment of Medical Assessor Jones dated

18 January 2023 and provides a new certificate at the beginning of these reasons.

[2024] NSWPICMP 628

5 September 2024