QBE Insurance (Australia) Limited v Alzebari
[2025] NSWPICMP 16
•8 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Alzebari [2025] NSWPICMP 16 |
CLAIMANT: | Sarah Alzebari |
INSURER: | QBE |
REVIEW PANEL | |
MEMBER: | Nolan |
MEDICAL ASSESSOR: | Baker |
MEDICAL ASSESSOR: | Smith |
DATE OF DECISION: | 8 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; psychological injuries; review of Medical Assessment Certificate under section 7.23(1); claimant experienced persistent depressive disorder with persistent major depressive episode following her brother’s death in a motor accident; symptoms included poor concentration, social withdrawal, fatigue, insomnia, and loss of motivation; diagnosis excluded prolonged grief disorder and post-traumatic stress disorder; claimant unable to pursue prior career goals, engage in social or recreational activities, or function independently; impairment assessed at 17% whole person impairment (WPI), exceeding the 10% statutory threshold; Held – claimant’s psychological injury caused by the motor accident resulted in permanent impairment greater than 10%; Medical Assessor’s findings revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 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% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the Certificate of Medical Assessor Matthew Jones dated · persistent depressive disorder with persistent major depressive episode. |
STATEMENT OF REASONS
INTRODUCTION
Sarah Alzebari, the claimant, was born in 2002. She arrived in Australia as a refugee, adapting well to her new environment by excelling academically and socially. The claimant was an active and outgoing individual who enjoyed spending time with friends and aspired to study pathology at university. Before 2019, she had no history of psychological conditions or mental health struggles.
However, her life was irrevocably changed on 26 May 2019 when her brother was critically injured in a car accident caused by reckless driving. He passed away a week later without regaining consciousness, leaving the claimant and her family devastated.
Following this tragic loss, the claimant’s mental health and overall well-being deteriorated. She struggled with shock, grief, and a tense home environment, which made focusing on her studies and achieving her goals impossible. Her grades suffered significantly, and she abandoned her dream of studying pathology, instead enrolling in a different vocational course. She experienced a range of symptoms, including anxiety, panic attacks, poor concentration, feelings of numbness and emptiness, social detachment, disrupted sleep, and erratic meal patterns. To address these issues, the claimant sought regular consultations with a psychologist and psychiatrist and was prescribed Sertraline (50 mg), an evidenced-based medication because of the psychological injury associated with this motor accident.
Despite seeking treatment through medication and therapy, the claimant failed to recover and has not returned to her prior level of independent functioning because her mental health remained deeply impacted by the death of her brother. She claims that this tragedy has permanently altered her life and her prospects for future employment as well as her capacity to form new relationships in the same manner as her peers, whom she reported were “now all married” at the time of this re-examination.
The claimant’s psychological injury was classified as a non-minor injury by Dr Melissa Barrett in the Medical Assessment Certificate dated 17 August 2020. The Medical Assessor determined that the claimant met the criteria for persistent bereavement disorder linked to the severe trauma of her brother’s death.
Subsequently, on 11 February 2021, the claimant was assessed by Dr Richa Rastogi, who diagnosed the claimant with persistent depressive disorder associated with complex bereavement. The claimant exhibited symptoms such as poor concentration, social detachment, amotivation, and significant distress, particularly within her family environment, where grief was being processed in different ways. She also reported disrupted sleep patterns, erratic eating habits, and reduced energy levels, all of which were consistent with depressive symptoms.
Dr Rastogi assessed the claimant using the Psychiatric Impairment Rating Scale (PIRS) and identified varying levels of impairment. She determined mild impairment in self-care and personal hygiene, as the claimant managed basic self-care but with notable difficulty due to low energy and motivation. Travel was also mildly impaired, as she could manage short trips but required support for longer or unfamiliar journeys. Moderate impairment was identified in social and recreational activities, reflecting the claimant’s withdrawal from social interactions and lack of participation in recreational activities. Similarly, social functioning was moderately impaired due to strained family relationships and feelings of being a burden.
The claimant’s ability to concentrate, persist, and pace herself was also moderately impaired, as evidenced by her struggles to sustain focus on tasks and complete assignments or practical requirements in her studies. Adaptation was another area of moderate impairment, highlighting her difficulty maintaining a routine or adapting to changes, particularly in academic and professional settings. Based on these findings, Dr Rastogi assigned the claimant a whole person impairment (WPI) of 14%, exceeding the 10% threshold.
Dr Rastogi concluded that the claimant’s psychological injuries required ongoing treatment, including counselling and grief therapy, to address her persistent symptoms. She emphasised the need for targeted interventions to improve the claimant’s mental health and functional capabilities, noting the lasting impact of the traumatic event on her quality of life.
The insurer disputed the severity of the impairment relying on the report from Dr Rikard-Bell dated 1 October 2021. Dr Chris Rickard-Bell diagnosed the claimant with persistent depressive disorder and complex grief reaction, which he determined were directly linked to the accident and her brother’s death. The claimant presented with symptoms of depression, anxiety, lack of motivation, social withdrawal, impaired concentration, and disrupted sleep patterns. The report noted that she had no significant pre-existing psychological conditions.
Using the PIRS, Dr Rickard-Bell found minimal impairment in self-care and personal hygiene and travel, indicating that she could manage her personal care and travel independently, though with some anxiety. However, he assessed moderate impairment in social and recreational activities and social functioning, as she had withdrawn from friendships and reduced participation in activities she previously enjoyed. Her concentration, persistence, and pace showed mild impairment, as evidenced by her ability to complete a TAFE course post-accident but with difficulty maintaining focus. Similarly, her ability to adapt was rated as mildly impaired, reflecting challenges in maintaining a routine or engaging in employment.
Dr Rickard-Bell assigned the claimant a WPI rating of 5%. He recommended the continuation of her antidepressant medication, Sertraline, as well as engagement in psychotherapy or grief counselling to address her symptoms. He also encouraged gradual participation in social and recreational activities to support her recovery. While he acknowledged the significant impact of her brother’s death on her mental health, he concluded that her overall impairment level was less severe than claimed, based on her reported ability to manage daily activities and achieve educational milestones.
On 7 October 2021, the claimant requested an internal review of the insurer’s decision to deny that her impairment exceeded 10%. However, the insurer upheld their previous determination, prompting the claimant to escalate the matter to the Personal Injury Commission (Commission). The claimant sought an assessment of her psychological injury, specifically persistent depressive disorder associated with complex bereavement, to resolve the dispute.
The matter was referred to Medical Assessor Matthew Jones (Medical Assessor) who provided a certificate dated 30 June 2022.
MEDICAL ASSESSMENT THE SUBJECT OF REVIEW
The Medical Assessor reviewed the claimant’s medical, psychological, and personal history in detail. The claimant was reported to have been in good health before the motor vehicle accident that resulted in the death of her brother. She had no history of significant medical conditions, surgeries, or regular medication use. The claimant was a non-smoker, a non-drinker, and did not use recreational drugs. She had no involvement in criminal activities, no history of work-related injuries, and no participation in legal or compensation matters before the accident. Additionally, the claimant had a stable family background and no prior mental health issues or treatments, as confirmed by the Medical Assessor.
Following the motor vehicle accident, the Medical Assessor noted that the claimant developed persistent depressive disorder and complex grief. The traumatic event had a profound and permanent impact on her mental health and overall functioning. The claimant described recurring nightmares, low energy levels, difficulties with concentration, and a lack of motivation. She reported feeling unable to complete daily tasks, maintain a routine, or engage in social or recreational activities. The claimant also experienced significant social withdrawal and a diminished capacity to work or pursue her educational goals. The Medical Assessor highlighted that her symptoms were severe and debilitating, leading to major disruptions in her life.
The Medical Assessor acknowledged that the claimant sought treatment for her condition, including consultations with her general practitioner and a psychiatrist. She was prescribed sertraline, an antidepressant, at a dose of 50 mg daily. Despite this intervention, the claimant reported minimal improvement in her symptoms. The Medical Assessor noted that the claimant attended psychiatric reviews intermittently but expressed a sense of hopelessness, indicating that “nothing will help”. She also avoided more regular psychological counselling, as discussing the trauma often exacerbated her symptoms.
The Medical Assessor evaluated the claimant’s functionality and determined that she struggled with basic daily tasks, including maintaining personal hygiene and contributing to household responsibilities. Her social and recreational activities were severely restricted, as she no longer engaged in fitness, sports, or outings with friends, which she had previously enjoyed. The claimant was unable to work or apply her vocational training due to her persistent symptoms. Even traveling independently was a challenge, as she experienced significant anxiety and avoided driving entirely.
The Medical Assessor concluded that the claimant had reached maximum medical improvement, meaning her condition was unlikely to improve significantly despite ongoing treatment. The Medical Assessor attributed a whole-person psychiatric impairment of 17% to the claimant, based on the severity and persistence of her symptoms. This impairment was deemed to be directly related to the motor vehicle accident and the subsequent loss of her brother. The Medical Assessor emphasised that the claimant’s mental health challenges were not consistent with normal grieving processes but instead aligned with a diagnosis of persistent depressive disorder and complex bereavement disorder.
The Medical Assessor further concluded that the claimant’s impairments were permanent and would continue to affect her ability to function in daily life, work, and social environments. The assessment underscored the profound and lasting impact of the motor vehicle accident on the claimant’s mental and emotional well-being, confirming that her condition was unlikely to remit or improve substantially in the future.
REVIEW OF THE MEDCIAL ASSESSMENT
The insurer sought a review of the Medical Assessment Certificate (MAC) issued by the Medical Assessor, arguing that the original evaluation contained material errors and failed to adequately address inconsistencies. The insurer contended that the assessment overstated the extent of the claimant’s psychological impairments and questioned the methodology used in determining her level of functional impairment. Specific concerns included inconsistencies in the claimant’s self-reported symptoms and observed behaviour, as well as errors in applying the PIRS.
The application for review was lodged within the prescribed 28-day period following the issuance of the MAC.
The delegate of the President reviewed the application and determined that there was reasonable cause to suspect the original assessment was materially incorrect. Consequently, the matter was referred to the Review Panel (Panel) presently constituted for reassessment.
This referral was made pursuant to cl14F of Schedule 1 of the Personal Injury Commission Act 2020 (PIC Act), which stipulates that the new review provisions apply to decisions made by a “new decision-maker.” Under Clause 14A(1) of Schedule 1 of the PIC Act, a “new decision-maker” encompasses medical assessments made on or after 1 March 2021. As the medical assessment under review falls within this timeframe, the new review provisions are applicable.
The new review provisions establish that a Review Panel consists of two Medical Assessors and one Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the PIC Act empowers the Commission to make rules governing the practice and procedure of proceedings before the Commission, including reviews of decisions by a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules), enacted under Part 5 of the PIC Act, provide that a Review Panel has discretion over the conduct and determination of proceedings. The Panel may choose to resolve matters based solely on the written application or proceed with further steps as deemed necessary. The review is to be conducted as a new assessment of all matters addressed in the initial medical assessment.
The Panel determined that a re-examination of the claimant was necessary to complete the review.
All members of the Panel confirmed that they had no prior involvement with either the claimant or the matter under review.
The following injuries were referred by the Commission for assessment:
(a) persistent depressive disorder/abnormal grief reaction.
EVIDENCE
Pursuant to an interim direction dated 14 July 2023, the parties provided a joint bundle of documents upon which they relied on the review.
The Panel has considered that joint bundle of documents on the review, including, although not strictly relevant, the submissions that the parties made in respect of the application for the review.
Additional to those set out above, the parties relied on the following medico legal reports.
In a Vocational and Functional Assessment Report dated 19 January 2022, Dr Tingle reported on her assessment of the claimant’s vocational and functional capacities following the psychological injuries she sustained due to her brother’s death in a motor vehicle accident. The assessment aimed to determine her ability to engage in meaningful employment or further education and to explore her transferable skills in the context of her psychological and functional impairments.
Dr Tingle reviewed the claimant’s background, noting her limited work history and academic struggles following the accident. Before the motor accident, she had aspired to pursue a career in pathology but was unable to meet the academic requirements due to her deteriorating mental health. Instead, she enrolled in a Certificate III in Dental Assisting. Although the claimant completed the theoretical components of the course, she was unable to fulfill the practical hours required for certification, citing concentration difficulties, anxiety, and a lack of motivation as the primary barriers.
The assessment detailed the claimant’s reported symptoms, which included persistent depressive symptoms, anxiety in social and professional settings, and poor concentration and memory. These symptoms significantly impaired her ability to maintain a routine, complete tasks, and manage the demands of a structured work environment. Dr Tingle observed that the claimant expressed feelings of self-doubt and hopelessness regarding her capacity to sustain employment or contribute meaningfully in a professional setting.
Potential vocational options were explored based on the claimant’s interests and existing skills. Roles such as a retail assistant or a pathology collector were identified as possible avenues; however, these would require significant accommodations, such as reduced working hours, flexible scheduling, and supportive supervision. The claimant’s psychological condition was deemed a substantial limiting factor, and it was noted that her success in such roles would depend on her willingness and capacity to engage in ongoing psychological treatment and vocational support.
The report emphasised that the claimant would benefit from tailored vocational rehabilitation aimed at improving her resilience and readiness for the workplace. Dr Tingle recommended structured interventions, including counselling to address her grief and anxiety, as well as training programmes designed to build confidence and enhance her employability. Furthermore, it was suggested that any employment role should include a gradual introduction to responsibilities to minimise stress and prevent potential setbacks.
In conclusion, Dr Tingle assessed that while the claimant demonstrated some residual functional capacity, her psychological impairments significantly hindered her employability. Her ability to re-enter the workforce would require a combination of therapeutic support, vocational training, and substantial workplace accommodations to address her specific challenges and limitations.
In a supplementary medico-legal report provided by Dr Rastogi dated 12 April 2022, following an examination on 11 February 2021, Dr Rastogi provided responses to specific questions regarding the claimant’s psychological condition, prognosis, and functional capacity, based on her prior examination and additional (unidentified) documentation provided.
Dr Rastogi confirmed that the documentation did not alter her clinical diagnosis of persistent depressive disorder, reaffirming its impact on the claimant’s social and educational functioning. She noted that the documentation consistently supported the claimant’s difficulties, including poor academic performance and absences from school, as reported by school psychologists.
Regarding the claimant’s prognosis, Dr Rastogi maintained that it remained guarded. She explained that the claimant was partially disadvantaged, particularly in her inability to pursue her career of choice, which was attributed to poor school performance resulting from her psychological condition.
Dr Rastogi also addressed the claimant’s future incapacity and partial incapacity for tertiary education and employment. She identified barriers such as limited concentration, reduced motivation, and the associated impacts of her mood disorder. These factors were noted to impede her ability to achieve her future goals, maintain effectiveness at work, handle stress, and make complex decisions, with her emotional resources being significantly depleted.
Finally, Dr Rastogi stated that the additional documentation did not cause her to alter the claimant’s WPI assessment as detailed in her previous report. She reiterated her conclusions and provided further support for her earlier findings.
The claimant’s school records relevantly provide a detailed account of the psychological and emotional challenges faced by the claimant following her brother’s death in a motor vehicle accident. These records span several interactions with school psychologists, documenting her struggles with grief, concentration, and adapting to her new reality.
The initial records describe the claimant’s return to school, where she expressed deep grief, tearfulness, and disbelief over her brother’s death. She struggled to process the event, often crying and expressing difficulty in concentrating on her studies. The psychologists acknowledged her emotional state, validated her feelings, and provided her with strategies to cope, including creating safe spaces at school where she could retreat when overwhelmed. A time-out card was also recommended to allow her to step out of the classroom as needed.
In subsequent sessions, the claimant reported ongoing difficulties, such as seeing the world as empty and unfair. She described herself as unable to feel joy or passion and expressed a sense of purposelessness. The psychologists noted her challenges in participating in activities she once enjoyed and her difficulty in reconnecting with friends. Strategies such as keeping a thought diary and engaging in supportive family activities were suggested to help her manage her grief and build resilience.
The records also document her occasional positive steps, such as enrolling in a TAFE make-up course, which she enjoyed. However, her progress was often hindered by pervasive feelings of sadness, blame, and emotional detachment. The psychologists provided continuous encouragement and reinforced her strengths, including her desire to support her family.
At no point did the claimant express suicidal ideation, and she was assessed as low risk for self-harm. Protective factors included her family support and her school network, though her ability to manage stress and complex emotions remained psychologically impaired. The school psychologists worked closely with the claimant to ensure she had access to support and accommodations necessary to navigate her grief and academic challenges.
RE-EXAMINATION
The Panel determined to conduct a re-examination of the claimant. The claimant was re-examined alone in her room, via MS TEAMS.
The assessment was conducted by Medical Assessor Baker with Member Nolan attending.
Psychosocial history and pre-accident history
The claimant stated that she was born in Mosul, Iraq. She reported that she lived in Mosul until she was about 10 years of age. She then left Iraq with her family to avoid the war with ISIS. The family initially fled to Kurdistan and was supported by the Catholic Church. She said the family remained at this local parish for about four months. After that time all members of her family were provided with passports and the family moved to a suburb in Jordan. The claimant reported that the family rented accommodation in Hahnemannian, Amman Jordan. After four years the family entered Australia.
Before entry to Australia the claimant reported that she had never been exposed to the effects of war. She stated that her father worked in construction in Mosul. She said that neither her father nor her extended family were involved in the Iraq armed forces. The family identifies as Chaldean Catholic heritage. Whilst living in Mosul the claimant attended a Catholic Primary School from Kindergarten until the family left the city. English was the claimant’s second language learnt after she arrived in Sydney, Australia aged 14 years. She stated that the family spent about 20 days in Melbourne, Victoria before relocating to Smithfield, NSW.
The claimant’s family at the time of this re-examination included: father aged 63 years, mother aged 55 years, two brothers and an elder sister. She said her eldest brother died after a serious motor accident on 26 May 2019. He was 21 years at the time of his death. The claimant’s elder sister was aged 28 years, living in the family home and worked part-time as a dental hygienist. Her younger brother was aged 16 years at the time of this re-examination and was to commence Year 11 at high school. The claimant was aged 21 years at the time of this assessment.
At the time of this re-examination the claimant reported that she had studied 500 hours of intensive English provided through NSW Department of Education at Fairfield High School. She enjoyed her attendance at the Intensive English Centre and stated that she was able to learn English quickly. She reported that she did not require a support person or an English interpreter. The claimant stated she made friends with people from different cultures and customs to her family whilst at school. She reported she enjoyed learning, and she had set the goal of “adaptation” to the Australian community. She stated she felt safe in greater western Sydney, with her family.
The claimant stated she attended high school between Years 10 and 12. During her school education, she enjoyed playing football (soccer) and she played the role of goalkeeper. The family attended the local Catholic Church. She enjoyed attending Mass said in Aramaic with her mother and elder sister. She enjoyed listening to popular Arabic and other countries popular music. She was studying English, Biology and Child Studies during Year 11 before the death of her eldest brother.
The claimant reported that she was able to attend her school and shopping centre using public transport before the onset of this psychological injury. She reported that she was learning to drive at about 16 years of age. She stated that her deceased brother would take her on drives and trips to the beach. She was also able to attend the local gym and exercise routinely. She reported that she was closest to her eldest brother prior to his death. She would text message and ring him on his mobile phone when he was out of the house. She enjoyed his company. She was about four days from her 17th birthday when her eldest brother was fatally injured in the motor accident.
The claimant reported that she was not exposed to any trauma, abuse or neglect as a child. She had never suffered from any sporting injuries or fractures. She had no medical conditions. She was examined medically before she arrived in Australia as part of the Australian Government immigration procedures. She had no allergies. She did not use illicit substances. She does not gamble. She reported no family history of psychiatric illness. She reported she had never suffered from a psychiatric illness prior to the subject motor accident. The claimant had never lodged any prior personal injury claim prior to the death of her brother.
The claimant’s expectation before her brother’s death was to continue her studies, get her driver’s licence and enter the workforce. She was to turn 17 years of age on 30 May 2019.
History of the motor accident
The claimant’s eldest brother was severely injured in a motor accident on 26 May 2019 and he died about two weeks after the motor accident.
The claimant reported that on the day of her brother’s motor accident, she was with her mother and elder sister shopping. The claimant was studying, and her mother and sister cooked a meal. The first thing the claimant reported that was different was, “her brother was not home”. She then stated that he was late. The family tried to message him, “like a hundred times” however every effort was unsuccessful.
The next event was NSW Police officers attending the family home. The police said that her elder brother was in a high-speed motor accident. The claimant stated that her parents and elder sister went to investigate what had happened to her brother. They went to Royal Prince Alfred Hospital (RPA). The claimant’s brother was in the intensive care unit (ICU). After her parents and sister had arrived at the ICU, the claimant and her younger brother were sent a taxi to travel from their home to join her parents.
The claimant stated that she was told that the family had “48 hours to say goodbye to her brother”. She was told he had a “head injury and a broken neck”. She said she went into immediate shock. She became tearful and distressed. She was crying. After her parents had left the bedside, the claimant was allowed in to see her brother. She said her brother looked pale, with yellowish skin. He had a central bruise on his forehead.
The claimant’s family returned to the hospital on the day of her brother’s death. The claimant was present during the death of her brother. She said that a priest from the family’s church attended her brother. He placed anointing oil on her brother’s head. The priest provided her brother with his “Last Rites”. She said that other people from the hospital were present at the time of her brother’s death.
The claimant attended her brother’s funeral. The family displayed a photograph in the home of her deceased brother. The claimant reported that she continued to think about her brother a lot. She said she remained in “disbelief” about the death. She said she feels as if her life has had no meaning since her brother’s death. She reported she was confused and felt that life was unfair.
History of symptoms and treatment following the motor accident
The claimant was asked what her work goal before the death of her brother was. She said that she wanted to become a “pathologist”. She clarified by saying, “I was hoping to work as a blood collector in a hospital.” Since the death of her brother, she had not been able to pursue this goal as she would be reminded about her brother’s death. She would become tearful and depressed when thinking about him and she lost her interest in this role due to her brother’s death.
The claimant then attended and completed the academic part of a Certificate III in Dental Assistance at Randwick NSW TAFE. Her sister was a part-time dental assistant. She was able to take public transport between her home and the TAFE as the route was familiar to her. She also held a probationary NSW driver’s licence at the time of this re-examination. She had taken an 18 month break between the death of her brother and gaining her driver’s licence.
The claimant stated that after completing the academic part of her dental assistance course she had become unable to enter the workforce. She could not sleep well. She had low energy, and she felt tired and fatigued during the day. She reported that she would frequently wake during the night and not be able to return to sleep in the early hours of the morning. She said she would suffer from early morning wakening about three to four times each week. She reported she was not interested in walking the family dog “Leo” since the death of her brother. She said she walked Leo about twice each week. She was not interested in interacting with Leo as she had before her brother’s death. She said her mood was too depressed and she felt as if her life was worthless and without meaning. She reported that her appetite was poor and that she would miss meals.
The claimant reported that she had intrusive memories about how her brother looked after the motor accident. She frequently experiences panic attacks, anxiety and depression.
The claimant reported she had not received any treatment after the onset of her depression. She stated that she did not receive any income from any source. She does not receive Jobseeker or Centrelink payments.
The claimant attended her general practitioner who referred her to a psychiatrist, Dr Wahaib. She was initially treated with Sertraline (selective serotonin reuptake inhibitor antidepressant/antianxiety medication, SSRI) at a low dose of 50mg a day. She then had her Sertraline increased to 100mg daily. This is a moderate dose of first line SSRI treatment for major depressive disorder. The claimant was seen by her school counsellor. The claimant engaged in the traditional family ritual for the death of her brother. The family had a photograph, candles and a cross in remembrance of him.
The claimant reported her evidence-based antidepressant was changed from Sertraline 100mg to Desvenlafaxine 100mg each morning without remission of her psychological injury. She was also prescribed Temazepam 10mg at night.
Details of any relevant injuries or conditions sustained since the motor accident
Nil. There were no relevant injuries or conditions sustained since the motor accident.
Current symptoms
The claimant’s current symptoms of persistent depressive disorder with persistent major depressive episode are listed in bold.
Persistent Depressive Disorder with persistent major depressive episode DSM5TR F34.1:
Diagnostic Criteria
A Depressed mood for most of the day, for more days than not, as indicated by either subjective account or observation by others, for at least 2 years.
Note: In children and adolescents, mood can be irritable and duration must be at least 1 year.
This criterion is met as evidenced by the claimant being under age 18 years at the time of onset of her depressed mood caused by the shock of learning about her brother’s “broken neck and head injury” caused by the motor accident.
B. Presence, while depressed, of two (or more) of the following:
1. Poor appetite or overeating.
This criterion is met as evidenced by the claimant regularly missing meals due to loss of appetite.
2. Insomnia or hypersomnia.
This criterion is met as evidenced by the claimant waking 3 – 4 times per week with early morning wakening, as well as daily experiences of poor-quality sleep, and difficulty initialling sleep such that Temazepam 10mg at night has been prescribed by her psychiatrist. Temazepam 10mg at night is evidenced-based treatment for insomnia.
3. Low energy or fatigue.
This criterion is met as evidenced by the claimant reporting daily low energy and fatigue.
4. Low self-esteem.
5. Poor concentration or difficulty making decisions.
This criterion is met as evidenced by the claimant being unable to concentrate to pursue her studies.
6. Feelings of hopelessness.
C. During the 2-year period (1 year for children or adolescents) of the disturbance, the individual has never been without the symptoms in Criteria A and B for more than 2 months at a time.
D. Criteria for a major depressive disorder may be continuously present for 2 years.
This criterion is met as evidenced below under, “The specifier: With persistent major depressive episode: With persistent major depressive episode.”
E. There has never been a manic episode or a hypomanic episode, and criteria have never been met for cyclothymic disorder.
This criterion is met as evidenced by the absence of prior psychiatric conditions suffered by the claimant.
F. The disturbance is not better explained by a persistent schizoaffective disorder, schizophrenia, delusional disorder, or other specified or unspecified schizophrenia spectrum and other psychotic disorder.
This criterion is met as evidenced by the absence of prior psychiatric conditions suffered by the claimant.
G. The symptoms are not attributable to the physiological effects of a substance (e.g., a drug of abuse, a medication) or another medical condition (e.g. hypothyroidism).
This criterion is met as evidenced by the absence of physical conditions and/or substance use conditions suffered by the claimant that could contribute to depressive symptoms.
H. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
This criterion is met as evidenced by the claimant not entering the work force in either occupation as a hospital-based blood collector “pathologist” or dental assistant.
The specifier: With persistent major depressive episode is met as evidenced by:
The full criteria for a major depressive episode been met throughout the preceding 2-year period as evidenced by the following diagnostic criteria:
A. Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.
1. Depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g., feels sad, empty, hopeless) or observation made by others (e.g., appears tearful). (Note: In children and adolescents, can be irritable mood.)
This criterion is met as evidenced by the claimant’s persistent depressed mood causing persistent sadness in mood and tearfulness when talking about her depressive condition.
2. Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation).
This criterion is met as evidenced by the claimant’s loss of interest in her career and loss of interest in socialising and celebrating with her prior friends at school or church.3. Significant weight loss when not dieting or weight gain (e.g., a change of more than
5% of body weight in a month), or decrease or increase in appetite nearly every day.
(Note: In children, consider failure to make expected weight gain.)
4. Insomnia or hypersomnia nearly every day.
This criterion is met as evidenced by the claimant waking 3 – 4 times per week with early morning wakening, as well as daily experiences of poor-quality sleep, and difficulty initialling sleep such that Temazepam 10mg at night has been prescribed by her psychiatrist.
5. Psychomotor agitation or retardation nearly every day (observable by others, not
merely subjective feelings of restlessness or being slowed down).
6. Fatigue or loss of energy nearly every day.
This criterion is met as evidenced by the claimant reporting daily low energy and fatigue affecting her psychological functioning nearly every day.
7. Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick).
8. Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others).
This criterion is met as evidenced by the claimant being unable to concentrate in the work environment so as to finish her studies as a dental assistant.
9. Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide.
B. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
This criterion is met as evidenced by the claimant’s impairment in entering the work force or finding another culturally appropriate social role such as finding a best friend, fiancé or partner.
C. The episode is not attributable to the physiological effects of a substance or to another medical condition.
Note: Criteria A-C represent a major depressive episode.
This criterion is met as evidenced the absence of prior medical, physiological effects or substance use conditions suffered by the claimant.
D. At least one major depressive episode is not better explained by schizoaffective disorder and is not superimposed on schizophrenia, schizophreniform disorder, delusional disorder, or other specified and unspecified schizophrenia spectrum and other psychotic disorders.
This criterion is met as evidenced the absence of prior psychiatric conditions suffered by the claimant.
E. There has never been a manic episode or a hypomanic episode.
This criterion is met as evidenced the absence of prior psychiatric conditions suffered by the claimant.
Exclusion of prolonged grief disorder incompliance with DSM5TR diagnostic Criterion F
The diagnosis of prolonged grief disorder DSM5TR 43.8 is not made. In compliance with diagnostic Criterion F, for Prolonged grief disorder, the condition is not diagnosed when the claimant meets criteria for persistent depressive disorder with persistent major depressive episode DSM5TR F34.1. Criterion F is documented below:
“Criterion F The symptoms [of prolonged grief disorder] are not better explained by another mental disorder, such as major depressive disorder or posttraumatic stress disorder, and are not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.”
The Panel notes that the diagnosis of persistent depressive disorder with persistent major depressive episode DSM5TR F34.1 is preferred and excludes prolonged grief disorder DSM5TR 43, as a diagnosis.
The claimant was not diagnosed with post-traumatic stress disorder DSM5TR F43.10. The Panel notes that the claimant is not compliant with Criterion C, for post-traumatic stress disorder to be diagnosed. Criterion C is documented below:
“C. Persistent avoidance of stimuli associated with traumatic event(s), beginning after the traumatic event(s) OK, as evidenced by one or both of the following:
1. Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
2. Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
The claimant reported that she had continued to drive and held a NSW Drivers licence after the death of her brother. She had required a longer time to complete her driver’s licence due to the death of her brother. The reason for slow progress was not due to avoidance but was due to slowed concentration, persistence and pace. She had completed this complex task at a slower rate. The claimant was not avoidant of driving at the time of this re-examination.
The claimant did not report other avoidance behaviours. She did report having a displayed photograph of her deceased brother in the home as well as having attended Mass where she was aware that his name would be mentioned amongst the deceased members of the congregation during the grief period.
Current and proposed treatment
The claimant had continued treatment with her psychiatrist. She was prescribed Desvenlafaxine 100mg daily and Temazepam 10mg at night. She attended about once each month. The claimant was not admitted to psychiatric hospital. She preferred to isolate herself from her community and family in her own room, alone. She could not afford a psychologist. There were no plans to increase the frequency or intensity of treatment.
CLINICAL EXAMINATION
Mental state examination
The claimant was seated alone in her room. She was assessed by videoconference. Her hair was uncombed. The claimant’s clothing was clean.
The claimant was tearful during the re-examination. Rapport was difficult to establish and required active maintenance throughout the assessment to enable to claimant to speak about her depression. She spoke slowly and deliberately, with a normal volume of speech.
The claimant reported a depressed mood. She spoke about life being “pointless” and “without meaning”. She had lost her motivation and felt that she had little to offer her family or others. She was not interested in her future career or personal life. She had no plans to make new friends. She was not interested in exercise or attending the gym. Her interest in Leo, the family pet, had deteriorated. She did not speak of anything providing her happiness or pleasure. She had lost interest in following popular music and emerging entertainers. She attended church less and did not attend youth groups or functions outside of the Aramaic Mass service that she would attend with her mother and sister about twice each month.
The claimant was orientated in time, place and person. She complained of difficulty concentrating for long periods and did not participate in the cooking of meals. She did little in the house and felt too depressed to be able to recover from the shock she suffered after learning that her brother had broken his neck and had a severe head injury.
The claimant was labile in her affect and repeatedly tearful during the assessment. She could re-compose herself when provided with time. She did not report any psychotic symptoms or delusions. She was not suffering from any self-harm ideas or plans. Her judgment was normal. Her insight was normal.
Current functioning
The claimant’s current functioning was as follows.
Self-care and personal hygiene
The claimant relied on her mother to cook food for her most days. She reported that she could do small light cleaning such as vacuuming and tidying her room. She did not maintain her own laundry. She did not contribute to the garden, lawn or any other daily activities. The claimant was assessed as moderately impaired as she was unable to live independently without the support of her family.
Recreation and social activities
The claimant reported she had no interest in socialising outside of her family home. She reported that the family did not decorate a Christmas tree or give gifts since the death of her brother. She reported that the family had officially stopped grieving as the cultural period for mentioning her brother’s name in church as part of the community prayers for the deceased had lapsed. The claimant had ceased attending the gym and was not interested in exercising in groups. The claimant did not have any friends that visited the home. The claimant had lost her interest in following popular music trends and artists. The claimant was assessed as moderately impaired for this table of functioning.
Travel
The claimant was able to travel and use public transport in local and familiar areas. She was able to drive in her local and familiar areas. She had not travelled overseas or interstate since the death of her brother. The claimant was assessed as mildly impaired for this table of functioning.
Social
The claimant reported an ongoing supportive relationship from her mother and sister. Her mother and sister supported the claimant when she required assistance. She reported that she was also cared for by her father. The claimant reported that her younger brother was busy with his school studies. The claimant had lost friends and had not made new friendships since the death of the eldest brother. The claimant said that her friendship circle had moved on and were “all married” at the time of this re-examination which left her isolated and alone. The claimant was assessed as mildly impaired for this table of functioning.
Concentration persistence and pace
The claimant reported she could read and speak English fluently. She said she did complete a NSW TAFE course, and her NSW Drivers licence after the death of her brother. She had required a longer time to complete her driver’s licence due to the death of her brother. She had completed this complex task at a slower rate. The claimant was not avoidant of driving. The claimant was assessed as mildly impaired for this table of functioning.
Adaptation
The claimant had not entered the workforce since the death of her brother. She had lost hope and was unable to make adaptive plans to work as she had prior to the death of her brother. She had not completed the work training component of her skills training to work as a dental assistant. Her attendance would be erratic and her capacity to work at pace to assist a dentist in their performance of oral surgery would be too erratic to work safely in this role. She was unable to work in a lesser role as a blood collector as she would become too symptomatic should she enter a hospital. The claimant was assessed as severely impaired for this table of functioning.
Comments of consistency
The claimant’s presentation was consistent with all the documents forwarded for re-examination of the claimant.
DETERMINATIONS
Diagnosis and reasons
The Panel is of the opinion that the best diagnosis that provided a complete understanding of the claimant’s psychological injury sustained in association with the motor accident is persistent depressive disorder with persistent major depressive episode DSM5TR F34.1.
The claimant provided a full history of her life span, experience and memories both before, and after, the death of her brother.
The claimant’s presentation was consistent with her experience of being shocked when told that she had “48 hours to say good-bye to her brother” as he had a “head injury and a broken neck”. She reported a depressed and tearful mood since. She reported that she had lost interest in her future career and personal life. That life was pointless and without worth. She ruminated on how “unfair” it was that her brother died in this manner. The patient developed a major depressive episode for the first time. She was under the age of 18 years and an adolescent at the time of onset of this psychological injury. Her depression had never resolved.
The claimant received psychiatric treatment for her persistent depressive disorder with persistent major depressive episode. She continued to be prescribed Desvenlafaxine 100mg daily with Temazepam 10mg at bedtime. She attended her psychiatrist about once every month for ongoing treatment. She was never admitted to a psychiatric hospital.
The Panel accepts that the motor accident can cause persistent depressive disorder with persistent major depressive disorder due to the shock the claimant suffered after being told that she had “48 hours to say good-bye to her brother” as he had a “head injury and a broken neck”. The death of her brother was unable to be understood by the claimant. The claimant stated that her life was permanently damaged by this shock which was the cause of this psychological injury.
Causation and reasons
The claimant had no pre-existing psychiatric or psychological condition.
The claimant was an adolescent at the time of this motor accident.
The claimant suffered from shock when she was told that her bother had broken his neck and sustained a severe head injury as caused by the motor accident and that she had 48 hours to say goodbye to her brother. The severity of her shock was consolidated by her seeing her brother in ICU. He had a bruise on his central forehead. He had pale yellow skin. He was unconscious and she was unable to understand what had happened and why her brother was to die.
The claimant was present at the death of her brother. The claimant witnessed her brother receiving his last rites from the family’s priest. The claimant’s shock was severe, and she developed a major depressive episode for the first time in her life. She was unable to recover from this major depressive episode. She had been treated with evidence-based pharmacotherapy for her depressive disorder by her psychiatrist.
The Panel accepts that the shock suffered by the claimant could cause the major depressive episode. The major depressive episode had not resolved with treatment provided by the claimant’s medical team. The major depressive episode became persistent, and the chronic natural history of the claimant’s condition is best defined as persistent depressive disorder with persistent major depressive episode using DSM5TR criteria. This type of depressive disorder excluded the diagnosis of prolonged grief disorder and post-traumatic stress disorder when using DSM5TR criteria.
The Panel found that there were no other pre-existing or subsequent conditions that contributed to this permanent whole person psychiatric impairment as suffered by the claimant at the time of the re-examination.
Summary of injuries referred by the parties
The following injuries WERE caused by the motor accident:
· persistent depressive disorder with persistent major depressive episode DSM5TR F34.1.
CONCLUSION
PERMANENCY OF IMPAIRMENT
Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (p.315) as follows:
“Permanent impairment is an 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.”
The Panel agrees that the claimant’s psychological injury is now permanent. It is well stabilised and unlikely to change by more than 3% WPI within the next 12 months with or without medical treatment.
The Panel accepts that the psychological injury commenced more than four years ago and that the claimant’s condition had not recovered.
The Panel accepts after this period of unresolved symptoms the claimant is unlikely ever to enter full remission at any time in the foreseeable future.
Degree of permanent impairment – Psychiatric Impairment Rating Scale
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
Psychiatric diagnoses
Persistent Depressive Disorder with persistent major depressive episode DSM5TR F34.1.
Psychiatric treatment description
The claimant had received psychiatric treatment from her general practitioner and psychiatrist for this psychological injury. She is compliant with her prescribed medication. She continued to use Desvenlafaxine 100mg daily with Temazepam 10 mg at night.
Category
Class
Reason for Decision
1. Self-Care and Personal Hygiene
3
The claimant relied on her mother to cook food for her most days. She reported that she could do small light cleaning such as vacuuming and tidying her room. She did not maintain her own laundry. She did not contribute to the garden, lawn or any other daily activities. The claimant was assessed as moderately impaired as she was unable to live independently without the support of her family.
2. Social and Recreational Activities
3
The claimant reported she had no interest in socialising outside of her family home. She reported that the family did not decorate a Christmas tree or give gifts since the death of her brother. She reported that the family had officially stopped grieving as the cultural period for mentioning her brother’s name in church, as part of the community prayers for the deceased, had lapsed. The claimant had ceased attending the gym and was not interested in exercise in groups. The claimant did not have any friends that visited the home. The claimant had lost her interest in following popular music trends and artists. The claimant was assessed as moderately impaired for this table of functioning.
3. Travel
2
The claimant was able to travel and use public transport in local and familiar areas. She was able to drive in her local and familiar areas. She had not travelled overseas or interstate since the death of her brother. The claimant was assessed as mildly impaired for this table of functioning.
4. Social Functioning
2
The claimant reported an ongoing supportive relationship from her mother and sister. Her mother and sister supported the claimant when she required assistance. She reported that she was also cared for by her father. The claimant reported that her younger brother was busy with his school studies. The claimant had lost friends and had not made new friendships since the death of the eldest brother. The claimant said that her friendship circle had moved on and were “all married” at the time of this re-examination which left her isolated and alone. The claimant was assessed as mildly impaired for this table of functioning.
5. Concentration, Persistence and Pace
2
The claimant reported she could read and speak English fluently. She said she did complete a NSW TAFE course, and her NSW Drivers licence after the death of her brother. She had required a longer time to complete her driver’s licence due to the death of her brother. She had completed this complex task at a slower rate. The claimant was assessed as mildly impaired for this table of functioning.
6. Adaptation
4
The claimant had not entered the workforce since the death of her brother. She had lost hope and was unable to make adaptive plans to work as she had prior to the death of her brother. She had not completed the work training component of her skills training to work as a dental assistant. Her attendance would be erratic and her capacity to work at pace to assist a dentist in their performance of oral surgery would be too erratic to work safely in this role. She was unable to work in a lesser role as a blood collector as she would become too symptomatic from memories of her brother’s death should she enter a hospital. The claimant was assessed as severely impaired for this table of functioning.
| List classes in ascending order: 2, 2, 2, 3, 3, 4 |
| Median Class Value: 3 |
| Aggregate Score: 16 |
| % Whole Person Impairment: 17% |
Apportionment – pre-existing/subsequent impairment
The claimant had no pre-existing or subsequent impairment. The apportionment for pre-existing/subsequent impairment is Nil.
Effects of treatment
The effects of treatment experienced by the claimant was Nil.ignee
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