Nou v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Nou v AAI Limited t/as GIO [2023] NSWPICMP 622
CLAIMANT:	Sina (Gina) Nou
INSURER:	AAI Limited trading as GIO
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Glen Smith
DATE OF DECISION:	29 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Barrett dated 14 March 2022; dispute about the claimants degree of permanent impairment; review of psychiatric condition of depression, chronic adjustment disorder with depressed mood; claimant involved in an accident on 4 May 2004 when she was a passenger in a car in a police emergency vehicle; claimant initially assessed in 2006 by MA Kaplan as not exceeding the whole person impairment (WPI) threshold but subsequently made an application for further assessment on the basis that her psychiatric condition had deteriorated; claimant has been undergoing psychological treatment for the last five years; claimant submitted that she has chronic unrelenting severe pain and disability; insurer argued that the claimant’s physical injuries were limited and if those psychiatric symptoms arise from physical injuries then these are not accident related; MA Barrett assessed 0% WPI; claimant was examined by the Panel; claimant gave a history of many traumatic events but with respect to her mental health, she did not seek treatment until approximately 10 years after the accident; claimant had no psychiatric diagnosis or treatment before the accident; Panel satisfied that notwithstanding the claimant not seeking treatment for 10 years following the accident, her mental disability came about by a combination of gradual chronic pain which had been deteriorating; Held – the claimant had developed an adjustment disorder with anxiety and depressive symptoms, an element of driving phobia in partial remission and a somatic symptom disorder and a WPI of 4%; the certificate of MA Barrett was revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the certificate of Medical Assessor Barrett dated 14 March 2022. 2. The Panel finds that as a result of the accident on 4 May 2004 the claimant has developed: (a) an adjustment disorder with anxiety and depressive symptoms; (b) an element of driving phobia in partial remission, and (c) a somatic symptom disorder. 3. The claimant has a whole person impairment of 4%.

STATEMENT OF REASONS

INTRODUCTION

This is an application by the claimant to review a certificate and reasons of Medical Assessor Barrett (the Medical Assessor) dated 14 March 2022.
The Medical Assessor found the following injuries caused by the motor accident give rise to a permanent impairment of 0%:
(a) somatic symptom disorder, and
(b) specific phobia, car travel, in partial remission.

Background

There is a dispute between the claimant and the insurer about:
(a) the degree of permanent impairment under s 58(1)(d) of the Motor Accidents Compensation Act 1999 (the Act).
The following injuries were referred by the Personal Injury Commission (Commission) for further assessment:
(a) psychiatric condition - psychological/psychiatric - depression, chronic adjustment disorder with depressed mood.

The accident

The accident occurred on 4 May 2004, over 19 years ago. The claimant was a front seat passenger in a car travelling towards the intersection of Woodville Road and Parramatta Road, Merrylands. A collision occurred with an Australian Federal Police (AFP) vehicle which had its siren and lights on, proceeding through the intersection. The car in which the claimant was travelling collided with the offside rear of the insured AFP car.

Documentation

The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.

Claimant’s submissions for review

The claimant submits that the Medical Assessor erred in her assessment of the claimant’s psychological injuries as she:
(a) failed to adequately consider all the relevant material, and
(b) failed to respond to substantial and clearly articulated arguments advanced by the claimant.
The claimant has provided submissions of 13 May 2020, 26 October 2020 and 21 April 2022. The claimant submits that had the Medical Assessor properly considered and engaged with at least the medico-legal report of Dr Teoh dated 25 November 2017, the Medical Assessor would have determined a whole person impairment (WPI) rating for her accident-related somatic symptom disorder and specific car travel phobia which is in partial remission.
In both the claimant’s submissions dated 13 May 2020 and 26 October 2020, the claimant submitted arguments that she was psychiatrically injured in the subject accident and in support, referenced all the extensive and relevant medical evidence establishing this.
The claimant submits that had the Medical Assessor properly considered and responded to substantial and clearly articulated arguments advanced by the claimant, she would have found an assessable WPI rating for the claimant’s accident-related psychological injuries.

Claimant’s submissions for whole person impairment assessment

Medical Assessor Kaplan examined the claimant on 26 July 2006 in relation to her psychological injuries arising out of the subject accident. Medical Assessor Kaplan stated that the claimant " ...does not have a psychiatric disorder from the accident". As such, Medical Assessor Kaplan found that there was no injury to assess for impairment.
The claimant said that since the claimant's assessment with Medical Assessor Burke on
29 May 2006 and Medical Assessor Kaplan on 26 July 2006 she has been subsequently assessed by Dr Teoh, on 22 November 2017, in addition to Dr Patrick on 18 December 2017 and 11 September 2018. Dr Teoh's findings arising from that examination are outlined in his report dated 25 November 2017. Dr Patrick's findings are outlined in his reports dated
11 and 13 September 2018 (these findings are not discussed at length as they go to a medico legal report relating to the claimant’s physical injuries).
The claimant had submitted that the assessments and reports of Drs Teoh and Patrick constituted additional relevant information and evidence of deterioration of the claimant's injuries that were capable of having a material effect on the outcome of the previous assessments.
Dr Teoh, following his assessment of the claimant, formed the view that she suffers from a chronic adjustment disorder with depressed mood. Dr Patrick, following his assessment of the claimant, formed the view that she sustained injuries to her head, neck, back, both shoulders and left arm in the subject accident.
For the purposes of reassessment by the Medical Service, it was submitted that Medical Assessors Burke and Kaplan did not have the benefit of the findings of Drs Teoh and Patrick when they assessed the claimant.
The claimant submits that she has continued to suffer from significant physical and psychological symptoms as a result of the subject accident. Further, she says that these symptoms have worsened over time and she has required to undergo further investigations and treatment since she was last assessed by Medical Assessors Kaplan and Burke. It was submitted that, based upon the new additional evidence, the claimant's condition had worsened since her previous assessments with Medical Assessors Kaplan and Burke in 2006.
It is also submitted that the claimant has now been medically assessed as suffering from separate and/or additional psychological and physical conditions as a result of the subject accident which were not previously assessed and included in the prior assessments undertaken by Medical Assessors Burke and Kaplan in their certificates of 29 May 2006 and 26 July 2006 respectively. In addition, it is submitted that the severity of the claimant's physical and psychological conditions previously assessed have deteriorated since the previous assessments took place.

Insurer’s submissions

The insurer noted the claimant’s submission that the Medical Assessor’s decision regarding her WPI was incorrect in a material respect and ought to be referred to the Medical Review Panel. The insurer submits that the claimant’s assertions are not correct and that the medical assessment itself was not incorrect. Further, the insurer says that if there were any inadequacies or errors in the assessment they were not material.
The insurer referred to the claimant stating at paragraphs 7 to 9 inclusive of her submissions that the Medical Assessor failed to consider the reports of psychologist, Janet Bortolussi and the medico legal report of Dr Teoh dated 25 November 2017. The insurer noted that the claimant asserted that failures to consider these reports constituted material errors by the Medical Assessor.
In response to this, the insurer says that the Medical Assessor provided an extensive and detailed Certificate, detailing the history of the claimant’s psychiatric symptoms prior to and following the subject accident in great length. The insurer says that the Medical Assessor provided a detailed clinical examination of the claimant’s mental state and aptly assessed the claimant’s current functioning in accordance with the Motor Accident Permanent Impairment Guidelines Psychiatric Impairment Rating Scale (PIRS).
The insurer submits that there is no reason or cause to believe the medical assessment was performed in an erroneous manner.
The insurer says that the Medical Assessor considered and acknowledged the content of the reports by Ms Bortolussi and Dr Teoh, and addressed their conclusions at page 11, paragraph 6 of her report where she said the reports were “indicating significant psychiatric impairment”. From this, the insurer submits that the Medical Assessor adequately took the conclusions from those reports into account.
The insurer submits that in any event, the contents of Ms Bortolussi’s and Dr Teoh’s report add nothing to the already detailed medical assessment by the Medical Assessor and therefore the omission of these reports would not alter the assessment outcome of the assessment.
The insurer submits that as a result of the in-depth medical assessment of the Medical Assessor and consideration of all relevant documentation available to her at the time, and her understanding of the conclusions reached by Ms Bortolussi and Dr Teoh, a clear assessment and diagnosis of somatic symptom disorder and specific phobia of car travel (in partial remission) was made. The insurer says that there is no reason to believe the diagnosis and subsequent impairment rating is erroneous.
By way of a concluding submission, the insurer says that there is no error in the Certificate and Reasons from the Medical Assessor. The insurer submits that the Medical Assessor has appropriately considered the findings on examination, reviewed all necessary documentation and used her medical expertise to assess the claimant.
Finally, the insurer says that if the assessment of the Medical Assessor is accepted to be erroneous, which the insurer does not concede, then additional review of the reports by
Ms Bortolussi and Dr Teoh would have added nothing to the assessment process and therefore would not materially affect the WPI assessment.
The insurer has dealt with the delay in this matter proceeding since the accident in 2004 and the intervening medical evidence of the claimant. By letter dated 18 February 2009, the claimant’s solicitors informed the insurer that they held no instructions to act for the claimant.
The insurer closed its claim file on 19 February 2009 as there had been no contact by the claimant with her solicitors nor the insurer.
By letter dated 6 July 2009, the claimant’s solicitors confirmed that they held no instructions to act for the claimant.
The insurer recounted that the claimant took no further steps to prosecute the claim until
24 January 2018 when she served a report of Dr Teoh dated 25 November 2017 and requested that the insurer concede that her injuries resulted in a WPI exceeding 10%.
The insurer says that as the Medical Service had already made a binding assessment of WPI, the insurer denied that the claimant’s injuries gave rise to a WPI exceeding 10%.
The insurer says that the claimant then took no further steps until 17 February 2020 when she served two reports from Dr Patrick dated 11 and 13 September 2018 and again requested that the insurer concede that her injuries, this time physical injuries, gave rise to a WPI exceeding 10%.
The claimant then sought a further assessment based on the medico-legal reports of
Dr Teoh and Dr Patrick.
The insurer says that it is not known what, if any, medical records were provided to Dr Teoh. The insurer says that it is apparent from his opinion that he had little or no regard for any medical records and he has based his opinion on the claimant’s subjective report to him.
The insurer says that the claimant reported to Dr Teoh that she had seen a pain specialist at the Pain Clinic at Liverpool but there is no evidence that this in fact occurred nor the outcome of that treatment, if in fact treatment was provided. The insurer says that Dr Teoh did not seek information from the claimant regarding the nature of the treatment nor its effectiveness.
The insurer says that Dr Teoh took a history that the claimant had “managed to continue working in the community part-time for two days per week until 2015” but failed to ascertain that at the time of the accident the claimant was not working and did not inquire of the claimant the reasons why she ceased working in 2015.
The insurer submits that Dr Teoh appears to have proceeded on a misunderstanding that the claimant stopped working for reasons related to the subject accident and the claimant has not taken any steps to provide any information about the reason she ceased work in 2015.
The insurer says that Dr Teoh offered no explanation for finding that the claimant suffered a psychiatric condition caused by the motor accident where Medical Assessor Kaplan found 11 years earlier that there was no evidence of a psychiatric condition caused by the accident.
The insurer submits that the diagnosis provided by Dr Teoh is dependent on an acceptance that the claimant suffered from chronic pain and physical disability as a result of the accident but there was no objective, corroborative evidence of ongoing complaints and treatment for any physical injuries available to Dr Teoh.
Regarding physical injuries, Medical Assessor Cameron concluded that the accident caused soft tissue injuries to the cervical and lumbar spine. He concluded that the injuries at the cervical and lumbar spinal regions were resolved, did not yield impairment and did not give rise to functional deficits.
Medical Assessor Cameron also concluded that the other physical injuries referred for assessment were not accident related. He concluded that alleged injuries to the left arm, right shoulder, left shoulder, thoracic spine and head were not caused by the accident.
Medical Assessor Cameron further concluded that the claimant has chronic pain syndrome, however, he said that this was not related to her injuries sustained in the motor accident.
The insurer referred to the claimant’s treating general practitioner Dr Tan, reporting on
13 January 2017, 29 March 2017, 11 July 2017, 13 July 2017, 9 August 2017,
24 November 2017 and 9 May 2019 that the claimant suffered from ongoing depression and chronic pain. He attributed the psychiatric symptoms in part to physical symptoms. Regarding other causes of psychiatric symptoms, the insurer says that Dr Tan reported on 13 January 2017 that “her chronic pain and marital history are both precipitating and perpetuating factors” to her psychiatric symptoms.
The insurer also noted that the claimant’s treating psychologist Ms Bortolussi reported on
31 January 2017 that the claimant’s severe depression was “compounded by chronic, unrelenting pain” and again on 2 February 2017, reporting “the major feature associated with her widespread musculoskeletal pain was anxiety, depression and sleep disturbance.”
Ms Bortolussi reported on 19 October 2017 that the claimant’s psychiatric symptoms were “associated with chronic, unrelenting, severe pain and disability”.
The insurer says that the evidence demonstrates that the claimant’s psychiatric symptoms are derived in part or full, from physical disabilities.
The insurer says that the only accident-related physical injuries are resolved, cause no impairment, and yield normal examination findings.
The insurer says that it cannot be concluded that physical injuries which have resolved, cause no disabilities and are normal on examination are the causes of psychiatric complaints.
The insurer submits that, if the claimant’s psychiatric symptoms are causally linked to physical injuries, those psychiatric symptoms must arise from physical injuries and disabilities that Medical Assessor Cameron concluded are not accident related.
The insurer submits that because the underpinning physical disabilities are not accident related, the derived psychiatric complaints must also be not accident related.
The insurer says that the evidence and the existing Commission certification demonstrates that any psychiatric symptoms that are causally related to physical disabilities are not accident related.
The insurer submits that it would not be permissible for a psychiatric assessment to adopt assumptions that contradict a certificate issued in relation to a physical assessment.
The insurer says that Ms Bortolussi reported on 3 March 2017 that the claimant was “struggling financially” and on 16 March 2017 that “there was also history of complex trauma, including abuse perpetrated by her second husband.”
The insurer submits that on 6 October 2017, following the sale of her home and proposed relocation to Adelaide with her children, the claimant was assessed by Ms Bortolussi as being “high risk of self harm and the uncertainty as regards her future plans contributes towards her distress”.
The insurer noted that Ms Bortolussi reported on 19 October 2017 that;
“Ensuing financial difficulties led to the repossession and sale of her home as she could not meet the mortgage payments, despite obtaining loans from members of her family. Her mother also passed away, adding to her stress and despair.”
The insurer says that Ms Bortolussi further reported on 15 December 2017 the claimant had
a “…history of complex personal trauma as well as, including an extremely abusive marriage.”
The insurer noted that on 8 March 2018, Ms Bortolussi recorded a “high risk of self-harm as well as PTSD and a history of domestic violence.”
Additionally, on 26 July 2018, Ms Bortolussi reported “home situation has deteriorated in that
her 22 year old son with whom she lives is experiencing psychological problems. The main
stressors concern financial and psychological cost of being the main carer.”
Ms Bortolussi reported 4 September 2018 that “The mortgage, formally [sic] covered by Sina’s son John and her ex-partner, can no longer be paid…”
The insurer says that evidence from treating practitioners demonstrated that the claimant’s psychiatric condition was linked to external stressors such as financial difficulties, re-possession of her home, domestic abuse, marital breakdown, and illness in her children, which are all not related to the motor accident.
The insurer says that, if the psychiatric symptoms are related to external stressors that have no relationship to the accident, then the claimant’s psychiatric impairment cannot be accident related.

In conclusion, the insurer says that there are no accident-related physical injuries that can give rise to psychiatric symptoms.
The insurer said that there are physical disabilities that are not related to the accident that can give rise to psychiatric symptoms.

Medical evidence

Medical Assessor Burke provided a certificate of 29 May 2006. The injuries assessed were a neck strain and a back strain to which he assessed 0% WPI.
A psychiatric assessment dated 25 November 2017 was provided by Dr Teoh for the claimant. He assessed the PIRS as follows:

Category	Class	Reason for Decision
Self Care and Personal		She has been lacking motivation to care for herself She requires help from family and friends.
Hygiene	2
Social and Recreational		She reported significant loss of interest in her usual activities and social isolation. She reported that she has lost her confidence. She has been preoccupied with negative thoughts. She said that her condition has not improved.
Activities	3
Travel	2	She is able to travel on her own with some apprehension

Social Functioning	3	She has a strained relationship due to irritability and lacking communication
Concentration, Persistence and Pace	3	She has poor concentration and persistent preoccupation with negative thoughts. She admitted to fleeing suicidal thoughts and a sense of hopelessness. She has poor concentration.
Employability	3	She is fit for suitable duties. She is partially incapacitated for work. She would have difficulty doing work that would require intense concentration or that would aggravate her physical pain. She has lost her confidence. She has been preoccupied with a sense of hopelessness.

There was a median class value of 3 with an aggregate score of 16 and a WPI assessment of 17%.
Dr Dandie, neurosurgeon, provided a report of 11 June 2004. He said the cause for the claimant’s ongoing symptoms was not clear at that time. On 10 September 2004 he said that he had not been able to elucidate a cause for her symptoms.
Dr Fung provided a report dated 17 January 2006. He found no evidence on clinical review of any permanent physical disability that should prevent the claimant from returning to full physical duties.
Medical Assessor Kaplan provided a report of 26 July 2006. He said that the immediate trigger appeared to have been the subject accident, where the contemporaneous records indicated the development of conversion symptoms, and medically unexplained paralysis, developing immediately after the accident. Therefore, he considered that the somatic symptom disorder was triggered by the subject accident, in a woman with pre-existing risk factors.
Clinical notes of various practitioners have also been provided by the claimant and considered by the Panel.
A report of Dr Patrick has been provided however this goes to the claimant’s physical injuries. Similarly, a certificate of Medical Assessor Burke goes to the claimant’s physical incapacities.
There is an assessment and certificate of Medical Assessor Cameron dated
18 April 2021 regarding the claimant’s physical disabilities. He recorded “Ms Nou said that she was psychologically distressed and had considered suicide”. She was upset emotionally and often was distressed and feeling that she did not have a future.
On examination, he wrote:
“she was distressed by pain and also emotionally distressed. Ms Nou sustained soft tissue injuries to the cervical and lumbar spinal region. There is no evidence that she sustained a head injury or significant injuries to other parts of her body.
Ms Nou has a chronic pain syndrome that is clearly indicated by the large number of consultations with a variety of medical practitioners over a very long period. There is no evidence as suggested by Dr Patrick that Ms Nou has had ongoing problems that are specifically related to her motor vehicle crash injuries.”
Medical Assessor Cameron wrote that the accident-related soft tissue injuries to the cervical and lumbar spine would not medically, credibly, be causing impairment at this time and that there were new injuries caused by the accident at this time. He assessed 0% WPI.
Certificate of Medical Assessor Barrett dated 28 March 2022. The Medical Assessor found criteria for a somatic symptom disorder. She said the claimant fulfilled criteria A as she had multiple somatic symptoms, which were distressing and disrupting her life, including pain (in multiple sites, as well as headache), tremor, gait disturbance, vision and hearing disturbance, and persisting paraesthesia.
The Medical Assessor said that the claimant also fulfilled criteria B, excessive thoughts (a preoccupation with the pain), feelings (noting her depressed mood, distress, anger and frustration, loss of enjoyment and associated suicidal ideation), and behaviours (avoidance, loss of interest, comfort eating and some breaking of plates in frustration) related to the somatic symptoms or associated health concerns, with disproportionate and persistent thoughts about the seriousness of symptoms, persistently high level of anxiety about health or symptoms, and excessive time and energy devoted to these symptoms or health concerns.
The Medical Assessor went on to say that the claimant would fulfil the specification of “persistent” somatic symptom disorder noting “a persistent cause is characterised by severe symptoms, marked impairment and long duration of more than six months”.
The Medical Assessor found that the claimant would also meet criteria for specific phobia, car travel, noting she reported significant symptoms of anxiety, “scared” and feels “frightened” when she travels as a passenger in the car or when she drives. The Medical Assessor however, considered this was in partial remission as she does not avoid travelling as a passenger and occasionally drives when she has to, but does not drive long distances or unless necessary.
Regarding the diagnosis, of somatic symptom disorder, the Medical Assessor discussed that the exact cause of somatic symptom disorder is unknown but it is thought that the causative factors include genetic factors, biological factors, personality and temperament traits and risk factors, including a history of stressful life events. She noted a history of childhood experiences of her father being killed in the war when she was just 12-years-old, a period of four years of separation from her mother when her mother was captured, exposure to the stress of the dangerous journey to flee Pol Pot’s regime, a further three years of trauma and threat as a refugee in a refugee camp in Thailand, and then significant domestic violence and witnessing violence against her children in her 10 year marriage. However, according to the Medical Assessor, the immediate trigger appeared to have been the subject accident, where the contemporaneous records indicated the development of conversion symptoms, a medically unexplained paralysis, developing immediately after the accident. Because of this, the Medical Assessor considered that the somatic symptom disorder was triggered by the subject accident, in a woman with pre-existing risk factors.
Regarding the diagnosis of specific phobia of car travel, in partial remission, the Medical Assessor discussed that the claimant was able to drive a car without difficulty prior to the subject accident and had no previous motor accidents. The Medical Assessor noted that the claimant stopped driving for a period after the accident, indicating a temporal relationship between the onset of her condition and the accident. It was further noted that the claimant’s symptoms of anxiety when travelling as a passenger or driving, are particularly triggered by circumstances similar to those of the accident, such as if a car is travelling very fast towards her.
The Medical Assessor considered that the accident as described, including the car spinning, would have been frightening and a plausible trigger for a phobia, particularly in a woman with some increased vulnerability due to her previous exposure to traumatic events.
Because of this, the Medical Assessor considered that the subject accident was the trigger of specific phobia of car travel in a woman with some pre-existing vulnerability due to her previous exposure to trauma.
The Medical Assessor provided a PIRS assessment as follows:
Psychiatric Impairment Rating Scale

Psychiatric diagnoses	1. Somatic symptom disorder.	2. Specific phobia, car travel, in partial remission.
Psychiatric diagnoses	3.	4.
Psychiatric treatment description	Duloxetine 60 mg daily, previous six months Liverpool Hospital Pain Clinic, approximately one year Adelaide Hospital Pain Clinic, previous regular psychological treatment between 2017 and 2020, current psychological treatment, once a month, since early 2021.

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	1	Ms Nou reports physical restrictions to her engagement in performing household chores. She denies a loss of motivation for performing chores and states that if her pain resolved she would resume them and she expresses frustration that she cannot perform these tasks. She performs some tasks that are within her physical restrictions, such as hanging the clothes, and she continues to shower and wash her hair at the same frequency as she did prior to the accident. Therefore, with the exclusion of the impairments due to the physical condition and pain in accordance with Guidelines 1.214 and 1.215, there is no impairment.
2. Social and Recreational Activities	1	She is unable to engage in social activities as a consequence of her experience of pain and other somatic symptoms and the impact of these
symptoms on her enjoyment. If she did not experience pain, she would return to these activities, stating, “I want to do everything but I can’t do”, “I want to see people”. Therefore when the effects of the physical condition and pain are excluded under Guidelines 1.214 and 1.215, there is no impairment.
3. Travel	2	Excluding the effects of pain and somatic symptoms under Guidelines 1.214 and 1.215, she experiences anxiety when driving and when travelling as a passenger, which in the past caused avoidance of driving, but which now causes avoidance of any unnecessary driving or driving outside of the local or familiar area, consistent with a mild impairment.
4. Social Functioning	1	She reports a loss of interest in forming a new relationship because of her experiences of pain and somatic symptoms stating, “I’m not like before. I’m sick”. She has lost contact with friends because of her disengagement from social activities as a consequence of her experience of pain and other somatic symptoms. She has maintained relationship with her sister and children who are supportive. Under Guidelines 1.214 and 1.215, when the effects of the somatic symptoms and pain are excluded, there is no impairment.
5. Concentration, Persistence and Pace	1	She reports that her concentration is impacted by physical symptoms and that her pain impacts her interest in reading or watching or enjoying TV, “because I’m noisy, I’m sick”. She was noted to be able to adequately concentrate for the duration of the assessment. Noting Guidelines 1.214 and 1.215, when the effects of the experience of pain and somatic symptoms are excluded, there is no impairment.
6. Adaptation	1	She was able to complete TAFE courses between 2010 and 2013 but could not continue because, “So much pain”, “So much stress”. She then did some part-time work up to 2016, two hours a week as an interpreter, but could not work more hours because
of “too much pain” which she stated caused her to be “angry”. She stated if there was not so pain, she would return to work stating, “I miss my work”. Thus, when the effects of pain and somatic symptoms are excluded under Guidelines 1.214 and 1.215, there would be no impairment.
List classes in ascending order: 1, 1, 1, 1, 1, 2
Median Class Value: 1
Aggregate Score: 7
% Whole Person Impairment: 0%

The Medical Assessor assessed 0% WPI.
The Panel notes that there were no reports from Ms Joy McIntyre who has treated the claimant since Ms Bortolussi retired about 5 years ago. Ms Bortolussi provided 5 reports between 15 May 2017 and 4 September 2018. However, in the 5 years of treatment from Ms McIntyre since 2018 no treating reports or records have been provided by the claimant.

Panel medical examination

The claimant was examined by Medical Assessor Hong and Medical Assessor Smith. Their report and findings follow.
1.   Who attended the assessment
Video assessment.
Drs Hong and Smith were in their Sydney offices. Ms Nou was at home and her god sister and niece were also at home in another room. Ms Y Hourng Kov was the interpreter.
History
2.   Psychosocial history and pre-accident history
In terms of developmental history, Ms Nou was born in Cambodia and came to Australia in 1993. She reported that she had a happy life and everything was normal before 1975. She stated she was an only child and they were not poor. In 1975 her father was killed. She does not know who killed him and said that he was in the Army and was a General with four stripes. She started work as a child and they would have no food at times. In 1979, she ran away to Thailand for a better life and later was accepted to come to Australia, and said that she is very grateful.
In terms of general medical history, she said she has consulted different physicians over time for various symptoms, and confirmed that she does not have a cardiac or respiratory disease.
In terms of general history, she does not have drug or alcohol problems. She is not aware of a family history of mental illness and does not have a forensic history.
In terms of relationship history, she said her first husband was “evil” and violent, and had stalked her. She worked seven days a week, but he did not work and had a gambling problem. They had four children together.
After that relationship ended, she met a man in 1994 who was a good man and he helped support her children. They first separated in 1996, and over time they have separated many times. She noted that he was not violent, however, he had a gambling problem and was not faithful, and because he cheated on her, she stated they did not stay together. She went on to say that one and a half months before the accident they were back together briefly, but have not been together since.
The Panel asked Ms Nou whether she wants treatment in relation to her early life trauma or trauma related to her first husband, and she said these events were not important to her because she was able to work. But after the accident, she could not do anything and could not work.
In terms of education in Australia, Ms Nou studied English and then Certificates 2, 3 and 4 in Community Service, and when the accident happened she was studying a Diploma in Community Services, but could not study after the accident.
She worked in factories and then started doing community support work. Some roles were paid and some were not. She said she did this for about three years and at the most, she did five hours a week. The Panel asked her why she did not work more hours and she said because she was not qualified and so they could not give her more hours.
3.   History of the motor accident
On 4 May 2004, Ms Nou recalled a friend asked her to go and see a specialist with her and to help with interpreting. Her friend was driving and she was a passenger, and she remembered they stopped at a traffic light and then had a green light. However, there was a car that came and collided with their car, and her car spun. Her friend was yelling. Ms Nou remembered there was something in her eyes and she had blurred vision. Her friend's foot was still on the accelerator and she reached down and pulled her foot off the pedal. Her chest hit the driving gear and her body was also struck. Their car then hit the kerb. She remembered asking her friend whether she was okay as her friend was feeling dizzy.
Ms Nou could not move and she had a sore neck. She was admitted to Westmead Hospital and stayed for four nights. She remembered that even when she left the hospital, she was having headaches, back and right shoulder pain. She said the pain became worse over time. Her low back pain and right leg pain are particularly severe now, and she said that if she moves her neck quickly, it would lock up for a few days - when she turns she has to turn her whole body and not her neck when that happens.
Ms Nou said her physical health has not improved over time, and she has pain every day now. She spoke about other physical problems. For example, she has to wear gloves whether it is summer or winter, and when she touches metal her hands hurt, and she attributes this to the injury that she sustained in the accident. Ms Nou said that over time both arms have become affected, on a cloudy day she has to wear a battery-heated vest to keep herself warm - she said that she has pain in her bones, affecting her back and neck, and that is why she has to keep warm, to alleviate the pain symptoms.
4.   History of symptoms and treatment following the motor accident
The Panel asked Ms Nou about the first sign of psychological difficulty. She responded that she remembered asking her doctor about her physical injuries and why when she walked, she pulled to one side, and the doctor told her she would be okay after about one year, however, she was no better after one year. She said that over time she could not do anything; she had many plans of looking after the children as they grew up and going to work, but she could not return to work due to severe pain and this makes her upset, and that is why she has psychological difficulties sometime after the subject accident. She said she feels sorry for herself and she does not want to go out. If the pain is better, Ms Nou said she wants to go out and enjoy life, she wants to work and be able to support herself and not be on Centrelink payments. She said she struggled psychologically but did not seek help for a long time.
About 10 years after the accident, Ms Nou said she had many scans by that point and then saw an IME, who told her that she looked well and that she "lied" and she was "not sick". She said the comments really hurt her and then she wanted to kill herself. After that, she was referred to a psychologist. The first clinician she consulted was Janet Bortolussi, for two or three years and the last time maybe four or five years ago when she retired. Ms Nou then started seeing Joy Macintyre, her current psychologist. Her psychologist asked her to do little things a step at a time, but she said she had pain and so she could not do it. She said she feels better because her psychologist understands her pain and she is validated.
5.   Details of any relevant injuries or conditions sustained since the motor accident

Ms Nou has not sustained other psychological injuries.

6. Current symptoms
Ms Nou said she was normally a strong woman and now she is like a 90-year-old and she cannot do things. She struggles to stand up or to sit for long, and struggles to walk. She said she wanted to go and see people in the community but she could not do it, due to mobility problems. If she chops onions her shoulder will be painful all night. She said she likes to decorate outside in the garden, spend time in the yard on a sunny day and get vitamin D, and pull the grass and weeds, but this causes pain and so she does not do it. She stated nobody understands her and nobody can see the pain she is experiencing, because they say the scans are normal and so they do not believe her.
She reported having depressed variable mood, which changes with her pain symptoms.
She has reduced enjoyment and motivation.
She described having reduced concentration and memory overall, and sometimes misplaces things at home.
She has fleeting suicidal ideation, for example to jump to her death but she has not acted on these thoughts.

She was 63kg before the subject accident, and gained weight gradually and is now 70kg - she thinks she gained 1kg in 2023.
She reported having sleep problems. She uses 4 pillows and loses feelings in her legs when she sleeps. She does not have nightmares.
She thinks about the subject accident and does not describe symptoms consistent with flashbacks.
She worries about her physical injuries and pain.
She has been irritable. She said she does not like people talking as they ask too many questions, and she has withdrawn from many of her previous friends.
7. Current and proposed treatment

s Nou is currently taking:

·   Duloxetine 60 mg, around 5 years
·   Tramal
·   Norspan patch, now 15 mg weekly
She consults Joy McIntyre, psychologist.
There are no proposed treatments.

Clinical Examination

8. Mental State examination
Ms Nou wore a heated vest and fingerless gloves and was bespectacled. There was no psychomotor slowing or abnormal movements. She maintained certain positions and shifted her posture to accommodate her pain during the assessment. She was mildly restricted in her affect range and reactivity. She coughed and stated she had flu symptoms. She had long dark coloured hair, which was tied back. She spoke spontaneously and readily, sometimes in English. She gave long answers and was talkative. She was not thought disordered. She maintained a normal speed and pace. No overt cognitive impairment was observed.
9. Current functioning
Ms Nou is 60 years old and lives on her own in Adelaide. She has six adult children living in Melbourne and Sydney.
She has been avoiding driving and said she will catch the bus, walk or her god sister will drive her, because she is scared to drive herself for long. She still drives short distances to see the doctor and to the shops.
She said she would eat cakes and drink hot water to help her ignore her pain.
She said that sometimes she cuts off contact with her children because she does not want them to see her in pain.
She said that “the world is noisy” and she does not want to go out and just wants some quiet. She goes to the shops to buy what she needs, cakes, soft drinks and food, and stated it is only 10-15 minutes from home and sometimes she has the groceries delivered to her home.
In terms of enjoyable activities, Ms Nou said that she normally liked to work, help people and talk to people. There were no other specific hobbies.
Her children live far away and they visit every two months. She said her six children are good people who work hard and are independent now.
Locally, she said she has two friends and her god sister, and aside from these three families, she does not have much contact with other people. She sees them every weekend.
She used to read the newspaper but now does not read much and said that she does not want to see the news and read about the bad things that happen in the world.
In terms of employment history after the accident, Ms Nou said she was an interpreter in the community and did community service and worked in the kitchen, and worked 20 hours per week until 2016. She stated the Government terminated the program and everybody was out of a job. She said she cannot do work now and she said she wants a support person because she is always in pain.
10.Comments of consistency

There was no inconsistency identified in her reported symptoms and functioning, in relation to her psychiatric diagnosis, including somatic symptom disorder.

Review of Documentation

11. Summary of relevant documentation
The applicant's submission noted report from Dr Ben Teoh, IME psychiatrist, 25/11/17, as evidence of deterioration after Dr Kaplan's Certificate. Dr WGD Patrick’s report was also discussed in relation to Ms Nou's physical injuries.
Dr Ben Teoh IME psychiatrist reported on 25/11/17, Ms Nou last worked 2015. She has persisting pain symptoms and attended pain clinic in Liverpool. She is socially isolated, has poor concentration, on Duloxetine and Panadeine forte, lyrica and tramal, and has fleeting suicidal ideation. A brief background history noted divorced 1992, ex-husband with gambling problem and was violent, her father was killed in the army in Cambodia. He diagnosed Adjustment disorder and she is partially incapacitated for work.
Dr Teoh provided a PIRS 232 333 (assessment on 22/11/17), there was no further adjustment to the WPI rating, the final WPI was 17%.
Comment:
He rated social and recreational activities and social functioning as 3, and his explanations for those categories/scales are also consistent with 2, which is the Panel's rating. The Panel also noted she moved to Adelaide and is geographically far away from her usual friendships, she is close to her local friends and from a psychological perspective, her described symptoms impacting on her general social functioning is consistent with 2.
In terms of concentration, persistence and pace, Dr Teoh noted poor concentration and gave no example of any cognitive impairment. The Panel found her to have very little impairment, based on the presentation on the day.
In terms of employability, the Panel noted Dr Teoh used the wrong guides and the Panel assessed her adaptation as 1.
Dr WGD Patrick, general surgeon, IME, 11/9/18, stated Ms Nou needs 6 hours per week of domestic assistance for her physical injury. In his report 13/9/18, he provided a WPI for the physical injuries with a rating of 17%.
The insurer’s submission noted Dr Kaplan did not diagnose a psychiatric disorder from the subject accident. Dr Teoh’s report was noted and the insurer does not concede Ms Nou's WPI is greater than 10%. Further assessment should not be granted, because Dr Teoh's report was outdated. There is no evidence she consulted a pain specialist in Liverpool as Dr Teoh wrote. He did not identify she wasn't working when the subject accident happened and incorrectly thought she ceased work due to the effects from the subject accident. There is no evidence of a psychological injury caused by the subject accident. There is no evidence her physical injuries and pain resulted from the subject accident, which Dr Teoh relied on making his psychiatric diagnosis.
Motor accidents claim form, noted the circumstance of the subject injury and physical injury.
Police report noted 2 vehicles in the subject accident. Vehicle 2 was an unmarked AFP vehicle with siren activated.
The claimant’s statement noted psychological injury and various physical disabilities. Anxiety as passenger, fearful of another accident, relying on her children to help her, 4/5/07.
The claimant’s statement 26/10/2020, refers to Dr Teoh's report as evidence of deterioration.
MAS certificate 29 May 2006, Dr P J Burke for Ms Nou's physical injuries. She said immediately after the accident she was "sort of unconsciousness" for about 5 to 10 minutes, able to hear people talking to her but was unable to open her eyes, that she felt numb on the left side of her body and could not move. She remained at Westmead Hospital for four nights. Her neurologist, Dr Fung told her stop taking Panadeine Forte and that her condition would "return to normal by natural means and that she did not need medication" which caused her frustration. She returned to see her GP and was prescribed Panadeine Forte. She experienced persisting neck pain, pain on the left side of her head, headaches three or four times a week, pain in the lower thoracic and lumbosacral midline. He wrote ‘she has a bad temper and is very unhappy. Her eyesight has deteriorated’. He wrote ‘she now said that when she lay down at night she often feels numbness over the whole of her body including the left side’ and that it took two or three hours for the numbness to resolve. She was using Panadeine two tablets a day, Sandomigran one at night, Inderal one bd, Endep one at night and Panadeine Forte three tablets daily. She also occasionally used Chinese herbal medications.
Dr Burke advised that there were no objective corroborative physical signs on examination, he could not explain intermittent numbness involving the whole left side of her body in regard to a "rational disease entity" and that some lower limb movements varied between formal and informal examination. He considered the accident could have caused a neck strain which would have likely resolved within several weeks or a few months of the accident. He wrote, "There was no physical evidence of any continuing organic condition in the cervical spine". He diagnosed a back strain which could have been caused by the accident but stated that there was no evidence of any continuing physical abnormality in the thoracic or lumbosacral region. He advised her right shoulder symptoms, the spread of pain did not follow an expected anatomical distribution. He provided a WPI for the physical injuries with a rating of 0%.
Dr Kaplan, psychiatrist MAS certificate, 26 July 2006. Dr Kaplan concluded there was no psychiatric injury related to the subject accident. He wrote that the main effect of pain was irritability and social withdrawal, and that although there was some tension with her children, they were very supportive and they helped her with housework when she was uncomfortable. He reported she tended to get distracted. He reported the pain interfered with her sleep and made her fatigued. She had no difficulty dressing or grooming. He reported that she liked to go out when she was feeling well, to shopping centres, visiting friends, going out with her children. He noted she was anxious in the car fearing another accident, and Ms Nou's anxiety is not severe and does not prevent her from going where she wants to". He reported that there were no symptoms of PTSD, such as nightmares or flashbacks. He recorded the history of exposure to the war in Cambodia. She had constant headache, intermittent pain in neck, shoulders, and back and numbness as well as ‘drifting’ to the left when she walked. He noted that there was no organic cause found for her symptoms despite testing and he stated, ‘It would seem likely that she had a hysterical reaction’. He wrote that after the accident, she developed driving anxiety as a passenger and had not used her license for years, but this did not prevent her from going where she had to go and he considered she did not have a driving phobia. He wrote there was ‘some abnormal illness behaviour’. He concluded that she did not have a psychiatric disorder arising from the accident.
Ms Janet Bortolussi, treating psychologist said she is retired but had been Ms Nou’s psychologist for a long time and noted the subject accident, chronic pain symptoms, hypersensitivity, major depression, PTSD, history of domestic violence.
Ms Bortolussi, 15/5/17, Ms Nou has pain and depression, attending pain clinic at Liverpool Hospital. Another letter same date, noted major depression functional disability from the subject accident, and complex personal trauma, abusive marriage as well.
Ms Bortolussi, 26/7/18, her psychological health deteriorated as her 22-year-old son has mental health problems, carer stress.
Ms Bortolussi 4/9/18, son has mental health problem and ex-partner no longer working, she has financial stress.
Ms Bortolussi 5/7/17, pressure to attend employment agency.
Ms Bortolussi 13/4/17, sleep improved, attended pain clinic and improved mood and distress from pain.
GP records:
·   12/12/19, depression noted
·   Chronic pain symptoms and treatment noted
·   30/9/20 Duloxetine
Centrelink file noted.
Ms Bortolussi 15/5/17, said she does not agree with pain specialist’s medical practitioner assessment that Ms Nou's disability is out of proportion to any pathology identified, because modern technology falls short of identifying microscopic changes in the brain and spinal cord. There is no reason to feign pain. She discussed autonomic dysreflexia.
Comment: the Panel noted Ms Bortolussi is not a recognized expert in autonomic dysreflexia.
Hand-written notes from psychologist, Ms Bortolussi noted 7/5/19, pain ++, stress, regular entries related to son, anxiety and depression.
Ms Bortolussi’s report 19/10/17, noted treatment between January 2017 and November 2017. She provided a list of symptoms and disabilities. Depression, anxiety and stress scale (DASS-21) symptoms and frequency have been noted. she diagnosed Major depressive disorder and posttraumatic stress disorder.
Referral letter 21/1/18, to psychologist. Noted psychological treatment in the past 1 year, benign thyroid nodule. Depressed mood and copes with activities of daily living, but frustrated, lack energy to do housework. She has suicidal ideation. Written by Dr Tan, GP.
Kessler Psychological Distress Scale (K10) score has been noted, 40 in 2018.
Dr Gordon Dandie neurosurgeon 11 June 2004, letter suggested referral to a neurologist, Dr Fung.
Personal Injury Commission certificate by Medical Assessor Dr Ian Cameron 18 April 2021. Ms Nou said that she was psychologically distressed and had considered suicide, being upset emotionally and often was distressed and feeling that she did not have a future. She had support from her daughter and god sister and she was not driving. Ms Nou sustained soft tissue injuries to the cervical and lumbar spinal region. There is no evidence that she sustained a head injury or significant injuries to other parts of her body. Ms Nou has a chronic pain syndrome that is clearly indicated by a large number of consultations with a variety of medical practitioners over a very long period. There is no evidence that Ms Nou has had ongoing problems that are specifically related to her motor vehicle crash injuries. The accident-related soft tissue injuries to the cervical and lumbar spine would not medically credibly be causing impairment at this time. He rated 0% WPI.

Determination

12.Diagnosis and reasons
Ms Nou described having encountered many traumatic events at different periods of her life. She first sought help about 10 years after the accident for her mental health, due to a combination of chronic pain and the restriction on her ability to do things she normally could do, and a strong sense of invalidation.
Overall, the Panel considered that Ms Nou developed an Adjustment disorder with anxiety and depressive symptoms, a driving phobia in partial submission and a Somatic symptom disorder.
13.Causation and reasons
Ms Nou described having encountered many traumatic events at different periods of her life. She was studying and working about five hours a week at the time of the accident. She described having suffered chronic pain since the subject accident, which had gradually deteriorated over time, and she first sought help about 10 years after the accident for her mental health, due to a combination of chronic pain and the restriction on her ability to do things she normally could do, and a strong sense of invalidation. Although she had treatment, her psychological health has not improved and in some ways has deteriorated over time, as her physical injuries deteriorated with more severe pain. Whilst her second husband's behaviour was a stressor, her psychological injury and the need for psychological/psychiatric treatment, was not directly related to that. The Panel noted disputes related to the cause of her physical injuries and pain. Setting aside contribution from her physical injuries and pain, the subject accident has plausibly caused her current travel impairment and driving phobia (in partial but not full remission). Therefore, the Panel concluded there is more than a negligible contribution from the subject accident to her current psychological injury.

Permanency of impairment

Permanent impairment is defined in the AMA4 Guides as follows:
‘Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.’
Ms Nou's impairment is entrenched and would not change substantially by more than 3% in the next year, with or without medical treatment.
14.Degree of permanent impairment Psychiatric Impairment Rating Scale
Current PIRS

Psychiatric diagnoses	1. Somatic symptom disorder	2. Adjustment disorder with anxiety and depressive symptoms
Psychiatric diagnoses	3. driving phobia, in partial remission	4.
Psychiatric treatment description	Antidepressant medication Psychologists

Category	Class
1. Self Care and Personal Hygiene	1	She described eating to manage her pain, and does not exercise due to pain, and gained weight very slowly over time. Her pain behaviour is not assessable in the PIRS. She wants to eat healthy and lose weight. She showers daily and attends to shopping and household chores. She does not need prompting. From a psychological perspective, there is minor deficits attributable to the normal variation in the general population.
2. Social and Recreational Activities	2	She enjoys catch-ups with her god sister and 2 local friends regularly, generally every weekend, but has withdrawn from other people and community-based recreational activities, that she used to enjoy.
3. Travel	2	Ms Nou is anxious and can drive short distances only.
4. Social Functioning	2	Ms Nou's relationship with her last husband was problematic and they separated many times before the subject accident. That relationship has now ended, she stated because he cheated on her. She said she had hundreds of friends in Sydney but no longer has contact with them, and only has 3 local friends (including her god sister). Her relationship with her children has become distant and remains reasonable overall.
5. Concentration, Persistence and Pace	1	Ms Nou reported having reduced concentration. Her mental state examination did not reveal any impairment. Her pain affects her ability to remain on task, however, her pain is not assessable in the PIRS. She focussed well during the 1 hour 20 minutes assessment, and gave long answers and did not lose concentration during the assessment.
6. Adaptation	1	Ms Nou worked 20 hours per week until the program was terminated and everyone lost their job. She can perform work and engage in age-appropriate life roles at full-time hours from a psychological perspective. Her current psychological deficits are minor, attributable to the normal variation in the general population.
List classes in ascending order: 111 222
Median Class Value: 2
Aggregate Score: 9
% Whole Person Impairment: 4 %

*%WPI ^{= Percentage Whole Person Impairment}
15.Psychiatric Impairment Rating Scale - Pre-existing/subsequent impairment
Ms Nou did not have a confirmed psychiatric diagnosis and had never had psychological/psychiatric treatment before the subject accident, and there was no psychiatric impairment before the subject accident.
She has not sustained a subsequent psychological injury.
16.Apportionment
Nil.
17.Effects of Treatment
0%
She has not improved and has deteriorated in some ways over time, despite treatment.
The final WPI = 4%.

The Panel adopts the findings of Medical Assessor Hong and Medical Assessor Smith.

Causation

The claimant was involved in a sudden and unexpected accident. She was a passenger in a car which was collided into by an unmarked AFP car which was proceeding through an intersection, against traffic control lights, with its siren activated. Following the accident the claimant suffered injuries and was admitted to hospital for four days.
The claimant appears not to have actively sought medical treatment for her psychiatric disabilities for a time of at least 10 years following the accident. However, the Panel is satisfied that this came about by a combination of gradual chronic pain which had been deteriorating.
As the Panel has noted, setting aside any contribution from the claimant’s physical injuries and pain, the accident has, to the satisfaction of the Panel, caused her current travel impairment and driving phobia, in partial but not full remission.

The Panel is satisfied that there is a more than negligible contribution from the subject accident to her current psychological injury.

CONCLUSION

As a result of the accident on 4 May 2004 the claimant has developed;
(a)   an adjustment disorder with anxiety and depressive symptoms;
(b)   an element of driving phobia in partial remission, and
(c)   a Somatic symptom disorder.
The claimant has a WPI of 4%.

DETERMINATION

The Panel revokes the certificate of Medical Assessor Barrett dated 14 March 2022.
The Panel finds that as a result of the accident on 4 May 2004 the claimant has developed:
(a)   an adjustment disorder with anxiety and depressive symptoms;
(b)   an element of driving phobia in partial remission, and
(c)   a Somatic symptom disorder.
The claimant has a WPI of 4%.

[2023] NSWPICMP 622

29 November 2023