Mrkela v Insurance Australia Ltd t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Mrkela v Insurance Australia Ltd t/as NRMA Insurance [2025] NSWPICMP 524
CLAIMANT:	Radomir Mrkela
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Christopher Canaris
MEDICAL ASSESSOR:	Ankur Gupta
DATE OF DECISION:	18 July 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s review of Medical Assessment Certificate (MAC) under section 7.26; Whole Person Impairment (WPI) dispute; Medical Assessor certified post-traumatic stress disorder (PTSD) and major depressive disorder and WPI of 26%; issue of causation; claimant had motor accident five years before current accident and had been certified with significant symptoms and WPI greater than 10%; re-examination conducted by both assessors; Held – claimant diagnosed with PTSD and major depressive disorder and WPI 8%; MAC revoked; no issue of principle.
DETERMINATIONS MADE:	Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Roberts dated 17 March 2024. 2. Certifies that the degree of the claimant’s permanent impairment resulting from the injuries caused by the motor accident on 3 May 2021 is 8% which is not greater than 10%. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Radomir Mrkela was involved in a motor accident on 3 May 2021. A single vehicle accident had occurred on the M1 heading northbound. Ten to 15 minutes later the claimant stopped behind this collision and a vehicle ran into the back of his.
Mr Mrkela says he injured his neck, back, shoulders and legs in the accident and that he developed a psychological or psychiatric injury after the accident. Mr Mrkela made a claim for statutory benefits and then damages against NRMA, the third-party insurer of the vehicle that ran into him.
A dispute about the nature and extent of the claimant’s injuries (that is whether they are threshold or not within the meaning of the legislation) has arisen in connection with that claim and Mr Mrkela referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 17 March 2024 Medical Assessor Roberts determined Mr Mrkela had a post-traumatic stress disorder and major depressive disorder caused by the accident and that these were not threshold injuries. Medical Assessor Roberts also determined the claimant’s whole person impairment (WPI) was 26%.
The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 21 June 2024, Ms Brittliff, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 6 March 2025, the President’s delegate convened this Review Panel (Panel) to conduct the Review.

LEGISLATIVE FRAMEWORK

General

Mr Mrkela’s claim and his entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed in accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2024 is $654,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.

Dispute Resolution

Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Roberts, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges for the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.263A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, the mental and behavioural chapter of the AMA 4 Guides is relevant. More will be said about the method of assessment later on in these reasons.

ASSESSMENT UNDER REVIEW

The Medical Assessor examined the claimant on 27 February 2024 and issued his certificate on 17 March 2024. The Medical Assessor confirms at [2][5] that he was asked to assess a posttraumatic stress disorder.
[5] The numbers in square brackets are a reference to the section number in the Medical Assessor’s reasons.
Medical Assessor records the following history at [9]:
(a)    the claimant is 49 years of age married with two children;
(b)    he had his own company at the time of the accident but ceased work two years ago (eight months after the accident);
(c)    the claimant migrated to Australia in 1999 and he has family in Serbia;
(d)    the claimant was a glazier in Serbia but went to TAFE in Australia and became a carpenter and entered the building industry;
(e)    the claimant denied any previous medical conditions, operations or injuries;
(f)    he had a previous motor accident when he was hit from behind. He recalled having treatment but could not recall the nature of the treatment;
(g)    the claimant smokes 50 cigarettes a day;
(h)    the claimant said he saw Dr Protulipac, psychologist and was prescribed medication after his early motor accident but did not see a psychiatrist. He said he recovered and continued with his business;
(i)    the claimant says he was stopped due to a previous motor accident incident on the M1 at 6.20am. The vehicle behind him hit his vehicle at 115kmph. Mr Mrkela says he was pushed 30 metres;
(j)    the claimant was trapped in his vehicle and was cut out of the vehicle, smoke came from the grinder used to cut him out and smelling similar smoke now makes him nervous. He was worried at the time his vehicle could catch fire;
(k)    the claimant was given morphine and taken to Gosford Hospital where he had scans of his neck and shoulder. He has had physiotherapy for his neck, back and treatment for his hips and knees, and
(l)    he has had nightmares, irritability, insomnia and loss of self-confidence since the accident.
The claimant reported feeling “very bad” and being profoundly depressed and he feels pain and weakness.
The claimant was taking Mersyndol and Cymbalta and Agomelatine. He sees Dr Kuljic.
The claimant looked dishevelled, reported ceasing work due to deteriorating focus and concentration and has not worked since eight months after the accident. He had no interests spent most of his time in bed and could not explain what he does with his days. “Clarification was sought given that he reported engaging in absolutely no activities whatsoever, in response to which he reiterated his lack of engagement in the household with his family or outings.”
The claimant said he had not showered for the last five weeks, he had difficulties with his wife and children, he has lost 30kg and is not involved with the finances of the household and does not engage with family and friends.
Medical Assessor Roberts notes the earlier assessment by Medical Assessor Parmegiani and a previous diagnosis of Major Depressive Disorder
Medical Assessor Roberts diagnosed both a Major Depressive Disorder and a post-traumatic stress disorder. He said, “it is not apparent that the previous motor accident caused an enduring psychiatric condition or influenced the causation of his current diagnoses”. He accepted the claimant’s history that any symptoms he may have had after his 2014 accident have either fully remitted or no longer satisfy the criteria.
Medical Assessor Roberts found that both of the claimant’s psychiatric disorders were not threshold injuries.
In terms of impairment, Medical Assessor Roberts assessed the claimant’s psychiatric impairment as follows:
(a)    Self-care and personal hygiene                class 3
(b)    Social and recreational activities               class 4
(c)    Travel  class 3
(d)    Social functioning  class 2
(e)    Concentration, persistence and pace       class 3
(f)    Adaptation  class 5.
This produced a median class value of 3, with an aggregate score of 20 which translated to a WPI of 26%. He deducted nothing for pre-existing impairment and added nothing for the effect of treatment.

ISSUES FOR DETERMINATION

Insurer’s submissions[6]

[6] The numbers in square brackets are a reference to the paragraph number in the submissions.

Review submissions

The insurer submits at [8]-[13] that the Medical Assessor erred in his assessment of a class 5 for adaptation as he failed to give reasons in circumstances where the claimant said poor concentration and focus were his only barriers to employment and where the claimant was assessed as class 3 for Concentration Persistence and Pace.
The insurer also submits at [14]-[20] that it was not afforded procedural fairness as the Medical Assessor did not put to the claimant inconsistencies between the claimant’s reports and the medical records. The insurer noted that in a history given to Dr Smith, psychiatrist the claimant had said he had recovered from the 2014 accident but still had irritable moods, occasional nightmares and need for medication. This was not put to the claimant.
The insurer also points to inconstancies in other records that suggested a greater level of activity than the claimant admitted to and says the assessment of self-care, social and recreational activities and travel were not therefore properly assessed. The insurer says the Medical Assessor has relied solely on the claimant’s subjective history.

Submissions in respect of original medical assessment

These submissions were dated 13 December 2022. The insurer had not yet obtained a medico-legal report from a psychiatrist.
The insurer sets out in great detail the evidence concerning the claimant’s 2014 injury and claim.
The insurer notes that Medical Assessor Parmegiani certified on 30 June 2016 that the claimant had a Major Depressive Disorder and a WPI of 19%.
The insurer notes the referral to Dr Kuljic, psychiatrist on 11 October 2021 and his treatment of the claimant.

Claimant’s submissions

The claimant says Medical Assessor Roberts has taken a history from the claimant of him feeling “very bad”, ceasing work, and doing nothing most of the day. He notes Medical Assessor Roberts referred to the reports of Dr Kuljic which paint a similar presentation.
The claimant says the Medical Assessor has diagnosed the condition and dealt with causation.
The claimant quotes class 5 which is “total impairment cannot work at all” and says this is justified. He says there is no inconsistency between a class 3 impairment for concentration persistence and pace.
The claimant notes Dr Smith supports findings of total incapacity for Adaptation and a class 3 impairment for concentration persistence and pace.
The claimant says there is no obligation for a Medical Assessor to put inconsistencies to a claimant where those inconsistencies come from medico-legal reports and not “medical records” as mentioned in cl 6.41.
The claimant addresses each of the alleges inconsistencies and notes Dr Smith assessed the claimant at 22% WPI.

Procedural matters

Upon receipt of the application and reply, the President’s Delegate, Ms Brittliff wrote to the parties on 30 May 2024 suggesting that the reports of Dr Smith be returned to Medical Assessor Roberts (as they were not mentioned in his decision) with a request he complete his certificate.
After considering the responses from the parties, Ms Brittliff determined on 21 June 2024 there was reasonable cause to suspect a material error in the assessment and she allowed the review.
The claimant applied to the President’s Delegate requesting she re-visit her decision, the insurer objected and on 23 August 2024, Ms Brittliff determined she would not revisit her decision and that the Review should proceed.
The Panel issued directions to the parties on 11 March 2025. The Panel noted the decision of another Panel found in respect of the claimant’s physical injuries that one of those injuries was not a threshold injury and requested the parties clarify whether the current Panel was required to address the issue of whether the claimant’s psychological or psychiatric injury was a threshold injury.
The Panel noted that as part of its decision-making, the Medical Assessors are required to make a diagnosis of the injury caused by the accident and then determine the degree of WPI arising from it. The Panel noted that the diagnosis they make may be different to the disorder referred for assessment or any other diagnosis made by other assessors, examiners and treating doctors.
The Panel directed the parties to provide bundles of the documents they rely on in the current proceedings.

Preliminary conference

The Panel met on 13 May 2025 and reported to the parties the same day.
As the insurer had agreed the claimant had a non-threshold injury the Panel informed the parties that it therefore did not need to address that matter.
The Panel noted that the real issue in dispute was the causation of the claimant’s current impairment in the light of the claimant’s 2014 motor accident.
The insurer had advised the Panel that it had a copy of the 2014 claim file. The Panel advised that it did not want to see the whole file but identified the documents the Panel wanted to see from that file. In addition, the Panel requested Pharmaceutical Benefit Scheme (PBS) and Medicare printouts for the last 10 years.
The Panel advised the parties of the re-examination date on 24 June 2025.

Responses from the parties

The insurer uploaded documents in response to the Panel’s directions and advised that records had been requested from Medicare but not yet provided.
The advised that the claimant had been compensated for damages for non-economic loss and full economic losses following the 2016 accident. The insurer noted that the claimant had returned to a full-time role despite medical evidence that he was permanently unfit for full time work. The insurer repeats its previous submissions that there are inconsistencies in the claimant reporting and information available and that the Panel should proceed with caution when accepting the claimant’s history unless supported by contemporaneous evidence.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The claimant’s application for personal injury benefits (claim form) was dated 27 May 2021.[7] The claimant disclosed he had made a previous claim but provided no details of it. He says later on that he was not suffering an illness or injury affecting the same or similar parts of his body at the time of the accident.
[7] No copy of the claim form was provided by either party. The insurer provided a copy on 15 July 2025 at the request of the Panel.
The claimant gave a history of the accident including the following, “I had about 6 – 7 vehicles in front of mine and we all were going approximately 20 km / hr when another vehicle” hit them from behind.
Mr Mrkela says in his claim form he sustained injuries to his neck, back, both shoulders, head, both knees, both elbows and both hips as well as “anxiety … flash back, depression.” He says he had two weeks off work and disclosed his employment status and earnings.
The ambulance report states that the claimant was confined in the car when they got there and was not complaining of injuries when spoken to through the window. When released he walked around before complaining of headache, cervical and right shoulder pain.
The survey of injuries undertaken by the ambulance personal record cervical spine pain, nausea and right shoulder pain and dizziness. “No other abnormalities detected”. In particular the Panel notes there is no suggestion that the claimant’s hands were injured or bleeding from trying to break the windows.
Hospital records also note cervical spine pain which responded well to treatment. No other physical injuries are mentioned and no radiological studies were undertaken of either hand.

2014 accident records and reports

Dr Akkerman, psychiatrist provided a report dated 7 March 2017 to the claimant’s solicitors. He notes the claimant has seen Dr Stevens, psychiatrist twice and Dr Protulipac, psychologist five times. The claimant said he took two medications but could not remember the names of them.
The claimant reported disturbed sleep, initial and middle insomnia, reduced concentration and short-term memory, normal long-term memory, reduced interest and energy.
On prompting the claimant said his appetite was up and down, his libido was down, he was irritable, tearful and upset thinking about the accident. He was avoidant, had nightmares, flashbacks, startles easily and was hypervigilant. He was anxious in a car and a “backseat driver” and reluctant to get in the car.
The claimant said he had not worked since the accident and the relationship with his wife and deteriorated.
Dr Akkerman diagnosed a post-traumatic stress disorder, major depression and specific phobia.
He assessed the claimant’s WPI as:
(a)    Self-care and personal hygiene – class 3;
(b)    Social and recreational activities – class 3;
(c)    Travel – class 3;
(d)    Social Functioning – class 3;
(e)    Concentration persistence and pace – class 3, and
(f)    Adaptation (which he called employment) – class 5.
The median class value was 3, the aggregate score was 20 and the WPI was 26%.
Medical Assessor Enrico Parmegiani certified on 30 June 2016 that the claimant sustained a major depressive episode in the accident and had a permanent impairment of 19%.
The claimant denied any previous medical or mental health issues, or any previous compensation claims or car accident.
The claimant reported difficulties with working and that he was winding down his company. He was financially dependent on his wife and daughter.
The circumstances of the accident are described. He was stationary at traffic lights when he was hit from behind, heard screeching tyres and his car was moved forward. He got out of the car, was shaking and lacked power in his legs and was unable to walk. Someone from the relevant road authority was present but police and ambulance did not attend. A tow truck removed the car that had hit him, but he drove home and went straight to his general practitioner (GP), Dr Ibrahim in Liverpool. The claimant then changed to Dr Tomka and was referred to Dr Guirgis.

The claimant reported depression when he failed to recover and return to work. He had tried to keep his company open but was losing money so closed it. He did not seek treatment at that time as his GP told him he would get better.
He reported feeling that he was a burden on his family, he mourned the loss of his business, had sleep disturbance and insomnia, with dreams. His appetite had dropped, and he had lost 10 kgs. His energy levels fluctuated, and his motivation had dropped.
Medical Assessor Parmegiani considered Mr Mrkela’s condition was stable and was unlikely to change within the next 12 months.
He assessed classes of impairment as:
(a)    Self-care and personal hygiene – class 3;
(b)    Social and recreational activities – class 4;
(c)    Travel – class 2;
(d)    Social Functioning – class 2;
(e)    Concentration persistence and pace – class 3, and
(f)    Adaptation – class 3.
This gave a total score of 17, a median of 3 and a WPI of 19%.
Dr Protulipac, psychologist provided a report dated 17 July 2017. The claimant had been referred to him on 17 January 2017 for depression after a car accident (page 242).
The claimant had 18 sessions (with three or four in July 2017) he was said to be compliant and “his reaction to treatment was good”. He said symptoms of depression and anxiety were reduced while perception of pain and insomnia remained unchanged. Once there was no further improvement, treatment was terminated. A list of weekly treatments was provided (page 244).

Treating medical records and reports

GP notes

The insurer has provided the notes from Bathurst Street medical practice (Dr Tomka) which start with an entry on 9 December 2014 concerning pain in the neck, both shoulders, upper and lower back. There is a further similar entry on 11 December 2014 and then regular attendances in 2015, 2016 and 2017 with multiple scripts for Tramal prescribed.
On 30 January 2017 the claimant was said to be in pain (Tramal was prescribed), depressed (Cymbalta was prescribed) and he had an itch (Periactin was prescribed).
After 23 June 2017 there are no further complaints of neck, back or shoulder pain but the claimant had other issues during 2017 including an ulcer, cardiac matters and pilonidal sinus infection. On 20 December 2017 the claimant complained of right sciatic pain and was referred for an MRI.
There are two attendances in 2018 with no complaints of pain, four attendances in 2019 with one complaint of pain (location or type not noted) and two attendances in 2020.
The day after the accident, on 4 May 2021 the claimant attended on Dr Tomka complaining of pain in his neck, upper and lower back, both shoulders, hips and both knees. Mersyndol Forte was prescribed. On 6 May 2021 the claimant attended again and a further script for Mersyndol Forte was given. It is also noted that the claimant was afraid to drive and had insomnia. There is no mention of bruises to the hands or of any hand pain.
In June and July 2021 there are further entries relating to pain from the claimant’s physical injuries but no further suggestion of psychological injuries. A referral to Dr Guirgis was provided on 5 October 2021 and on 11 October 2021 a referral to Dr Kuljic. Insomnia is mentioned again on 17 August 2022 and Melatonin prescribed.
There are regular attendances thereafter for lower back pain as well as less frequent references to neck, upper back and shoulder pain. There are a number of amber alerts in respect of the claimant’s Mersyndol Forte scripts. The records end in February 2023.
Other notes have been provided with similar entries for neck and back pain and Mersyndol Forte. On 20 March 2023 a further referral to Dr Kuljic was provided with the claimant noted as having depressed mood. He also appears to be having urinary and/or prostate problems at this time. On 13 April 2023 Mr Mrkela was concerned about his eyelids and on 18 May 2023 it was reported the claimant had been in hospital for urinary retention. A referral to a urologist was provided in June 2023 and throughout 2023 there are complaints of acute neck, back and shoulder pain recorded with ongoing scripts for Mersyndol Forte and regular Amber alerts issued until November when the alerts changed to Green.
A referral to Dr Kuljic was provided on 20 May 2024 with no corresponding note about symptoms.
There are no notes beyond 25 September 2024.

Dr Kuljic

Dr Kuljic undertook an “assessment” on 29 March 2023 and issued a “certificate” dated 31 March 2023. He had read the expert witness code of conduct and explained to the claimant he would be preparing a report for the purpose of the claim.
The claimant said his company has not been operational for over a year and he is supported financially by his wife and children all of whom are employed in the business.
He reports that his company had 12 employees at the time of the accident and that he worked as a carpenter, supervising the apprentices and managing the company.
The claimant gave a history of a car accident in 2015, psychological treatment from Mr Protulipac and full recovery. The claimant said he had no pre-accident impairments.
Dr Kuljic had a history of the accident, the claimant being trapped in the car, and fear the car would burst into flames. He reported to Dr Kuljic punched the windows of the car until his hands started bleeding. He recalled the fire brigade cutting him out of the car.
The claimant gave a report of ongoing knee, shoulder, hip pain and that “he still uses Mersyndol for pain.”
Dr Kuljic notes he first saw the claimant on 18 November 2021. The claimant complained of problems with attention and memory, loss of interest and motivation, neglecting work and social life, impaired sleep, bad moods, flashbacks and intrusive memories. He says he avoids driving.
Dr Kuljic notes mirtazapine was started but ceased due to intolerance. Sertraline improved the insomnia and energy. Duloxetine and Quetapine were then prescribed. Exposure therapy and relaxation exercises have been given.
The claimant reported current symptoms of nightmares, flashbacks, avoidance, hypervigilance, anxiety and depression. He had insomnia.
Dr Kuljic reports some treatment benefit with improvement in insomnia and decreased frequency of nightmares.
Dr Kuljic diagnosed posttraumatic stress disorder. He noted a pre-existing condition had been treated and resolved leaving the claimant “symptom free and [he] had no functional impairments.”
Dr Kuljic expressed the opinion the claimant was “totally and permanently incapacitated for pre-injury employment.”
He assessed the claimant’s impairment at 19% and added a further 1% for the effects of treatment.
In a further “certificate” dated 6 April 2024, Dr Kuljic noted Medical Assessor Shahzad’s assessment of physical injuries and Medical Assessor Robert’s assessment of 26% WPI. Dr Kuljic also noted the report of Dr Smith and his impairment assessment of 22%.
He noted the consistency of post-traumatic stress disorder diagnoses and said that Major Depressive Disorder symptoms include depression which is also encompassed within a posttraumatic stress disorder diagnoses. He says the variation in WPI percentage can be explained by the timing of assessments.
Dr Kuljic confirms he has been the claimant’s treating psychiatrist from 18 November 2021 to 19 March 2024 and that:
“Throughout thie preiod, Mr Mrkela has consistently reported symptoms as previously mentioned and diagnosed, and has diligently engaged in suggested treatments.”
Dr Kuljic expressed opinions that the claimant needs ongoing treatment for his physical and psychiatric injuries including monthly psychiatric reviews (presumably with him) for the next two to five years along with psychotherapy including cognitive behavioural therapy and ongoing medication.

Medico-legal reports

Psychiatric assessments

The claimant relies on Dr Kuljic’s treating records and his report as a qualified expert.
The insurer relies on a report from Dr Smith, psychiatrist dated 5 January 2023 which was written after a 1.5 hour long telehealth appointment.
Mr Mrkela told Dr Smith that he had not worked since the accident and has ceased his business operations. He gave a consistent history of the accident and the development of his symptoms.
The claimant gave a history of a posttraumatic stress disorder related to his 2014 accident and that Medical Assessor Parmegiani and Dr Akkerman had assessed his WPI at 19% and 26% in 2016 and 2017.
The claimant said he had treatment from a psychiatrist called Dr Protulipac and took medications for about three years but was unsure of the name. He says he also saw a psychologist whose name he could not recall. Dr Smith notes there is no reference in Dr Tomka’s notes to this treatment.
The claimant said he slowly and gradually improved and by 2019 his condition had stabilised and he had ceased his medication. He said, “his recovery [was] approximately 90% of his pre-accident functioning” with “occasional nightmares from his first accident and occasional periods of irritable mood.” The claimant said he had a supply of medication for his mental health “that he would take exceedingly rarely.”
The claimant said he started his own company in 2011. He shut the company down for a period of time after the 2014 accident and he rebuilt the company once he had recovered. He has since shut the company down again after the current car accident.
Dr Smith, for the insurer expressed the opinion the claimant sustained a post-traumatic stress disorder in 2014 which had stabilised in about 2019 and significantly recovered until the accident in May 2021. He considered the claimant’s condition not yet stabilised.
In a subsequent report dated 23 February 2023, Dr Smith changed his diagnosis of the pre-existing condition to one of major depressive disorder noting the diagnosis of Medical Assessor Parmegiani. He considered this was in remission before the accident on
3 May 2021.
In a subsequent report of 5 December 2023 following a 30-minute telehealth consultation Dr Smith records that Mr Mrkela said his mental state and psychosocial functioning has not changed since he was last seen. There has been minimal improvement with Dr Kuljic and he was not keen to see a psychologist.
He remained socially isolated staying in his bedroom most days and says it is likely he will be separated or divorced from his wife. He avoids family and social functions.
He denied financial stresses.
He reported smoking 50 cigarettes a day which he has done all his adult life.
Dr Smith refers to an exacerbation of his previous post-traumatic stress disorder but also the development of a Major Depressive Disorder.
He assessed impairment at 22%.

Physical assessments

The insurer relies on a report from Dr Rimmer dated 4 October 2022 in relation to Mr Mrkela’s physical injuries.
The claimant reported he was improving. He said he continued to look after himself and drive a car. His hobbies of hunting and fishing had been affected.
The claimant reported smoking 50 cigarettes a day but drank no alcohol and at 140kg and 190cm was morbidly obese.
The claimant said he returned to work in a supervisory capacity and ceased work in February 2022.
In a second report dated 6 June 2024, Dr Rimmer notes the previous accident and claim and the claimant said he had not worked since February 2022 and was not looking for work. He was still smoking 50 cigarettes per day, but his weight had reduced to 115kg.
Dr Rimmer remarks “There are gross inconsistencies in the history and the claimant’s presentation, the latter showing normal clinical examination of all anatomic sites.” Dr Rimmer expressed the view that the claimant was not incapacitated from a physical perspective and was physically fit for his pre-injury employment.
The claimant relies on a series of reports from Dr M Guirgis. The claimant was referred by his GP to Dr Guirgis but all the reports are addressed to Mr Mrkela’s solicitor.
Dr Guirgis diagnosed on 26 October 2021, further post-traumatic mechanical derangement of the cervical and lumbar areas, further injury to the shoulders and pain syndromes in the hips and knees.
In a report dated 20 May 2022, Dr Guirgis notes the accident was “horrific” and was on the television. He notes “symptoms of posttraumatic stress disorder.” He noted the claimant’s 2014 motor accident, and the injuries caused. He reports that the claimant returned to work after this accident on restricted duties until he was forced to close his business after the current accident.
Dr Guirgis assessed impairment at 21% and said there was no pre-existing impairment. He expressed a similar opinion in an April 2024 report.

Other assessments

Medical Assessor Shazad determined on 19 October 2023 that the claimant had a WPI of 10% in respect of injuries to the neck, lower back, left and right shoulders, left and right hip and left and right knee.
The Medical Assessor has what appears to be a consistent history of the accident and the claimant’s previous accident and his work history. The claimant reported that he had closed his company in 2021.
Medical Assessor Shahzad records the claimant saying, “What I’m thinking I am going to burn in the car … because spark coming with the big grinder, my car starts burning … fire and all the smoke come inside and I’m helpless to do anything … its very bad.”
The claimant reported taking Mersyndol and Cymbalta and antidepressants Duloxetine and Quetiapine.
The claimant weighed 130kg at the assessment and had a body mass index (BMI) of 35.6. He required assistance from his wife with dressing and undressing and was unable to sit still for more than 10 minutes. The Medical Assessor records no inconsistency.
He found all the stated injuries were caused and all were musculo-ligamentous with rotator cuff syndrome in both the left and right shoulders and tears in the right and left knee.
He assessed current impairment at 19% and deducted 9% for pre-existing impairment.
A differently constituted Review Panel considered another decision of Medical Assessor Shahzad in relation to threshold injury.[8] The Panel concluded at [157]:
“Post- examination, the Panel came to the conclusion that while the 2021 accident likely exacerbated pre-existing conditions, the direct causation of new severe pathology specifically from this accident seemed limited to the left shoulder. The majority of the other symptoms could be attributed to a combination of Mr Mrkela’s extensive pre-accident orthopaedic history and his occupational exposures, rather than new traumatic injuries from the subject motor vehicle accident.”
[8] Insurance Australia Limited t/as NRMA Insurance v Mrkela [2024] NSWPICMP 503.
Medical Assessor Shahzad’s certificate was revoked (due to his findings in relation to the other injuries) and the left shoulder injury alone was certified as a non-threshold injury.

RE-EXAMINATION FINDINGS – MEDICAL ASSESSORS GUPTA AND CANARIS

Mr Mrkela attended the re-examination on 24 June 2025. The re-examination was conducted by way of an MS Teams appointment. A Serbian interpreter was present throughout to assist Mr Mrkela with our questions and his answers.
Good internet connectivity was established and maintained throughout the re-examination.

Pre-accident history

Mr Mrkela was born in Zadar, Croatia and lived there until the Bosnian wars. He is Serbian by ethnicity and says that he had to flee to Serbia, with his parents, when the war started. He denied any history of trauma before or from the war. He was 15 or 16 years old at the time. He denied any history of abuse or trauma in his childhood.
He denied any history of mental illness in his family. When asked whether he had ever experienced a mental illness before the current accident, Mr Mrkela clearly denied to us any history of any mental illness.
Mr Mrkela was then asked about the 2014 accident and whether he experienced any mental health issues after that accident. Mr Mrkela clearly stated that he did not have any emotional symptoms after the 2014 accident. He visited his doctor regularly and said he was “all right”.
Mr Mrkela was asked again about the 2014 accident, and we took him to the claims-related documentation from that accident and again Mr Mrkela reiterated quite clearly that the 2014 accident did not have any “consequences” on his life after that accident. Mr Mrkela also denied to us any problems with his physical health as a result of the 2014 injury.
We then pointed out that he had reported a significant amount of impairment and that he had been assessed by an independent specialist with a 19% impairment of the whole person in 2016. However, he stated that he had “overcome all of his problems” and was “good” without any functional impairment arising out of the 2014 accident.
Mr Mrkela is married and has two children. He has been with his wife for over 27 years. His daughter is 27 years old, and his son is 24 years old.
Mr Mrkela lives with his wife and his son.
He is a carpenter by trade and says that he ran his own business before the current accident. His business was called TNT Building Services Pty Limited and provides carpentry services to both residential and commercial clients. Since 2014 he had employed 12 to 13 people in his company. He was the sole proprietor of the business. Since 2014 he used to work 45 hours per week on average, in his business. The company and the name are still registered but he says there is no business activity. He said he has not carried out any work for the company since May 2022. He says that he completed a project for Central Council after the injury but has not worked since then. He says that the reasons were linked to both his physical and mental injuries saying he has not thought about working owing to the physical injuries he has sustained and his reduced concentration and memory.
Mr Mrkela was asked when he began running his business and said it was sometime before the first accident in 2014. He gave no history of closing his business as a result of the 2014 accident or ceasing his business at any time until after the current accident. He did not explain why the company and the business name remains registered.
He denies any alcohol or drug use.

Treatment

Mr Mrkela is taking Mersyndol, Quetiapine, Agomelatine and Duloxetine. He has been on antihypertensive and cholesterol lowering tablets from before the injury. He sees psychiatrist Dr Kuljic once a month approximately. There is no psychologist involved in his care.

History of the accident

Mr Mrkela says that he was driving his Nissan Petrol Patrol on the M1 motorway towards Newcastle. He was the sole occupant in his car. He says that another car ahead of him was overturned on the side of the road. He had stopped to assist but before he could get out of his car, a van coming behind him, rear ended his car. He says that his airbags did not deploy but that his car was pushed 30 meters from the impact, towards the overturned car. The Panel notes that this history is not entirely consistent with the version of events provided in Mr Mrkela’s claim form. In that claim form the claimant says there were six or seven vehicles ahead of him and they were all driving slowly when he was hit from behind. He did not state he was stopped. However, as the claim form was not provided until after the re-examination this history could not be put to the claimant.
Mr Mrkela said that he tried to open the door, but it did not work. He tried to smash the glass with his hands but had to stop when they started bleeding. He was asked about the lack of reported hand injury in the ambulance report and hospital notes and he then resiled from his previous statement and said that his hands were not actually bleeding but were red from bruises. He says that it took around 40 minutes before he was cut out of the vehicle by the fire brigade. He says that there were “sparks flying” when the car was being cut and he felt that a fire would start, and he would die from it. He says that he felt all over his body and that he was going to “explode”. He was taken to the hospital and was diagnosed with a “muscular problem” in the neck.

Mr Mrkela says that his emotional symptoms started soon after the injury and are ongoing. He feels like he has done something wrong and is waiting to be punished. He feels nervous and upset all the time. He says that he smokes up to 50 cigarettes [not rollies] daily to manage his symptoms. His son buys the cigarettes for him. He does not have any income and says that he does not receive anything from Centrelink either. He says he earns “absolutely nothing” in terms of income. His wife works fulltime and is the main provider.
He says that his sleep is “not good”. He wakes up every hour or two in pain with a racing heart. He has dreams about choking from smoke in a fire and these dreams wake him up. He says that he has lost 35kg in the last one year because of reduced appetite. He says he was 150kg in body weight when he was injured and is now 110 to 115kg. The Panel notes that Mr Mrkela has always been overweight. Dr Rimmer recorded the claimant’s weight at 140kg in October 2022. Medical Assessor Shahzad recorded the claimant’s weight at 130kg in October 2023. Dr Rimmer recorded the claimant’s weight had reduced to 115kg in June 2024. Mr Mrkela said that the loss of weight is not related to dieting or exercising. Mr Mrkela says he has lost this weight because of loss of interest in food. The Panel notes Dr Tomka’s notes which state he has had high blood pressure and high cholesterol for many years however there is no mention in these notes of any concern about the claimant’s obesity or any suggestion of weight loss.
Mr Mrkela says that he has become irritable due to his pain and manages that by locking himself in his room for up to two days to avoid upsetting anyone. He has become jumpy since the accident. He says that he does not do anything at the moment. He says that hearing sirens causes him to suffer flashbacks This can also occur if he smells smoke from his neighbour’s barbeque. He feels like a “nobody and nothing”. He says that looking out for danger is a daily part of his life as he is always worried that something will go wrong. He feels tired most of the time and describes loss of pleasure from things. He has lost hope for his future. He thinks about suicide but denies any planning or previous attempts.

Current functioning

Mr Mrkela says he is in constant pain in his shoulders, neck, knees, hips and lower back. His physical injuries affect what he can and cannot do and how he feels.
Mr Mrkela says that he showers once in three to four weeks because he does not feel that there is a need for that. He says that he cleans his teeth once a week to once every two weeks. He does not cook or clean the house either (his wife has traditionally performed these tasks). He is on his own during the day and will make his own lunch usually eating a cheese or salami sandwich. He usually eats his other meals alone, and never with the family because he does not feel that he is worthy of being around his wife and son.
He says that he and his wife do not communicate. He does not feel that his wife would want to live with a person like him because of his pain and level of disability. She left the family home for five months last year but he did not say where she went. They live in separate rooms, and it is like that they do not know each other. He says that there is a lack of communication with his children as well. He used to have friends but “no longer”. He says that that is related to his inability to engage socially. He has had a quarrel with a couple of his friends.
He was vague and could not say how he spends his time. He does not read and says he does not watch TV. He says that he can go out for a meal or a coffee with his son and wife, but it is “very rare”. He can go out on his own to a restaurant with friends or family but rarely. He says he goes to the butcher and the shops to buy vegetables on his own.
He says that his concentration is impaired, and he is unable to focus on things for long partly as a result of his pain levels. He says he is unable to watch TV for long.
He says he can remember to take his medication but then said that his memory is “not good at all”. He forgets dates like anniversaries and birthdays.
He drives only when needed but not outside his local area. He says that he drives to feel like he is worthy of something. He drives locally to the butchers or the grocery shop and to his doctor. He travels as a passenger if he has to go far, such as to visit his daughter. He has used the train to get into the city for his appointments in relation to this case without difficulty.

Mental state examination

Mr Mrkela was assessed using the video link. He presented well, maintained good eye contact, and answered all the questions appropriately. He was helpful in his manner and easy to form a rapport with. There was no evidence of any psychomotor abnormality or psychic anxiety, but he did appear distressed when talking about the impact of the injury on his life. His mood appeared low, but his affect was reactive. His speech was normal in rate, rhythm, tone and volume. His thought content revealed that he has developed passive suicidal ideation. He was not suffering from any perceptual abnormalities but suffers from nightmares and flashbacks. He was able to focus and relate with the Panel for the entire duration of the assessment. He appeared to be well-orientated to time, place and person. His insight and judgement were intact.

CONSIDERATION OF THE ISSUES – THE PANEL

Is the claimant’s evidence reliable?

The claimant’s continued denial of any significant physical or psychiatric injury after his 2014 is difficult to explain other than the claimant was making attempts to minimise the effects of the earlier accident with a view to maximising the symptoms of the current accident.
The claimant retracted his evidence about his hands bleeding and said they were red from bruises instead. This does not explain why ambulance records, hospital notes and his own GP does not make any mention of these injuries. The Panel considers this is further evidence of the claimant attempting to maximise the effect of the current accident.
Having said that, the claimant appears to have made a recovery from his earlier accident, and he was involved in a high-speed accident on a motorway and was trapped for a period of time. The Panel will however approach the claimant’s evidence with a degree of caution and look for objective evidence where possible to validate the Panel’s findings.

Causation

The MAI Act requires the Panel to determine the degree of the claimant’s whole person impairment resulting from the injuries caused by the accident.
Clause 6.6 provides that there are two questions that must be asked:
(a) could the accident have caused or materially contributed to the development of a psychological injury (a medical judgment), and
(b) did the accident cause or materially contribute to the development of a psychological injury (a factual determination).
Clause 6.7 provides as follows:
“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.”
There does not appear to be a dispute as to the general circumstances of the accident. The claimant came upon an accident on the motorway and was hit from behind by a vehicle travelling at speed. He was trapped in the car and realised by emergency services. The smoke from the tool used to cut him out of the wreck caused him to fear for his life (in terms of the possibility of a fire). The claimant was taken to hospital by ambulance.
It is the clinical judgment of the Medical Members of the Panel that the circumstances of this accident could have caused the claimant to develop a psychiatric disorder.
The question remains whether the accident did cause or materially contribute to the development of a disorder. Mr Mrkela was fortunately not seriously injured in that there were no broken bones or lacerations however he was injured and continues to complain of significant levels of pain. He reported nightmares and saw his GP the day after the accident. His claim form lodged within a month of the accident records anxiety, flashbacks and depression. While the claimant was not referred for psychiatric review until five months after the accident. this appears to coincide with the claimant’s physical symptoms becoming chronic.
The Panel is satisfied that Mr Mrkela did sustain a psychiatric disorder as a result of the accident.

Was there an aggravation or exacerbation of a previous condition?

The Panel notes the significant dispute between the parties about the residual effects of the claimant’s 2014 accident noting that the claimant had a psychiatric disorder as a result of that accident which two psychiatrists (Dr Akkerman and Medical Assessor Parmegiani) found caused a significant permanent impairment.
The insurer’s expert considered the claimant aggravated a pre-existing post-traumatic stress disorder but that he developed a separate major depressive disorder. The claimant’s treating psychiatrist (and expert) considered the claimant had recovered from the previous posttraumatic stress disorder and sustained a fresh posttraumatic injury (as well as developing a major depressive disorder).
After the re-examination and before the Panel’s second teleconference, the Panel were provided with some additional documents from the insurer including the PBS summary from 3 May 2015 to 14 May 2025 which showed:
(a)    Mr Mrkela was first prescribed duloxetine on 20 Jan 2017. He was prescribed fluoxetine on 13 May 2017 along with diazepam;
(b)    medication for mental health issues was dispensed after the settlement of the claimant’s 2014 claim and before the current accident;
(c)    after the current accident, no antidepressant was dispensed until 4 January 2022. He was prescribed sertraline on 3 February 2022 which was dispensed on 4 February 2022, and
(d)    it seems from the record that he has been on duloxetine since 7 September 2022.
The claimant’s Medicare summary was also provided which appears to indicate there were no appointments with a psychologist or a psychiatrist from 3 May 2015 to 14 May 2025. All psychological and psychiatric appointments following Mr Mrkela’s first accident would appear therefore to have been paid for by the relevant third-party insurer.
The Medical Assessors note that treating psychologist Dr Protulipac's letter dated 17 July 2017 describes ongoing symptoms since the motor vehicle accident dated 26 June 2014. According to the letter, the claimant had attended 18 sessions since 1 Feb 2017 including several after the claimant settled his clam with the third-party insurer. And although Mr Mrkela’s symptoms had reduced, they were not fully resolved. He was continuing to suffer from pain and insomnia as well.
The Medical Assessors also reviewed the claimant’s general practitioner’s (GP) documentation which is consistent with the new information. Mr Mrkela was seen on
20 January 2017 with symptoms of depression and was prescribed duloxetine 60mg. There were no further consultations (with the GP) regarding mental health conditions after the claimant settled his claim until after the current accident. According to Dr Tomka’s records, there were no referrals for psychological or psychiatric treatment for the claimant’s serious and severe psychiatric disorder caused by the 2014 motor accident after mid 2017.
The claimant denied having any physical or psychiatric symptoms after the 2014 accident. It may be that language issues could have caused a misunderstanding. What is clear from the records is that the claimant was injured in 2014, made a claim and pursued that claim but that soon after that claim was settled the claimant’s physical and psychiatric symptoms resolved or remitted to the point where the claimant sought no further treatment and was able to resume running his business and participating in his social and family life. The Medical Assessors suggest this bodes well for his ongoing recovery as a result of the current accident.

Diagnosis

It is the clinical judgment of the Medical Assessors that Mr Mrkela meets the diagnostic criteria for both a post-traumatic stress disorder and a Major Depressive Disorder which is recurrent, chronic and moderate to severe.

Post-traumatic stress disorder

Criterion A – Exposure to Actual or Threatened Death, Serious Injury, or Sexual Violence – Mr Mrkela was involved in a serious motor accident while travelling on the M1 motorway. He stopped to assist at the scene of an overturned car and was rear-ended by a van before he could exit his vehicle. The impact pushed his vehicle approximately 30 metres and left him trapped. He reports significant fear for his life, particularly as he witnessed sparks during the fire brigade’s extraction process and believed the vehicle would catch fire. It is the clinical judgment of the Medical Assessors that the severity of this accident satisfies Criterion A1: direct exposure to a traumatic event.
Criterion B – Intrusion Symptoms (at least one of the listed symptoms are required) – Mr Mrkela reports involuntary and distressing memories of the incident, nightmares involving fire and choking, flashbacks triggered by specific cues (e.g. sirens, smell of smoke), and physiological distress including waking with a racing heart.
Criterion C – Avoidance (at least one of the listed symptoms are required) – Mr Mrkela avoids discussing or thinking about the incident and reports that he has withdrawn from social and familial contact to avoid emotional triggers.
Criterion D – Negative Alterations in Cognitions and Mood (at least two symptoms are required) – Mr Mrkela demonstrates persistent negative beliefs about himself (e.g., "I’m a nobody"), a clear loss of interest in all activities, detachment from others, inability to experience positive emotions, and a persistent sense of hopelessness and worthlessness.
Criterion E – Marked Alterations in Arousal and Reactivity (at least two symptoms required) Mr Mrkela. He describes irritability and self-isolation, hypervigilance, exaggerated startle responses, and significant sleep disturbance including nightmares and frequent waking.
Criterion F – Duration of Symptoms – Mr Mrkela’s symptoms have persisted for more than one year since the accident.
Criterion G – Functional Significance – there is marked impairment in personal, social, occupational, and daily functioning. Mr Mrkela does not work, isolates from his family, and demonstrates poor self-care.
Criterion H – Exclusion – there is no evidence to suggest that the symptoms are due to a substance or another medical condition. His cigarette use appears to be a coping mechanism rather than a primary cause although we note he has been a heavy smoker for years and there does not appear to be any change in the amount of cigarettes smoked.

Major depressive disorder – Recurrent, Chronic, Moderate to Severe (DSM-5 Criteria)

It is the clinical judgment of the Medical Assessors that the claimant satisfies Criterion A – due to the presence of five or more symptoms during the same two-week period. Mr Mrkela presents with the following symptoms:
(a)    depressed mood most of the day;
(b)    marked loss of interest or pleasure in almost all activities;
(c)    significant unintentional weight loss (35kg over 12 months);
(d)    insomnia with early morning waking;
(e)    fatigue and reduced energy;
(f)    feelings of worthlessness and excessive guilt;
(g)    impaired concentration, and
(h)    passive suicidal ideation without planning.
These symptoms have persisted well beyond the required duration.
Criterion B – Functional Impairment – Mr Mrkela says he is unable to work, struggles with self-care, has minimal social contact, and lacks engagement with family and household responsibilities.
Criterion C – Exclusion – there is no medical condition or substance misuse accounting for the presentation.

IMPAIRMENT ASSESSMENT – THE PANEL

Degree of permanent impairment Psychiatric Impairment Rating Scale

The Guidelines include a chapter entitled “Mental and behavioural disorders” and require the assessment to be undertaking in accordance with the psychiatric impairment rating scale (PIRS). The Guidelines also say that the mental and behavioural chapter of the AMA 4 Guides are to be used as “background or reference only”[9].
[9] Clause 6.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with whatever the current edition of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD).[10]
[10] Clause 6.213 of the Guidelines.
The PIRS provides in clause 6.219 for six areas of function:
6.219.1    self-care and personal hygiene;
6.219.2    social and recreational activities;
6.219.3    travel;
6.219.4    social functioning (relationships);
6.219.5    concentration persistence and pace, and
6.219.6    adaptation.
The PIRS then provides at cl 6.220 for five classes with a descriptor for each which is “illustrative rather than literal criteria” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury”.
The impairment may be adjusted for treatment[11] that is treatment such as medication being consumed to treat the psychiatric condition.
[11] See clauses 6.222-6.223 of the Guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage.[12]
[12] See clauses 6.225-6.228 and Table 17.

What is the claimant’s impairment?

The Panel adopts the Medical Assessors diagnosis of a posttraumatic stress disorder and a chronic major depressive disorder.
Mr Mrkela complains of constant pain in various parts of his body which impairs his activities of daily living and other aspects of his life. In the light of cl 6.215 of the Motor Accident Guidelines, the Panel must take care to ensure that we are rating impairment due to psychological or psychiatric symptoms and not due to the claimant’s symptoms of pain arising from his physical injuries.
The standard form required by cl 6.220 to be used is attached to these reasons with a summary of the following findings.

Self-care and personal hygiene (Table 6.11)

The PIRS provides the following five classes of impairment for this area of functionality as follows:
(a)    Class 1 – no deficit, or minor deficit attributable to normal variation in the general population.
(b)    Class 2 – mild impairment. Able to live independently and look after self adequately, although may look unkempt occasionally. Sometimes misses a meal or relies on takeaway food.
(c)    Class 3 – moderate impairment. Cannot live independently without regular support. Needs prompting to shower daily and wear clean clothes. Cannot prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) two to three times per week to ensure minimum level of hygiene and nutrition.
(d)    Class 4 – severe impairment. Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
(e)    Class 5 – totally impaired. Needs assistance with basic functions, such as feeding and toileting.
The Panel notes that Dr Smith assessed the claimant as having a class 3 impairment and Dr Kuljic assessed the claimant with a class 2 impairment. Medical Assessor Roberts found a class 3 impairment.
It is the clinical judgment of the Medical Assessors that Mr Mrkela should be assessed as having a mild impairment (class 2). Mr Mrkela reports that he showers once every three to four weeks, and he brushes his teeth once a week to once every two weeks. He does not cook or clean the house although he indicated his wife used to do this before the accident. He does not need prompting to eat and can shop and prepare his own lunch he retains the capacity to manage basic care when required. He is also able to manage his own medication. Objectively he looked well at the re-examination and there is no indication in the medical records of his GP of any significant dental or health problems which would support his reported current level of neglect.

The Panel has been careful not to include any impairment to functionality in this area caused by the claimant’s physical injuries and his complaints of chronic pain.

Social and recreational activities (Table 6.12)

The PIRS provides the following five classes of impairment for this area of functionality as follows:
(a)    Class 1 – no deficit or minor deficit attributable to normal variation in the general population. Able to go out regularly to cinemas, restaurants or other recreational venues. Belongs to clubs or associations and is actively involved with these.
(b)    Class 2 – 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.
(c)    Class 3 – 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.
(d)    Class 4 – severe impairment. Never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or the garden when others visit family or flatmate.
(e)    Class 5 – totally impaired. Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.
The Panel notes that Dr Smith and Dr Kuljic assessed the claimant as having a class 3 impairment and Medical Assessor Roberts found a class 4 impairment.
It is the clinical judgment of the Medical Assessors that Mr Mrkela should be assessed as having a moderate impairment (class 3). He says that he does not engage in any recreational activity but we note he is unable to describe how he spends his time. He does not read or watch television much (or at all) and says he rarely leaves the house for anything other than essential tasks. He may occasionally go out for a meal or coffee with his family, though he says this is rare. He says he has isolated himself from friends although he can go out on his own if needed. His ability to go shopping, to the doctor and into the city on his own suggests that a class 4 impairment cannot apply.

Travel (Table 6.13)

The PIRS provides the following five classes of impairment for this area of functionality as follows:
(a)    Class 1 – no deficit, or minor deficit attributable to normal variation in the general population. Able to travel to new environments without supervision.
(b)    Class 2 – mild impairment. Able to travel without support person, but only in a familiar area such as local shops or visiting a neighbour.
(c)    Class 3 – moderate impairment. Unable to travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
(d)    Class 4 – severe impairment. Finds it extremely uncomfortable to leave own residence even with a trusted person.
(e)    Class 5 – totally impaired. Cannot be left unsupervised, even at home. May require two or more persons to supervise when travelling.
The Panel notes that Dr Smith and Dr Kuljic assessed the claimant as having a class 2 impairment but that Medical Assessor Roberts found a class 3 impairment.
It is the clinical judgment of the Medical Assessors that Mr Mrkela should be assessed as having a mild impairment (class 2). He is able to travel short distances on his own, including by car to the local butcher or GP, and has used public transport to attend appointments in the city without any reported difficulty. However, he avoids travelling longer distances alone and will rely on others to accompany him if visiting family further afield. His ability to travel on his own means a class 3 impairment is not appropriate.

Social functioning (Table 6.14)

The PIRS provides the following five classes of impairment for this area of functionality as follows:
(a)    Class 1 – no deficit, or minor deficit attributable to normal variation in the general population. No difficulty in forming and sustaining relationships; for example, a partner or close friendships lasting years.
(b)    Class 2 – mild impairment. Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
(c)    Class 3 – moderate impairment. Previously established relationships severely strained; evidenced, for example, by periods of separation or domestic violence. Partner, relatives or community services looking after children.
(d)    Class 4 – severe impairment. Unable to form or sustain long-term relationships. Pre-existing relationships ended; for example, lost partner, close friends. Unable to care for dependants; for example, own children, elderly parent.
(e)    Class 5 – totally impaired. Unable to function within society. Living away from populated areas, actively avoids social contact.
The Panel notes that Dr Smith, Dr Kuljic and Medical Assessor Roberts found a class 2 impairment.
It is the clinical judgment of the Medical Assessors that Mr Mrkela should be assessed as having a mild impairment (class 2). It is the clinical judgment of the Medical Assessors that Mr Mrkela is socially withdrawn within the household. He reports eating meals alone and says he does not feel worthy of being around his wife or son. He and his wife live in separate rooms and do not communicate and she spent five months away from the home last year (although where she went is unclear). He describes a general lack of contact with his children although he remains living with his wife and seeing at least one of his sons. There is no reported current social network outside the home. However, he retains the ability to interact with strangers and others when necessary, such as during appointments or shopping errands.

Concentration, persistence and pace (Table 6.15)

The PIRS provides the following five classes of impairment for this area of functionality as follows:
(a)    Class 1 – no deficit, or minor deficit attributable to normal variation in the general population. Able to operate at previous educational level; for example, pass a TAFE or university course within normal timeframe.
(b)    Class 2 – 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 headache.
(c)    Class 3 – moderate impairment. Unable to read more than newspaper articles. Finds it difficult to follow complex instructions; for example, operating manuals, building plans, make significant repairs to motor vehicle, type detailed documents, follow a pattern for making clothes, tapestry or knitting.
(d)    Class 4 – severe impairment. Can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.
(e)    Class 5 – totally impaired. Needs constant supervision and assistance within an institutional setting.
The Panel notes that Dr Smith, Dr Kuljic and Medical Assessor Roberts found a class 3 impairment.
It is the clinical judgment of the Medical Assessors that Mr Mrkela should be assessed as having a mild impairment (class 2). While he reports poor memory and concentration, including forgetting birthdays and anniversaries, and being unable to focus on television he is able to manage his medication, and he was able to recall events from 2014 and thereafter. He does not read. Objectively the Panel notes that Mr Mrkela was able to sustain focus and maintain attention over the course of an interview lasting over an hour.

Adaptation (Table 6.16)

The PIRS provides the following five classes of impairment for this area of functionality as follows:
(a)    Class 1 – no deficit, or minor deficit attributable to normal variation in the general population. Able to work full time. Duties and performance are consistent with injured person’s education and training. The injured person is able to cope with the normal demands of the job.
(b)    Class 2 – mild impairment. Able to work full time in a different environment. The duties require comparable skill and intellect. Can work in the same position, but no more than 20 hours per week; for example, no longer happy to work with specific persons, work in a specific location due to travel required.
(c)    Class 3 – 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 different; for example, less stressful.
(d)    Class 4 – severe impairment. Cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
(e)    Class 5 – totally impaired. Cannot work at all.
The Panel notes that Dr Akkerman in 2017 considered the claimant totally impaired and unable to work and Medical Assessor Parmegiani considered the claimant had a moderate impairment in 2016. He had a history that the claimant shut down his business after the 2014 car accident. Dr Akkerman had a history in 2017 of the claimant, having not worked at all since the 2014 accident. Dr Smith also had a history of the claimant shutting down his business after the 2014 accident and restarting it soon after he settled the claim but that he has shut it down again a year or two after the current accident. Mr Mrkela told Medical Assessors Canaris and Gupta that he continued to work after his 2014 accident and the business was not shut. It is difficult for the Panel to reconcile this history.
The Panel notes that Dr Smith, Dr Kuljic and Medical Assessor Roberts found a class 5 impairment that is that Mr Mrkela is totally impaired and cannot work at all because of his psychiatric disorder.
It is the clinical judgment of the Medical Assessors that Mr Mrkela should be assessed as having a moderate impairment in this area. There is a significant contribution to his impairment from his physical injuries. These injuries have produced chronic pain which the claimant stated impairs his ability to work. Under cl 6.215 of the Guidelines, the Panel is not permitted to consider the effects of pain or the physical symptoms experienced by the claimant. While the Medical Assessors accept that there are psychological symptoms impacting the claimant’s ability to work, it is the clinical judgment of the Medical Assessors that Mr Mrkela is not totally impaired as a result of his psychiatric symptoms. On this basis, Class 3 is considered the appropriate level of impairment for the psychological injury.

Final assessment with adjustments

The six classes if impairment listed in ascending order are, 2, 2, 2, 2, 3 and 3. This produced a median class value of 2 and an aggregate score of 14.
Using the conversion table (Table 6.17) this translate to a WPI of 7%.
The Guidelines provide for adjustments as follows:
(a)    pre-existing impairment – while the Panel accepts the claimant was injured in a motor accident in 2014 and developed a serious psychiatric disorder as a result causing a significant permanent impairment, there is no objective evidence at the time of the current 2019 accident of any symptomatic impairment. The claimant has resurrected his business and was working in it and was engaged with his family and the community. The medical records of Dr Tomka do not suggest any ongoing mental health issues in the two years before the accident. There is therefore no need to undertake the exercise required by cl 6.32 or cl 6.218 and no adjustment need to be made to the final impairment score;
(b)    subsequent impairment – there is no evidence of a subsequent event or subsequent condition and therefore no adjustment required in accordance with cl 6.34, and
(c)    treatment – cl 6.222 enables the degree of impairment to be adjusted for the effects of prescribed treatment (such as medication). Cl 6.223 allows for 0-3% to be added depending on the effect of the treatment. Mr Mrkela is currently taking a combination of an antidepressant and an antipsychotic medication. He remains under the care of a psychiatrist. It is the clinical judgment of the Medical Assessors that the claimant’s mental state is likely to deteriorate if his treatment is stopped and a 1% uplift for impact of treatment is appropriate.
When the treatment effect (1%) is added to the WPI (7%) this gives a final WPI of 8%.

CONCLUSION

As the Panel has assessed the claimant with a WPI of 8%, it follows that the certificate of Medical Assessor Roberts must be revoked and a fresh certificate issued.

ATTACHMENT A – PIRS Summary form cl 6.220

Psychiatric diagnoses	Posttraumatic stress disorder
Psychiatric treatment description	He sees a psychiatrist and has been prescribed quetiapine, duloxetine, agomelatine, and Mersyndol.

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	2	See paragraphs 204 - 207 above
2. Social and Recreational Activities	3	See paragraphs 208 - 210 above
3. Travel	2	See paragraphs 211 - 213 above
4. Social Functioning	2	See paragraphs 214 - 216 above
5. Concentration, Persistence and Pace	2	See paragraphs 217 - 219 above
6. Adaptation	3	See paragraphs 220 - 222 above
List classes in ascending order: 2, 2, 2, 2, 3, 3
Median Class Value: 2
Aggregate Score: 14
Whole Person Impairment: 7%

[2025] NSWPICMP 524

18 July 2025