Pennicuik v QBE Insurance (Australia) Limited
[2023] NSWPICMP 54
•22 February 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Pennicuik v QBE Insurance (Australia) Limited [2023] NSWPICMP 54 |
| CLAIMANT: | Amanda Pennicuik |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Matthew Jones |
| DATE OF DECISION: | 22 February 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 6 February 2017 when she was in a vehicle rear ended by the insured vehicle; the medical dispute was whether the degree of impairment of the psychological injury caused by the motor accident was greater than 10%; Panel satisfied that psychological condition was caused by the motor accident due to temporal link and the nature of the motor accident; opinion provided by insurer suggesting no causative link based on other medical opinion suggesting physical effects of accident had ceased; Panel preferred findings of another Review Panel that the claimant continued to suffer from a neck condition caused by the motor accident; Held – claimant assessed at 7% permanent impairment in respect of the psychological injury; original assessment revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 63(4) IS AS FOLLOWS: The Panel revokes the certificate of Medical Assessor Fukui dated 20 October 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is NOT GREATER THAN 10%: · major depressive disorder. |
REASONS
BACKGROUND
Ms Amanda Pennicuik (the claimant) was injured in a motor accident on
8 February 2017 when the insured vehicle failed to stop and collided with into the rear of the claimant’s vehicle.[1][1] Insurer’s bundle, p 25.
The insurer insured the owner and driver of the vehicle for liability to pay Ms Pennicuik any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the psychological injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. 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.[3]
[3] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[4] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[4] Section 60 of the MAC Act.
Medical Assessor Fukui issued a certificate dated 20 October 2021. This is the medical assessment subject to this review. The Medical Assessor diagnosed an adjustment disorder with mixed anxiety and depressed mood caused by the motor accident and assessed impairment at 6% which included an allowance for the effects of antidepressant therapy and psychology.
The Medical Assessor noted prescription of anti-depressant medication in 2009 and 2010 whilst experiencing distress “due to a number of significant psychosocial stressors”. The claimant was reported as denying a psychiatric history and did not see a psychologist, “She stated that her distress was situational, and her mental state stabilised and she has remained well until the subject motor vehicle accident”. The Medical Assessor’s opinion on the claimant’s consistency was:
“I note in the report by Dr Graham Vickery dated November 2020 that
Ms Pennicuik did not provide consistent information based on his review of other medical reports. However, Ms Pennicuik did provide me with consistent information including clarification relating to her situational stress reaction and grief at the time of her grandmother’s death and her ankle surgery during 2010. She denied that there had been an ongoing psychiatric impairment since that time as it was interpreted by Dr Vickery. She also reported to me that she did not seek medical review of her symptoms until 3 months after the subject motor vehicle accident as she had thought her symptoms would spontaneously resolve.”In relation to diagnosis and causation, Medical Assessor Fukui stated:
“It is my opinion that Ms Pennicuik has been suffering from an adjustment disorder with mixed anxiety and depressed mood. She developed depressive and anxiety symptoms following the subject motor vehicle accident. Whilst she has been able to continue working, her symptoms have had an impact on her psychosocial functioning. There has been some improvement in her symptoms since commencing pharmacotherapy and psychological therapy. …
Ms Pennicuik’s psychological injury was caused by the subject motor vehicle accident. There was no evidence that she was suffering from psychiatric impairment prior to the motor vehicle accident since she was maintaining optimal level of occupational and psychosocial functioning. She stated that at the time of the subject motor vehicle accident she and her partner were building their home, had just won a motorbike and she was ‘having fun’.”
OTHER ASSESSMENTS
Medical Assessor Woo issued a certificate dated 17 November 2021 when he assessed injuries to the cervical spine, right big toe, left and right shoulder caused by the motor accident at 5%.[5]
[5] Insurer’s bundle, p 85.
A Review Panel issued a Medical Assessment dated 21 October 2022.[6] That Panel determined that the motor accident caused injuries to the cervical spine and right shoulder and did not cause injuries to the left shoulder and right big toe. Impairment was assessed at 5%.
[6] Insurer’s bundle, p 121.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[7]
[7] Section 63(7) of the MAC Act.
The President’s delegate referred the medical assessment to the Review Panel (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.[8]
[8] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after
1 March 2021, the new review provisions apply.The new review provisions provide[9] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[9] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[10]
[10] 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 matter solely based on the written application.[11]
[11] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[12]
[12] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles of documents that should be considered. The parties provided respective bundles.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[13]. In Raina v CIC Allianz Insurance Ltd[14] Campbell J stated:
“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.”[13] See s 3B(2) of the Civil Liability Act 2002.
[14] [2021] NSWSC 13 (Raina) at [65].
EVIDENCE
The parties filed bundles of documents in accordance with the initial Direction.
Pre-accident material
In February 2011 the general practitioner referred to right sided neck pain for years and depression/anxiety and on a “low dose luvox”.[15] A letter for a mental health care plan was created in March 2012.[16]
[15] Claimant’s bundle, p 136.
[16] Claimant’s bundle, p 139.
Initial records
Records of Tensegrity commence on 7 April 2017 and noted right sided neck pain and reference to the motor accident.[17]
[17] Claimant’s bundle, p 398.
The clinical record dated 29 March 2017 by Dr Sureshwaran referred to blood tests.[18]
[18] Claimant’s bundle, p 91.
On 5 May 2017 Dr Sureshwaran noted neck pain following the motor accident with pain “radiating towards her shoulder – but not to her shoulders”.[19] The claimant was seeing a chiropractor at the time and was “slightly better”.
[19] Claimant’s bundle, p 378.
The clinical record dated 22 May 2017 referred to a cough and phlegm condition and neck and right toe pain and “seeing chiro”.[20] X-rays of the cervical spine and right foot were organised at that time.[21]
[20] Claimant’s bundle, p 91.
[21] Claimant’s bundle, p 121.
The medical certificate provided by Dr Sureshwaran dated 6 July 2017 described physical injuries caused by the motor accident to the neck and upper back as well as “stress-adjustment disorder”.[22]
[22] Insurer’s bundle, p 29.
In August 2018 the claimant was referred to Dr Lutchman, psychologist with a past history that included the motor accident.[23]
[23] Claimant’s bundle, p 196.
On 3 September 2018 the doctor noted that the claimant had been “using Cymbalta for depression” for a “few years”.[24] On 10 December 2018 the doctor noted that the claimant felt really down and teary “on and off” and was “not sure why”.[25] In April 2019 the doctor noted ongoing neck pain, requested a referral for physiotherapy and wanted to see a psychiatrist.
[24] Claimant’s bundle, p 94.
[25] Claimant’s bundle, p 95.
In December 2019 the doctor noted that the claimant was grieving due to the loss of her pet.
A referral from Dr Sureshwaran to Dr Lutchman dated 2 May 2022 noted a depressive anxiety disorder in February 2011.[26]
[26] Insurer’s bundle, p 164.
Treating specialist reports
Ms Pennicuik was seen by Dr Naaz, psychiatrist at Mackenzie House Specialist Centre in June 2019 with a diagnosis of major depressive disorder in the light of disordered thinking patterns, low self-esteem and self-worth.[27] Dr Naaz noted that the claimant had responded well to Pristiq and recommended ongoing consultations with her psychologist.
[27] Insurer’s bundle, p 170.
Various medical records refer to the claimant undergoing an acute appendicitis requiring a laparoscopic appendectomy in June 2022.[28]
[28] Insurer’s bundle, p 154.
Statement evidence
Ms Pennicuik provided a statement dated 15 December 2021.[29] This statement addressed perceived inadequacies and deficiencies with the assessment undertaken by Medical Assessor Woo.
[29] Claimant’s bundle, p 8.
Claim form
The claim form was completed on 5 May 2017.[30] The claimant described the injuries caused by the motor accident as pain, shock, right foot, upper back, neck and right shoulder.
[30] Insurer’s bundle, p 28.
Qualified opinions
There are a number of qualified opinions concerning the physical injuries. We do not intend to summarise these reports. We note that Dr Rosenthal and Associate Professor McGill opined that any injuries sustained in the motor accident were limited to a soft tissue injury to the neck which resolved within a maximum period of six months.
Dr Graham Vickery was qualified by the insurer and provided a report dated
21 October 2020.[31] The doctor noted that there was no report of psychological or psychiatric history.[31] Insurer’s bundle, p 67.
Dr Vickery diagnosed the claimant with an adjustment disorder in partial remission and assessment impairment due to psychological injury at 5%.
Dr Vickery provided a supplementary report dated 21 October 2020 when he was provided various materials showing a prior psychological condition.[32] Th doctor opined:
“The motor vehicle accident was minor in nature. The Police or Ambulance did not attend and she drove home and did not attend the General Practitioner for some three months after which is inconsistent with any clinically significant psychopathology due to the motor vehicle accident.
It is my opinion on the basis of the further information provided that
Ms Pennicuik’s post-accident psychological complaints are related to her pre-existing/co-existing psychopathology and her subjective pain perception.The most appropriate diagnosis in relation to her incapacitating pain perception is Somatic Symptom Disorder which is not due to the motor vehicle accident.
It is my opinion there is no Whole Person Impairment due to the motor vehicle accident as Somatic Symptom Disorder is a Somatoform Disorder due to the impact of pain perception for which there is no apparent medical basis in relation to the motor vehicle accident and this condition is not utilised in the Whole Person Impairment assessment.”
[32] Insurer’s bundle, p 80.
Dr Raymond Way, psychiatrist, was qualified by the claimant and provided a report dated 12 August 2020.[33] The doctor recorded a history of “recurrent panic and depressive symptoms associated with low self-esteem and self-confidence” since the motor accident.
[33] Claimant’s bundle, p 14.
Past psychiatric history was associated with a grief reaction to the death of her grandmother in 2009 with ongoing antidepressants prescribed by her general practitioner intermittently over the years. Dr Way diagnosed a chronically depressed mood with anxiety in the context of chronic pain since the motor accident with a fear of driving and a loss of self-confidence. A diagnosis was made of chronic depression.
Dr Way assessed impairment at 15% with findings of moderate impairment for the three psychiatric impairment rating scale (PIRS) categories of social functioning, concentration, persistence and pace and adaptation.
SUBMISSIONS
Insurer’s submissions dated 3 March 2020[34]
[34] Insurer’s bundle, p 3.
Of relevance to the present dispute the insurer referred to the pre-existing anxiety and depressive condition and submitted that it had not been exacerbated by the motor accident. It referred to the records of Ponds Family Medical Practice which indicated the prescription of Cymbalta in 2015.
Furthermore, Dr Lutchman indicated that the claimant was not reluctant to drive, did not avoid situations and experienced no intrusive thoughts of the motor accident.
Insurer’s submissions dated 6 November 2020[35]
[35] Insurer’s bundle, p 6.
The insurer highlights pre-existing psychological conditions, specifically, depressive anxiety disorder in February and October 2011, work related issues in March 2012, depression in May 2014 and depression in January 2015.
The insurer submitted that the claimant was not a reliable historian and failed to report pre-existing medical issues. It referred to a number of omissions of physical conditions as well as the history recorded by Dr Vickery.
The insurer noted that the claimant was prescribed anti-depressant medication in at least 2011 for several years leading up to the motor accident.
Dr McGill observed that day-to-day issues with concentration, memory and executive function were due to neck and back pain. The treating psychologist, Dr Lutchman, recorded that the claimant was not reluctant to drive, experienced no intrusive thoughts or distressing dreams.
In his initial report Dr Vickery was not provided with a history of prior psychological symptoms. The history provided to Dr Vickey was inconsistent with that recorded by
Dr Lutchman.The insurer submitted that there was a lack of contemporaneous evidence of an aggravation of psychological condition, and this was relevant in establishing whether there was any psychological injury caused by the motor accident.
The insurer submitted that the PIRS class ratings of Dr Way are incorrect and do not align with available clinical documentation. Dr Way was otherwise provided with an incomplete history of prior psychological functioning.
Insurer’s submissions dated 19 January 2022[36]
[36] Insurer’s bundle, p 11.
These submissions addressed alleged error with respect to Medical Assessor’s Woo certificate and are not relevant to our task.
Insurer’s submissions dated 19 January 2022[37]
[37] Insurer’s bundle, p 14.
These submissions were filed opposing the review of the certificate issued by Medical Assessor Fukui. As this is a new assessment, the submissions are not particularly relevant to our task. However, the insurer correctly submitted that the Medical Assessor is not required to accept the diagnosis and assessments provided by Dr Way. Furthermore, the impairment is considered at the time of the assessment and not at a previous occasion (cl 1.21 of the Guidelines).
Claimant’s submissions dated 15 December 2021[38]
[38] Claimant’s bundle, p 1.
These submissions were filed by the claimant seeking to review the certificate issued by Medical Assessor Woo. The submissions are not relevant to this Medical Assessment as we are required to make a new assessment.
RE-EXAMINATION
Ms Pennicuik was examined by both Medical Assessors of the Panel. The joint examination report is as follows:
“Who attended the assessment
Ms Pennicuik was assessed by video
She was at home during the assessment.
Dr Jones and Dr Hong were in their Sydney offices.
History
Psychosocial history and pre-accident history
Background:
Ms Pennicuik had a minor accident around 2000 and did not sustain
a physical or psychological injury.
She was born in Australia and grew up with her parents, and was the
eldest of three siblings. She was not exposed to any neglect or
abuse. She reported having a good family and that she is very lucky.
Her parents are still together. Her siblings are married and they are
very close. She is not aware of a family history of mental illness.
She does not have epilepsy, cardiac, thyroid or liver disease.
She does not have drug or alcohol problems.
Past psychiatric history:
Around 2007 or 2010, Ms Pennicuik recalled that she suffered an ankle injury and needed surgery, and that her ankle became infected. At a similar time, her grandmother passed away and she was very close to her. She developed depression and took Efexor and Luvox for maybe two years. She did not need to consult a psychologist. She did not recall other episodes when she had psychological/psychiatric treatment.
The Panel discussed Cymbalta, which she reportedly had taken for a few years by the time of the GP entry in September 2018. She remembered having taken it but did not remember why she took it and thought it was not for long. She said Cymbalta could have been prescribed only after the subject accident. She thought that before the car accident, she had been off all psychiatric medications for maybe five years.
Before the subject accident, she reported that she was managing herself very well. She lost about 50 kg from a good diet. She was unimpaired in her self-care. She had a partner and the relationship was good. She was fit and very active and was doing well at work. She described having various social and recreational activities, and team activities with her dog. She regularly went to new and unfamiliar places. She had no problem with her concentration and memory.History of the motor accident
On 8 February 2017, Ms Pennicuik was going home from work. They were living with her partner's mother because they were building their own home. She was driving on her own from the head office in Norwest. She stopped at a traffic light and recalled there were five to seven cars in front of her when she was suddenly rear-ended by a four-wheel drive. Ms Pennicuik had a vivid memory and recalled her head had lurched forwards and almost hit the steering wheel, her chest was struck, and she was in shock. Her airbag was deployed. The ambulance and police were not needed, and she drove home.
Ms Pennicuik said that the damage to the car was not as bad as she thought and that her car was later repaired.
She consulted her GP about a week after the subject accident, as the neck pain was not getting better and there was neck swelling, and she explained that normally she was very fit and going to the gym, but as she was not getting better after a week, she felt it was important to go and see a doctor.
Physically, Ms Pennicuik has not recovered and her right big toe is still painful, which affects her sleep sometimes. She has ongoing chiropractor treatment and her neck pain is still a problem. She has morning soreness on the right side and she is right-handed. Her shoulder pain is better over time. She finds that if she sits down in one position for too long, for example when she has back-to-back meetings, her neck would become sore. There are no problems with her hands such as typing or writing. She reported that in the past she can run 5 km on the treadmill, but now she avoids running due to swelling in her toe. She walks the dogs sometimes but said that she cannot go up the hill and cannot walk for 1 km.
Ms Pennicuik recalled having severe driving anxiety and bad dreams immediately after the accident and that she was hypervigilant on the road, as she worried about having another collision. During the COVID pandemic, she was working from home and in January 2023, she started transitioning back to work in the office. She is working two days a week at the Norwest office again. It takes 50 minutes in the morning and 70 minutes after work, as the traffic can be congested. She reported that she avoids going to unfamiliar places, for example, if she goes to the Sydney CBD, she has to be accompanied due to her driving anxiety.
Ms Pennicuik recalled that her depression became severe and before the antidepressant medication started to work, there were many months when she felt depressed all the time, and nothing cheered her up. She would burst into tears and find it hard to cope with her work and general stress, and she declined some of the work meetings. Ms Pennicuik could not sleep and could not concentrate. On medication, her depressive symptoms are better, and she said that she is able to go out and do things, but she still feels like she is a hermit and cannot do all the things that she used to.History of symptoms and treatment following the motor accident
Ms Pennicuik described the onset of anxiety and depressive symptoms shortly after the subject accident and her psychological symptoms have improved but not remitted.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Pennicuik has not had further car accidents or sustained other psychological injuries.
Current symptoms
Ms Pennicuik reported having depressed mood "70% of the time" onantidepressant medication.
She has reduced enjoyment and motivation.
She continues to enjoy flyball racing with her team and club.
She described having reduced concentration and memory overall.
She reported having low energy levels, when her sleep is not good.
She gained 10 to 15 kg after the subject accident, and her weight has been stable at 84 kg for more than 6 months.
She reported having sleep problems, often only sleeping 5 to 6 hours. She has nightmares, every 4 to 7 nights related to car braking and being out of control
She feels anxious.
She has been irritable.
Ms Pennicuik denied ever having suicidal ideation.
Current and proposed treatment
Ms Pennicuik is not sure if Cymbalta was the first antidepressant medication after the subject accident.
She is currently taking:
· Pristiq 50 mg
· Panadol, Panadeine forte as needed for pain
She consulted Dr Naaz, psychiatrist twice and then Raksha Lutchman, psychologist, the last time was a few months ago.
Ms Pennicuik has never had a psychiatric admission.
Clinical Examination
Mental State examination
Ms Pennicuik was neatly attired, and her hair was tied back. She engaged well. There was no psychomotor slowing or abnormal movements. She was not restricted in her affect range and reactivity. She smiled and laughed intermittently. She spoke spontaneously and was generally talkative. She gestured regularly. She was not thought disordered and the provided history was easy to follow. She discussed having anxiety before this assessment and feeling sweaty.
Current functioningMs Pennicuik is 42 and living with her partner. They have no dependents.
On the day when she has to go out or go to work, she will get up, wash her hair and shower and make herself look presentable.
On the days when Ms Pennicuik is not working, she attends to the household chores and watches television. She walks the dog but not every day.
She would talk to her niece and nephews. As a family, they often get together, but she made excuses to not go. She did attend a family gathering on Australia Day.
Ms Pennicuik belongs to the Flyball Racing Club in Castle Hill and it is a club with about 50 members, and they would compete in a team of four dogs with four owners. In the last six months, she has competed twice and won. Ms Pennicuik does find it difficult to do the race physically as this can aggravate her pain symptoms. The club members tend to socialise after training, often every one or two weeks, however, she does not go most of the time. She estimated only going to one in four social events and has gone out to eat with the other club members a couple of times in 2023, which she enjoys but not as much as before.Ms Pennicuik had known her partner since they were in primary school and they have been together for nine years. They have built a house together and she reports the relationship is overall supportive, however, she can be irritable and ‘vent’ at him sometimes.
Ms Pennicuik finished Year 12 and said that because of financial reasons, she never attended university. She started working at 15 and later participated in a government traineeship in office administration for about five and a half years, until she was made redundant.
She started work at Woolworths head office on 5 October 2004. When the subject accident happened, she worked in IT dealing with one application, and was the system expert. She would troubleshoot software application issues and work full-time.
Ms Pennicuik only took two days off after the accident and she said she just ‘battled through’. She said that she is quite motivated to learn new things and build her career, and received a promotion and is now working as a product lead. It is predominantly an IT role and she would also assign work to the other team members. She would troubleshoot when they have problems with the application. She facilitates meetings and tries to add benefits to the business. She reported the work overall is harder because it is a step up from what she did before the subject accident.
Comments of consistency
There was no inconsistency identified.
Determinations
Diagnosis and reasons
Ms Pennicuik described having suffered depression and was treated with antidepressants for maybe two years. She stopped antidepressants around five years before the 2017 accident. Her GP's medical records indicated she may have been on Cymbalta not long before the subject accident, however this could be a mistake.
As a result of the subject accident, she reported suffering depression and driving anxiety and at the peak of her symptoms, her depressive symptoms fulfilled all of the DSM-5 criteria for Major depressive disorder. With the introduction of antidepressants, her depression has improved.
Ms Pennicuik's psychological response have fulfilled all of the diagnostic criteria of MDD. Her depressive symptoms have lasted for at least 2 weeks, and there are no other better explanations for her depressive symptoms. She has pervasively depressed mood and significant anhedonia, she has experienced significant weight gain and her depressive symptoms contributed to a significant degree. She described significant sleep impairment and fatigue. She reported concentration problems associated with her depressive symptoms. Her symptoms cause her clinically significant distress. Her symptoms are not due to the physiological effects of a medication or substance, and are not part of a general medical condition. Her symptoms are not better explained by a psychosis spectrum disorder, acute stress disorder symptoms or adjustment disorder. She has never experienced manic or hypomanic symptoms.
Causation and reasonsThe Panel noted Ms Pennicuik's medical file and the history she provided. It is possible her GP recorded the wrong history and wrote she was on Cymbalta for a few years by 2018.
There was no impairment in Ms Pennicuik's psychological functioning before the subject accident. She had returned to work full-time and described good general functioning in all aspects of her life.
Her current anxiety and depressive symptoms developed shortly after the subject accident. There is no other factor identified as causative of her psychological injury. Therefore, the subject MVA has directly and plausibly caused 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 Pennicuik has had sufficient treatment for a sufficient period of time and MMI has been reached.
Degree of permanent impairment Psychiatric Impairment Rating Scale
Current PIRS
Psychiatric diagnoses 1. Major depressive disorder 2. 3. 4. Psychiatric treatment description Antidepressant medication
Psychiatrist
Psychologist
Category Class 1. Self Care and Personal Hygiene (current) 2 Ms Pennicuik eats regularly and has a healthy diet. Her weight is stable. She does not shower daily due to a lack of motivation. She would shower before work or when she has to go out. She does some household chores. She does not need prompting with her self-care or personal hygiene. 2. Social and Recreational Activities 2 She attends regular social recreational activities with her family, club members and friends. Overall, she has been attending less since her injury. She attends recreational activities with club members and competete regularly.
3. Travel
2 Ms Pennicuik is anxious and does not go to unfamiliar places on her own.
4. Social Functioning
2 Ms Pennicuik's relationship with her partner has deteriorated and remains intact, and there is no domestic violence. They sleep in different rooms.
She is anxious and socially avoidant, and has less contact with some of her friends.
She is able to maintain long-term friendships.The relationship with her general family is good and they are close.
5. Concentration, Persistence and Pace 2 Ms Pennicuik reported having reduced concentration.
She can focus on intellectually demanding tasks, such as troubling at work on IT issues, more than 30 minutes.6. Adaptation
1 She has continued work with the same employer, and gained a promotion and is now in a higher role with more complex tasks. List classes in ascending order: 122222
Median Class Value: 2
Aggregate Score: 11
% Whole Person Impairment: 5 %
*%WPI = Percentage Whole Person Impairment
Psychiatric Impairment Rating Scale - Pre-existing/subsequent impairment
Ms Pennicuik has not sustained a subsequent injury. She has recovered from her past psychiatric episode and regained full psychiatric functioning.
Pre-existing WPI
Category
Class Reason for Decision Self-care & Personal Hygiene
(before the subject accident)1 no impairment
Social & Recreational Activities
1 no impairment
Travel
1 no impairment
Social Function
1 no impairment
Concentration, Persistence & Pace
1 no impairment
Adaptation
1 no impairment
List classes in ascending order:
1 1 1 1 1 1
Median Class Value: Aggregate Score:
1 6
Whole Person Impairment:
0
Apportionment
Nil.
Effects of Treatment
2%
She has improved with treatment and can function better.Final WPI = 7%”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[39] and Insurance Australia Ltd v Marsh.[40]
[39] [2021] NSWCA 287 at [40], [41] and [45].
[40] [2022] NSWCA 31 at [11], [21], [64].
We adopt the extensive joint examination findings of the Medical Assessors supplemented by the following brief further reasons.
The existence of a neck injury is clearly established from the chiropractic notes and the findings of the other Review Panel. The opinion by Dr Vickery, based in part on the opinion of Dr Rosenthal is contrary to the findings of the other Review Panel. We prefer the findings of the Review Panel that there is a causative link between the ongoing neck condition and the motor accident.
Pre-existing or subsequent injuries causing impairment
We adopt the reasoning in QBE Insurance (Australia) Ltd v Kumar[41] concerning the issue of onus.
[41] [2022] NSWPICMP 66 at [118]-[120].
Clause 1.31 of the Guidelines requires a deduction for “pre-existing impairment”. There is no basis to make any deduction for any pre-existing condition[42] as there is no evidence of “objective evidence of a pre-existing symptomatic permanent impairment” of the psychological condition.
[42] Clauses 1.31 of the Guidelines.
Whilst the claimant had a psychological condition in 2011 and was taking Cymbalta after that time, there was no objective evidence of impairment immediately prior to the motor accident.
CONCLUSION
We have reached a different assessment than that provided by Medical Assessor Fukui although we have reached the same conclusion that the impairment is not greater than 10%. Accordingly, the assessment dated 20 October 2021 is revoked. The new certificate is attached at the commencement of these Reasons.
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