QBE Insurance (Australia) Limited v BPO

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v BPO [2025] NSWPICMP 388
CLAIMANT:	BPO
INSURER:	QBE Insurance (Australia) Ltd
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Christopher Rikard-Bell
DATE OF DECISION:	3 June 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; review of Medical Assessment Certificate (MAC); motor accident; claimant riding bicycle collided with insured vehicle; whether the degree of permanent impairment was greater than 10%; claimant re-examined; claimant suffered degloving injury to leg and developed chronic pain condition; application of clause 1.215 of the Motor Accident Permanent Impairment Guidelines in excluding effects of pain from psychiatric impairment rating scale (PIRS) assessment; use of clinical observations from assessment in assessing PIRS category of concentration, persistence and pace; Abdal v Insurance Australia Ltd commented on; Held – claimant’s degree of permanent impairment assessed at 9% including an allowance of 1% for the effects of treatment; MAC revoked.
DETERMINATIONS MADE:	Medical Assessment – Permanent Impairment 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% *The assessment made by the review panel under s 63(4) of the Motor Accidents Compensation Act, 1999* is as follows:** 1. The Review Panel revokes the certificate of Medical Assessor Mason dated 14 April 2023 and issues a new certificate that the following injury caused by the motor accident give rise to a whole person impairment which is not greater than 10%: (a) Major depressive disorder – of moderate severity.

REASONS

BACKGROUND

[BPO] (the claimant) was injured in a motor accident on 25 October 2016. The claim form records that the claimant was riding in her lane when the insured vehicle “cut me off” and caused the accident.[1]
[1] Claimant’s bundle, p 14.
Insurance Australia Ltd trading as NRMA (the insurer) is liable to pay [BPO] 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 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 State Insurance Regulatory 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.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Mason on 14 April 2023 (the medical assessment). Medical Assessor Mason assessed the permanent impairment caused by the motor accident at 19%.
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).

MEDICAL ASSESSMENT UNDER REVIEW

This review is from the Medical Assessment Certificate issued by Medical Assessor Mason when it was determined that the motor accident caused a somatic symptom disorder (pain) and an Adjustment Disorder with Mixed Anxiety and Depressed which was severe and chronic and assessed the claimant at 19% permanent impairment.
The following summary of the reasons provided by Medical Assessor Mason are largely an adoption of the reasons provided by McNaughton J in Zilic v QBE Insurance (Australia) Ltd.[6]
[6] [2025] NSWSC 11(Zilic) at [9]-[16].
The Medical Assessor noted that a pre-existing psychological history associated with previous relationships between 2010 and 2015 with treatment consisting of a low dose of antidepressant medication. Prior to the motor accident the claimant had met her husband and had been living together in a happy relationship for approximately two months. The claimant was “doing well with her job in Westpac”, was performing well in a Master of Law degree at Sydney University and engaged in a business venture. The Medical Assessor opined that the claimant had prior psychological difficulties consisting of adjustment disorders with mixed anxiety and depressed mood which arose because of disappointments in romantic relationships and an experience of harassment by an unwanted suitor. The Medical Assessor found that while it was most likely these have largely settled due to her relaxed satisfactory relationship with her future husband, he apportioned for a pre-existing condition.
The Medical Assessor noted the serious degloving injuries with the onset of chronic pain and referral to Northern Beaches Psychiatric Unit in 2019.
In respect of his diagnosis of the psychological conditions, the Medical Assessor found that the claimant developed a somatic symptom disorder (pain) and an Adjustment Disorder with Mixed Anxiety and Depressed which was severe and chronic. The Medical Assessor accordingly agreed with the conclusion reached by Dr Vickery as to the somatic symptom disorder and also made a further diagnosis consistent with the conclusions reached by Dr Anthony Dinnen, treating psychologist Ms Gorrell, the treating pain management psychiatrist Dr Holton and the psychiatric consultant at the Northern Beaches Hospital. The Medical Assessor provided the following conclusion on diagnosis.
“The claimant has developed a Somatic Symptom Disorder (pain) as a consequence of the subject motor accident. This is the case whether she suffers from CRPS or simply from chronic pain. She was initially hopeful this could be cured and her psychiatric condition deteriorated greatly when this proved not to be the case. This in turn created a great deal of disruption in her life. She has been unable to continue with a valued job and university study which would have most likely led to career advancement. It has created difficulties for her in all of her relationships. It has also created difficulties for her in her ability to function as a mother. In my opinion her chronic and severe Adjustment Disorder with Mixed Anxiety and Depressed Mood has arisen secondarily to the ongoing Somatic Symptom Disorder (pain).”
The Medical Assessor assessed psychological impairment at 19%. There are references in the Psychiatric Impairment Rating Scale’s (PIRS) categories to aspects of pain affecting the claimant’s functioning such as not being able to shower partly because it is painful, being physically limited in her ability to participate in social and recreational activities and only tried to work for one day and was defeated by pain.

PREVIOUS REVIEW PANEL AND SUPREME COURT PROCEEDINGS

A previous Review Panel concluded that the motor accident caused a primary diagnosis of persistent somatic symptom disorder with predominant pain, stating that this was the most appropriate fit for the claimant’s symptoms.
In Zilic the Court set aside the certificate issued by the Review Panel and ordered that her medical assessment be remitted to a differently constituted Panel.
We do not intend to summarise the reasons of the previous Review Panel as the previous certificate has been set aside. The Court found jurisdictional error and/or error on the face of the record which we summarise as follows.
First, the Review Panel erroneously limited itself to determining only a primary diagnosis and did not consider whether the motor accident resulted in a secondary diagnosis which could be assessed by way of permanent impairment. The previous Review Panel did not consider, by reference to Medical Assessor Mason’s findings, that the motor accident also caused an adjustment disorder with mixed anxiety and depressed mood which was chronic and severe. The previous Review Panel made no reference to Dr Dinnen’s diagnosis and why it was not appropriate to have regard to a consequential or secondary diagnosis.[7]
[7] Zilic at [50]-[51].
Secondly, there was a complete absence of any analysis why the persistent somatoform disorder with predominant pain in turn contributed to the occurrence of another recognised psychiatric condition.[8]
[8] Zilic at [55].
Thirdly, the Review Panel erred in failing to provide reasons why it disagreed with the opinion of Medical Assessor Mason and Dr Dineen that the claimant had a psychiatric condition which had arisen secondarily to the primary psychiatric condition.[9]
[9] Zilic at [64]-[65].

CONDUCT OF THE REVIEW

Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[10]
[10] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[11]
[11] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[12]
[12] Section 63(3A) of the MAC Act.

STATUTORY PROVISIONS

The provisions of the Civil Liability Act 2002 (the CL Act) apply to the Motor Accident Injuries Act 2017 in determining issues of causation. Particularly ss 5D and 5E of the CL 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].
Clause 1.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”

SUBMISSIONS

Insurer’s submissions dated 6 April 2021[15]

[15] Insurer’s bundle, p 0.1.

The insurer noted pre-accident medical records which showed:
-      diagnosed with depression on 5 February 2013 placed on Citalopram,
-      seeing a psychologist in May 2013 and medication changed to Lexapro;
-      in August 2014 it was noted the applicant was an abusive relationship, and
-      on 20 February 2015 was seen by Dr Lee for anxiety.
The insurer referred to the opinion of Dr Vickery dated 21 October 2020 who diagnosed a chronic pain disorder and considered that occurred in the context of the claimant’s multiple personal stresses and pre-existing vulnerabilities.
The insurer referred to the opinion of Dr Maxwell in October 2020 who diagnosed the claimant with a hypochondriacal personality with no current relationship between the subject accident and the alleged disabilities apart from the foot discomfort associated with left ankle restriction on abnormality for the superficial peroneal nerve.
The insurer referred to the Medical Assessment Certificate issued by Medical Assessor Cameron who noted the claimant did not meet the diagnostic criteria for complex regional pain syndrome (CRPS) and found that the current presentation was more consistent with chronic pain syndrome. The Medical Assessor noted inconsistency of movement in multiple body parts in the spine from a physical’s perspective the claimant was capable of working.
The insurer submitted that the claimant had pre-existing injuries and disabilities including pre-existing depression which must be considered when assessing permanent impairment.

Insurer’s submissions dated 20 May 2022[16]

[16] Insurer’s bundle, p 0.5.

These submissions sought leave to review the medical assessment certificate.
The insurer referred to clause 1.125 [sic] of the guidelines which provide that the PIRS must not be used to measure impairment due to somatoform disorders or pain. It submitted that the Medical Assessor reason the claimant’s chronic and severe adjustment disorder and mixed anxiety and depressed mood was due to the somatoform disorder and could not be assessed.
The insurer submitted that the Medical Assessor was in breach of clause 1.125 by assessing various categories in relation to the claimant pain. The insurer noted that the assessment for self-care and personal hygiene, social and recreational activities and concentration persistence and pace where references were made to pain in making the assessment of the particular class.
The insurer submitted that the history concerning the applicant’s pre-existing condition was inaccurate as there was no reference to the upper claimant being prescribed Celepram tablets 10mg one daily on 16 June 2016 that is only 18 weeks prior to the accident. This evidence contradicted the history recorded by the Medical Assessor that the use of antidepressant medication ceased in early to mid-2015.

Claimant’s submissions dated 16 June 2022[17]

[17] Claimant’s bundle, p 1.

These submissions were filed opposing leave to review the medical assessment.
The claimant submitted that the insurer’s argument that the adjustment disorder with mixed anxiety and depressed mood arose secondarily to an ongoing somatic symptom disorder was not assessable was flawed. The claimant refers to clause 1.213 of the Guidelines.
The claimant accepted the somatoform pain disorder cannot be used for the calculation of permanent impairment but noted the findings of the Medical Assessor of an independent psychiatric condition.
The claimant submitted that the assessments of various PIRS categories were not conducted “purely based on pain”[18] in reference to findings which were partly based on pain and partly due to anxiety and depression.
[18] Claimant’s bundle, p 4.
In relation to the antidepressant medication prescribed 18 weeks prior to the motor accident, the claimant submitted that there was no suggestion that there was objective evidence of any pre-existing symptomatic permanent impairment at the time of the accident. The claimant otherwise refers to other facts which suggested no loss of functional impairment such as working at Westpac, happiness in a new relationship, her performance in the Master of Laws degree and the ability to engage in secondary employment in the running of a café with her partner.

EVIDENCE

The parties filed bundles of documents for the Panel’s consideration.
The insurer filed a bundle comprising 2,293 pages with minimal assistance in referring to relevant documentation within the extensive material.

Pre-existing conditions

In March 2013 the claimant reported a difficult relationship with a person living in Germany. The clinical notes referred to an adjustment with depressed mood. There were references to the claimant having fleeting harm thoughts when speaking to her ex-partner about the news of a pregnancy.[19]
[19] Insurer’s bundle, p 1,048.
In August 2013 the claimant was teary in discussions with the general practitioner (GP) regarding disclosure of a termination following a coerced forced conception.[20]
[20] Insurer’s bundle, p 1,045.
In August 2013 the claimant reported to her GP that she suffered neck and back pain following a motor accident.[21]
[21] Insurer’s bundle, p 1,045.
In August 2014 the GP noted the claimant was in an abusive relationship and prescribed Citalopram and Valdoxan.[22]
[22] Insurer’s bundle, p 1,043.
In March 2015 the GP noted that the claimant had been abused both physically and sexually by her previous partner.[23]
[23] Insurer’s bundle, p 1,042.
In September 2015 the claimant attended her GP for depression and was prescribed Celepram, 10mg daily.[24]
[24] Insurer’s bundle, p 1,041.
In June 2016 the GP again prescribed the claimant Celepram.[25]
[25] Insurer’s bundle, p 1,040.

Contemporaneous medical evidence

The ambulance report noted the claimant riding a scooter suffering right sided neck pain, soft abdomen, abrasions to right hand and left elbow and declining injury to the superior part of the left foot.[26]
[26] Claimant’s bundle, p 24.
The hospital discharge summary noted the claimant’s admission to the plastic surgery team at Royal Prince Alfred Hospital (RPAH) for a left foot degloving injury with graft harvesting from the left thigh.[27]
[27] Claimant’s bundle, p 32.
The medical certificate dated 21 October 2016 referred to a degloving injury to the left foot, soft tissue injury to the right hand, left shoulder, left elbow and right hip pain.[28]
[28] Claimant’s bundle, p 15.
On 1 December 2016 Dr Aggarwal noted the graft of the dorsum of the foot had almost completely healed but that the claimant was complaining of burning sharp pain which was keeping her up at night. The doctor opined that this was consistent with neuropathic pain and in the distribution of the superficial peroneal nerve.[29]
[29] Claimant’s bundle, p 41.
The report of injury form by the insured driver reported that he had passed the claimant was travelling in the inner lane, felt a bump on his rear tyre and stated that it appeared that the claimant “crossed an unbroken line before colliding with my rear tyre,”.[30]
[30] Insurer’s bundle, p 4.
The discharge from hospital on 27 January 2017 noted a presenting problem of CRPS and elective treatment by pulsed radiofrequency ablation to the left sciatic and femoral nerves at the level of the popliteal fossa.[31]
[31] Claimant’s bundle, p 38.
On 6 February 2017 Dr Aggarwal noted that the claimant had developed CRPS and was taking multiple medications and had undergone two nerve blocking procedures. The skin graft had totally healed although there was increased hair growth and skin changes in keeping with CPRS of the foot.[32]
[32] Claimant’s bundle, p 42.
In January 2018 the claimant underwent a ketamine infusion for treatment of the CRPS of the left leg.[33]
[33] Insurer’s bundle, p 492.
In March 2018 the GP referred the claimant to Ms Gorrell for opinion and management regarding anxiety, depression and complex regional pain syndrome.[34] Relevant testing noted the applicant with extreme severe scales of depression, anxiety and stress. Further counselling was recommended.
[34] Claimant’s bundle, p 257.
Ms Gorrell, psychologist provided a report dated 27 April 2018 following six consultations. Ms Gorrell noted the claimant presented with extreme and dysregulated emotions in the context of difficulty coping with a range of psychosocial stressors (interpersonal, financial, vocational and legal) and medical problems including CRPS secondary to the motor accident.

In a report dated 3 September 2018, Dr Lee, GP, noted that the claimant suffered significant physical psychological, emotional and cognitive distress which resulted in poor cognitive function in extreme pain caused by the motor accident. The doctor noted that the claimant’s focus was “on coping with debilitating pain” and that the claimant had multiple changes in strong medications due to problematic side-effects including worst worsening cognition.[35]
[35] Claimant’s bundle, p 52.
A spinal cord stimulator was inserted in September 2018 for treatment of the CRPS in the left leg.[36] The clinical record refers to depression as a comorbidity.
[36] Insurer’s bundle, p 300.
The claimant’s CRPS and pain condition was managed at RPAH throughout 2017, 2018 and 2019 by a multi-disciplinary pain management team comprising Dr Gibson (pain management specialist), Dr Holton (pain psychiatrist) and Mr Campbell (pain physiotherapist).[37]
[37] Insurer’s bundle, pp 559-712.
In late 2019 the claimant reported hip pain. The MRI scan of the left hip showed minimal changes of uncertain clinical significance.[38]
[38] Insurer’s bundle, p 1,249.
Dr Matthew Holton, psychiatrist at RPAH Pain Management Centre provided a report dated 25 November 2018.[39] The doctor noted that the claimant was experiencing worsening pain at the time which could be due to the progression of the deceased, psychological factors or difficulties in finding an appropriate balance of rest and activity.
[39] Insurer’s bundle, p 555.
The claimant advised Dr Holton with concerns following the removal of the trial stimulator that may have worsened the pain.
Dr Holton noted that the claimant’s personality traits likely contributed to a difficult time adjusting to and accepting her condition and limited functioning. The doctor recommended that the claimant continue with psychological therapy with a psychologist and would also benefit from physiotherapy.
In April 2019 the psychologist noted the claimant’s circumstances remained challenging as she was dealing with extreme pain, the personal and financial consequences of her medical condition and in addition, interpersonal and legal matters.[40]
[40] Insurer’s bundle, p 1,000.
The discharge referral from Northern Beaches Hospital in June 2019 noted on admission of the claimant in emotional crisis with low lethality suicidal overdose of amitriptyline in the context of multiple acute and chronic psychosocial health-related stressors including complex regional pain syndrome, unemployment after motor accident, chronic family dysfunction, marital tension and neighbour parking dispute.
The diagnosis was emotional crisis/adjustment disorder, culminating in a suicide attempt and the claimant required longitudinal observation to exclude evolving depressive episode, cluster B personality traits and questioning whether there was a chronic pain disorder.[41]
[41] Insurer’s bundle, p 995.
In June 2019 Dr Holton noted that the claimant had been an impatient with the Northern Beaches Hospital in the mental health unit after taking an overdose of amitriptyline.[42] Discussions concerning the claimant’s difficulties at home with a parking dispute and feeling that her disability was not believed. These issues were occurring in the context of worsening pain and fears that her CPRS was spreading.
[42] Insurer’s bundle, p 659.
The claimant commenced on an In Vitro Fertilization (IVF) program in 2019 and gave birth to a daughter in June 2020.
A pain diagram within the report of Ms Byrnes dated 24 November 2020 indicated pain throughout the body particularly on the left-hand side with intensity rated between eight and 10 out of 10.[43]

Qualified opinions

[43] Claimant’s bundle, p 123.

Dr Dinnen

Dr Anthony Dinnen, psychiatrist, was qualified by the claimant and provided a report dated 30 March 2020.[44] Dr Dinnen opined that the claimant was suffering from a chronic adjustment disorder with anxiety and depressed mood consequent to physical disability and chronic pain. The doctor noted that the requirement for domestic assistance arose from both the psychiatric condition and the chronic pain syndrome.
[44] Claimant’s bundle, p 96.
The doctor assessed permanent impairment at 25% including an allowance of 3% for treatment effect.

Dr Vickery

Dr Vickery, psychologist, was qualified by the insurer and provided a report dated 3 December 2020.[45] Dr Vickery noted but the claimant was unable to undertake recreational activities or any strenuous daily task due to incapacitating pain perception.
[45] Insurer’s bundle, p 2,250.
Dr Vickery diagnosed a somatic symptom disorder which is not utilised for the assessment of whole person impairment.

Dr New

Dr Charles New, orthopaedic surgeon was qualified by the claimant and provided a report dated 22 January 2020.[46] The doctor noted that the claimant had cervical spondylosis at C5/6 and obviously foot and ankle injuries which required a skin graft and the development of CRPS. Dr New opined that the pain issues associated with the regional pain syndrome were quite significant, not his particular expertise and the claimant probably required review by a pain specialist.
[46] Claimant’s bundle, p 58.
In a report dated 2 June 2020[47] Dr New noted a pain assessment from the claimant’s skull to her feet particularly on the left-hand side and affecting both shoulders and the right hand.
[47] Claimant’s bundle, p 59.
Dr New opined that the prognosis regarding the chronic pain was of considerable concern. He recommended psychological and psychiatric review as well as chronic pain management review.

Dr Champion

Dr Champion was qualified by the claimant and provided a report dated 3 March 2020.[48] Dr Champion diagnosed a multiregional chronic pain syndrome secondary to the motor accident primarily affecting the left lower region.
[48] Claimant’s bundle, p 67.

Dr Cameron

Dr Cameron was qualified by the insurer and provided a report dated 27 November 2020.[49] The doctor noted complaints over multiple parts of the body including the left foot and lower leg with difficulty moving her toes, bilateral hip pain, left more than right, low back pain, mid back pain, upper back pain, shoulder pain abdominal pain and hand pain on both sides.
[49] Insurer’s bundle, p 2,235.
Dr Cameron opined that the motor accident caused a degloving injury to the left foot and soft tissue injuries to other body regions with the subsequent development of significant psychological symptoms problems which was outside his area of expertise.
Dr Cameron opined that the claimant did not meet the diagnostic criteria for CRPS type I applying the Guidelines and the current presentation was more consistent with a chronic pain syndrome. The doctor noted inconsistency of movement in multiple body parts and proceeded to assist by analogy.

Dr Maxwell

Dr David Maxwell, orthopaedic surgeon, was qualified by the insurer and provided a report dated 29 January 2021.[50] The doctor opined that the claimant had a hypochondriacal personality, was previously diagnosed with CRPS type I however no longer had signs of CRPS.
[50] Insurer’s bundle, p 1,499.
Dr Maxwell opined that on examination there was a lack of disuse changes involving the left leg and foot although there was some hypersensitivity in the distribution of the superficial branch of the common peroneal nerve. There was no abnormality on examination of the left hip.
The doctor opined that there was no current relationship between the motor accident and the alleged disabilities apart from some foot discomfort which included some dysplasia of the foot. The doctor noted that:[51]
“Her alleged disability has been much greater than one would expect basically because of an abnormal psychological reaction largely due to her premorbid psychological personality.”
[51] Insurer’s bundle, p 1,510.

Police records

The police report noted that the claimant and the insured vehicle exited the Pyrmont Bridge Road on the western distributor when the front guard and front tire of the claimant’s bike collided with the rear tire of the insured vehicle causing the claimant to lose control and fall onto the roadway.[52]
[52] Claimant’s bundle, p 23.

MEDICAL EXAMINATION

The claimant was medically examined by both Medical Assessors on 16 May 2025. The examination report is as follows.
The claimant requested that the Reasons be de-identified.
The claimant was assessed by Medical Assessors Baker and Rikard-Bell. The claimant attended via MS Teams and was assessed alone. She said she was 41 years of age. That she was living with her husband aged 48 years and her two daughters aged 4 years and 19 months at the time of re-examination. The claimant said she was riding her vespa motorcycle when the motor accident on 25 October 2016 occurred. Before the motor accident that claimant had commenced her relationship with her now husband and there were no children to the union.
The claimant was born in Blacktown Hospital in 1983. She was the eldest of three siblings. She had a sister aged about 40 years and a brother aged about 38 years. She said that her parents were from Bosnia/Herzegovina. Her father was aged 85 years (retired). He entered Australia in 1970 and worked as a carpenter and joiner. Her mother entered Australia in 1980 and worked as a factory worker (retired).
The claimant reported that she enjoyed study. She had completed her Bachelor of Law and was two units from completing her Master of Law (Sydney University) when the motor accident happened. She did not progress in her academic studies since the motor accident. She said she had hoped to progress to a Doctor of Law as she was scoring a distinction average across her master’s degree topics. She said she had also completed a Bachelor of Business management before the motor accident.
The claimant said she had enjoyed the following hobbies, social sport that included, golf, tennis soccer and corporate running events. She also was a member of a gym where she would attend frequently for her wellbeing.
The claimant said she had travelled internationally. She said that she had two unsuccessful relationships however she had met her current husband prior to the motor accident and that she had formed a stable relationship with him about two months prior to the motor accident. this resulted in the couple marrying in Fiji.
The claimant said that she was in her first relationship between 18 to 25 years. The relationship was unsuccessful. She spoke about the loss of this relationship with her GP, and she was treated. There were no children to this union. The relationship was dissolved. She had not contact with this partner since she was about 25 years of age.
The claimant said that the second relationship was unsuccessful due to the loss of trust in this partner. She said this partner had engaged in stealthing. The barrier contraceptive device he was wearing was removed by him without the consent of the claimant. The claimant fell pregnant. The pregnancy was terminated. The claimant reported she receive psychological treatment and that she had resolved this incident prior to the motor accident. She had no contact with this second partner since she became aware of his breach of trust during periods of intimacy.
The claimant said she met and formed her third relationship with her husband. They married. They had two children with the assistance of IVF. The claimant said she conceived after the second round of treatment for each child. The claimant said she was advised by her IVF treatment providers, regarding the risk of her pain becoming more severe or spreading should she have a caesarean section. The claimant said both children were born normally.
The claimant said that she had experienced normal emotions that could be expected by a person who had experienced these complex matters. She said that she was never impaired by these incidents. She progressed through her career and her studies unimpeded. She said that on meeting her husband they had planned that she would be the primary income earner and that he could work a café business and care for the children. She said this plan did not eventuate because of the motor accident. She said she was aware that she had been diagnosed with “adjustment disorder” however she was not impaired or clinically distressed sufficient to interfere with any of her activities of daily living, study or employment.
The claimant said she rarely drank alcohol. She said she did not gamble. She said suffered from mild asthma and used aerosol puffers to treat the condition as needed. She had never been admitted to an emergency service because of an asthma episode. The claimant said she also had mild eczema. She would use topical skin treatments for this condition. She was not allergic to any medication she had been prescribed. She did not smoke tobacco. She did no use illicit substances. She had no history of illicit substance use. She had no history of driving under the influence of a substance.
The claimant said that prior to the motor accident she was working fulltime. She was studying her Master of Law degree successfully. She had formed a new relationship with her now husband and she was happy.
The claimant was working in a responsible role with Westpac (WBC). She worked as a senior Business Analysis. She worked across all of WBC’s brands and organisations. She was located in the Kent Street Sydney CBD office. The claimant had chosen to work for Westpac as it had a favourable reputation as to progressing women’s financial and banking careers.

The motor accident.

The claimant said that she and her now husband were experienced motorcycle riders. She said as she lived in the “inner-west” car parking was difficult. She had learnt to drive a car and then to ride a motorcycle. She said she had enjoyed riding her vespa. She said that she had joined into the culture of riding this brand of motorcycle and had named her motorcycle Casper.
The claimant said she would frequently ride to work, to study events and venues as well to cafes riding her vespa. She had full leather clothing, leather gloves and a helmet for safety. She said she was a safe rider.
The claimant said she was traveling to work on the day of the motor accident. She had been house sitting at her now husband’s parents’ home. She said she was less familiar with this route to work. She missed her turn-off. She said she was circling back to her turn-off when the accident happened.
The claimant said she could hear the BMW motorcycle behind her. She said she heard the rider accelerate to jump in front of her. She was near the fish market when the accident happened. She said the BMW rider shifted lanes and the rear wheel of his motorcycle hit her front steering wheel of her vespa. The claimant lost control of her vespa after having her front wheel hit. She fell and the vespa on top of her. She continued to slide with the vespa on top of her. She came to a rest. She said a bystander offered to help. She directed the bystander to stop the rider of the BMW motorcycle.
The claimant said that she looked at her foot and she could see the flesh under the skin of her left foot. She said she also had bleeding in the site of her open wound. She said her leathers were also ripped as were her leather gloves.
The claimant said she was in pain. She was angry and frustrated by the other rider’s behaviour. She felt that she could have been run over as she was sliding on the road with her vespa on top of her.
The bystander was successful in stopping the BMW motorcycle rider. The BMW motorcycle rider only held a learner’s motorcycle permit. He had a learner’s plate on the rear of his motorcycle. The claimant said that the capacity of the BMW motorcycle was too great for the learner’s permit skill limit.
The rider of the BMW said the claimant was to blame on his return to the claimant. The claimant said that whilst exchanging details she was told by the BMW rider that he had riding motorcycles in Greece, before his arrival in Sydney.
The claimant was unaware of who called for the ambulance. She said she was supported by two men until the ambulance arrived. She was then transferred to RPAH.

Treatment and progress

The claimant was assessed as having a degloving injury of her left foot. She was hospitalised and was treated with a skin graft. She said she had a vacuum seal applied to the injured area. She said she had lesser injuries to her hip, neck and back. She said she had opioid pain relief whilst in hospital.
The claimant said she was expecting to be able to walk without crutches on discharge from hospital. She said she was not able to mobilise without crutches at her discharge from hospital. She said the nurse expressed surprise that the claimant could not walk without crutches. The claimant went home and received home dressings of the injured area. The claimant said after the initial period of rest and recuperation she was referred to physiotherapy. She said for about six weeks she was unable to walk or weight bear.
The claimant was reviewed by her general medical practitioner. She had pain and she was referred for specialist pain management. She said that she then was assessed by the Pain Management Clinic multidisciplinary panel. She was treated by a psychologist and a psychiatrist, as well as pain management specialist. The claimant said she was told she had a lateral peroneal nerve injury.
The claimant was treated with psychological and psychiatric medication as well as pain management medication. Her condition failed to remit. She was trialled for a nerve stimulator. The nerve stimulator failed to help with pain relief. The claimant said she was later told that the frequency settings of the trialled stimulator were incorrect for her condition. She said that she was also treated with radiofrequency nerve ablation. This treatment was also unsuccessful.
The claimant was prescribed gabapentin 600mg twice daily, Endone 5mg as required, lignocaine patches and Nurofen for her pain medication. She said she had been trialled on various medications without success.
The claimant suffered from a severe iatrogenic side-effect of the use of ketamine for pain treatment. She developed a drug induced hepatitis with elevation of liver enzymes due to the use of ketamine. This severe drug side-effect is a known side-effect for the use of ketamine regardless of for which indication it is prescribed. Withdrawal of ketamine resulted in her liver function returning to normal.
The claimant required active planning of her IVF pregnancies and the medications she could safely use. She attended Mother Safe at Prince of Wales Hospital and received advice from Dr Debra Kennedy.

Onset of major depressive disorder

The claimant said that she had a treatment appointment with her pain physician. She said she was told; she would need to live her live with pain. The claimant said that she immediately lost all hope. She became depressed in her mood, frequent tearfulness when thinking about her losses, depressive ruminations, recurrent intrusive and distressing thoughts of worthlessness and hopelessness. She developed a bleak view of her future. She could not concentrate to study. She was unable to progress in her studies or career. She said she was overwhelmed by depressive emotions that she would never be able to achieve her life plan goals as she had mapped out for herself before the motor accident. She was unable to manage the café business that she owned, and her husband was working.
The claimant said she developed suicidal thoughts and took all the tablets she had in her medication draw as an attempt to commit suicide by self-poisoning. The claimant was admitted to the Northern Beaches Hospital in the psychiatric unit for about six weeks. The claimant said that she was treated with psychological therapy, dialectical behavioural therapy (DBT) and antidepressant pharmacotherapy. She was not referred for electroconvulsive therapy or repetitive transcranial stimulation as an inpatient. The patient said she was discharged to the care of her psychiatrist Dr Holton and psychologist and had not return to psychiatric hospital since 2019. At the time of this re-examination the claimant said she was continuing to be prescribed citalopram 20mg daily with Endep (amitriptyline) 25mg at night. She continued to attend her psychiatrist and psychologist once every month.

The Panel notes that the treating psychiatrist provided further diagnostic advice that the exclusion of major depressive disorder could not be made without further longitudinal clinical observation. Whilst the suggested diagnosis was adjustment disorder with mixed anxiety and depressed mood, the treating psychiatric also included as a possible future diagnosis of major depressive disorder should the claimant’s condition fail to recover or deteriorate clinically. The making of this diagnosis was in 2019 and at the time of this re-examination in 2025, the presence of a more prominent depressive disorder was clinically apparent to the Medical Assessors.

Current Symptoms

The claimant’s current symptoms at the time of this re-examination were assessed in the paragraphs below:
The claimant had the following symptoms of major depressive disorder as follows:
·        depressed mood most of the day, nearly every day, as evidenced by the claimant’s feelings of hopelessness and worthlessness.
·        Markedly diminished interest with inability to experience pleasure in almost all activities for most of the day, nearly every day as evidenced by the loss of her career, loss of her interest in her self-care and personal hygiene and loss of interest intimacy with her husband
·        Insomnia nearly every night with initial and middle insomnia where she would wake from sleep and not return to sleep.
·        Diminished ability to concentrate with increased indecisiveness when attempting to make decisions or attempt to progress any complex task.
·        Fatigue with loss of energy nearly every day.
·        Recurrent suicidal thoughts without intent to self-harm at the time of the re-examination.
·        Depressive ruminations about been trapped in a never-ending medical condition with inappropriate feelings of excessive shame and guilt, “I wanted to contribute more than just a stay home mother”.
·        Loss of her self-esteem and identity.

Pain

The claimant reported that she still experienced pain every day. She said that the severity of her pain was exacerbated by touch. She said that heat whether cold or hot also exacerbated her pain. She reported that none of the medications, treatment, physiotherapy or psychological treatments had results in resolution of her pain.
The claimant explained that she had spoken to her pain team and her GP about her pain experience. she said she had asked about “somatic pain”. She said she was told she by her pain treatment team that she “did not have somatic pain.” She said she was diagnosed with “CRPS”. The Medical Assessors explained that the diagnosis of “CPRS” was a physical physician’s diagnosis and not part of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5-TR).
The Medical Assessors explained that the assessment by the previous Review Panel of “Somatic symptom disorder – with predominant pain” had been set aside and the reconstituted Panel was starting a new with this re-examination.
The claimant said she wanted to show her affected foot and limb during the assessment. The Medical Assessors explained that they would not be able to fully examine her affected foot as specific tests such as light touch and measurement of muscle bulk for asymmetrical muscle wasting could not be performed in the MS Teams assessment format. The claimant was asked to directly describe her pain as she was experiencing it at the time of this re-examination.
The claimant said her left foot was very painful and, in the lead, up to this re-examination had increased in pain. She said the foot and lower leg around the ankle had become swollen. She said she had ongoing trouble with light touch and her husband was required to massage her foot and affected areas where pain was most severe.
The claimant suffered from a severe iatrogenic side-effect of the use of ketamine for pain treatment. She developed a drug induced hepatitis with elevation of liver enzymes due to the use of ketamine. This severe drug side-effect is a known side-effect for the use of ketamine regardless of for which indication it is prescribed. Withdrawal of ketamine resulted in her liver function returning to normal.

Mental state examination

The claimant presented as an agitated sullen and depressed woman who looked older than her stated age. She did stand on two occasions at the 45-minute and 90-minute mark of this re-examination. She reported pain on each time she stood. She stretched and then settled again sitting.
The claimant reported loss of joy and pleasure in her life. She said she was not interested in intimacy with her husband. She said she was not motivated to manage her self-care and personal hygiene. She said she relied on support of her family to help her care for her children. Her energy was low. She had a depressed mood most days for most of the day.
The claimant reported that her café business was placed in liquidation as she could not manage the financial aspects of the business. She said she had intrusive and distressing suicidal thoughts. She said her relationship with her husband was strained and her relationship with her children was not as enjoyable as she had hoped.
The claimant said she had ongoing pain which impaired her capacity to shower and cook complex meals. She said that the pain was present every time she took a shower. She said that both hot and cold water increased the severity of her pain. The claimant said that because of the pain she relied more on her husband to assist with the hygiene of her daughters. He would supervise and assist with showers daily for the children.
The claimant said she was unable to return to work as she had experienced reduced capacity to travel due to her pain in her left foot and other sites of her body. She said she was no longer able to life her 19-month-old toddler as she was now too heavy.
The claimant said she had lost motivation and interest in her hobbies and social sport. She said she was not interested in her career or studies. She had not done any short courses online as she lacked interest and no longer enjoyed learning.

Diagnosis

Using DSM-5-TR criteria the claimant’s DSM-5-TR F32.1 Major depressive disorder – of moderate severity is defined as:
Criterion A.
The following symptoms have been present during the same two-week period and represent a change from previous functioning with the claimant experiencing a depressed mood as well as the following:
·Depressed mood most of the day, nearly every day, as evidenced by the claimant’s feelings of hopelessness and worthlessness.
·Markedly diminished interest with inability to experience pleasure in almost all activities for most of the day, nearly every day as evidenced by the loss of her career, loss of her interest in her self-care and personal hygiene and loss of interest sharing recreational and social activities with her parents or foster-sister
·Insomnia nearly every night with initial and middle insomnia where she would wake from sleep and not return to sleep.
·Diminished ability to concentrate with increased indecisiveness when attempting to make decisions.
·Fatigue with loss of energy nearly every day.
Other symptoms of major depressive disorder include:
·Recurrent suicidal thoughts without intent to self-harm at the time of the re-examination.
·Depressive ruminations about been trapped in a never-ending medical condition with inappropriate feelings of excessive shame and guilt, “I wanted to contribute more than just a stay home mother”.
·Loss of her self-esteem and identity where she said,
Whilst these other symptoms of major depressive disorder were present at the er-examination they are not part of the minimum necessary symptoms for diagnosing major depressive disorder.
Criterion B
The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
This criterion is met by the claimant not been able to return to work due to her increased disorganised behaviour caused by her major depressive disorder symptoms.
Criterion C
The episode is not attributable to the physiological effects of a substance or to another medical condition.
This criterion is met as the onset of unremitted symptoms of pain caused her to become depressed in her mood due to the trauma and consequences of the injury sustained in the motor accident.
Criterion D
The occurrence of the major depressive episode is not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder, or other specified and unspecified schizophrenia spectrum and other psychotic disorders.
This criterion is met as the claimant does not have a history of any of these conditions.
Criterion E
There has never been a manic episode or a hypomanic episode.
This criterion is met as the claimant does not have a history of any of these conditions.
For the above reasons the claimant meets all the criteria required to diagnose DSM-5-TR F32.1 Major depressive disorder – of moderate severity.
The Medical Assessors note that using DSM-5-TR F45.1 criteria for Somatic Symptom Disorder – the symptom of depressed mood is not included in this diagnosis. At the time of the re-examination that claimant did not spontaneously report anxiety a common symptom which is part of the diagnosis of Somatic Symptom Disorder.
The Medical Assessors note that the presence or absence of CRPS does not exclude the clinical presence of pain from other causes.
At the time of this assessment the claimant did suffer from pain which significantly affects the claimant’s day to day functioning. Whilst the diagnosis of DSM-5-TR F45.1 criteria for Somatic Symptom Disorder with predominant pain is excluded for the above reasons, the Medical Assessors note guidelines:
(a) 6.214 impairment due to physical injury is assessed using different criteria outlined in other parts of these Guidelines, and
(b) 6.215 the PIRS must not be used to measure impairment due to somatoform disorders or pain.
The Medical Assessors note that the classification of the pain outside of DSM-5-TR F45.1 criteria for Somatic Symptom Disorder with predominant pain is outside the scope of clinical psychiatric practice as evidenced by the need for a multidisciplinary team at the Pain Clinic that the claimant utilised.
In brief, pain from any cause is excluded from assessment under the PIRS’ categories.
The Medical Assessors note that the history provided by the claimant and the nature of her psychological injury is more severe than defined using DSM-5-TR Adjustment disorders as defined starting at page 319 of the manual. At the time of this re-examination the diagnosis of adjustment disorder of any type was excluded where other clinicians have recognised major depressive disorder as well as the treating psychiatrist’s advice that major depressive disorder was likely to present should the claimant have longitudinal clinical observation as has occurred up to the time of this re-examination.

Causation

The claimant was independent in her lifestyle, capacity to work, capacity to form new relationships after ceasing prior relationships as well as her capacity to study, work fulltime and run a small business, before the motor accident.
The claimant was in a significant motor accident. The motorcycle was on top of her as she slid on the road and suffered the onset of her injuries. She suffered a degloving injury of her left foot’s skin. She required skin grafting. She was in pain at the time of the motor accident and has remained in pain since. Various diagnoses have been offered as to the cause of her pain.
The claimant suffered from a significant physical injury to the nerve distribution of her left foot. The claimant had many unsuccessful trials of physical, psychological and pharmacological treatment that failed to place her physical injury symptoms including pain into full remission. The ongoing presence of pain is evidence from the documents provided as well as the claimant’s self-report at the time of the re-examination.
The claimant had significant clinical side-effects from the use of ketamine for pain relief. The side-effect remitted with return of her liver function to normal on stopping ketamine.
The nature of the motor accident and subsequent compilations of treatment necessary could, in the Medical Assessors opinion caused the psychological injury major depressive disorder as defined by DSM-5-TR.
The findings on re-examination, forwarded documents history of hospitalisation after a suicide attempt, as well as failed treatments for her physical injuries including pain for all causes did cause the claimant to suffer from a major depressive disorder whilst also suffering from pain.

Assessment of whole person impairment

Self-care and personal hygiene
Assessable psychological injury
The claimant reported that she had less energy and less interested in her selfcare and personal hygiene. She said she that she was able to shower independently. She her appetite was reduced, and she would skip meals. She was less interested in cooking. Her mother would bring food the family. The Medical Assessors assessed a Class 2, mild impairment for the assessable psychological injury caused by the motor accident.
Pain
The claimant said that she avoided showering most days as she would experience pain when the shower water hit her foot. She said she had pain whether the water was hot or cold. She said she did less cleaning of her home due to pain. She said she would prepare less meals due to pain. She reported that her husband would do most of the groceries. She said her self-care and personal hygiene was significantly impaired by her pain. The loss of function due to pain was not included in the assessment of impairment for this table of functioning.
Social and recreational activities
Assessable psychological injury
The claimant reported that she was too depressed to interest in socialising with her past friendship circle. She said she had no pleasurable recreational activities or experiences since the onset of this injury. She reported that she was not interested in playing with her young children. She said she did participate in a mothers’ playgroup. She said she did not participate in her children’s childcare centre events or activities. The Medical Assessors assessed a Class 3, moderate impairment for the assessable psychological injury caused by the motor accident.
Pain
The claimant reported that her pain affected her motivation to plan social events or activities for her, her family and her involvement in her extended family celebration or events. She said she was unable to be pain free sufficiently to participate in any social or recreational activities within her extended family. The loss of function due to pain was not included in the assessment of impairment for this table of functioning.
Travel
Assessable psychological injury
The claimant was able to leave her home and use her car to travel short distances within her local and familiar areas. She was able to attend her pharmacy to collect essential medication. The Medical Assessors assessed a Class 2, mild impairment for the assessable psychological injury caused by the motor accident.
Pain
The claimant said that she used a heated seat and a TENS (transcutaneous electric stimulator) to manage her pain whilst driving. She said her pain whilst using these pain management strategies enabled her to manage her pain for short periods. She said she had never ridden a motorcycle again as she had lost her life due to pain caused by the physical injury sustained in the motor accident. The loss of function due to pain was not included in the assessment of impairment for this table of functioning.
Social functioning
Assessable psychological injury
The claimant said she was less intimate with her partner and that they shared a “platonic relationship”. She said she was grateful for her husband’s extensive work and long hours of work at the café as well as his interest and care of the daughters. She said she was not expecting any separation, divorce and domestic violence between her and her husband. The claimant said she felt a strong bond to her daughters. She said that there was tension within her relationship within her family due to the motor accident. The Medical Assessors assessed a Class 2, mild impairment for the assessable psychological injury caused by the motor accident.
Pain
The claimant said that her pain had not prevented her from forming a strong maternal bond with her daughters. She said her pain had not prevented her from supervising their needs and care provided by her mother, husband and other members of the family.
The loss of function due to pain was not included in the assessment of impairment for this table of functioning.
Concentration, persistence and pace
Assessable psychological injury
The claimant was able to participate throughout the re-examination which lasted about 100 minutes. She was able to provide information as to her injury and other factors which were similar to the reports provided by other assessors. The claimant said she had not participated in any new learning since the motor accident. She said she had lost interest in study. She had no other hobbies such as knitting, craft or art before the motor accident. She said she had little need to read or perform complex tasks such as cooking as this would be organised by her husband. She said since the liquation and selling of her small business to her husband she did not need to perform any of her prior complex tasks. The claimant did require brief break in the re-examination due to pain and her depressive symptoms becoming prominent when she was talking about her loss of completing her Master of Law Studies. It was the view of the panel that if not for the pain at or about the 45 minute mark of this re-examination then the claimant was able to manage complex tasks and stay on task throughout this re-examination without prompting. The claimant could focus on the questions and provided consistent and reliable responses without prompting. She was able to concentrate for more than 30 minutes during the early phase of this re-examination without any observed impairment in her concentration, persistence and pace. The Medical Assessors assessed a Class 2, mild impairment for the assessable psychological injury caused by the motor accident.
The assessment of the claimant’s concentration persistence and pace assessable to the psychological injury at the time of this assessment was assessed with consideration of forwarded documents regarding the contribution of the psychological injury to the assessable impairment of concentration, persistence and pace from the contribution of pain to the claimant’s difficulties with respect to concentration, persistence and pace.
The Medical Assessors noted: At the time of the claimant was admitted to Northern Beaches hospital when her psychological injury requiring acute inpatient psychiatric treatment her treating psychiatrist Dr Peter Jones on 28/05/2019 for his clinical assessment of “… attention/concentrating, planning…” wrote that the claimant’s functioning was “Grossly intact…” i
During the same admission to the Northern Beaches the claimant’s treating psychologist Mackertich on 05/06/2019 at the time of clinical assessment documented the following: “Sensorium & Cognition: Px (patient/claimant) advised difficulties sustaining concentration, due to ongoing chronic pain.”
Professor Cameron in his certificate dated 27 November 2020 whilst assessing concentration he documented: “On cognitive assessment [BPO] was incompletely oriented in time and place. She had limited recent memory and limited concentration. Using the Mini Mental State Examination she scored 18/30. This is not a valid score as these scores are seen only in people with dementia.”
Dr Vickery in his report dated 3 December 2020, “There is reduced memory and concentration and “I (the claimant) struggle to find words for things and my short-term memory has become worse since the accident.” he did not document how much was due to pain and how much was due to the assessable psychological injury.

Assessor Mason documented in his certificate dated 14/04/2022 in relation to her difficulty in concentration persistence and pace, “Some of this difficulty is due directly to pain…” The assessor did not document how much of her concentration, persistence and pace was due to pain, but he did document, “…but much of it is due to her anxiety and depression.”
Pain
The claimant was observed to be experiencing pain throughout the re-examination. She had stood up at the 45 and 90 minute marks of the re-examination. She walked and stretched before returning to speaking and addressing the questions asked. She said she was unable to continue her studies due to pain which impaired her concentration, persistence and pace when attempting to engage in complex academic and business tasks. This is consistent with the findings of the clinical psychologist at the Northern Beaches hospital in 2019.
The loss of ability to perform complex tasks due to pain was not included in the assessment of impairment for this concentration, persistence and pace.
The Medical Assessors’ observed pain-behaviours which did impaired the claimant’s concentration, persistence and pace throughout the re-examination. The claimant’s experience of pain was reported more when she began to suffer from difficulty concentrating at about 45 minutes. The claimant spoke about her difficulty to watch television and read which was impaired by pain.
Adaptation
Assessable psychological injury
The claimant said she was unable to continue to organise her small business due to her low energy and slow pace of task completion. She said she had her business placed in liquidation. She said she was unable to return to any of her small business tasks because of her persistent depressive symptoms. The claimant was erratic in her capacity to perform her business functions work duties. The Medical Assessors assessed a Class 4, severe impairment for the assessable psychological injury caused by the motor accident.
Pain
The claimant said she was in too much pain to work in her role that she performed before the motor accident. The loss of function due to pain was not included in the assessment of impairment for this table of functioning.

Pre-existing psychological impairment

The Medical Assessors noted that the claimant had been diagnosed with various psychological conditions before the motor accident. The claimant said she had experienced the life events included within the documents and summarised earlier in these reasons. The claimant said she had been resilient and used medical and psychological services early. She said prior to the motor accident she had been successful in forming a new relationship which is now a permanent relationship with her husband and father of her daughters. She said she was progressing at a high-level working, studying and managing her small business, prior to the motor accident
The claimant said she was not permanently impaired by her the events she had experienced.
The Medical Assessors agreed that because the claimant was not impaired, the mere presence of psychological symptoms is insufficient to meet DSM-5-TR criteria for adjustment disorder or any other disorder. The claimant does not have a history that meets Criterion B1 or B2 for adjustment disorder or any type. For the above reasons the claimant does not have a per-existing adjustment disorder or any other DSM-5-TR condition before the motor accident. We do not consider that at the time of the motor accident the claimant had a pre-existing psychological condition assessable under DSM-5-TR.
For these reasons the Medical Assessor have not made any apportionment for pre-existing psychiatric impairment.

Effects of treatment

The claimant had received evidence-based psychiatric and evidence-based psychological treatment. The claimant was treated as a psychiatric inpatient of a psychiatric hospital due to her suicidal thoughts and attempt. The evidence-based treatment the claimant received has provided the claimant with mild improvement in her psychiatric symptoms as evidenced by her not requiring further hospitalisation for her psychological injury.
We have not considered the effects of treatment of the claimant’s pain symptoms which are obviously chronic and significant and continue to affect the claimant’s level of functioning.
For these reasons the Medical Assessor have adjusted the claimant’s assessment of whole person impairment by 1% WPI.

Scores, values and impairments

The scores or value for the claimant’s current condition are 2, 2, 2, 2, 3, 4 which gives a median of 2 and provides an aggregate score of 15 which translates to 8% whole person impairment (WPI). An additional 1% is made for the effects of treatment which produces a final score of 9% WPI.

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[53] and Insurance Australia Ltd v Marsh.[54]
[53] [2021] NSWCA 287 at [40], [41] and [45].
[54] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the extensive reasons provided by the Medical Assessors. We confirm that the impairment is based on the evaluation at the time of the medical assessment (cl 1.21 of the Guidelines) and we have relied on the combined clinical expertise of the Medical Assessors when examining the claimant.
Clause 1.215 of the Guidelines appears under the heading for the assessment of “mental and behavioural disorders” and provides:
“The PIRS is not to be used to measure impairment due to somatoform disorders or pain.”
The claimant had suffered and is suffering from extensive pain caused by the motor accident and has received substantial treatment for pain. The claimant had also experienced significant clinical side-effects from the pain treatment she had received.
The assessment guidelines for assessment of psychiatric whole person impairment requires the exclusion of impairment caused by physical condition and pain from all causes.
The assessment of CRPS is not part of the psychiatric assessment of WPI. The claimant was assessed as suffering from CRPS although latter diagnosis suggest that the required signs are no longer present. The absence of an ongoing diagnosis of CRPS does not mean that the claimant is not suffering from a pain condition.
Most clinicians use the internationally recognised Budapest criteria as the diagnostic basis for identifying CRPS. The Budapest criteria is not the same as the criteria provided by the Guidelines. The findings on examination required by the Guidelines to satisfy the diagnosis of complex regional pain syndrome are more stringent and require the presence of more symptoms and signs than those provided by the Budapest criteria. Furthermore, someone can suffer pain without being diagnosed as suffering from CRPS.
The claimant has reported significant pain levels since the motor accident which is clearly impacting on her current level of functioning. The Medical Assessors were careful in delineating between the effects of pain and the effects of the diagnosed psychiatric condition when assessing the particular class of the various PIRS.
There were findings within the opinion of Medical Assessor Mason that incorporated the effects of pain within the assessment of various PIRS categories. The insurer’s submission on review identified aspects of the original assessment in three PIRS categories referencing pain. The claimant’s response was that the Medical Assessor did not conduct the assessment “purely based on pain” which is an acknowledgement that aspects of pain were incorporated into the assessment of the level of functioning in the various PIRS.
Pain is referenced by the original Medical Assessor in the reasons for assessment of “self-care and personal hygiene”, “social and recreational activities”, “travel”, “concentration, persistence and pace” and “adaptation”. It is unclear from these reasons to what extent pain was included or excluded from the assessment process.
We have otherwise, for the reasons provided, expressly considered and disregarded the effects of pain when considering the extent to which the claimant is assessed under a particular class for each of the PIRS.[55]
[55] See Tables 6.11-6.16 of the Guidelines.
We note the observations in Abdal v Insurance Australia Ltd[56] that a medical assessment only involves “the plaintiff taking about himself in response to the medical assessor’s questions or prompts, and this was not said to be, nor was it likely to be, an intellectually demanding task or a task that involved complex instruction”.
[56] [2025] NSWSC 478
It is the Panel’s view that this is not what occurs in a normal assessment by a Medical Assessor in assessing a psychologically injured claimant and is not what occurred in the assessment undertaken by the Medical Assessors of the Panel. What occurred here and usually occurs is that the questioning by the Medical Assessor(s) over an extended period requires a claimant to maintain concentration, respond consistently to questioning, stay focused and remain coherent. The responses lead to the clinical observations made by Medical Assessors in determining whether and to the extent the claimant presents as impaired under this PIRS category for concentration, persistence and pace. For example, a loss of focus or non-responsiveness is part of the routine diagnosis because impairment of concentration is part of the formulation in diagnosing various conditions such as post-traumatic stress disorder (Criterion E.5) and/or Major Depressive (Criterion A.8) under DSM5-TR. Further, we note that the clinical observation by Medical Assessors is a critical measure used in their assessment of a claimant.
The table for the assessment of the permanent impairment based on these reasons is set out herein.

Psychiatric diagnoses	Major depressive disorder – moderate severity
Psychiatric treatment description	Evidence based psychiatric and psychological treatment Inpatient hospitalisation

Category	Class	Reason for Decision
Self Care and Personal Hygiene	2	The claimant reported that she had less energy and less interested in her selfcare and personal hygiene. She said she that she was able to shower independently. She her appetite was reduced, and she would skip meals. She was less interested in cooking. Her mother would bring food to the family. The Medical Assessors assessed a Class 2, mild impairment for the assessable psychological injury caused by the motor accident.
Social and Recreational Activities	3	The claimant reported that she was too depressed to interest in socialising with her past friendship circle. She said she had no pleasurable recreational activities or experiences since the onset of this injury. She reported that she was not interested in playing with her young children. She said she did participate in a mothers’ playgroup. She said she did not participate in her children’s childcare centre events or activities. The Medical Assessors assessed a Class 3, moderate impairment for the assessable psychological injury caused by the motor accident.
Travel	2	The claimant was able to leave her home and use her car to travel short distances within her local and familiar areas. She was able to attend her pharmacy to collect essential medication. The Medical Assessors assessed a Class 2, mild impairment for the assessable psychological injury caused by the motor accident.
Social Functioning	2	The claimant said she was less intimate with her partner and that they shared a “platonic relationship”. She said she was grateful for her husband’s extensive work and long hours of work at the café as well as his interest and care of the daughters. She said she was not expecting any separation, divorce and domestic violence between her and her husband. The claimant said she felt a strong bond to her daughters. She said that there was tension within her relationship within her family due to the motor accident. The Medical Assessors assessed a Class 2, mild impairment for the assessable psychological injury caused by the motor accident.
Concentration, Persistence and Pace	2	The claimant was able to participate throughout the re-examination which lasted about 100 minutes. She was able to provide information as to her injury and other factors which were similar to the reports provided by other assessors. The claimant said she had not participated in any new learning since the motor accident. She said she had lost interest in study. She had no other hobbies such as knitting, craft or art before the motor accident. She said she had little need to read or perform complex tasks such as cooking as this would be organised by her husband. She said since the liquation and selling of her small business to her husband she did not need to perform any of her prior complex tasks. The claimant did require brief break in the re-examination due to pain and her depressive symptoms becoming prominent when she was talking about her loss of completing her Master of Law Studies. It was the view of the panel that if not for the pain at or about the 45 minute mark of this re-examination then the claimant was able to manage complex tasks and stay on task throughout this re-examination without prompting. The claimant could focus on the questions and provided consistent and reliable responses without prompting. She was able to concentrate for more than 30 minutes during the early phase of this re-examination without any observed impairment in her concentration, persistence and pace. The Medical Assessors assessed a Class 2, mild impairment for the assessable psychological injury caused by the motor accident. The assessment of the claimant’s concentration persistence and pace assessable to the psychological injury at the time of this assessment was assessed with consideration of forwarded documents regarding the contribution of the psychological injury to the assessable impairment of concentration, persistence and pace from the contribution of pain to the claimant’s difficulties with respect to concentration, persistence and pace. The Medical Assessors noted: At the time of the claimant was admitted to Northern Beaches hospital when her psychological injury requiring acute inpatient psychiatric treatment her treating psychiatrist Dr Peter Jones on 28/05/2019 for his clinical assessment of “… attention/concentrating, planning…” wrote that the claimant’s functioning was “Grossly intact…” i During the same admission to the Northern Beaches the claimant’s treating psychologist Mackertich on 05/06/2019 at the time of clinical assessment documented the following: “Sensorium & Cognition: Px (patient/claimant) advised difficulties sustaining concentration, due to ongoing chronic pain.” Professor Cameron in his certificate dated 27 November 2020 whilst assessing concentration he documented: “On cognitive assessment [BPO] was incompletely oriented in time and place. She had limited recent memory and limited concentration. Using the Mini Mental State Examination she scored 18/30. This is not a valid score as these scores are seen only in people with dementia.” Dr Vickery in his report dated 3 December 2020, “There is reduced memory and concentration and “I (the claimant) struggle to find words for things and my short-term memory has become worse since the accident.” he did not document how much was due to pain and how much was due to the assessable psychological injury. Assessor Mason documented in his certificate dated 14/04/2022 in relation to her difficulty in concentration persistence and pace, “Some of this difficulty is due directly to pain…” The assessor did not document how much of her concentration, persistence and pace was due to pain but he did document, “…but much of it is due to her anxiety and depression.”
Adaptation	4	The claimant said she was unable to continue to organise her small business due to her low energy and slow pace of task completion. She said she had her business placed in liquidation. She said she was unable to return to any of her small business tasks because of her persistent depressive symptoms. The claimant was erratic in her capacity to perform her business functions work duties. The Medical Assessors assessed a Class 4, severe impairment for the assessable psychological injury caused by the motor accident.
List classes in ascending order: 2 2 2 2 3 4
Median Class Value: 2
Aggregate Score: 15
% Whole Person Impairment: 8%
Effects of treatment 1%

9%WPI ^{= Percentage Whole Person Impairment (overall)}

DE-IDENTIFICATION

The claimant requested that the published reasons be de-identified.
The parties were then advised that due to the likelihood of stress we considered de-identifying the published reasons. The insurer advised that it consented to the de-identification of the published reasons.
These reasons contain sensitive personal information.
The reasons for de-identification relate to the claimant’s psychiatric condition which has resulted hospitalisation and associated complications arising from this condition. We consider that it is likely that publication of the reasons will cause the claimant further trauma.
Having weighed the matters referred to in rule 132(4) of the Personal Injury Commission Rules, 2021 including the safety, health and wellbeing of the claimant, and whether the public interest in giving the direction significantly outweighs the public interest in open justice, we are satisfied that the decision should be deidentified before it is published.
Pursuant to Rule 132 of the Rules, the decision is to be de-identified prior to publication to include, at least, a pseudonym for the claimant.

CONCLUSION

The certificate issued by Medical Assessor Mason is revoked. A replacement certificate is attached at the commencement of these Reasons.

[2025] NSWPICMP 388

3 June 2025