Pan v QBE Insurance (Australia) Limited
[2024] NSWPICMP 655
•16 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Pan v QBE Insurance (Australia) Limited [2024] NSWPICMP 655 |
CLAIMANT: | Elena Pan |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | John Baker |
MEDICAL ASSESSOR: | Gerald Chew |
DATE OF DECISION: | 16 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); permanent impairment dispute; claimant alleged psychological injuries arising from the death of her husband who was a pedestrian struck by the insured vehicle; claimant was walking beside her husband at the time; Held – claimant suffered post-traumatic stress disorder giving rise to whole person impairment of 17%; MAC revoked. |
DETERMINATIONS MADE: | The assessment made by the Review Panel under s 7.23(1) of the Motor Accident Injuries Act 2017 is as follows: 1. The Review Panel revokes the Medical Assessment Certificate dated 4 August 2022 and certifies that the following injuries caused by the motor accident give rise to a permanent impairment of 17% which is greater than 10%: · Post-traumatic stress disorder. |
STATEMENT OF REASONS
INTRODUCTION
Ms Elena Pan (the claimant) alleges psychological injury arising from her husband, a pedestrian, being struck and killed by a motor vehicle on 26 March 2018. The claimant was walking beside her husband at the time of the motor accident.
The claimant has lodged a claim upon the compulsory third party insurer of the vehicle involved – QBE Insurance (Australia) Ltd (the insurer).
The insurer is liable to pay to Ms Pan any damages and/or statutory benefits pursuant to the provisions of the Motor Accident Injuries Act2017 (the MAI Act).
The issue in this medical dispute is whether Ms Pan’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[1]
[1] See Division 7.5 and schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Doron Samuell (Medical Assessor) and dated 4 August 2022 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for which the review is sought.[3]
[3] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
The Panel convened via teleconference on 11 October 2023. It was determined that a re-examination was required and one was scheduled to take place with Medical Assessor Baker and Medical Assessor Chew via videolink on 16 February 2024. The examination was however abandoned due to the claimant being unable to hear the Panel.
On or about 4 March 2024 the claimant’s legal representatives indicated that the claimant would be available to attend an examination via videolink. A further examination was arranged to occur on 20 August 2024. This examination proceeded as arranged via videolink with Medical Assessor Baker and Medical Assessor Chew.
The Panel held a further teleconference on 3 September 2024.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[8] In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 Campbell J stated at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[8] See s3B(2) of the CL Act.
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
Medical Assessor Samuell opined that the claimant was suffering from a Persistent Bereavement Disorder. He remarked that the claimant has a “…marked and protracted longing for the loss of her husband, with symptoms that are clinically significant.” He assessed the claimant as suffering a 0% whole person impairment.
SUBMISSIONS
Claimant’s review submissions dated 6 September 2022
The claimant takes issue with Medical Assessor Samuell’s category 1 classification in respect of self care, noting the history that the claimant can only stay at her home if someone accompanies her. It is contended that this would attract a class 3 impairment.
In respect of travel, the claimant submits that the Medical Assessor failed to take a sufficiently detailed history so as to make an accurate assessment. It is noted the claimant does not travel outside of her local area without close family members.
In response to the Medical Assessor’s categorisation of social functioning as class 1, the claimant submits that this should only be the case where there is no deficit. It is submitted that a one-off trip to her home country should not be the decisive specific history to disqualify the claimant for a deficit. It is submitted the reasoning is inadequate.
The claimant takes issue with the Medical Assessor’s class 1 assessment in respect of adaptation. In this regard, it is submitted that the claimant’s volunteer work prior to the accident has not been taken into account and therefore represents a material error.
Insurer’s reply submissions dated 23 September 2022
The insurer submits that the Medical Assessor self-evidently applied his own medical expertise in making his determination. Further, same was done after considering the material and recording the claimant’s symptoms at the time of the assessment, which is “precisely” what the Medical Assessor was required to do.
The insurer submits that it is not for the claimant to determine which questions are or are not appropriate, and that is for the Medical Assessor as part of his medical expertise. The insurer submits that much of the claimant’s submissions amount to a merits review within jurisdiction.
MATERIAL BEFORE THE PANEL
Application for personal injury benefits dated 22 April 2018
In this claim form the claimant describes the tragic circumstances of the accident and includes a description of her injuries that includes things such as deep sadness, forgetfulness, unstable mood, hallucination, sleep issues and loneliness.
Certificates of Fitness
A Certificate of Fitness completed by general practitioner (GP), Gordon Lee, dated 4 April 2018, includes a diagnosis of grief reaction. Treatment plan to include grief counselling with psychologist and if severe, a psychiatrist.
Further certificates dated 24 May 2018 and 1 October 2019 include an updated diagnosis of posttraumatic stress disorder.
Psychologist referral dated 3 May 2018
Dr Lee provided a referral to Dr Bessie Tselos with a note of the claimant suffering grief after the accident.
Letter of psychologist, Christina Gilto, to the claimant’s legal representatives dated 14 June 2019
The letter explains that since the death of her husband, the claimant has been unable to sleep in her house alone and has struggled to maintain social outings and has been fixated on her grandchildren. Intrusive thoughts are noted.
Clinical file of Bexley North Medical Clinic (GP: Dr Lee)
Various pre-accident physical ailments are noted, including hypertension in 1998.
The claimant attended upon Dr Lee two days after the accident on 28 March 2018 for grief counselling. She was noted as unable to sleep without Temaze on 4 April 2018, and her grief reaction was noted as abnormal.
On 24 May 2018 the claimant is noted to not want to stay in her own house alone, that she had a fear of being alone and was crying easily.
Medico-legal reports
Dr Oldtree Clark, psychiatrist, provided a report to the claimant’s legal representatives dated 14 July 2019. He diagnosed the claimant as suffering from a post-traumatic stress disorder with the claimant suffering features of withdrawal, reminders, oversensitivity with hypervigilance. A whole person impairment assessment is given of 24%.
Dr Apler, psychiatrist, provided a diagnosis of a normal grief reaction in addition to post-traumatic stress disorder, resolved. He states that an assessment of whole person impairment is not required as the claimant no longer has a psychiatric disorder related to the accident.
Dr Samuels, psychiatrist, provided a report addressed to the legal representatives of both parties, dated 28 June 2021. He diagnosed the claimant as suffering a persistent bereavement disorder with features of adjustment disorder with mixed anxiety and depressed mood. He did not find a post-traumatic stress disorder. A whole person impairment of 1% is provided.
MEDICAL EXAMINATION
On 20 August 2024, Mrs Pan was examined by Medical Assessor Baker and Medical Assessor Chew using MS Teams in a teleconference. The claimant was located at her lawyer’s office and was unaccompanied throughout the re-examination. Mrs Pan (the claimant) is a 71-year-old woman who reported she was standing close to her husband when he was a pedestrian, killed by a car that was traveling at about 70kmph. She said the subject motor accident occurred on 26 March 2018. She reported that she spent about one week in the NSW Coroner’s court. She reported that the driver was not charged with any driving offence. She stated she organised to repatriate her husband’s remains to the Philippines in keeping with his wishes. She explained that in keeping with her religious and socio-cultural norms she would travel to her husband’s grave each year since his death. In keeping with the family’s religious and socio-cultural norms she would have special mass services said for the repatriation of her husband’s soul as well as special prays as part of her practiced observances. She said she did not socialise or engage in any recreation whilst performing her solemn religious and socio-cultural norms.
Psychosocial history and pre-accident history
The claimant reported that she was born in the Philippines. She was one of six children to her parents’ family. The claimant’s first language was Tagalog. She said she was well educated and spoke English fluently. She said she did not require an interpreter.
The claimant did not report any childhood trauma, abuse or neglect. She reported that she completed her high school education prior to attending university in the Philippines. She was a self-supporting student. She completed a Bachelor of Science, Commerce and Accountancy degrees at university. The claimant reported that she met her husband whilst they were studying together at university. They married and remained married for about 42 years prior to the motor accident on 26 Mach 2018.
The claimant reported that she spent her career working in the Philippines. She worked as an accounting clerk and a quality assurance manager. She enjoyed working in strategic planning, logistics and procurement. She said on retirement she moved to Australia in 2006 with her husband. She was caring for her granddaughter. She said the same granddaughter now cares for her. The claimant said this grandchild was now 18 years of age at the time of this assessment.
The claimant reported that she was the mother of three children. Her children all lived in Australia. She said they were all adults and were aged 47, 45 and 42 years. She reported that she had three grandchildren. The claimant said that prior to the motor accident she would regularly visit and have her grandchildren visit. She said that they would socialise together as a family. The whole family would celebrate for Christmas and New Years Eve. She reported that she enjoyed attending her local church. She reported that she enjoyed celebrating and practicing her faith. She reported that she would attend mass about twice each week in church in person. She said she would work about 30 hours per week with St Vincent de Paul’s store in Rockdale as her charitable, volunteer work for the church. She enjoyed socialising with the other women at the St Vincent de Paul’s store and she enjoyed caring for her grandchildren and watching them grow. She reported that she and her husband enjoyed dancing together and they would dance at home most days. She reported that she also taught her grandchildren to dance when they came to visit.
The claimant reported that she had never suffered from any psychiatric or psychological conditions prior to the subject motor accident. She reported that she had not suffered from postnatal depression or complications of pregnancy. She reported that she had a hysterectomy in 1997 without complications. She also had hypertension treated with pharmacotherapy since 1998. She reported that in 2004 she was diagnosed with a goitre. She does not have hyperthyroidism or hypothyroidism as recorded in the claimant’s general practice medical records. She was also diagnosed with carpal tunnel syndrome, cyclic neutropenia, osteoporosis and osteoarthritis prior to the subject motor accident. these physical medical conditions were managed by her general medical practitioner. She said she was compliant with her medical practitioner’s advice. She was independent in her daily living prior to the motor accident.
The claimant reports that he did not smoke tobacco, and she did not have any allergic reactions to any medications or substances. She reported she would drink a small glass of wine with her evening meal most nights.
The claimant reported that she had never driven a motor car. She said prior to the motor accident she would always travel with her husband driving her to the various locations and appointments. She said she was able to travel by train and public transport into Sydney Central Business District for shopping alone prior to the motor accident.
The motor accident
The claimant was asked to describe the motor accident on 26 Mach 2018. She provided the following history:
(a) she said, “I try and not think about it (the motor accident). It’s been six years.”
(b) She and her husband were returning home from their daughter’s house. They had a short walk of about 300 metres. They shared their evening meal at their daughter’s home.
(c) Both the claimant and her husband were crossing the road together.
She and her husband had taken about two steps. She then heard her husband say, “There’s a car”.
(d) The claimant said she took a step back.
(e) The claimant said that her next memory is hearing a loud bang.
(f) The claimant thought the car was traveling at about 70kmph.
(g) The claimant said her next memory was seeing her husband lying with his head on the footpath and his body in the street.
(h) The claimant said that police and ambulance came to the motor accident site but her husband had died in the street whilst she was trying to care for him.
(i) The claimant said that the coronial inquest was for about one week. She said the driver was not charged.
(j) The claimant repatriated her husband’s remains to the Philippines and they were buried after his funeral service in the Philippines.
Symptoms and treatment since the motor accident
The claimant reported that she attended her GP, Dr Lee. Dr Lee diagnosed that claimant as suffering from post-traumatic stress disorder on her attendance dated 3 May 2018. This was about five weeks from the date of motor accident on 26 March 2018 and consistent with Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5-TR) criteria for the diagnosis of this condition that requires one month to elapse prior to diagnosis.
The claimant reported the following symptoms:
(a) witnessing in person the death of her husband, whilst he was a pedestrian struck by a car and died in the street whilst the claimant attempted to care for him.
(b) Intrusive dissociative reactions of “seeing her husband’s death” repeatedly and frequently, many times each week, since the death of her husband.
(c) Prolonged psychological distress when she had recurrent and involuntary distressing memories about the motor accident and how her husband “died in the street”.
(d) Persistent strong emotions of irritability and anger because of the motor accident.
(e) She reported fear and been scared if alone walking on the footpath the 1km to her local church.
(f) Persistent avoidance with efforts to avoid thinking about the motor accident.
(g) Avoidance of the scene of the motor accident with the claimant reporting at the re-examination, “I never go back there.”
(h) Persistent negative emotions of anger towards the driver, as first documented by Dr Lee in his assessment of the claimant on 3 May 2018.
(i) Persistent inability to experience positive emotions such as happiness or satisfaction with her life since the traumatic death of her husband.
(j) Problems with her capacity to concentrate.
(k) Sleep disturbance with difficulty initiating and remaining asleep.
The claimant reported that she had grieved the death of her husband. She said she maintains the traditions of her socio-cultural norms that were taught to her by her parents. She reported in keeping with this religious tradition she would pray for her husband every day. She would perform observances for her husband. She would visit the church for mass every Sunday. She said she would also attend on Friday if she was motivated to attend. The claimant said she would also watch a mass service on YouTube from her preferred parish priest most days. She reported that at the time of the anniversary of her husband’s death she would organise for special mass services to be say for her husband in his childhood church, in Sydney and with other members of his family. The claimant would also visit his grave to send the day with him, on her husband’s anniversary each year in the Philippines. She believed this was her husband’s expectation of her as she was devoted to her religious practice.
The claimant reported that she does feel sad. She said she does have tears for her husband when she thinks of his death. She said she was married about 42 years, and she feels alone in her widowhood. She reported that she accepted it was six years since his death and she planned to speak less about her husband but to continue her socio-cultural norms. She had lost weight initially due to the grief that was resolved.
The claimant reported that her GP referred to attend a clinical psychologist. She had received treatment to resolve her grief. She had received trauma focused cognitive behavioural therapy from her psychologist. She reported that she would attend her GP and clinical psychologist about once each month. The claimant had reported that she last attended her psychologist in an in-person treatment session in June 2024. She reported that some of her psychological and general practice attendances are via telehealth appointments. She reported that at time she lacked interest and motivation. The claimant reported that her GP would prescribe her diazepam 5mg orally at night to help her initiate sleep.
Mental state examination
The claimant presented as an irritable, tearful, unkempt and distressed woman. She reported her granddaughter had supported her in her travel to the lawyer’s officer such that the re-examination could be conducted. The claimant reported that she was often scared and fearful of thinking about where the motor accident happened. She said she was often fearful on the footpath whilst walking alone in her local area. She was orientated in time place and person. She complained or poor concentration and avoiding the use of “on-line shopping” as she would make errors, she could not remedy. She said she was capable of walking to her nearby shop for groceries and her church. The claimant reported that she had occasionally misinterpreted a person in the street as being her husband. She said she knew this was an error and she would use her cognitive behavioural skills to settle herself. She was insightful into her condition. Her judgment was normal. She said she had never suffered from any suicidal thoughts or plans after the death of her husband. She attempted to reassure the examiners that her faith consoled and held her.
The claimant reported the following changes since the accident on 26 March 2018:
(a) Self-care and personal hygiene
The claimant reported that prior to the motor accident she could live independently in all aspects of her daily life. She reported that she was able to cook, purchase groceries and clean her home. She reports she maintained her self-care and personal hygiene without difficulty. She would maintain her grooming of her hair and laundering of her clothes.
The claimant reported that since the motor accident she was more reliant on the support and care of her 18-year-old granddaughter. She reported that her granddaughter would visit her about once to twice each week. She reported that she could cross the road to the small local grocery shop to purchase her food. She reported that she could only cook simple meals since the motor accident. She relied on her granddaughter to assist with her cleaning of the home and washing of her clothes. The claimant said she remained independent in her self-care and personal hygiene. She might miss showering on occasions and her hair looked unkempt at the re-examination.
(b) Social and recreational activities
The claimant explained that her religious and socio-cultural norms were no her engaging in recreation or socialising. She reported that her attendance at mass in her local church was not to speak with others. She reported that her religious observances, attendance at mass and other religious practices including attendance at her husband’s grave in the Philippines were personal activities where she was alone practicing her faith.
The claimant reported that prior to the motor accident she would enjoy celebrating birthdays, festivals and family events with her adult children and her grandchildren. She reported that she enjoyed playing with her grandchildren. She would teach her grandchildren to dance when they attended her home. She educated her grandchildren in the music that she had enjoyed and had danced to throughout her life. She enjoyed talking and learning about her grandchildren’s’ development, news and life. The claimant reported that she also enjoyed attending her daughter’s home to share evening meals. She reported she would also enjoy reading and sharing her retirement with her husband.
The claimant reported that since the motor accident she no longer dances. She no longer teaches her grandchildren to dance. She reported she had stopped listening to music. The claimant reported that she did not engage with her granddaughter’s conversation or news when she attended like she would have prior to the motor accident. The claimant reported she did not participate in festivals with her adult children or grandchildren. She reported that she lacked interest and referred to isolate herself from others. She reported that she no longer socialised with friends since the motor accident.
(c) Travel
The claimant said she was medically advised by her GP to walk each day. She said she was able to leave her home to walk for about 20-30 minutes in her local area each day. She reported that she was fearful whilst walking and she was watching out for others. The claimant reported that she never drove a motor car. She said she was capable of traveling to familiar locations such as taking the train to the Sydney CBD and to travel to her husband’s grave in the Philippines which she would visit annually since the motor accident
(d) Social functioning
The claimant reported that her relationship with her adult children was strained. She said the motor accident had occurred six years ago. She was engaged by her adult children to move forward. The claimant reported that she still preferred to be socially isolated as she was too distressed when talking about being a widow to others she did not know. She said she was not interested in forming new relationships. She said her 18-year-old granddaughter was the baby she had initially come to Australia to assist in raising. She reported that her relationship was strained as the claimant was unable to experience positive emotions towards her granddaughter as the claimant had prior to the motor accident.
(e) Concentration, persistence and pace
The claimant said she had made errors whilst trying to use online shopping apps. She said she stopped using this mode of ordering food as she could not remedy the errors she would make. She reported that she had been an accountant and was easily able to use simple accounting software and apps prior to the motor accident. She said she was able to read a newspaper but lost interest before completing the brief article. The claimant reported that’s he was able to pay her utility bills and that she had not had any services stopped due to her mistaking to pay an electricity, phone or water bill.
(f) Adaptation
The claimant was working as a volunteer for St Vincent de Paul Stores. She was working about 30 hours each week. She would attend about five days each week. She said that since the motor accident she was unable to attend and perform her volunteer role. She reported that she had become too fearful of attending and trusting others. She preferred to remain alone at home. She reported that she could not organise herself to be reliable and so she would withdraw from all work as she feared an erratic and unreliable attendee would cause harm to the charity. The claimant would be able to attend one to two days per week prior to her symptoms from this psychological injury causing her to be erratic and unreliable in attendance. She could work less than 20 hours per fortnight in a less stressful volunteer role than her prior role with this charity.
Consistency of presentation
The claimant presented as an irritable, tearful, unkempt and distressed woman. The claimant said she was now six years from when her husband died in the motor accident. She said she had well established religious and socio-cultural norms that sustained her and had resolved her grief.
The claimant said she attempted to avoid thinking about the motor accident. She said thinking about the motor accident caused the symptoms of this psychological injury. She said she had continued to slowly try and recover from her psychological injury however she still remained symptomatic.
The claimant’s presentation was consistent with the natural history of her condition. The gradual resolution of grief and the introduction of daily religious observances are in keeping with the religious traditional practices within the claimant’s family and cultural of origin. The continuation of religious practices is not evidence of ongoing grief, prolonged grief disorder or an abnormal grief reaction.
PANEL’S CONCLUSION
Diagnosis
The Panel considered the claimant’s grief. Whilst it is possible that the claimant may have sustained a prolonged grief reaction prior to this re-examination, this disorder is not supported as the diagnosis of post-traumatic stress disorder better defines and explains all of the claimant’s symptoms because of the motor accident. the Panel notes using DSM-5-TR F43.8, Criterion F, the diagnosis of posttraumatic stress disorder excludes the diagnosis of prolonged grief disorder.
The Panel is aware of different diagnoses and explanations having been offered to explain the claimant’s condition since the accident on 26 March 2018. After careful consideration of all the information forwarded and suggested psychological diagnoses, the best explanation and most durable diagnosis is DSM-5-TR F43.1 posttraumatic stress disorder.
Diagnostic criteria used to define DSM-5-TR F43.1 posttraumatic stress disorder is documented below:
(a) the claimant witnessed in person the traumatic death of her husband whom she attended whilst he was dying lying on the street with his head on the footpath at the moment the car hit her husband whilst he was attempting to cross the road on 26 March 2018. This stressor is serious and meets the criterion for a Criterion A stressor for post-traumatic stress disorder.
(b) This criterion is met by the presence of dissociative reactions (flashbacks) where the claimant experiences been in the moment and presence of her husband whilst dying. As well as recurrent involuntary and intrusive distressing memories of the motor accident that included seeing her husband dying, witnessing the ambulance not been able to resuscitate her husband.
(c) This criterion is met by the claimant’s persistent avoidance of with efforts to avoid thinking about the motor accident, walking near the site of the motor accident and avoiding strong emotions of anger and irritability closely associated with the motor accident.
(d) This criterion is met by the claimant’s markedly diminished interests in teaching her grandchildren to dance and participate at family festivals and celebrations. As well as persistent inability to experience positive emotions such as happiness and satisfaction with her life since the death of hr husband.
(e) This criterion is met by the claimant’s poor concentration and sleep disturbances. That she had experienced since the onset of this psychological injury.
(f) This criterion is met by the claimant’s exposure to the Criterion A stressor as having occurred on 26 March 2018.
(g) This criterion is met by the disturbance having caused clinically significant impairment in her social and occupational functioning because of the motor accident.
(h) The disturbance is not attributable to the physiological effects of a substance or another medical condition.
Causation
The claimant was not psychologically injured and had not suffer from any prior psychological or psychiatric condition prior to the motor accident. The claimant was independent in her lifestyle prior to the motor accident. She enjoyed working as a volunteer as well as a caring for her grandchildren and attending dinner and other family events and festivals with her family. She was a retired worker who had served her career in the Philippines prior to entering Australia in about 2006 with her husband. All her children were in Sydney NSW. The claimant was able to function as a wife, mother and grandmother to her extended family in Australia prior to the motor accident.
The claimant had grieved for the death of her husband prior to this re-examination.
The claimant continued to experience symptoms because by the psychological injury
The claimant suffered a psychological injury because of the accident on 26 March 2018.
The diagnosed psychological injury is DSM-5-TR F43.1 posttraumatic stress disorder. The diagnosis could clinically and medically persist due to psychological impairments in social and occupational functioning that commenced at the time of onset of the psychological injury and continued without remission until this examination.
The Panel determines that the accident did cause the psychological injury, DSM-5-TR F43.1 post-traumatic stress disorder.
WHOLE PERSON IMPAIRMENT
The following finds are made using guidelines and the psychiatric permanent impairment rating scale for whole person impairment.
The claimant’s diagnosis is DSM-5-TR F43.1 posttraumatic stress disorder.
The claimant had received psychological treatment from her psychologist as well as pharmacological treatment from her GP. The claimant continues to receive psychological and pharmacological treatment for this psychological injury from her treatment team.
(a) Self-care and personal hygiene.
The claimant reported that since the motor accident she was more reliant on the support and care of her 18-year-old granddaughter. She reported that her granddaughter would visit her about once to twice each week. She reported that she could cross the road to the small local grocery shop to purchase her food. She reported that she could only cook simple meals since the motor accident. She relied on her granddaughter to assist with her cleaning of the home and washing of her clothes. The claimant said she remained independent in her self-care and personal hygiene. She might miss showering on occasions and her hair looked unkempt at the re-examination. This was assessed as class 2, mild impairment.
(b) Social and recreational activities
The claimant reported that since the motor accident she no longer dances. She no longer teaches her grandchildren to dance. She reported she had stopped listening to music. The claimant reported that she did not engage with her granddaughter’s conversation or news when she attended like she would have prior to the motor accident. The claimant reported she did not participate in festivals with her adult children or grandchildren. She reported that she lacked interest and referred to isolate herself from others. She reported that she no longer socialised with friends since the motor accident. This was assessed as class 3, moderate impairment.
(c) Travel
The claimant said she was medically advised by her general practitioner to walk each day. She said she was able to leave her home to walk for about 20-30 minutes in her local area each day. She reported that she was fearful whilst walking and she was watching out for others. The claimant reported that she never drove a motor car. She said she was capable of traveling to familiar locations such as taking the train to the Sydney CBD and to travel to her husband’s grave in the Philippines which she would visit annually since the motor accident. This was assessed as class 2, mild impairment.
(d) Social functioning
The claimant reported that her relationship with her adult children was strained. She said the motor accident had occurred six years ago. She was engaged by her adult children to move forward. The claimant reported that she still preferred to be socially isolated as she was too distressed when talking about being a widow to others she did not know. She said she was not interested in forming new relationships. She said her 18-year-old granddaughter was the baby she had initially come to Australia to assist in raising. She reported that her relationship was strained as they claimant was unable to experience positive emotions towards her granddaughter as the claimant had prior to the motor accident. This was assessed as class 2, mild impairment.
(e) Concentration, persistence and pace
The claimant said she had made errors whilst trying to use online shopping apps. She said she stopped using this mode of ordering food as she could not remedy the errors she would make. She reported that she had been an accountant and was easily able to use simple accounting software and apps prior to the motor accident. she said she was able to read a newspaper but lost interest before completing the brief article. The claimant reported that’s he was able to pay her utility bills and that she had not had any services stopped due to her mistaking to pay an electricity, phone or water bill. This was assessed as class 3, moderate impairment.
(f) Adaptation.
The claimant was working as a volunteer for St Vincent de Paul Stores. She was working about 30 hours each week. She would attend about five days each week. She said that since the motor accident she was unable to attend and perform her volunteer role. She reported that she had become too fearful of attending and trusting others. She preferred to remain alone at home. She reported that she could not organise herself to be reliable and so she would withdraw from all work as she feared an erratic and unreliable attendee would cause harm to the charity. The claimant would be able to attend one to two days per week prior to her symptoms from this psychological injury causing her to be erratic and unreliable in attendance. She could work less than 20 hours per fortnight in a less stressful volunteer role than her prior role with this charity. This was assessed as class 4, severe impairment.
Whole person Impairment Summary
Class scores: 2, 2, 2, 3, 3, 4
Median Class Score: 3
Aggregate Score: +2, +2, + 2, +3, +3, +4 = 16
Whole person Impairment: 17% WPI
Treatment Effects: 0
The claimant had not been treated by a psychiatrist. She had been treated by a psychologist and her GP. She was provided with diazepam 5mng orally at night. The motor accident occurred over six years ago and the claimant remains impaired and symptomatic. The claimant’s whole person impairment would not change clinically with or without medical treatment. For these reasons, the claimant’s score for the effects of treatment was zero.
Pre-existing condition
The claimant had not suffered from any pre-existing psychiatric or psychological condition prior to this motor accident. For these reasons the assessment for pre-existing condition is assessed as nil.
CONCLUSION
The claimant’s assessment, in keeping with her age related and socio-cultural peers, is assessed as 17% whole person impairment. The claimant therefore has suffered an injury caused by the motor accident that gives rise to a permanent impairment that is greater than 10%.
The Panel therefore revokes the certificate of Medical Assessor Samuell and issues a new certificate set out at the beginning of these reasons.
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