Nicolaou v Allianz Australia Insurance Limited
[2025] NSWPICMP 600
•12 August 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Nicolaou v Allianz Australia Insurance Limited [2025] NSWPICMP 600 |
CLAIMANT: | Nicos Nicolaou |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
SENIOR MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | Christopher Rikard-Bell |
MEDICAL ASSESSOR: | Ankur Gupta |
DATE OF DECISION: | 12 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of whole person impairment (WPI); claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) assessed 0% WPI as a result of post-traumatic stress disorder (PTSD) and persistent depressive disorder caused by the accident; claimant sought review; Held – MAC revoked; claimant had sustained PTSD and major depressive disorder caused by the accident resulting in 7% WPI. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF PERMANENT IMPAIRMENT Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor John Baker dated · post-traumatic stress disorder; and · major depressive disorder ASSESSMENT OF TREATMENT AND CARE Certificate issued under s 7.23(1) of the MotorAccident Injuries Act 2017 2. The Review Panel with the consent of the parties affirms the certificate of Medical Assessor John Baker dated 8 November 2023. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 29 November 2018 Nicos Nicolaou (the claimant) was the driver of a vehicle stationary at a traffic light when a truck crashed into the rear of his vehicle (the accident).
Mr Nicolaou has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Nicolaou under the MAI Act.
Permanent impairment dispute
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 Nicolaou 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.
Mr Nicolaou filed an application in the Personal Injury Commssion (Commission) in respect of the permanent impairment dispute.
The dispute as to permanent impairment in respect of the claimant’s psychological injury was referred to Medical Assessor John Baker. He issued a certificate dated 8 November 2023.
Treatment dispute
On 13 February 2023 the insurer declined to fund continuing reimbursement of medications including Agomelatine (Valdoxan).[2] The insurer relied upon a report of Luke McGrath, pharmacist dated 13 January 2023 on the basis the medication has a high risk of causing liver impairment and may be the contributing factor to the dizziness experienced by the claimant.
[2] Insurer’s documents p 552
The claimant sought an internal review of that decision, and the insurer subsequently affirmed the decision that the medication Agomelatine (Valdoxan) was not reasonable and necessary in the circumstances.
Mr Nicolaou filed an application in the Commission in respect of the treatment dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether proposed treatment relates to the injury caused by the accident and is reasonable and necessary in the circumstances.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]
[3] Section 7.20 of the MAI Act.
The treatment dispute was also referred to Medical Assessor John Baker. He issued a certificate dated 8 November 2023.
DOCUMENTS CONSIDERED BY THE REVIEW PANEL
The Review Panel issued a Direction to the parties on 11 April 2025 (the Direction) requiring each party to file an indexed, paginated bundle of documents.
On or about 30 April 2025 the solicitor for the claimant uploaded to the portal a bundle of documents paginated from page 1 to 1207 (claimant’s documents).
On or about 9 May 2025 the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 684 (insurer’s documents).
On 9 July 2025 the insurer filed an Application to Lodge Additional Documents paginated from pages 1 to 332 attaching updated clinical records of Mina Candalepas Psychology, updated clinical records of Your Padstow Plus and updated CTP Care records (ALAD). The claimant consented to the inclusion of these documents for consideration by the Panel. Where the documents comprise treating records relevant to the dispute the records have been admitted.
CERTIFICATE OF MEDICAL ASSESSOR BAKER
Medical Assessor Baker issued a certificate dated 8 November 2023 in which he certified the following injuries caused by the accident gave rise to a permanent impairment of 9%:
· Post-traumatic stress disorder; and
· Persistent depressive disorder.[4]
[4] Claimant’s documents p 11
Medical Assessor Baker also certified the following treatment relates to the injury caused by the accident and is reasonable and necessary in the circumstances:
· Valdoxan (Agomelatine) 50mg at night.
Medical Assessor Baker reported the claimant was born in Cyprus and has resided in Australia since 2016. His adult children live in Cyprus. He is married and at the time of the accident worked in construction as a labourer. Prior to the accident he socialised with his wife and her extended family and with one of his sisters who also lives in Australia. He attended the family church and participated in Greek Orthodox Christian celebrations.
Medical Assessor Baker stated the claimant did not lose consciousness at the time of the accident, nor did he see the truck in his rearview mirror. He reported the claimant was in shock after the accident and was screaming for help, two bystanders came to his aid. He was transported by ambulance to hospital as he had immediate pain in his neck and left shoulder.
The claimant reported he suffered a number of physical injuries caused by the accident. His general practitioner (GP) referred him to Dr Jungfer psychiatrist. She treated him for
post-traumatic stress disorder and major depressive disorder.Medical Assessor Baker found the claimant met the diagnosis of persistent depressive disorder and post-traumatic stress disorder. He reported the following symptoms:
· depressed mood;
· low energy or fatigue;
· low self-esteem;
· poor concentration or difficulty making decision;
· feelings of hopelessness;
· recurrent distressing dreams related to the traumatic event;
· persistence avoidance of stimuli associated with the accident where talking or thinking about the accident causes the claimant to suffer from anxiety and panic;
· a persistent negative emotional state, notably a fear of being involved in a future motor accident;
· markedly diminished interest or participation in significant activities, such as socialising with his wife and extended family and attending the local church;
· inability to experience positive emotions of happiness, satisfaction or loving feelings including a loss of intimacy within his marriage;
· irritable behaviour and angry outbursts;
· hypervigilance, and
· sleep disturbance.
Medical Assessor Baker reported the claimant had been prescribed Valdoxan (Agomelatine) at a dose of 50mg at night. He had received cognitive behavioural therapy and EMDR as well as relaxation therapy.
On examination Medical Assessor Baker reported the claimant presented as an irritable depressed man who was mildly unkempt. He became tearful and reported a depressed mood.
In respect of current functioning Medical Assessor Baker reported:
· the claimant was able to live independently, attended to personal hygiene and self -care and managed his medication and treatment regime;
· he was interested in attending to small plants such as basil and rosemary;
· he could not participate at his local church; he was agitated and fearful of enclosed spaces;
· he was no longer interested in listening to music;
· he no longer participated in Easter or Christmas celebrations;
· he could leave the house alone to access the local community;
· he was fearful in traffic;
· his marital relationship was strained as was his relationship with his sister;
· he had a reduced number of friends;
· he was able to concentrate on television for up to 30 minutes but was less interested in news and the lives of his adult children;
· he could engage in following liverpool football team but was less interested than prior to the accident, and
· His capacity to understand English was poor.
Medical Assessor Baker reported multiple physical conditions were present both prior and subsequent to the accident. For this reason, did he did not diagnose a somatoform disorder. He noted the presence of pain was not evident at the time of his assessment although the claimant reported he restricted his physical movement due to pain. He concluded that the claimant experienced the accident as life threatening, noting his “screaming for help” is consistent with exposure to a category A stressor for the diagnosis of post-traumatic stress disorder.
Medical Assessor Baker assessed a 9% WPI. He assessed class 2 for self-care and personal hygiene, class 3 for social and recreational activities, class 2 for travel, class 2 for social functioning, class 2 for concentration, persistence and pace and class 5 for adaptability.
Medical Assessor Baker concluded the use of Valdoxan had assisted in the stabilisation of the claimant’s psychological injury sustained in the accident and the absence of treatment may result in more symptoms becoming evident.
REVIEW PROCEDURE
The insurer has sought a review of the medical assessment of Medical Assessor Baker.
The application was lodged on 13 December 2023 within 28 days of the date on which the certificate of Medical Assessor Baker was made available to the parties.[5]
[5] Section 7.26(1)(b) of the MAI Act.
On 19 January 2024 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).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (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.
On 19 June 2025 the Panel agreed an examination was necessary.
On 23 June 2025 the Panel issued a Report and Directions to the parties notifying them of the date and time of the medical examination. The Panel also stated:
1. the Review Panel notes that Medical Assessor Baker certified that the following treatment and care related to the injury caused by the accident and was reasonable and necessary in the circumstances:
·Valdoxan (Agomelatine) 50mg at night;
2. the Review Panel notes that neither party raised any objections to the certificate of Medical Assessor Baker in respect of that treatment dispute, and
3. accordingly, on or before 3 July 2025 the parties are to advise whether a dispute remains as to whether the Valdoxan (Agomelatine) 50mg at night relates to the injury caused by the accident and whether it was reasonable and necessary in the circumstances.
Both the claimant and the insurer confirmed that no dispute remains regarding whether Valdoxan (Agomelatine) 50mg at night relates to the injury caused by the accident and whether it was reasonable and necessary in the circumstances.
RELEVANT LEGAL AUTHORITY
Permanent impairment
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. Clause 6.213 of the Guidelines requires the impairment to be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic and Statistical Manual of Mental Disorders, that is, the Diagnostic and Statistical Manual of Mental Disorders 5th Edition Text Revision (DSM-5) or the current edition of the International Statistical Classification of Diseases & Related Health Problems (ICD). The assessment of mental and behavioural disorders must be undertaken in accordance with the psychiatric impairment rating scale (PIRS) as set out in 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.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
EVIDENCE BEFORE THE PANEL
Photographs of the vehicles
Photographs of the claimant’s vehicle show damage to the rear of the vehicle and the rear drivers side panel. The entire hatchback cover has been dislodged with more significant damage to the rear right-hand side of the vehicle including the rear lights and the bumper bar.[7]
[7] Claimant’s documents p 1178
A photograph of the truck which collided with the rear of the claimant’s vehicle demonstrates damage to the front passenger side of the vehicle including a broken passenger side headlight and damage to the bumper bar.
Application for personal injury benefits
In the application dated 20 December 2018 the claimant listed his injuries as “whiplash, neck pain, headaches, ringing in the ears, sensation of moving”.[8]
[8] Claimant’s documents p 60
He described the accident as follows:
“Driving northerly on King Georges towards Wiley Park on the far left lane, on Thursday 29/11/2018 … time between 4.20pm-4.30pm, slowing down at the traffic lights which had turned yellow, I didn’t want to go through as there is a red light camera, suddenly I got hit by a white truck Isuzu … I was shocked and shaken and slowly drove my vehicle on a private footpath-driveway where I called my brother-in-law to come to the scene…”
Post-accident treating medical evidence
NSW Ambulance Service
The NSW Ambulance report stated:
“O/A patient self-extricated, in care of police and fire rescue, alert, appeared well-perfused, responsive to questions in full sentences. … mobilising on scene prior to AO arrival. Report low speed collision, minimal deformation to the vehicle, nil airbag deployment. Pt CO central neck pain/tenderness and generalised pain to right leg.
O/E… GCS 15, afebrile … Nil lap-belt injury/abrasion noted. Nil neurological (sensory or motor) deficits, nil abrasion/injuries detected elsewhere on the body …”.[9][9] Claimant’s documents p 65
Bankstown-Lidcombe Hospital
Bankstown-Lidcombe Hospital ED Discharge Referral reported the following presenting complaint:
“MVA - hit from behind
Significant damage to rear of car
airbag not deployed
No LOC
no impact to head/neck …
has pain to neck and occiput
- midline neck pain
pain to anterior chest - mild
mild L shoulder pain
mild dec ROM
nil abdominal pain…”[10]
[10] Claimant’s documents p 135
Your Padstow Doctors Plus
The clinical records of Dr Penelope Aligiannis of Your Padstow Doctors Plus disclose the following relevant records:
· 1 December 2018 – Thursday afternoon rear ended in accident; went to ED, dizzy, neck pain, stiffness since, tender paraspinal muscles, ROM (range of motion) limited in all directions; pain into midscapular region.[11]
[11] Claimant’s documents p 295
· December 2018 – neck pain ongoing, cannot lift head to look up – pain ++.
· 20 December 2018 – dizziness when lifting head, left ear ringing, headaches.
· 14 January 2019 – ongoing dizziness/vertigo feeling. ROM improving- still some pain with rotation and elevation, the severe pain has settled, just ongoing dull ache.
· 9 February 2019 – with walking dizziness continues; tinnitus; vision is getting worse, had left collar bone pain at the time of the accident, ongoing shoulder ROM pain as per physio letter.
· 2 April 2019 - symptoms are ongoing; ongoing headaches; ongoing unsteadiness; ongoing neck pain with reduced ROM.
· 23 April 2019 – symptoms not improved.
· 30 April 2019 –seeing neurologist again; to have CT neck and brain angiogram.
· 21 May 2019 – pain in neck continues; ROM shoulder still limited by pain; pain in thumb continues; vertigo continues; unable to work.
· 31 May 2019 – ongoing symptoms; neck and shoulder and tinnitus and dizziness; worried about shoulder issue not improving; advised cortisone injection; discussed injection vs surgery vs physio.[12]
[12] Claimant’s documents p 302
· 14 June 2019 - shoulder pain becoming a problem; not keen for the injection. Referred to Prof G Murrell.
· 28 June 2019 – pain worse; no aggravating trauma; rotation, tilt, flexion and extension limited with pain; needs to return to physio.
· 29 July 2019 – ongoing shoulder pain + limited ROM due to pain; muscle atrophy left arm; neck pain ongoing; dizziness ongoing – bumping into things; very distressed by symptoms; frustrated over not being able to return to work.
· 12 September 2019 – pain is ongoing in the shoulder; at night unable to sleep; can’t do anything with the left arm; right shoulder is hurting slightly but it’s ok; the neck pain ongoing; unable to turn left and right due to pain.[13]
[13] Claimant’s documents p 309
· 2 March 2020 – right shoulder hurting now, last two days, due to overuse to compensate for left shoulder. Left shoulder pain – ongoing - no change. Right shoulder – full ROM with pain; Right arm power NAD. Referral right shoulder X-ray and US.
· 14 April 2020 – right shoulder ongoing pain – await approval for US; left shoulder – abduction limited to 90 degrees; advised cortisone injection.
· 10 September 2020 – Wife present – advised pt has been suffering from depression, patient was too embarrassed to tell me. This has been getting worse since the accident:
Waking at night
Flashbacks
Appetite ok
Fear of driving
Socially isolated
Mood low
Ruminates
Low confidence.
Plan to increase Endep to help with depression as well as pain and sleep.[14]
[14] Claimant’s documents p 328
· 18 September 2020 – referral to psychologist – Ms Mina Candalepas.
· 9 October 2020 – saw psychologist … Can’t handle the English classes, getting overwhelmed, mind stressed, overthinking, ruminating, panic attacks, embarrassed to tell the teacher he is not well, what he reads – forgets …”.[15]
[15] Claimant’s documents p 330
· 26 June 2021 – has accepted his depression. Not the same man he once was. Socially withdrawn. Attends to ADLs. Poor sleep. Low motivation.[16]
[16] Claimant’s documents p 740
· 24 March 2022 – case conference with psychologist Ms Candalepas and Dr Aligiannis when the ongoing concern regarding traumatic brain injury was discussed.
· 11 April 2022 - Revisited conversation with Mina – psychologist. Upset over his inability to drive. Discussed fear and hesitation and lack of confidence + vertigo. Suggest he attends driving lessons and a driving exam to build his confidence. Valdoxan is helping him sleep. Still waking at night with ruminating thoughts. Gets tired throughout the day… Dr Jungfer reminded him this is due to being at home all day and socially isolated.
· 13 April 2022 – Dr Aligiannis forwarded a report to Transport for NSW. She recommended the claimant was temporarily unfit to drive due to vertigo.
· 20 June 2022 – saw Dr Watson. Discussed the medication – says he was going to talk to Dr Jungfer about same… Feels pressure in the head each night -? The Valdoxan.
· 18 July 2022 – saw Prof Jungfer – change in medication despite headaches. … Ongoing headaches and intermittent dizziness could be a side effect of the Valdoxan.
· 24 February 2023 – Stopped taking the Propranolol and Valdoxan. Concerned about side effects. … No evidence that the current medications are causing hypotension or abnormal liver functions tests (LFTs).[17]
[17] Insurer’s documents p 490
· 19 May 2023 – two weeks ago picked a mandarin from the tree, looked up, lost balance and fell back onto right elbow. Pain in the right elbow and right anterior upper chest.[18]
[18] Insurer’s documents p 493
· 22 May 2023 – concerned he has done damage to his shoulder as it has been troubling him. Pain and ROM limited.
· 21 August 2023 – ongoing dizziness.
· 22 November 2023 – went to Martin Place by train – he felt disorientated with the trains coming and going, trucks moving, people moving.
· 17 January 2024 – wanting a second opinion re his right shoulder from his fall in May 2022. Ongoing pain and stiffness.
· 10 May 2024 – right shoulder burning.
· 5 September 2024 – slight improvement with 50mg of Allegron. Has been struggling with his vision. Still feeling depressed.
· 24 October 2024 – 12 October had a fall. Climbing steps at the back of the house, looked up, felt dizzy, lost his balance and fell to the right and landed on the inner left knee and right shoulder and outstretched hand. Pain and swelling right thenar eminence. Right shoulder pain. Left knee has improved but was bruised initially. Also fell many months ago off his bed due to dizziness. He fell to the floor directly on his perineum and since then has had suprapubic pain and testicular pain.
· 21 November 2024 – stood from the chair in the waiting room, walked down the hallway and was unsteady on his feet.
· 23 January 2025 – ongoing dizziness, ongoing sound sensitivity. Right shoulder burning.
Mina Candalepas, psychologist
Handwritten clinical notes of Mina Candalepas document her treatment of the claimant between 8 October 2020 and 17 August 2021, between 31 August 2021 and 17 February 2022, 10 March 2022 and 9 December 2022 and between 20 December 2022 and 12 June 2025.[19]
[19] Claimant’s documents pp 888-931 and 982-997; Insurer’s documents pp 313-329, and ALAD p1
In an Allied health recovery request (AHRR) dated 22 October 2020 Ms Candalepas reported the claimant presented with pain and trauma related symptoms.[20] She reported upon impact he hit his head and experienced acute pain to his head, neck and right shoulder. She reported he was sad, experienced fear and anxiety of another accident occurring, he had become over sensitive, felt helpless and vulnerable, he was angry, irritable and socially withdrawn. She also reported he had slowed thinking, concentration difficulties, memory problems, constant ruminations about another accident occurring, intrusive thoughts and images of the accident, he was avoidant of driving on main roads and was anxious when driving and as a passenger. She diagnosed post-traumatic stress disorder.
[20] Claimant’s documents p 702
In an AHRR dated 28 May 2021 Ms Candalepas diagnosed post-traumatic stress disorder but noted the serious physical injuries sustained by the claimant were complicating his psychological presentation.[21] She reported dizziness and balance have impacted his functioning. She noted improvements included starting to drive on main roads, minimal anxiety as a passenger in a vehicle, the implementation of pain management strategies, an increase in social participation, meeting his friends for coffee and starting to play the bouzouki.
[21] Claimant’s documents p 834
In an AHRR dated 20 October 2021 Ms Candalepas noted the claimant’s response to treatment had been minimal and she recommended a referral to Dr Patricia Jungfer to rule out whether there were any neurocognitive impacts from the accident and to review his psychopharmacological treatment.[22]
[22] Claimant’s documents p 864
In a report dated 1 June 2022 Ms Candalepas responded to questions posed by the insurer on 25 May 2022.[23] As a psychologist Ms Candalepas deferred to Dr Jungfer in respect of the question of diagnosis. She reported the claimant sought assistance with modifying his response to pain, trauma and depression related symptoms. She reported his symptoms were compounded by his reports of significant and consistent episodes of dizziness which have impacted his day-to-day functioning, his capacity to implement psychological strategies and also caused a number of falls and injuries to his head.
[23] Insurer’s documents p 252
Ms Candalepas reported the claimant presented with severe levels of depression, with sadness, a flatness of affect, some social withdrawal, sleep disruption, fatigues, cognitions of worthlessness, agitation and anger in relation to his inability to return to his pre-incident functioning. She stated a key presenting concern throughout the entirety of the treatment process has been difficulties with managing episodes of dizziness.
She noted that his attempt to implement suggested treatment strategies and engage in activities of daily living such as cooking and playing his bouzouki, given his difficulty managing his pain and episodes of dizziness were short lived.
Ms Candelapas provided a further report to the insurer dated 24 March 2025.[24] She stated he presented to treatment with pain, dizziness, trauma and depression related symptoms. She suggested there was interrelation between the symptoms, for example, he reported hypervigilance which was exacerbated by fluctuations in his physical pain and/or episodes of dizziness.
[24] ALAD p 164
On 12 June 2025 Ms Cadelapas reported an exacerbation in suicidal thoughts, having a fall off the physio table post physio treatment and the impact of dizziness on his quality of life.[25]
[25] ALAD p 170
Dr Patricia Jungfer, psychiatrist
Dr Patricia Jungfer provided a report dated 24 March 2021.[26] She diagnosed major depressive disorder, post-traumatic stress disorder caused by the accident. She reported the claimant experienced flashbacks, is occasionally anxious in the community and avoids driving. She stated:
“His mood has deteriorated since the injury, there is anhedonia and social withdrawal. He is forgetful, concentration is more effortful, and he misplaces things. He feels his cognition has deteriorated over time. He was hopeless regarding his situation. He describes fatigue and poor motivation”
[26] Claimant’s documents p 813
Dr Jungfer noted he reported a depressed and anxious mood, his affect was flat and he had reduced reactivity. She concluded:
“The provisional diagnosis was a major depressive illness in the context of a post-traumatic stress disorder. (The circumstances of the injury were frightening and could have been life threatening). There is no evidence that he sustained a clinically significant brain injury, the momentary loss of consciousness could also be an island of memory loss associated with the emotional trauma of the accident. He has probably sustained a whiplash injury but there are no indicators of disturbance of GCS, nor a period of PTA to warrant a diagnosis of brain injury. His symptoms are non-specific and consistent with physical symptoms that can be associated with a mental health disorder such as a PTSD with comorbid depression.”
On 12 October 2022 Dr Jungfer reported:
“Current symptoms: Nicos thought his mood was reasonable, he is happier as his wife is working less and he has more company. On the days she works he has contact with friends. He will have social input and enjoys this… He remains on 50mg agomelatine and propranolol 20mng BD (prescribed by Dr Watson).”
Dr Jungfer provided a report dated 24 July 2023.[27] She reported she treated the claimant between 18 March 2021 and 12 October 2021. He was no longer a patient as his condition was stable, and he was returned to the care of his GP. The report was completed based on her records.
[27] Claimant’s documents p 1186
Dr Jungfer reported the claimant had multiple somatic complaints. He complained persistently of depressed mood although with the Agomelatine there were less complaints and an improvement with sleep. She stated there were no changes with his complaints of cognition or physical states such as dizziness. She diagnosed chronic post-traumatic stress disorder, and major depression in partial remission. She did not consider the claimant capable of working due to the range of somatic symptoms and psychological symptoms he was reporting. She considered the prognosis for complete symptomatic recovery to be poor.
In respect of the Agomelatine (Valdoxan) Dr Jungfer reported it was initiated to treat the claimant’s major depressive illness with post-traumatic stress disorder. She stated he was not considered a candidate for an SSRI or SNRI such as duloxetine or desvenlafaxine on the basis they are often associated with dizziness, have no beneficial effect regarding sedation and might therefore require the prescription of a sedative hypnotic on top of an antidepressant. Noting the claimant struggled to be compliant with medication and was confused by treatment Dr Jungfer stated it was important to choose agents to minimise the need to take multiple medications, have a simple regime of ingestion, that is once per day, and would target the primary symptoms. She noted the claimant had failed an adequate trial of a tricyclic antidepressant and mirtazapine with no symptomatic change. She noted the Agomelatine resulted in improvement in the claimant’s sleep and an associated improvement in his mood.
Dr Jungfer stated:
“Therefore, when considering his symptom complaints, his difficulty tolerating side effects to medication, the problems he had with regard to adherence to treatment instructions and what he considered to be his main concerns the agomelatine was a reasonable and appropriate treatment. Therefore, the treatment is reasonable and necessary.”
Dr Katherine McQuillan, psychiatrist
The claimant consulted Dr Katherine McQuillan, psychiatrist with the Northern Pain Centre on 30 May 2025.[28] She reported since the accident the claimant’s mood has progressively deteriorated with features of depression, anxiety and panic become pervasive. She reported the claimant was socially withdrawn and oftens feels overwhelmed. She noted hypervigilance, anxiety and panic near the accident site, and when travelling in a car and nightmares, two to three times a week. Dr McQuillan reported the claimant’s affect was restricted and mood congruent. He was occasionally close to tears. She diagnosed
post-traumatic stress disorder with depression which had arisen following the accident. She noted his physical injuries, chronic pain and neurological symptoms contributed to his poor mood state.[28] ALAD p 276
Other treating medical evidence
In a report dated 21 October 2021 Professor Paul Fagan, ENT surgeon reported:
“Despite repeated instruction I am not satisfied that a reliable audiogram has been obtained…Thresholds were wildly inconsistent…Although head injury can cause hearing loss of varying degree, there was no head injury in this case…Mr Nicolas did not have a head injury and I do not believe that a hearing loss of any significance can be caused by a whiplash injury.”[29]
[29] Claimant’s documents p 714
The claimant consulted Dr Derrick Soh, neurologist on 18 April 2019, 18 May 2019 and
4 July 2019 in respect of ongoing neck and shoulder pain.[30] He noted the MRI of the cervical spine showed moderate to severe foraminal stenosis with potential impingement of the left C6 nerve root. He considered his symptoms were a combination of left supraspinatus shoulder tear with the possibility of a C5/C6 left foraminal narrowing that may have been exacerbated by the accident.[30] Claimant’s documents p 131
The claimant consulted Professor Murrell, orthopaedic surgeon in relation to his left shoulder pain on 17 July 2019.[31] On 15 October 2019 Mr Nicolaou underwent an arthroscopic capsular release of the left shoulder under the care of Prof Murrell. The claimant subsequently developed right shoulder pain and on 9 February 2021 Mr Nicolaou underwent arthroscopy and rotator cuff repair of the right shoulder under the care of Prof Murrell.
[31] Claimant’s documents p 104
The claimant consulted Dr Justine Millar, ear nose and throat surgeon on 13 August 2019. In a report dated 2 December 2019 she reported the claimant had bilateral sensory neural hearing loss, worse in his left than his right.[32] She considered it was possible it was as a result of the accident.
[32] Claimant’s documents p 129
Mr Nicolaou saw Dr Shaun Watson, neurologist on 31 January 2020 in respect of the migraine headaches.[33] The history he obtained was that he was struck from the rear by a truck which threw his car into the gutter resulting in momentary loss of consciousness and immediate neck pain, left shoulder pain, headache and dizziness. He considered
Mr Nicolaou had suffered severe whiplash with migrainous symptoms.[33] Claimant’s documents p 133
On 29 March 2022 Dr Watson reported symptoms had worsened and the claimant was experiencing dizziness on a daily basis, particularly when he gets up from bed or sitting.[34] He has trouble on escalators, he cannot look at moving stairs and has to stand sideways. He reported he was taking Agomelatine which he thought helped him sleep. On 14 June 2022 Dr Watson referenced some kind of dizziness on a daily basis but relatively brief and relatively mild compared to earlier. [35] He reported the claimant asked if the Agomelatine 50mg could be causing head pressure. Dr Watson suggested it might be appropriate to change him to a tricyclic antidepressant or SNRI down the track which he noted can both be effective for post-traumatic vestibular migraine.
[34] Insurer’s documents p 260
[35] Insurer’s documents p 250
On 24 January 2025 Dr Watson reported the fall on 12 October 2024 related to spinning dizziness.[36] He reported no substantial benefits had been achieved in terms of vestibular migraine as part of post-concussion syndrome.
Medico-legal evidence
[36] ALAD p 263
Dr Kenneth Howison, ear, nose and throat surgeon
Dr Howison assessed the claimant and provided a report dated 10 January 2020.[37] He reported the claimant’s vehicle was struck from behind while he was stopped at traffic lights. No airbag deployed. The claimant did not lose consciousness and there is no evidence that he struck his forehead on the steering wheel or the dashboard. He sustained whiplash injury.
[37] Claimant’s documents p 82
Dr Howison reported the claimant was aware of loss of hearing more marked in the left ear and tinnitus more marked in the left ear.
Dr Howison concluded the loss of hearing in the right ear was from previous noise exposure, however, the loss of hearing in the left ear was as a result of the whiplash injury which can cause damage to the cochlear. He also concluded where the claimant did not have
pre-existing tinnitus that the tinnitus was a result of the extra loss of hearing in the left ear.
Dr Frank Machart, orthopaedic surgeon
Dr Machart assessed the claimant at the request of the insurer and provided a report dated
7 October 2020. Dr Machart reported at the time of the accident the claimant experienced pain in the neck and on the pectoral aspect of the left shoulder. He underwent arthroscopic surgical release for frozen shoulder. Dr Machart reported Mr Nicolaou protected the less useable left arm by using the right arm and developed pain and stiffness in the right shoulder about 12 months earlier.Dr Machart diagnosed a cervical soft tissue strain at the time of the accident. In relation to the left shoulder, he concluded whilst frozen shoulder can develop for no reason in the presence of a potential injury from the accident, the impact of the accident cannot be entirely discounted. He stated it was reasonable to conclude that the left shoulder adhesive capsulitis (frozen shoulder) was at least in part caused by the accident. He concluded the right shoulder injury was not causally related to the accident.
Dr Michael Hong, psychiatrist
Dr Hong assessed the claimant and provided a report dated 8 November 2021.[38] He noted no prior psychiatric difficulties. He reported the claimant developed depression and anxiety from the accident. He found a causal connection between the accident and the claimant’s psychological injury.
[38] Claimant’s documents p 71
Dr Hong diagnosed chronic post-traumatic stress disorder caused by the accident and assessed a 19 % WPI. He assessed class 2 for self-care and personal hygiene, class 3 for social and recreational activities, class 2 for travel, class 2 for social functioning, class 3 for concentration, persistence and pace and class 5 for adaptability.
Professor James Brew, neurologist
Professor Brew assessed the claimant at the request of his lawyers and provided a report dated 20 January 2022.[39] Professor Brew reported following the accident the claimant had had ongoing neck pain initially going into the left shoulder with involvement of the right shoulder over the subsequent months. He also complained of headaches, diminished hearing and bilateral ringing in the ears. He reported poor balance.
[39] Claimant’s documents p 85
Professor Brew diagnosed musculoskeletal neck pain, bilaterally frozen shoulders,
post-traumatic migraine, and vestibular migraine, all related to the accident. He also noted sensory neural hearing loss bilaterally. He also concluded that the rotator cuff tear on the left was a direct result of the accident.
Dr Christopher Canaris, psychiatrist
Dr Canaris assessed the claimant and provided a report dated 17 August 2022.[40] He concluded the claimant’s presentation was consistent with post-traumatic stress disorder. He also noted “evidence of a somatic symptom disorder which reflects the extent to which his physical difficulties have come to dominate his life, but which does not imply that they are without pathophysiological basis”.
[40] Insurer’s documents p 331
Dr Canaris reported the claimant functioned well prior to the accident which was inherently frightening and carried a risk of precipitating a psychological injury. He noted no pre-existing injuries.
Dr Canaris diagnosed post-traumatic stress disorder and assessed a 9% WPI. He assessed class 2 for self-care and personal hygiene, class 2 for social and recreational activities, class 2 for travel, class 2 for social functioning, class 3 for concentration, persistence and pace and class 5 for adaptability.
Dr Charles New, orthopaedic and spinal surgeon
Dr New assessed the claimant for his lawyers and provided a report dated 8 August 2022.[41] Dr New reported on impact Mr Nicolaou had pain in his neck and left shoulder and ringing in his ears. He reported the cervical spine was his main issue although he also had difficulties with recurrent headaches, vertigo and hearing loss. Dr New diagnosed cervical spondylosis and bilateral shoulder pain.
[41] Claimant’s documents p 98
Dr James Powell, orthopaedic surgeon
Dr Powell assessed the claimant for the insurer and provided a report dated 28 April 2022.[42]
[42] Insurer’s documents p 234
Dr Powell reported at the time of the accident Mr Nicolaou had pain in the neck and about the left shoulder region. Dr Powell reported the first mention of left shoulder pain was from
9 February 2019 referring to the left clavicle.Dr Powell reported Mr Nicolaou described ongoing pain in both shoulders and said he could not lift his left arm above shoulder height. He reported pins and needles in the left hand which came on halfway along the course of his troubles since the accident.
In relation to the right shoulder Dr Powell reported; “at the time of the accident Mr Nicolaou was aware of discomfort about the right shoulder but this increased in severity over subsequent months to become painful”. Dr Powell concluded the claimant’s ongoing disabilities relate to bilateral shoulder stiffness and pain which arises from his rotator cuff disease and post-operative state, none of which relate to the accident.
In relation to the cervical spine Dr Powell considered any soft tissue strain had resolved although he found the prognosis was guarded with respect to the multilevel degenerate disease which had been symptomatic prior to the accident.
Dr Ross Mellick, neurologist
Dr Mellick assessed the claimant at the request of the insurer and provided a report dated
27 September 2022.[43] Dr Mellick stated Mr Nicolaou stated his main problem was depression of mood. He also complained of neck pain and pain present in the left shoulder since the accident. He reported with the passage of time the pain on the left side has become less and he now reports more pain involving the right shoulder region. Dr Mellick diagnosed a chronic pain syndrome and associated impairment of function due to severe depression dating from the accident.[43] Insurer’s documents p 261
Luke McGrath, pharmacist
Mr McGrath undertook a medication review and provided a report dated 13 January 2023.[44] He reported Valdoxan (Agomelatine) has a high risk of causing liver impairment and may contribute to the dizziness experienced by the claimant. He concluded the medication was not reasonable and necessary and more suitable alternatives could be considered.
Medical Assessment Certificates
[44] Insurer’s documents p 280
Certificate of Medical Assessor Wing Chan
Medical Assessor Chan issued a certificate dated 29 September 2023 in which he certified the following injury caused by the accident gave rise to a WPI of 0%. He certified injuries to the left and right shoulder were not caused by the accident.
The certificate of Medical Assessor Chan was revoked on review.
Certificate of Review Panel in respect of certificate of Assessor Chan
A Review Panel comprising Medical Assessor Mohammed Assem, Medical Assessor Shane Moloney and Member Susan McTegg issued a certificate dated 16 May 2025 revoking the Certificate of Medical Assessor Chan dated 29 September 2023 and issuing a new certificate determining that the following injuries were caused by the motor accident and gave rise to a whole person impairment of 8%:
· injury to the cervical spine, and
· injury to the left shoulder.
The Review Panel found the injury to the right shoulder was not caused by the accident.
Certificate of Medical Assessor Cameron
In a certificate dated 4 February 2024 Medical Assessor Cameron certified the following treatment and care related to the injury caused by the accident and was reasonable and necessary:
· the payment of Deralin as recommended by Dr Shaun Watson, and
· the gastroscopy and colonoscopy recommended by Dr George Daskalopoulos.[45]
[45] Insurer’s documents p 663
Medical Assessor Cameron found that Mr Nicolaou sustained soft tissue injuries to multiple body parts, particularly to his cervical spine caused by the accident.
Medical Assessor Cameron certified the payment of Mobic as recommended by Professor George Murrell related to the injury caused by the accident but was not reasonable and necessary in the circumstances. He concluded that Mobic (Meloxicam) is a non-steroidal anti-inflammatory and should not be used in a person with gastrointestinal symptoms.
Certificate of Medical Assessor Brian Williams
In a certificate dated 9 July 2024 Medical Assessor Williams certified the following injuries caused by the accident give rise to a permanent impairment of 0%:
· ear, nose and through and related structures (hearing impairment (tinnitus without hearing loss), and equilibrium vestibular impairment).[46]
[46] Insurer’s documents p 670
This certificate is the subject of an application for review.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 13 December 2023 in support of the application for review.[47]
[47] Claimant’s documents p 4
The claimant submits Medical Assessor Baker erred in assessing class 2 for concentration, persistence and pace. The claimant submits the appropriate assessment for concentration, persistence and pace is class 3.
Notwithstanding the detailed history he obtained the claimant submits that Medical Assessor Baker relied on the following history to assess a class 2:
“The claimant was able to concentrate to follow television content for up to 30 minutes. He was less interested in news and following the developments of his adult children’s progress in Greece. The claimant could engage in following his English Premier League football team, Liverpool. He was less interested in the team’s performance and news than prior to the motor accident.”
The claimant submits that both Dr Canaris and Dr Hong agreed the appropriate assessment for the category of concentration, persistence and pace was class 3.
The claimant submits in dealing with Dr Hong’s assessment Medical Assessor Baker reported:
“I note that Dr Hong reported that the patient could not follow complex instructions and that he was concerned this was due to a physical brain injury and not solely due to the claimant’s psychological impairment of concentration, persistence and pace. For this reason, I do not concur with a Class 3. At the time of this assessment, the claimant reported he was unable to play his favourite instrument due to physical restrictions and pain. The pain reported was more significant to the claimant than has been recorded in this report.”
The claimant submits that the presence or otherwise of a physical issue is irrelevant and properly forms no part of any of the assessments made.
Insurer’s submissions
The insurer provided submissions dated 10 January 2024 in response to the application for review.[48] The insurer notes the claimant submits that Medical Assessor Baker ought to have assessed class 3 for concentration, persistence and pace.
[48] Insurer’s documents p 1
The insurer provides the following comparison of the Motor Accident Guidelines with the reasons of Medical Assessor Baker:
Table 6.15 of the Guidelines
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.’ 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.’
Medical Assessor Baker
Class 2: ‘The claimant was able to concentrate to follow television content for up to 30 minutes. He was less interested in news and following the developments of his adult children’s progress in Greece. The claimant could engage in following his English Premier League football team, Liverpool. He was less interested in the team’s performance and news than prior to the motor accident.’
The insurer submits the following histories recorded by Medical Assessor Baker were consistent with an assessment of class 2 for concentration, persistence and pace:
· Page 7 - ‘Poor concentration or difficulty making decisions. The claimant continued to suffer from poor concentration and difficulty making decisions from the date of onset of the depressive disorder he had suffered due to the motor accident’.
· Page 8 - ‘Problems with concentration. The claimant reported poor concentration and difficulty following television conversations. He had stopped reading in Greek and was not able to concentrate to read a news article’.
· Page 9 - ‘The claimant was orientated in time, place and person. His tearful affect was mood congruent with his depressed mood. He complained of not being able to make decisions and his concentration was poor. He stated that he had lost hope of future recovery. He stated he had depressive ruminations of worthlessness and hopelessness every day. He was unable to envisage his future or how he could be happy in his life again’.
· Page 9 - ‘The claimant did not report delusional ideas or psychotic symptoms. He did not report suicidal thoughts or plans. He reported he preferred to send his time isolated from his wife alone in his room.’
It is noted that Medical Assessor Baker did not concur with a class 3 where the claimant reported that he was unable to play his favourite musical instrument due to physical restrictions and pain. Further he noted that whilst Dr Hong assessed a class 3, he did not take into consideration his view that the claimant’s inability to follow complex instructions may have been due to physical brain injury and not solely due to a psychological impairment.
The insurer also notes that the assessment by Medical Assessor Baker was undertaken more than a year after Dr Canaris assessed the claimant and nearly two years after the assessment by Dr Hong.
MEDICAL EXAMINATION
The claimant attended the re-examination on 24 July 2025, accompanied by his wife. A Greek interpreter was provided who facilitated the assessment. The examination was conducted via MS Teams with Medical Assessors Rikard-Bell and Gupta.
Psychosocial history & pre-accident history
Mr Nicos Nicolaou is a 63-year-old man who resides with his wife of 33 years, who works full-time in a dental reception role. There are two adult children residing in Cyprus whom he last saw when they visited Australia in late 2024. Mr Nicolaou has been unable to work since the motor vehicle accident of 29 November 2018.
Past medical history
There is no history of serious illnesses, injuries or conditions. The current medication is Valdoxan 25 mg, propranolol 40 mg twice per day, Topiramate, Panadol and Allegron 100mg. There is no family history of psychiatric illnesses and no drug or alcohol issues.
Past psychiatric history
There is no history of anxiety, depression or need for treatment from mental health care providers.
Past forensic history
There is no history of motor vehicle accidents, Workers’ Compensation claims, insurance claims or legal issues.
History of symptoms and treatment following the accident
Mr Nicolaou was taken by ambulance to the hospital, where he remained overnight and there were scans of his neck and shoulders were undertaken. After the accident, Mr Nicolaou has received psychological treatment with Mena Candalepas for the past four years and
Dr Patricia Jungfer, psychiatrist, every two to three months. Currently, he sees Dr Katherine McGuiggan, psychiatrist. He was unable to return to pre-accident duties in construction.
Details of relevant injuries or conditions sustained since the accident
Since the accident, Mr Nicolaou has had arthroscopic surgery on both shoulders, with the left on 15 October 2019 and the right on 9 February 2021.
MENTAL STATE EXAMINATION
Mr Nicolaou presented as a pleasant man who was somewhat unkempt with a grey beard and short grey hair. He wore glasses and a warm top. He was quite distressed and found it difficult to cope throughout the interview. His speech was normal in tone and volume. There was no abnormality of perception. Mr Nicolaou’s affect was depressed with little reactivity. His cognitive function appeared normal, and his thoughts were logical. Mr Nicolaou was able to maintain reasonable focus throughout the interview.
Current symptoms
Mr Nicolaou stated there is significant pain in his right arm, rated at 70/100, with 100 being the worst pain. There is a tear in his tendon and neck pain on the left side, rated at 90/100. There was surgery to the left shoulder on 15 October 2019, with some improvement; however, there is pain rated at 50/100. There is pain on the right side, and he described restriction with movement. On lifting his arms forward on elevation, he could only elevate his right arm to the horizontal level but was able to lift the left arm high above his head.
Mr Nicolaou stated he has difficulty sleeping with initial insomnia and nightmares about car accidents and being hit by a car. He wakes up at 3 or 4am and finds it difficult to return to sleep. His appetite fluctuates and he has gained a little weight and will eat toast with cheese and honey for breakfast.
During the day, he potters around and occasionally he will listen to music. He no longer plays the vouki, a Greek guitar-type instrument. He has lost motivation and interest in music and pastimes. He feels depressed, dizzy and is no longer able to enjoy reading. He cannot concentrate or focus on the television for long periods.
Mr Nicolaou attends physiotherapy and psychologist appointments where either his wife will drive him, or he will take an Uber. He no longer has a driver’s licence; however, he drove for two years after the accident, then allowed his licence to lapse. Occasionally, he will make a meal for himself; however, his wife will usually cook. He does not shower regularly and needs prompting. Mr Nicolaou has weekly telephone contact with his children and they visited for two months in December 2024 and January 2025. Two years ago, he travelled to Cyprus with his sister as his mother was unwell and they stayed for six weeks.
Mr Nicolaou described a low mood with suicidal thoughts and said he went to a bridge once and considered jumping. He has not been admitted to the hospital with suicidal ideation. He feels anxious when near cars and he is constantly worried about pain in his neck.
Current functioning
Mr Nicolaou can manage his self-care at a minimal level. He cleans his teeth but does not like to shower and needs reminding and pushing by his wife. He is restricted physically due to pain and he does not feel motivated to wash and clean himself. Nevertheless, it was the Panel’s view that there is mild impairment of self-care and personal hygiene as he is maintaining his weight and can prepare simple meals if required.
In terms of social functioning, the relationship with his wife is strained and has been under a lot of pressure since the accident; however, their marriage is solid and they are supportive of each other, even though communication is restricted. Therefore, there is mild impairment of social functioning.
In terms of concentration, Mr Nicolaou is experiencing a lot of pain; therefore, he has lost motivation and interest in reading for more than a short period. In addition, he will often experience dizziness. In 2021, he attempted a three month English course, which was over four days per week, four hours per day, however, there was an accident when he fell down some stairs and he was unable to continue with the course. There is hypervigilance and he cannot focus, particularly if there is noise. Mr Nicolaou procrastinates and is quite forgetful, often forgetting what he is trying to read or listen to and he is unable to complete complex tasks. Therefore, there is moderate impairment of concentration, persistence and pace.
In terms of social and recreational activities, Mr Nicolaou is unable to maintain friendships. He will rarely go out on social outings and needs to be pushed by his wife. He will attend church and sit at the back if there is a Christening or other event; however, he does not involve himself and will leave as soon as possible. There is one friend who was his best man that he maintains contact with and who visits him at home; however, Mr Nicolaou will not interact in a social environment outside of the home. Therefore, on balance, there is moderate impairment of social and recreational activities.
In terms of adaptation, Mr Nicolaou made it clear he was unable to return to work after the accident due to pain in his shoulders and neck. He stated he would have been able to return to work if he had not been in so much pain. He said the dizziness, headaches and pain in his shoulders prevent him from working. He stated that had it not been for the dizziness, headaches and pain, he would be able to return to work, but perhaps not at the same level as previously. Therefore, on balance, it is the Panel’s view that there is mild impairment of adaptation as the reason for not being able to return to work is based on physical restrictions and pain, with a mild contribution from a psychological perspective.
In terms of travel, Mr Nicolaou indicated he was able to drive after the accident; however, after two years, he decided to relinquish his driver’s licence and he ceased driving. His wife will therefore drive him to most places and he can travel away from the local area alone in an Uber, although he will sit in the rear of the vehicle and often feels anxious. Therefore, as he can travel away from home independently for at least short distances, it is the Panel’s view that there is mild impairment of travel.
DIAGNOSIS
Mr Nicos Nicolaou is a 63-year-old man of Greek Cypriot origin who is one of seven children and previously worked as a chef. He spent some time in Australia, then returned to Cyprus and travelled back to Australia in 2016. In Australia, Mr Nicolaou worked in the construction industry from 2016 to 2018.
On 29 November 2018 Mr Nicolaou was involved in a serious motor vehicle accident when there was a rear-end collision and he was transported to hospital by ambulance. After the accident, Mr Nicolaou developed dizziness, pain in his shoulders, arms and neck and he required surgery on both shoulders. Following the subject motor vehicle accident, Mr Nicolaou developed post-traumatic stress disorder (309.81, F43.10), major depressive disorder, single episode, mild, with melancholic features (F32.0) and chronic pain. The criteria according to DSM-5-TR are outlined below:
1.Post-traumatic stress disorder
A. Exposure to actual or threatened death, serious injury, or sexual violence with:
1.Directly experiencing the traumatic event(s)
B. Intrusive symptoms with nightmares about car accidents and flashbacks
C. Avoidance behaviours, avoiding dealing with motor vehicle accidents and avoidance of situations perceived as dangerous
D. Persistent and exaggerated negative beliefs about oneself, others or the world
E. Marked alterations in arousal with hypervigilance
F. Duration of more than one month
G. Significant impairment of functioning in social, occupational or other important areas of functioning
H. Not due to substance use or other medical condition
2.Major depressive disorder
A. Symptoms over a 2-week period with depressed mood and loss of interest in pleasure with:
·Depressed mood most days
·Markedly diminished interest or pleasure in activities
·Increased weight
·Sleep disturbance
·Diminished ability to concentrate
·Recurrent suicidal ideation
B. Significant impairment of functioning in social, occupational or other important areas 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 is the Panel’s view that while Mr Nicolaou presented with prominent somatic symptoms, particularly chronic pain, there was an underlying basis for the pain symptoms; therefore, the criteria for somatic symptom disorder were not met.
CAUSATION
The Panel refers to the definition of causation set out in clauses 6.6 and 6.7 of the Guidelines and finds that the accident could have and, in fact, did cause the diagnosed psychiatric injury and the associated impairment given there is a direct temporal relationship between the accident and the onset of psychological symptoms.
Before the accident, Mr Nicolaou was functioning at a high level. He was employed full-time, maintained an active social life, regularly attended Church, and engaged in leisure activities such as listening to music and playing a musical instrument. Following the accident, there is a clear and consistent timeline indicating the onset of post-traumatic stress disorder, and persistent physical pain, which prevented him from working, leading to the development of major depression, both of which are directly related to the accident.
WHOLE PERSON IMPAIRMENT
Psychiatric Impairment Rating Scale
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
Psychiatric diagnoses
1. Posttraumatic Stress Disorder
2. Major Depressive Disorder
Psychiatric treatment description
Psychological counselling, psychiatric review and medication
Category
Class
Reason for Decision
1. Self-Care and Personal Hygiene
2
Mr Nicolaou can manage his self-care at a minimal level. He cleans his teeth but does not like to shower and needs reminding and pushing by his wife. He is restricted physically due to pain and he does not feel motivated to wash and clean himself. Nevertheless, it was the Panel’s view that there is mild impairment of self-care and personal hygiene where his wife works full time and Mr Nicolaou is able to care for himself including preparing simple meals during the day if required. It is also apparent that the claimant’s physical injuries including neck and shoulder pain, headaches and dizziness have contributed to his impairment in this category.
.
2. Social and Recreational Activities
3
In terms of social and recreational activities, Mr Nicolaou is unable to maintain friendships. He will rarely go out on social outings and needs to be pushed by his wife. He will attend Church and sit at the back if there is a Christening or other event; however, he does not involve himself and will leave as soon as possible. There is one friend who was his best man that he maintains contact with and who visits him at home; however, Mr Nicolaou will not interact in a social environment outside of the home. Therefore, on balance, there is moderate impairment of social and recreational activities.
3. Travel
2
In terms of travel, Mr Nicolaou indicated he was able to drive after the accident; however, after two years, he decided to relinquish his driver’s licence and he ceased driving. His wife will therefore drive him to most places and he can travel away from the local area alone in an Uber, although he will sit in the rear of the vehicle and often feels anxious. Therefore, as he can travel away from home independently for at least short distances, it is the Panel’s view that there is mild impairment of travel.
4. Social Functioning
2
In terms of social functioning, the relationship with his wife is strained and has been under a lot of pressure since the motor vehicle accident; however, their marriage is solid and they are supportive of each other, even though communication is restricted. Therefore, there is mild impairment of social functioning.
5. Concentration, Persistence and Pace
3
In terms of concentration, Mr Nicolaou is experiencing a lot of pain; therefore, he has lost motivation and interest in reading for more than a short period. In addition, he will often experience dizziness. In 2021, he attempted a 3-month English course, which was over 4 days per week, 4 hours per day; however, there was an accident when he fell down some stairs and he was unable to continue with the course. There is hypervigilance and he cannot focus, particularly if there is noise. Mr Nicolaou procrastinates and is quite forgetful, often forgetting what he is trying to read or listen to and he is unable to complete complex tasks. Therefore, there is moderate impairment of concentration, persistence and pace.
6. Adaptation
2
In terms of adaptation, Mr Nicolaou made it clear he was unable to return to work after the accident due to pain in his shoulders and neck. He stated he would have been able to return to work if he had not been in so much pain. He said the dizziness, headaches and pain in his shoulders prevent him from working. He stated that had it not been for the dizziness, headaches and pain, he would be able to return to work, but perhaps not at the same level as previously. Therefore, on balance, it is the Panel’s view that there is mild impairment of adaptation as the reason for not being able to return to work is based on physical restrictions and pain, with a mild contribution from a psychological perspective.
List classes in ascending order: 2,2,2,2,3,3
Median Class Value: 2
Aggregate Score: 14
% Whole Person Impairment: 7%
*%WPI = Percentage Whole Person Impairment
Apportionment – pre-existing/subsequent impairment
There is no apportionment for pre-existing psychological injuries.
Effects of treatment
There is no adjustment for treatment effect as the symptoms are persistent and ongoing.
Degree of permanent impairment caused by the motor accident is 7%
CONCLUSION
The Panel revokes the certificate of Medical Assessor John Baker dated
8 November 2023 and issues a new certificate determining that the following injuries were caused by the accident and give rise to a whole person impairment of 7%:· post-traumatic stress disorder; and
· major depressive disorder
The Panel with the consent of the parties affirms the certificate of Medical Assessor John Baker dated 8 November 2023 in finding the following treatment relates to the injury caused by the accident and is reasonable and necessary in the circumstances:
· Valdoxan (Agomelatine) 50mg at night.
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