Meroni v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 42
•7 February 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Meroni v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 42 |
| CLAIMANT: | Antonio Meroni |
INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Christopher Rikard-Bell |
| MEDICAL ASSESSOR: | Wayne Mason |
| DATE OF DECISION: | 7 February 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical review panel; review of certificate of Medical Assessor (MA) Friend who assessed 5% whole person impairment (WPI); dispute related to assessment of permanent impairment; Held – diagnosis of major depressive disorder, certificate of MA Friend revoked; new certificate issued; assessment of 11% WPI plus 2% for the effects of treatment; final WPI of 13%. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the Certificate of Medical Assessor Paul Friend dated · Major depressive disorder |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 13 April 2018 Mr Antonio Meroni (the claimant) was riding his motorcycle to work. He was wearing a helmet and full protective gear. Mr Meroni was travelling in the bus lane on Victoria Road moving slowly uphill when a car moved into the bus lane and hit his right leg (the accident). Mr Meroni managed to keep his motorcycle upright and stopped in front of a tyre workshop. He had an obvious laceration of his right heel. He was assisted to sit on the ground with his right foot elevated on his motorcycle. His right heel wound was dressed before police and ambulance arrived at the scene. He was taken to Royal Prince Alfred (RPA) Hospital.
Mr Meroni was 51 years of age at the date of accident and is now 56 years of age.
Mr Meroni asserts he sustained the following injuries in the accident:
(a) injury to the right foot;
(b) injury to the right ankle, and
(c) psychological injury.
Mr Meroni was admitted to RPA Hospital under the care of Dr Petchell, orthopaedic surgeon. He underwent washout, debridement and primary wound closure of the injury to the right foot and was discharged home on 15 April 2018. He used a wheelchair and then crutches until he was able to fully weight bear in September 2018.
Mr Meroni has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Meroni under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Meroni as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[1].
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment was referred to Medical Assessor Paul Friend. Medical Assessor Friend assessed Mr Meroni on 25 November 2021 and issued a certificate dated 6 December 2021 certifying a 5% whole person impairment (WPI) in respect of a major depressive disorder caused by the accident.
Mr Meroni has sought a review of the medical assessment of Medical Assessor Friend.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Friend was lodged on 14 December 2021 within 28 days of the date on which the Certificate of Assessor Friend was made available to the parties.[2]
[2] Section 7.26(1)(b) of the MAI Act.
On 22 March 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[3]
[3] Section 7.26 of the MAI Act, AD2 p 6.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the 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 cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the 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 to the Motor Accidents Division of the Personal Injury Commission (the Commission) [4]. Accordingly, the President’s delegate referred the matter to this Panel to assess.
[4] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor[5].
[5] Section 41(2) of the PIC Act.
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 proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
On 14 December 2022 the Panel agreed an examination was necessary.
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[7]
[7] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There 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.”
ASSESSMENT UNDER REVIEW
The following injuries were referred to Medical Assessor Friend: Depression, anxiety, post- traumatic stress disorder including impaired concentration.
Medical Assessor Friend diagnosed a major depressive disorder caused by the accident and provided the following assessment of impairment under the Psychiatric Impairment Rating Scale:
Category
Class
Reason for Decision
1.
Self-care and Personal Hygiene
2
Mild impairment. Mr Meroni does get out of bed each day but does not necessarily shower or shave for up to two or three days. He does tend to wear the same clothes for a couple of days. He is able to prepare meals and do grocery shopping and attend to household duties including cleaning.
2.
Social and Recreational Activities
2
Mild impairment. Mr Meroni has lost interest in golf in part because of the pain it causes but he will still ride his motorbike once or twice every three months. He still does hiking although he needs to take more frequent breaks and only does the easier hikes because of his physical difficulties. He no longer undertakes social activities just having lost interest in them, but he can leave home and do these activities unaccompanied.
3
Travel
1
No deficit. Mr Meroni is able to drive a motor vehicle and ride a motorbike although the latter does cause him some fear about further motor accidents. The limitation on driving a motor vehicle is the pain that he experiences in his right heel which requires him to stop every 30-60 minutes to rest and stretch his heel
4
Social Functioning
2
Mild impairment. The relationship with his wife and son is very strained and he thinks they may separate but that has not occurred. There are no arguments between them.
5
Concentration, Persistence and Pace
2
Mild impairment. Mr Meroni has struggled with his thinking, concentration and cognitive functioning since the motor accident, but he was able to complete an internationally recognised qualification in financial risk management over 1½ - 2 years commencing in December 2018. He did fail the second level of the examination the first time but this is not unusual with these types of qualifications. He passed at the second attempt.
6
Adaption
2
Mild impairment. Mr Meroni believes he can work again in the financial field but he does struggle with his concentration. It would seem that he would struggle to function as a senior fund manager but could work at a lesser level full time. It is unlikely that he could obtain a part-time senior fund management position.
In his certificate dated 6 December 2021 Medical Assessor Friend assessed a 5% WPI caused by the accident.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 1 August 2022 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents marked AD1 paginated from pages 1 to 300. The solicitor for the insurer uploaded to the portal a bundle of documents marked AD2 paginated from pages 1 to 84.
Treating medical evidence
The Discharge Summary of RPA Hospital notes admission until 15 April 2018 under the care of Dr Petchell who undertook debridement and repair of the right lower limb degloving injury.[8]
[8] AD1 p 76.
Clinical notes of Sydney Doctors disclose minimal attendances prior to the accident.[9] Mr Meroni consulted Dr Sue Carr on 26 April 2018 when she recorded details of the injury sustained in the accident and attended to wound dressing.
[9] AD1 p 140.
Dr Carr issued Certificates of Capacity/certificates of fitness dated 27 April 2018 and 10 May 2018 with a diagnosis of “right lower limb degloving injury”.[10]
[10] AD1 p 61.
Mr Meroni attended for wound care until 12 September 2018.
Mr Meroni commenced physiotherapy with Lucia Bang of Sydney Physio Solutions on 29 June 2018. On 19 February 2020 she noted Mr Meroni was reporting intermittent discomfort and spasm like sensation in his ankle with numbness and discomfort on palpation of the trauma site.[11]
[11] AD1 p 254.
Mr Meroni was reviewed by Dr Peter Lam, orthopaedic surgeon on 13 June 2019.[12] He reported ongoing medial ankle pain and discomfort and altered sensation in the heel. Dr Lam was of the view the claimant’s symptoms may be related to post-surgical scarring and suggested he undergo an MRI to exclude any underlying injury. Dr Lam advised the altered sensation is unlikely to improve and the claimant is likely to continue to experience discomfort with activity.
[12] AD1 p 45.
Mr Meroni underwent an MRI of the right ankle on 27 June 2019.[13] The report provides the following conclusion:
“● Scarred deep fascia of the postero-medial aspect of the ankle, with moderate fascial thickening and minimal associated oedema. No associated neural scar entrapment or neural pathology. The scar response extends to involve the flexor retinaculum. No retinacular defect. No posterior tibial tendon pathology.
· Chronic medial talar dome osteochondral lesion in the middle third, with non-acute crack in the chondral surface, immature subchondral cystic change, mixed pattern of subchondral bone marrow oedema and sclerosis.
· No associated ankle joint effusion.
· Scarred ATFL and CFL.
· Scarred deep fibres of the deltoid ligament.”
[13] AD2 p 40.
On 4 October 2019 Dr Karina Lim reported the claimant was “struggling with mental health – not able to enjoy his hobbies”. On 8 October 2019 Dr Lim reported the reason for the visit was “anxiety/depression”. Dr Lim referred Mr Meroni to Dr Alexandra Sheffield, clinical psychologist. Dr Lim reported:
·depressed mood;
·loss of interest/pleasure in things that would have normally given him joy;
·slight weight gain;
·insomnia – waking up 3-4x night;
·agitated, especially when driving;
·feeling worthless or excessive/inappropriate guilt;
·decreased concentration at times, and
·thoughts of death but no thoughts of suicide or plan.
On 19 February 2020 Dr Carr reported inter alia:
“mood dipped in Summer 2018/19 dec 2018 decision made to wind down fund and redundency from 01/07/2019 mood down since mva and worsened since loss of job and final retrenchement in July…[sic].”[14]
[14] AD1 p 215.
On 25 March 2020 Dr Carr reported inter alia:
“mood is worse today as exacerbated by ongoing Corona virus and this has made his attempt to get work impossible, His depression K10 40/41 last month would make him unable to look for work and get work he has sleep disorder, ruminating, poor concentration, agreed to start antidepressant and will be reviewed by Dr Harrison for ongoing care and full diagnosis.”[15]
[15] AD1 p 216.
On 2 April 2020 Dr Carr certified Mr Meroni unfit for work from 25 March 2020 to
2 May 2020 due to depression which was first diagnosed on 4 October 2019.[16][16] AD1 p 198.
On 9 April 2020 Dr Carr reported inter alia:
“after injury was working at probably less than 70% which would have interfered with his work capacity at that time after the accident.”[17]
[17] AD1 p 216.
On 21 May 2020 Dr Carr reported Mr Meroni was seeing Dr Harrison every two weeks who advised him to see a psychologist. He was taking Lexapro 10 mg per day.[18]
[18] AD1 p 219.
On 19 August 2020 Dr Carr reported Mr Meroni’s mood was better after using strategies advised by the psychologist.[19] Lexapro had been increased to 15 mg per day.
[19] AD1 p 219.
On 16 December 2020 Dr Carr reported Mr Meroni was very depressed, appeared bitter and negative.[20] He was experiencing sleep disturbance and was worked about his financial situation (forced sale of home and unemployment). Dr Synnott assessed a 5% WPI.
[20] AD1 p 219.
Dr Ian Harrison, psychiatrist
Dr Harrison provided a report dated 14 May 2020.[21] He had seen Mr Meroni on three occasions. Dr Harrison noted notwithstanding improvements with his ankle injury he remained impaired, noting abnormal sensation in the right foot and ankle and continuing pain. Dr Harrison reported the injury impacted Mr Meroni’s performance as a fund manager, the fund became unprofitable, was shut down and Mr Meroni was retrenched.
[21] AD1 p 264.
Dr Harrison described a flat affect and depressed mood and noted Mr Meroni was preoccupied with the accident. Dr Harrison diagnosed a major depression for the past few months with a longer-standing adjustment disorder with depression and anxiety since the accident.
In a report dated 25 July 2020 Dr Harrison reported Mr Meroni remained chronically depressed and anxious.[22]
[22] AD1 p 268.
On 14 November 2020 Dr Harrison reported some improvement in Mr Meroni’s mood noting he was on Lexapro 15mg per day and was having monthly supportive psychotherapy.[23] He also reported:
“However, Mr Meroni still has ongoing symptoms of depression including feeling low and sad in his mood. He has developed low self-esteem and he often feels hopeless. He is excessively self-critical and irritable with others. He still has episodic suicidal ideation. He appears, at times, to be suspicious in his thinking and in his manner. He has trouble concentrating and difficulty making decisions. He has thoughts and feelings of guilt and worries about his financial decisions. It is these feelings of guilt and shame that provoke his suicidal ideation. He has ongoing sleep problems. He also has episodic symptoms of anxiety.”
Fiona Green, Occupational Mental Health Specialists
[23] AD1 p 271.
Ms Green completed an Allied health recovery request dated 8 March 2022.[24] She diagnosed major depression and anxiety and reported low motivation, low mood, sleep disruption, irritability, poor appetite, sadness, chronic pain, anxiety, poor concentration, and worthlessness. She considered Mr Meroni unfit for work. In relation to home capacity, she reported:
“Showering every second day or in preparation to go out, doing cleaning on most days. Feels can be obsessive around cleaning due to anxiety. Self-care – spending more time on shaving and grooming, showering every second day, still cleaning which can be little perfectionistic, but less obsessive, sometimes cooking simple meals. Doing basic shopping.”
[24] AD2 p 63.
In relation to community, she recorded:
“Bought an electric scooter, is able to ride on cycle lanes, trying to go do the shops with this, a few times a week. Go to gym occasionally, 1-2 times a week, doing basic exercises, use a water rower at home, 1/week. Periodically socialising up to 3 times a month with another couple. Some online contact with those from work network.”
Medico legal evidence
Report of Dr Inglis Howe Synnott, psychiatrist
Dr Synnott assessed the claimant at the request of the insurer and provided a report dated 16 October 2020.[25] He reported following the accident the claimant was off work for one to two months and then returned to normal duties and hours and stayed in that position until he lost his job on 13 June 2019. He also reported the fund was shut down because he was not able to manage the team properly and was not providing 100% time to the shareholders.
[25] AD2 p 14.
He reported Mr Meroni first discussed his psychiatric symptoms with a physiotherapist in May/June 2019 and first discussed the symptoms with his general practitioner in October 2019, he commenced treatment with Dr Harrison in December 2019 and treatment with a psychologist since June 2020.
Dr Synnott reported as of 13 October 2020 Mr Meroni said he was psychiatrically capable of working in the area involving his usual duties and skill set on a full-time basis.
Dr Synnott concluded in the period after the accident and before his termination
Mr Meroni had a normal response to the physical injuries sustained in the accident which was not indicative of a psychiatric condition. He found that after losing his job in mid-2019 he developed an adjustment disorder with prominent anxiety due to concern about his financial and job security and the implications for his future. He concluded from a psychiatric perspective there was no incapacity for work.Dr Synnott reviewed Mr Meroni on 10 May 2022.[26] He reported symptoms included irritability, chronic depression and sadness, poor sleep, reduced attendance to self-care and personal hygiene, being easily upset by “little things” and a deterioration in his marriage.
[26] AD2 p 72.
Dr Synnott noted the persistence of the claimant’s symptoms and assigned a diagnosis of major depressive disorder with prominent anxiety. He maintained his opinion that Mr Meroni’s psychiatric injuries and disabilities overwhelmingly relate to the loss of his employment.
Report of Dr Ian Barrett, orthopaedic surgeon
Mr Meroni was assessed by Dr Barrett at the request of the insurer on
12 October 2020 and provided a report dated 20 October 2020.[27][27] AD2 P 12.
Dr Barrett reported Mr Meroni continues to experience altered sensation involving the heel of his right foot. His sleep is disturbed. He can walk up to 10 km, and he can run but not as freely as before.
Dr Barrett diagnosed a degloving injury of the right heel pad with residual dyaesthesia in the distribution of the sural nerve.
Dr Jeff Bertucen, consultant psychiatrist
Mr Meroni was assessed by Dr Bertucen at the request of his lawyer. He provided a report dated 8 February 2021.[28]
[28] AD1 p 46.
Dr Bertucen reported despite applying for roles as a senior fund manager Mr Meroni is dubious about future employment given his low mood, high anxiety, demoralisation and lack of confidence in his own judgment. Mr Meroni indicated his reduced professional acumen led him to ideas of failure and low self-worth.
He reported Mr Meroni “over the last few months of 2018, he began to experience a decline in his mood, loss of morale and enthusiasm for his work, a decline in sleep quality, loss of interest in food as well as previous sports and recreations”.
Dr Bertucen diagnosed a chronic adjustment disorder with depressed mood, which had evolved over time into a major depressive disorder. He noted Mr Meroni was a high functioning professional prior to the accident but his eventual redundancy occurred because of a decline in revenue brought on “by lethargy, reduced vigilance, demotivation and impaired concentration”. He concluded Mr Meroni could probably perform part time at his pre-injury level for another fund manager.
Dr Bertucen assessed a 15% WPI including a rating of 3 for these categories: social and recreational activities, concentration, persistence and pace and adaption.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 13 December 2021 addressing the assessment provided by Medical Assessor Friend.[29]
[29] AD1 p 1.
The claimant asserts the appropriate assessment for social and recreational activities is 3. Medical Assessor Friend assessed a class 2 rating for the following reasons:
· lost interest in golf in part because of the pain;
· still rides his motorbike once or twice every three months;
· still does hiking although it is limited, and
· no longer undertakes social activities just having lost interest in them but he can leave home and do these activities unaccompanied.
The claimant notes the descriptor for class 2 impairment in this category is:
“Mild impairment. Able to occasionally go out to social events without needing a support person but does not become actively involved; for example, in dancing, cheering favourite team.”
The claimant submits that the class 2 descriptor is not an accurate description as he is not someone who is able to socialise but doesn’t become actively involved while he is out. The descriptor for a class 3 impairment in this category is:
“Moderate impairment. Rarely goes to social events and mostly when prompted by family or close friend. Unable to go out without a support person. Not actively involved, remains quiet and withdrawn.”
The claimant submits Assessor Friend found he “no longer undertakes social activities” and “has lost interest in them” since the accident which is more closely aligned with a class 3 impairment rating.
It is submitted Medical Assessor Friend assessed a class 2 rating when he ought to have assessed class 3 for concentration, persistence and pace.
The claimant notes the descriptor for class 2 impairment in this category is:
“Mild impairment. Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for up to 30 minutes; for example, then feels fatigued or develops a headache.”
The claimant submits Medical Assessor Friend appears to have relied heavily on the fact the claimant completed a course. However, the claimant points out the course was over an extended period of time and with a fail first time around.
The claimant notes the descriptor for class 3 impairment in this category is:
“Moderate impairment. Unable to rear more than newspaper articles. Finds it difficult to follow complex instructions; for example, operating manuals, building plans, make significant repairs to motor vehicles; type detailed documents; follow a pattern for making clothes, tapestry or knitting.”
The claimant submits the findings of Assessor Friend failed to take into account the fact that the claimant’s “concentration remains very poor. He tried to read an electronic book but can only read about one or two pages. He sometimes plays a computer game on his phone but again cannot do it for more than a short period”. The claimant submits this description more accurately fits the descriptor for a class 3 impairment.
It is submitted Medical Assessor Friend assessed a class 2 rating when he ought to have assessed class 3 in the category of adaption.
The claimant submits that Medical Assessor Friend did not give any reasons for finding that he could work at a “lesser level fulltime”. The claimant submits this conclusion is inconsistent with his other findings:
· that his concentration remains very poor;
· when he tries to read an electronic book, he can only read one or two pages;
· he is depressed;
· he feels worthless;
· he feels diminished as a person;
· he is easily irritated;
· his sleep is disturbed;
· he feels very ashamed of himself, and
· he describes a marked loss of self-esteem.
The class 3 descriptor is:
“Moderate impairment. Cannot work at all in same position as previously. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively difference; for example, less stressful.”
The claimant submits a more accurate assessment would be a class 3 rating.
Insurer’s submissions
The insurer provided submissions dated 17 December 2021 in respect of the review application.[30] The insurer submitted as follows:
(a)social and recreational activities – class 2 is the correct classification because the claimant provided a history that he does not require a support person to attend social activities;
(b)concentration, persistence and pace – class 2 is the correct classification because the claimant undertook an online course and received the qualification albeit on the second attempt, can play games on his mobile device and can read an electronic book. The claimant does not satisfy the criteria for class 3 impairment because "he can read more than a newspaper article" and follow instructions, and
(c)adaptation - class 2 is the correct classification because the claimant provided a history showing he was capable of working but could not secure employment due to COVID-19. The claimant does not satisfy the criteria for class 3 impairment because his contract deemed him unable to work in the "same position as previously" for six months and due to uncertainty caused by the upcoming elections. The insurer submits the claimant's ability to work is not less than 20 hours per week.
[30] AD2 p 2.
The insurer also provided submissions in response to the application for permanent impairment dated 19 March 2021.[31] The insurer relies upon the opinion of Dr Synnott who asserted that immediately post-accident the claimant suffered from a secondary psychological response to his physical injuries and post termination of employment the claimant suffered a deterioration of his psychiatric state due to the termination of his employment. Dr Synnott found that the claimant’s psychiatric state was due to the loss of his job which he asserted was unrelated to the accident.
MEDICAL EXAMINATION
[31] AD2 p 7.
Mental state examination
Mr Meroni was assessed by videoconference by Medical Assessor Mason and Medical Assessor Rikard-Bell on 23 January 2023.
Mr Meroni presented as a pleasant man who was neatly attired wearing a long sleeved sports turtleneck sweater. He wore a gold chain and a goatee-like beard with a closely shaven head. His eye contact was good, and he spoke with a Swiss accent. He engaged well with the interview process and was very animated and focused.
Mr Meroni seemed quite organised in that he knew which specialist had assessed him, the dates of the assessments and the outcome of each assessment. His speech was normal in tone and volume. There was no abnormality of perception. Mr Meroni’s affect was reactive but there was irritability and depression. He described feeling low, depressed and at times he had suicidal feelings. His cognitive function appeared normal, and his thoughts were logical.
Pre-accident functioning
Prior to the accident, Mr Meroni was a high performing hedge fund manager where he was managing up to $200 million. He had a successful career working for Credit Suisse and then in various cities around the world including New York, Tokyo, Hong Kong, Singapore, Milan and Zurich. He was working for Rubicon Finance which later became Pengana Capital largely based out of Singapore. Mr Meroni began with Pengana Capital in 2008 and in 2010 he received accolades and awards. In 2012 Pengana were awarded Best Singapore Hedge Fund – Eurekahedge Asian Hedge Fund Award.
Mr Meroni was highly motivated and highly successful until the accident of
13 April 2018. He related well to his wife and had a good relationship with his son. He was highly motivated to manage his own physical health and wellbeing. He was able to concentrate well, and he socialised on a regular basis attending golf days and motorbike outings. Mr Meroni supported his son who was a first grade cricketer and first grade soccer player. Mr Meroni himself was a semi-professional football player and played for FC Zurich until an eye injury at the age of 18.Prior to the accident, a normal day would start at 7 am and often finish at 8 pm covering various markets around the world. His work required accurate trading as well as an accurate assessment of the movements of the market to perform well for his clients. Also working with Mr Meroni were three other members of his team.
Personal history
Mr Meroni was born in Switzerland and has a twin brother and another older brother. Both brothers are well settled, married, and reside in Switzerland with their families. Mr Meroni’s mother died in 2021 and his father is alive but unwell and has suffered a stroke. He last saw his father in March 2022 when he had to fly back to Switzerland. Mr Meroni stated, “life was harsh” in Switzerland. At the age of 15 he was working for Credit Suisse as an apprentice which involved working as a trainee for 8 ½ hours on Monday, Wednesday and Friday and on Tuesday and Thursday there would be between 10-12 hours of schoolwork. At age 18 there was a final test and Mr Meroni passed the test and was then offered work. He has subsequently worked around the world including in Tokyo, Milan, Hong Kong, New York, and Singapore.
Relationship history
Mr Meroni met his Australian wife in June 1993, and they married in December 1993. There is one son to the relationship who is now 27 years old and works as a physiotherapist. His son was born in Milan. Whilst in Switzerland Mr Meroni and his wife were struggling to create an environment that worked well for their son who became confused with the language issues. In 2003 his wife decided to move back to Australia with their son and Mr Meroni remained in Switzerland until 2006 when he relocated to Australia.
History of the motor vehicle accident
On 13 April 2018 Mr Meroni was involved in the accident whilst he was riding his S1000 high performance BMW motorbike. He was travelling to work along Victoria Road early in the morning at 8:10 am when there was a collision after a vehicle merged into the bus lane. Mr Meroni was able to maintain his balance but came to a stop 50 m down the road. There was a serious injury to his right foot and when he took his boot off, he said his heel fell into his hand.
The other driver approached him, was abusive and swore at him. Mr Meroni stated, “this caused me to be deeply distressed”. Mr Meroni was being cared for by staff at Goodyear Tyres when Police and ambulance after 10 to 15 minutes. He said he was white and in a lot of pain.
Symptoms and treatment after the accident
Mr Meroni was transported to Royal Prince Alfred hospital and admitted. He underwent surgery the following day on 14 April 2018 and was discharged on 15 April 2018. The repair of his heel has been slow and gradual and there is still chronic pain, however, he is able to run, walk and do other activities. He has had quite a lot of physiotherapy and rehabilitation to increase his capacity and he said, “it’s still going”.
Following the accident, Mr Meroni’s career, social life and relationships have suffered enormously. Mr Meroni was seen at Physiotherapist Solutions and there has been treatment with Dr Harrison, psychiatrist, and several psychologists including Sherisse Cohen, Fiona Green and Dr Alexandra Sheffield.
Following the accident Mr Meroni was in a wheelchair and there was a great deal of pain. However, he was unable to have time off work as there were deadlines and requirements that could not tolerate any significant interruptions. Mr Meroni returned to work after three weeks and he said, “I had to work”. He was a senior fund manager and had contractual commitments to Deutsch Bank and Morgan Stanley, however the quality and quantity of his workload was severely affected. Mr Meroni became depressed, and the team environment was poor because of his low mood.
Mr Meroni’s performance as a fund manager deteriorated significantly and he was retrenched and terminated in November 2018. He said, “they terminated me”.
Mr Meroni was unable to work for any competitors for at least eight months.At the time, Mr Meroni decided to try to obtain further qualifications to assist him to find alternative work and he started an MBA in financial risk management which required six months of intense online study involving reading, assignments and learning up to 60 pages of theory. Mr Meroni passed a level one multiple choice paper which took approximately seven or eight hours. He failed a level two paper initially then repeated the exam and passed, even though generally there was only a 40% pass rate from most candidates. Mr Meroni hoped this would increase his employability, however he has been unable to obtain any work and he is now regarded as totally and permanently impaired by MLC.
Past medical history
There are no previous serious illnesses, injuries or conditions, although he does suffer from psoriasis which can be a little worse at times. Mr Meroni showed some photographs of his legs with psoriatic plaques. He drinks alcohol occasionally to reduce anxiety, however he denied any excessive alcohol abuse. There is no family history of psychiatric illness.
Past psychiatric history
There is no previous history of anxiety, depression or need for treatment from mental health care providers.
Past forensic history
There are no previous motor vehicle accidents, Workers’ Compensation claims or legal issues. At the age of 18 he suffered an injury to his eye when he was playing semi-professional football, however there were no legal claims or issues relating to this injury. In 2021 there was a minor motor vehicle accident involving a car when
Mr Meroni was struck at about 30 kmph. At the time he was driving a Fiat and did not require any treatment in hospital. There were no serious injuries and he fully recovered from this accident both emotionally and physically. There were no ongoing legal or insurance issues relating to this accident, although it perhaps exacerbated his anxiety symptoms, the exacerbation was short lived.
Current routine
Mr Meroni wakes up at about 9:30 am and will have breakfast. He plays games on his phone, and he enjoys Angry Birds. He watches television and browses the internet. He normally stays at home. Mr Meroni stated he has redecorated his house in a Japanese theme. He eats take-away meals or will sometimes cook pasta or a steak for dinner. He drinks alcohol occasionally to try to relieve his low mood.
Mr Meroni receives treatment with the psychologist, Fiona Green, every month which has been helpful and treatment with Dr Harrison every three months. In addition, there is treatment with Lexapro 15 mg.
Current symptoms
Currently Mr Meroni’s sleep is interrupted, and he finds it hard to sleep throughout the night. His appetite fluctuates and his weight is stable. Mr Meroni’s mood is irritable and there have been recurrent suicidal thoughts although no suicide attempts. The irritability has impacted on various people he has interacted with, for example, he was banned from returning to his general practitioner, Dr Carr, due to arguments with staff at the practice.
Mr Meroni has a lot of anxiety and fearfulness about his future and about his wellbeing, as well as long-term security. He has low self-esteem, and he feels ashamed and worthless. He feels he cannot concentrate or focus well and there is a lot of self-doubt. Mr Meroni feels a failure as he has been unable to work for the last five years, and he has a plan for suicide if he needs this.
Current functioning
Currently Mr Meroni can dress, feed, and manage his self-care at times, however he does not wash every day and he may only wash every two or three days. He often eats take-away food. He is able to live independently but can be unkempt, although he has tried to exercise. Therefore, there is mild impairment of self-care and personal hygiene.
In terms of social functioning, Mr Meroni separated from his wife a year ago as the relationship was under a lot of strain, as well as the relationship with his son. The house was sold, and they are now living separately. There is still some contact with his wife and son, however the relationships have been significantly impacted. Therefore, there is moderate impairment of social functioning.
In terms of concentration, Mr Meroni reported he can only read for 15 minutes and that he feels disorganised and lacks focus, however, throughout the interview Mr Meroni was engaged and focused. Over an hour and a half Mr Meroni was able to remain on task and was never distracted. He was able to collate paperwork and report various findings from other clinicians. Mr Meroni was able to complete an online course over six months and complete a multiple choice examination for up to eight hours. Therefore, it is the Panel’s view there is no impairment of concentration, persistence and pace.
In terms of social and recreational activities, Mr Meroni reported a decreased interest in his usual recreational activities such as golf, hiking and motorbike riding which he no longer participates in. He rarely attends social events and most of his friends have lost interest and withdrawn from him. He is quite socially withdrawn and rarely goes out whereas previously he would interact with others on a frequent basis. He may visit the Royal National Park once every two months, however he has lost interest in activities and rarely undertakes activities in comparison to pre-accident functioning. He claims he does not go out except with a person who can support him. His social activities are largely limited to watching his son’s soccer and cricket games. It was noted
Mr Meroni’s irritability may have severely impacted on his social relationships and, therefore, the interest of others in wishing to spend time with him. The Panel finds there is moderate impairment of social and recreational activities.
In terms of travel, Mr Meroni can drive and ride a motorbike. He recently travelled to Saudi Arabia and also to Switzerland to see his unwell father without any issues. There is no anxiety or difficulties when travelling, although he does prefer to walk to the local shops. Therefore, there is no impairment of travel.
In terms of adaptation, Mr Meroni reportedly was a high functioning asset hedge fund manager which required extraordinary levels of concentration, focus and flexibility with large amounts of money at stake. His performance deteriorated following the accident and he lost his job in November 2018. He has been unable to return to work in any capacity despite being highly qualified and speaking five languages. In addition, he has obtained further qualifications. It was the Panel’s view that the loss of his job was due to the psychiatric injury and that he has been unable to return to any significant work in the same capacity. Therefore, there is moderate impairment of adaptation as he cannot work in the same occupation as prior to the accident and he would struggle to work in a lesser position.
Opinion and causation
Mr Antonio Meroni is a 58-year-old man of Swiss background who is currently separated from his wife and resides alone in Sydney. Mr Meroni was a high functioning hedge fund manager prior to the accident who had undertaken roles in many large companies around the world. He had been living in Australia since 2006 and had achieved high level recognition for his work. There were no pre-existing mental health issues.
On 13 April 2018 Mr Meroni was involved in an accident whilst riding his motorcycle causing him to sustain a degloving injury to his right foot. There has been treatment received which has been of significant benefit with Dr Harrison, psychiatrist, and various psychologists, including Fiona Green. In addition, there is treatment Lexapro 15 mg.
As noted by Dr Synnott on 13 October 2020 and 10 May 2022 there is significant depression. Whilst Dr Synnott related the psychiatric injuries to the loss of employment, it was the Panel’s view that, on balance, the loss of employment was casually related to the motor vehicle accident. Mr Meroni attempted to return to work, however due to his suboptimal level of functioning after the accident, he lost his job in November 2018 and has not been able to recover since that time, despite a reasonable response to treatment with the psychologist and with psychiatric treatment.
Following the accident, Mr Meroni developed major depressive disorder as evidenced by the features according to DSM-5 below:
“A. Depressed mood and loss of interest or pleasure with:
·Insomnia or hypersomnia
·Feelings of worthlessness and low self-esteem
·Psychomotor agitation with irritability
·Recurrent thoughts of death and recurrent suicidal ideation
·Markedly diminished interest or pleasure in activities and loss of enjoyment
B. Significant impairment of functioning
C. Not due to substance use or other medical condition
D. Not schizophrenia or schizoaffective disorder
E. No episodes of mania or hypomania”
It was the Panel’s view that the major depressive disorder is causally related to the accident.
Whole person impairment
Psychiatric Diagnoses
Major Depressive Disorder
Psychiatric Treatment
-Description
Psychiatric/psychological counselling
Antidepressant medication
Category
Class
Reason for Decision
1.
Self-care and Personal Hygiene
2
Currently Mr Meroni is able to dress, feed and manage his self-care at times, however he does not wash every day and he may only wash every two or three days. He often eats take-away food. He is able to live independently but can be unkempt, although he has tried to exercise. Therefore, there is mild impairment of self-care and personal hygiene.
2.
Social and Recreational Activities
3
In terms of social and recreational activities, Mr Meroni reported a decreased interest in his usual recreational activities such as golf, hiking and motorbike riding which he no longer participates in. He rarely attends social events and most of his friends have lost interest and withdrawn from him. He is quite socially withdrawn and rarely goes out whereas previously he would interact with others on a frequent basis. He may visit the Royal National Park once every two months, however he has lost interest in activities and rarely undertakes activities in comparison to pre-accident functioning. He claims he does not go out except with a person who can support him. His social activities are largely limited to watching his son’s soccer and cricket games. It was noted Mr Meroni’s irritability may have severely impacted on his social relationships, and therefore, the interest of others in wishing to spend time with him. Therefore, there is moderate impairment of social and recreational activities.
3.
Travel
1
Mr Meroni is able to drive and ride a motorbike. He recently travelled to Saudi Arabia and to Switzerland to see his unwell father without any issues. There is no anxiety or difficulties when travelling, although he does prefer to walk to the local shops. Therefore, there is no impairment of travel.
4.
Social Functioning
3
In terms of social functioning, Mr Meroni separated from his wife a year ago as the relationship was under a lot of strain, as well as the relationship with his son. The house was sold and they are now living separately. There is still some contact with his wife and son, however the relationships have been significantly impacted. Therefore, there is moderate impairment of social functioning.
5.
Concentration, Persistence and Pace
1
In terms of concentration, although
Mr Meroni reported he can only read for 15 minutes and that he feels disorganised and lacks focus, however, throughout the interview Mr Meroni was engaged and focused. Over an hour and a half Mr Meroni was able to remain on task and was never distracted. He was able to collate paperwork and report various findings from other clinicians. Mr Meroni was able to complete an online course over six months and complete a multiple-choice examination for up to 8 hours. Therefore, it is the Panel’s view there is no impairment of concentration, persistence and pace.6
Adaption
3
In terms of adaptation, Mr Meroni reportedly was a high functioning asset hedge fund manager which required extraordinary levels of concentration, focus and flexibility with large amounts of money at stake. His performance deteriorated following the accident and he lost his job in November 2018. He has been unable to return to work in any capacity despite being highly qualified and speaking five languages. In addition, he has obtained further qualifications. It was the Panel’s view that the loss of his job is due to the psychiatric injury and that he has been unable to return to any significant work in the same capacity. Therefore, there is moderate impairment of adaptation as he cannot work in the same occupation as prior to the motor vehicle accident and he would struggle to work in a lesser position.
List classes in ascending order:
1
1
2
3
3
3
Median class value: Aggregate score:
3
13
Whole person impairment:
11%
Apportionment
There is no apportionment for pre-existing injuries.
Effects of treatment
The Panel considers the monthly consultations with Fiona Green psychologist, the three monthly consultations with Dr Harrison, and the medication regime, currently Lexapro 15 mg, prescribed by Dr Harrison have been appropriate and effective treatments for Mr Meroni’s major depressive disorder. This treatment regime has led to some improvement in the claimant’s functioning including ameliorating the risk of suicide.
The claimant’s condition has plateaued, and in the clinical judgment of Medical Assessors Rikard-Bell and Mason ceasing treatment will result in a deterioration of
Mr Meroni’s symptoms, and a worsening in function.Accordingly, the Panel considers it appropriate to add 2% for the effects of treatment.
Final whole person impairment
The final WPI is therefore 11% + 2% = 13%.
0
0
0