QBE Insurance (Australia) Limited v Byrnes
[2024] NSWPICMP 882
•20 December 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Byrnes [2024] NSWPICMP 882 |
CLAIMANT: | Christopher Byrnes |
INSURER: | QBE Insurance Australia Limited |
REVIEW PANEL | |
MEMBER: | Cassidy |
MEDICAL ASSESSOR: | Canaris |
MEDICAL ASSESSOR: | Jones |
DATE OF DECISION: | 20 December 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for whole person impairment (WPI) assessment; Medical Assessor (MA) Shen found 14% WPI; insurer’s application for review under section 7.26; claimant’s three-year-old grandson killed in an accident caused by the child’s father (the claimant’s son); claim for pure mental harm; claimant at time of accident on workers compensation due to serious physical injury; claimant had other health problems and had some minor psychological symptoms before the accident; Panel re-examined claimant and diagnosed a Prolonged Grief Disorder which is a recognised psychiatric illness resulting in a WPI of 19%; in accordance with cl 6.218 of the Motor Accident Guidelines, pre-existing impairment assessed at 4%; consideration of cl 6.221 of the Motor Accident Guidelines in context of the Adaptation area of function and the claimant not being in work at the time of the accident; no adjustment for treatment effect; Held – claimant’s WPI 15%; certificate of MA Shen revoked although outcome did not change. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Shen dated 8 September 2023. 2. Certifies that the degree of the claimant’s permanent impairment resulting from the injury caused by the motor accident on 16 December 2018 is 15% which is greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Christopher Byrnes’ grandson Archie was killed in a motor accident on 16 December 2018. Archie was a passenger in a vehicle driven by his father Luke Byrnes, and Luke is Mr Byrnes’ son. Mr Byrnes was not involved in the accident but says he has sustained mental harm as a result of the accident and the death of three-year-old Archie.
Mr Byrnes made a claim for damages against QBE, the third-party insurer of the vehicle driven by Luke Byrnes on the basis that Luke’s fault caused the accident that led to his psychological or psychiatric injury.
A medical dispute about the degree of Mr Byrnes’ whole person impairment (WPI) arose in connection with that claim and Mr Byrnes referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 8 September 2023, Medical Assessor Shen determined that Mr Byrnes had a WPI of 14%. The insurer was dissatisfied with that outcome and lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 19 October 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review and on 26 August 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.
LEGISLATIVE FRAMEWORK
General
The claim made by Mr Byrnes is made under the Motor Accident Injuries Act 2017 (the MAI Act) and is subject to the pure mental harm provisions in Part 3 of the Civil Liability Act 2002 (the CL Act).
The important sections of the CL Act are as follows:
(a) s 29 enables a person to recover damages where injury arises “wholly or in part from mental or nervous shock”;
(b) s 30 limits the recovery for damages for “pure mental harm arising from shock” to persons who witnesses an accident and the “victim being killed, injured or put in peril” or the person is a close family member of the victim, and
(c) s 31 requires there to be a “recognised psychiatric illness” but the Act and Civil Liability Regulation 2024 does not prescribe the method of “recognition” for example in the way the MAI Regulation[1] or the MAI Guidelines do.[2]
[1] Clause 4(3) refers to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).
[2] See paragraph 15 and following.
In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[3] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[3] The current maximum as of October 2024 is $654,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and the dispute must be referred for medical assessment.[4]
[4] See s 4.12 of the MAI Act.
Dispute resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Shen’s, further medical assessments and the review of medical assessments by this Panel.[5]
[5] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.263A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[6] which are (in the case of physical injuries) largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[6] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
The Guidelines include a chapter entitled “Mental and behavioural disorders” and require the assessment to be undertaking in accordance with the psychiatric impairment rating scale (PIRS). The Guidelines also say that the mental and behavioural chapter of the AMA 4 Guides are to be used as “background or reference only”.[7]
[7] Clause 6.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with whatever the current edition of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD).[8]
[8] Clause 6.213 of the Guidelines.
The PIRS provides[9] for the consideration of any psychiatric condition present before the accident in question as follows:
“In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”
[9] Clause 6.218 of the Guidelines.
The PIRS provides in clause 6.219 for six areas of function:
(a) self-care and personal hygiene;
(b) social and recreational activities;
(c) travel;
(d) social functioning (relationships);
(e) concentration persistence and pace, and
(f) adaptation.
The PIRS then provides at clause 6.220 for five classes with a descriptor for each which is “illustrative rather than literal criteria” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury”.
The impairment may be adjusted for treatment[10] that is treatment such as medication being consumed to treat the psychiatric condition.
[10] See clauses 6.222-6.223 of the Guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage.[11]
[11] See clauses 6.225-6.228 and Table 17.
ASSESSMENT UNDER REVIEW
Medical Assessor Shen has a history of the claimant’s pre-accident functioning noting he is married, and there have been issues both before and after the accident in that marriage. Mr Byrnes was said to have three children and has been arguing with them all. The claimant had three sisters, one older brother and has lost his younger brother. He has some friends and some social activities. He does little now other than watch television.
Mr Byrnes confirmed depression in the past (20 years ago) after losing his brother. He had medication and saw a couple of psychologists.
Before the accident he said he drank on the weekends and continued this habit, drinking until he slept. He said he had used cannabis a few years ago to numb the pain and tried heroin once for pain relief but has not continued with it.
The claimant reported epilepsy since he was 14 years of age, pulmonary heart valve surgery when he was 36 and another heart valve replacement seven weeks before the assessment. The claimant reported chronic back pain all the time.
There is reference to a Workcover claim before the accident.
The claimant said before the accident he would go to the shops with his grandson all the time and his energy and concentration was good. He could not get a job because of his arthritis. He acknowledged pre-accident difficulties with emotional resilience and persistence.
The claimant reported being told by his son that his grandson had hit his head in an accident. Mr Byrnes saw the boy in the hospital. The claimant reported developing emotional disturbances a few days later, increased irritability, depression issues with his sleep and appetite, worse concentration, guilt and death fantasies without suicide attempts. He felt anxious, fatigued and had panic attacks.
He had good memories of his grandson which made him upset. He would struggle falling asleep at night thinking of his grandson, he had seldom nightmares, once about his grandson.
The claimant had seen his general practitioner (GP) and had been treated with medication including Duloxetine and he had seen a couple of psychologists.
The claimant had recently lost two brothers-in-law, one before Christmas and one after.
He felt depressed, angry and scared. He feels guilty and a bit hopeless. He babysits his other grandchildren three times a week from 7.30am to 4.30pm.
The claimant reported last working in the mines eight years previously and has been on workers compensation since. He does not think he can work at all as he is irritable.
In terms of causation, Medical Assessor Shen says:
“There is a plausible mechanism of injury from the circumstances of the subject accident and the development of his psychiatric injuries, and there is a temporal and thematic association with his psychiatric symptoms and the subject accident, so the nexus between subject accident and psychiatric injury is maintained.”
The Medical Assessor diagnosed a persistent depressive disorder and a prolonged grief disorder which the Panel notes are disorders recognised by the DSM-5.
Medical Assessor Shen assessed the claimant’s WPI at 19% then, having found no pre-existing condition assessed 6% for pre-existing impairment due to, “his work injury, resulting in chronic pain and secondary emotional disturbances and reduced motivation.”
To the 13% WPI he added 1% for the effect of treatment.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer says the Medical Assessor erred in assessing a class 5 impairment for adaptation on the basis that the claimant was not working at the time of the accident due to his physical work-related injuries. The insurer refers to cl 6.221 of the Guidelines which provide that non-work pre-injury roles, functions and activities should be considered, and the claimant was able to care for his surviving grandchildren three days a week. The insurer also refers to a Guidance note about Adaptation applicable in the former scheme.
In terms of social and recreational activities the insurer says this should not have been assessed at class 3 as the claimant was able to go out without a support person and did not need to be prompted to go out. The insurer suggests this should be assessed as a Class 2.
The insurer’s submissions take no issue with causation of injury, the diagnosis or any of the other four categories of impairment.
The insurer’s original submissions did take issue with causation noting from [8] a “significant prior medical history” and cites records back to 2006 suggesting the claimant had anxiety, depression treated with psychological therapy. The insurer also points to the claimant’s physical injury and his involvement in a workplace accident in 2015.
The insurer had referred at [13] to a report from Dr Hong, psychiatrist who had considered an alternative diagnosis may be more appropriate than pathological grief and major depressive disorder.
The insurer then deals from [15] with the report of Dr Gertler relied on by the claimant who did not have the pre-accident history and to whom the claimant said he had no emotional problems.
The insurer notes from [24] the claimant had been assessed by Dr Vickery, who diagnosed a somatic symptom disorder relevant to the claimant’s workplace injury. The insurer says Dr Vickery thought the claimant was exaggerating his symptoms.
The insurer submitted that the claimant’s psychological injury has resolved, and that any injury caused by the accident has not resulted in an impairment greater than 10%.
Claimant’s submissions
The claimant says that the Guidance note relied on by the insurer does not apply to the assessment because it relates to the Motor Accidents Compensation Act 1999 (MAC Act) claims and not claims made under the MAI Act. The claimant submits the Medical Assessor did not have to assess the claimant’s pre-injury role as a carer for others. The claimant says while he may not have worked before the accident, there were attempts made to get back to work before the accident and that, as a result of the accident, the claimant has been unable to do so.
The claimant also submits that Dr Gertler says he is totally unfit for work because of his emotional problems and Medical Assessor Shen noted the difficulties the claimant had in returning to work.
The claimant says he had worked all his adult life until 2015, that there were attempts made to get him back to work before the accident. There was no error and that a class 5 impairment was appropriate.
The claimant says there was no error in the class 3 impairment of social and recreational activities noting the various differences between what he used to do and what he currently does in terms of getting out with his friends and family.
Procedural matters
The Panel received a message from the insurer on 10 October 2024
“We refer to paragraphs 31(b) and 32 of the insurer's submissions lodged in the reply to the application for permanent impairment dispute where the insurer raised issues in relation to the reliability of the claimant's subjective reported symptoms and complaints.
We request that the Review Panel considers, during the initial teleconference on 15 October 2024, whether the claimant’s bank and credit card statements for the period 24 June 2022 (being a date after the claimant’s first statement) to date would assist in the assessment of this dispute. This is to verify the information provided by the claimant in his updated statement dated 8 October 2024 in light of the issues raised by the insurer in the assessment of this dispute.”
The Panel met on 15 October 2024 and reported to the parties the next day.
The Panel requested some additional documents:
(a) a copy of the claim form, and
(b) a full copy of Dr Vickery’s report.
The Panel noted the insurer’s request for bank records and requested a limited number of these records. The claimant uploaded his bank statements and transaction listings and the Panel received submissions from the insurer about these dated 14 November 2024 and from the claimant on 28 November 2024.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claimant has provided a statement dated 23 June 2022 which says:
(a) he was “extremely close” to Archie [2];
(b) his son Luke had rung him to tell him about the accident and he went to the hospital and was told Archie had not survived [3];
(c) he attended upon his (GP Dr Areta and a prescription for Mirtazapine was given on 21 December 2018 [4];
(d) on 27 December 2018 he was referred to a psychologist [5] and on 4 February 2019 he was prescribed with Valium [6];
(e) he saw Dr Areta [7] on Dr Balasuriya [8] who referred him to another psychologist “it was not making any difference and rehashing everything made me very upset”;
(f) he has regular depressive and anxious moods and feels hopeless [9];
(g) he has decreased motivation to care for himself and showers only once every three days and must be prompted to do so and shaves once a week and brushes his teeth every other day. He says he wears dirty clothes and is prompted to change them. He does not care about his appearance and does not eat but binge drinks late [10];
(h) he says he has no desire to socialise, does not go fishing, does not perform tasks with his other grandchildren. He has been attending football games but only when his son is playing [11];
(i) he says he is completely unable to leave home and only does essential shopping when his wife is unavailable. He experiences severe anxiety if he goes out and prefers a support person. He struggles to go to places he used to go to with Archie such as Kmart, Hungry Jacks or the park [12];
(j) he is short tempered and argues with his sons and his wife and is frightened of getting close to his other grandchildren which causes guilt [13];
(k) he reports trouble with concentration and memory and has difficulties following conversations and is forgetful. He says he struggles with task given to him at the Men’s shed;
(l) he says he is restricted from work due to his physical injuries and were this not the case he would be unable to work due to his psychological injury, and
(m) he has difficulty sleeping and is kept awake by thoughts of Archie.
There is a second statement which deals with matters relevant to a late claim dispute.
The claimant has provided a statement dated 8 October 2024 referring to his previous statements of 23 June and 9 August 2022.
The claimant says at [3] he continued to see his doctor monthly until January 2024 when she left the practice, and he has been seeing Dr Ibrahim but feels less comfortable and so has only seen him once every three months.
The claimant says at [4] he showers once every four days on prompting and he wears the same clothes (mainly pyjamas) many days in a row.
He says he struggles with socialisation and rarely, if ever, leaves the house and he needs a support person (usually his wife). He says he has ceased going to the football and has not been for over a year [6].
The claimant says he is no longer capable of going to the shops to buy groceries and if he does, he has to have his wife with him. Leslie goes with him to visit his mother (500 metres up the road) and he struggles to visit his son and his other grandchildren [7].
Mr Byrnes says he has difficulty with driving and recounted a story a month before when he had a panic attack when he arrived at the cemetery to pick up his wife. [7]
He says his relationship with his family is strained and he argues with them frequently [8].
The claimant says his ability to concentrate and remember things had continued to worsen and he forgets where he is and then experiences a panic attack. The claimant says he has ceased attending the Men’s Shed [9].
Finally, he says he has difficulty sleeping and tries to distract himself but has nightmares once a week about his grandson [10].
Treating medical records and reports
The GP notes from the Walhallow Aboriginal Corporation Health record no issues of relevance before 18 May 2016. At that time the claimant advised he was made redundant about 14 months previously “due to arthritis and recent hit to the head.” He was prescribed Panadeine Forte. Chronic neck pain was mentioned regularly at this time, also referred to (20 October 2016) as chronic neck and shoulder pain and (30 November 2016) with possible right upper limb radiculopathy.
The claimant was prescribed Dilantin to prevent recurrent seizures.
There is a further note from 20 January 2017 of a C3-5 injury in 1994, chronic neck and bilateral shoulder pain. Mr Byrnes had seen a neurosurgeon with possible diagnosis of spinal canal stenosis. On 17 February 2017 was another note referring to his history and “main complaints neck and shoulder pain. Pins and needles in hands. Tries to keep active, has fits of chronic pain syndrome.”
In February and March 2017, there was concern about abnormal liver function and the claimant’s alcohol consumption was reviewed.
On 13 April 2017, the claimant expressed concern about going back to work and was feeling overwhelmed and was worried his chronic pain would get worse. The claimant wanted to think about retiring early.
On 27 April 2017, after going through a list of suggested jobs:
“Chris does not think he could do any either. Tearful during conversation. Feels a failure. Does not want anyone to think [he] is lazy.”
On 19 May 2017, Dr Balasuriya certified the claimant had no capacity for work on the basis of C3-5 chronic neck pain and a shoulder pain syndrome.
In July 2017, the claimant was prescribed Panadeine Forte for his neck pain and Lyrica after a flare up of his neck and shoulder pain.
On 22 September 2017 the claimant was seen by Ms Nugent and Dr Balasuriya who took a history of a left ankle injury and “commented that he has problems with controlling his anger, he can snap at any time. He tries to avoid a situation by removing himself, he has insight into this.”
Also noted in the history on 22 September 2017 is:
“Psychiatric – poor sleep. Early morning wakening. Low self esteem, Depressed mood, Anxious. No stress at work. No relationship problems. No financial problems. No recent bereavement. Irritability. No irrational fears. Panic attacks. Compulsive behaviour. No delusions. No auditory hallucinations. No visual hallucinations. No suicidal thoughts. No suicide attmpts. No susbstance abuse.”
The claimant had injured his left ankle at work 20 years previously and pain was restricting his activity after walking 30 minutes on hard surface. There was swelling and a CT scan was advised.
The claimant had a presentation to the emergency department due to liver functioning and cardiac issues. A referral to a cardiologist was given.
On 16 February 2018, the claimant attended his doctor for the purposes of a workers compensation certificate and to access income protection insurance (at the advice of his solicitors) on the basis he had a complete and permanent disability.
The MyGP health notes of Dr Areta – commence with an attendance on 21 December 2018 and this record:
“Tragically lost his grandson 3 yo son last week in car accident while his son was driver. Is in a deep emotional crisis as his grandson Archie was his only hope and joy in life. Despite all the tragedy I found him a resilient man with strong fatih. Feels depressed and tearful today is not able to sleep and eat and drink.”
The claimant was given Mirtazapine 30mg one tablet before bed and a referral for counselling was given. The terms of that referral to Healthwise New England were that Mr Byrnes was going through a difficult time due to Archie’s death and that review and management would be appreciated.
On 29 January 2019 the claimant saw Dr Balasuriya for the purposes of obtaining another workers compensation certificate and she notes:
“…also lost grandson to MVA 12 Dec, berieving, seen Dr Aiden at MyGP and started on Mirtaz 30 nocte and organising counselling.”
The claimant next attended on 4 February 2019 very distressed and crying. The claimant had not had any counselling and was not taking Mirtazapine consistently.
On 18 February 2019 the claimant was said to be “slightly better” and was eating and drinking. His Mirtazapine was reduced, and Lexapro was increased. The claimant had still not seen a psychologist.
On 4 March 2019 he attended Dr Areta for a form (which appears to be the Compulsory Third Party (CTP) claim form). His medication was adjusted. On 19 March 2019 it was reported his mood and sleep were improving and while he was becoming emotional, and his grieving was more normal and less pathological.
On 21 May 2019 the claimant attended Dr Balasuriya again for his workcover certificate but also concerning bereavement. The claimant had seen Dr Ayden at MyGP and a counsellor. His son was a patient of Dr Ayden, and they had gone there as a family. The claimant was advised against “fractured” medical care and requested he book in for a long appointment.
No long appointment appears to have been made and the claimant attended on several occasions with no reference to the bereavement, the accident or his grandson.
On 16 July 2019 the claimant attended Dr Balasuriya and was noted to be “otherwise well, happy, alert and interactive”. The claimant had a rash and was advised about his diet and dental hygiene and “nil other concerns voiced.”
Also noted on this date was the following:
“Psychiatric – poor sleep. Early morning wakening. Low self esteem. Depressed mood, Anxious. No stress at work. No relationship problems. No financial problems. No recent bereavement. No irritability. No irrational fears. No panic attacks. No compulsive behaviours. No delusions. No auditory hallucinations. No visual hallucinations. Suicidal thoughts. No suicide attmpts. No susbstance abuse.”
On 29 July 2019, Mr Kijurina the psychologist from Healthwise confirmed the claimant had improved in overall coping however progress was slow “given the particularly close relationship with his grandson”. It was suggested the claimant had further GP reviews and further appointments if necessary.
On 15 August 2019, Dr Areta was advised the claimant had not seen Dr Kong, psychiatrist so an urgent appointment was arranged. On 19 August 2019 the claimant said he had stopped taking his medication and did not show up for his psychiatrist’s appointment. He did however report he had been seeing a psychologist and his regular GP, “he feels sad and full or sorrow and still grieving.”
A further referral was given to Healthwise New England on 19 August 2019 and then another on 2 September 2019.
On 2 September 2019, Dr Areta records the claimant’s KS10 score was 32 (down from 42) showing improvement but moderate mental distress. He had significant up and down moods. Father’s day made him emotional but he was having more good days than bad days.
On 3 September 2019 the claimant saw Dr Balasuriya who reported “Dr Areta (MyGP) has commenced Escitalopram 20 mg and has been referred for more psychological sessions.” The claimant’s mood was said to be “appreciably better than previously. Chris aware of bereavement process and feels he is making progress.”
On 1 October 2019 he reported Escitalopram was improving his state and he was less anxious and depressed. He was to be reviewed in three months.
Dr Areta also records:
“Psychiatric: normal sleep. No early morniing waking. Normal self esteem, Depressed mood. Anxious. No stress at work. No relationship prolbmes. No finanacial problems. Recent bereavemenrt. No irritability. No irrational fears. No panic attacks. No compulsive behaviours. No delusions. No auditory hallucinations. No visual hallucinations. No suicidal thoughts. No suicidee attmpts. No substance abuse.”
It does not appear the claimant was seen by Dr Areta or the MyGP practice after 1 October 2019.
On 27 November 2019, the claimant reported to Dr Balasuriya that his physical symptoms were the same. He got back pain if he tries to do anything physical and shoulder pain. His liver function tests were abnormal. He reported his “mood is better. Function has improved. Still thinks of grandson at times which makes Chris feel sad.”
On 6 January 2020 the claimant came in with his wife for a mental health consultation concerning he death of Archie.
There was a long consultation with Dr Balasuriya on 26 February 2020 now that the paperwork had been transferred from Dr Areta. The claimant said he was significantly affected and was thinking of his grandson all the time, hearing his voice (listening to recordings) and avoided things that reminded him of Archie. Was feeling guilty and angry. He was reported to not want more pills.
The claimant saw Dr Balasuriya on 4 March and 10 March and on 18 March 2020 the claimant was handling gradual exposure to previous locations. He was having some “scary dreams” but not of Archie and wanted to go to Kmart where he used to go with Archie.
On 24 March 2020 the claimant had gone to Kmart and spent an hour there “some improvement in function; mowed lawn, cleaned shed. Some fits of PTS discussed counselling.”
On 30 March 2020 the claimant reported to Dr Balasuriya that his mood was ok and his function had improved and he was looking after another one of his grandchildren.
On 5 May 2020 Dr Balasuriya reported the claimant’s improvement (some) following exposure therapy and that his functioning was improved, and he was doing more work at home and helping his mother but was hampered by being unable to go out due to COVID restrictions. He was sleeping poorly, and his day lacked structure.
On 28 May 2020, the claimant’s wife expressed concern about her husband who was “really down”. An appointment was arranged for 1 June 2020 and the claimant reported he had “gone downhill in last two weeks” apparently in association with Archie’s birthday. The claimant was given tests (Depression, Anxiety and Stress Scale (DASS)) and advised he needed proper psychology services.
The 2 June 2020 referral to Mr Riley, psychologist refers to abnormal prolonged grief reaction following Archie’s death. Also noted was chronic pain but, “we don’t think current episode is directly related to that.”
On 9 June 2020 the claimant attended again and was feeling a bit better. He knew Archie’s birthday was approaching but was not sure of the date of it. Counselling was attempted with Mr Riley. On 16 June 2020 the claimant had been to the grave, “I felt I handled it better than expected.” He was improving his diet, going to bed earlier and organising his day “having a lot to do with grandchildren. Distracted.”
The mental health plan refers to a past mental health history of “some issues with low mood in the past especially in background of work injury, loss of job and chronic pain.” It was noted he lives with partner and, “has a lot to do with grandchildren.” He was described as well-kept but tearful at times and with a depressed mood and affect.
Mr Riley first saw the claimant on 22 June 2020. Mr Byrnes reported Archie was a “one-off” intelligent, playful and caring and wondered what would have become of him. The claimant had created a shrine and acknowledged Archie would like him to not be so down and refocus on other grandchildren. The claimant said, “he benefitted greatly from our discussion” and they arranged to meet again in a month.
On 24 June 2020 the claimant had seen Mr Riley and reported to Dr Balasuriya was able to watch a video and listed to Archie’s voice without breaking down. He was getting out more, supervising his granddaughter’s driving, driving his grandchildren to school and helping look after a one-year-old grandchild.
On 27 July 2020, the claimant reported to Mr Riley that his son was struggling and both he and his son may have been drinking too much. He reported good days and bad days. The claimant’s wife thought he was doing “slightly better”. The claimant feared losing memories which “may be the seat of the problem.”
The claimant had a telephone consultation with Dr Balasuriya on 4 August 2020 with his mood “up and down but better” and he was functioning better, looking after a baby and a grandson when after school. He was doing small chores for his mother and supervising his granddaughter’s driving. He had recently seen Mr Riley and was trying to regularise his daily routine.
The claimant attended Mr Riley again on 31 August 2020 who reported he “presented in the best shape I have seen him, looking fresh.” He appeared to be “healing”. On 4 December 2020 however the claimant attended due to decline. He was stuck emotionally and had drunk heavily on two occasions. On 30 December 2020 he reported a difficult Christmas and struggled at the cemetery.
The claimant continued with workers compensation reviews and in October 2020 there was a further functional assessment. The claimant had a fall and suspected right-hand injury after his left ankle gave way.
On 30 November 2020 the claimant reported a decline in his mental health. A few weeks previously he had an argument with his son. It is said he took off in his car and drove in an unsafe manner. He pulled over and “cooled off”.
On 7 December 2020 the claimant had a further session with Mr Riley and was feeling better. On 16 December 2020 the doctor reports “Chris is currently performing ADLs consistent with his work capacities MH is better.”
A case conference with Workcover on 18 January 2021 and the claimant confirmed bilateral shoulder pain and back pain and limited ability to do anything physical. He was babysitting his grandchildren and looking after his elderly mother.
On 22 February 2021 the claimant was still having “hurt feelings” about Archie and was still taking to him and thinking of him. The claimant’s pain continued but he was able to help with home duties including washing clothes, cleaning up, vacuuming and babysitting his grandchildren, two to three hours at a time. He was attending a computer course through Institutional Planning, Assessment and Research (Ipar).
On 17 March 2021 there was another workers compensation case consultation with the claimant’s activities of daily living said to be the same. The claimant was able to babysit two grandchildren at a time and drive short distances. He was doing some yard duties for short periods but got flare ups of pain.
On 14 April 2021 there was another case conference. The claimant was attending the Mens’ Shed four days a week three to four hours a day and making friends. His self-esteem was improved but he was sore the next day if he overexerted himself. On 26 May 2021 there is a suggestion Workcover was considering a job for him driving children part time.
On 21 June 2021 it was reported he was applying for the job and his rehabilitation consultant was going to help him with the paperwork.
The claimant attended on 21 July 2021 with his rehabilitation coordinator. The claimant reported his “headspace slipped back a bit in the last 2 weeks” this appears to be related to his son’s court appearance and a guilty finding of negligent driving. The claimant had not been to the Men’s Shed for two weeks and was sad about Archie. There was talk of pain specialist review.
On 25 August 2021 was a further attendance regarding his workers compensation issues (pain left shoulder, neck, headaches, back) and his mood was said to be improved but he still thought of Archie often.
There is information in the notes to suggest the Men’s Shed operations may have been affected by Covid closures.
On 1 September 2021 Dr Balasuriya referred the claimant to Mr Riley, psychologist for “prolonged bereavement and some features of PTSD after death of his grandson in 2018” there was reference to a long-term workers compensation claim and that “his current psychological condition has been recognised as one of the barriers” to a return to work.
On 22 October 2021 Dr Balasuriya notes the claimant was “enthusiastic” for a job offer as a pathology specimen courier.
On 22 December 2021 the claimant reported his pain was becoming more manageable but that he was very tired. “Feeling slightly depressive around the Christmas period due to reflecting on losing a child in the family years ago.” On 7 February 2022 the claimant asked his GP for the whooping cough vaccine as there was a new baby in the family arriving soon.
On 7 February 2022 the claimant, his wife and Dr Balasuriya discussed that the claimant was unlikely to be able to engage in employment because of his age, his long-term workers compensation issues, psychological factors not related to injury, difficulty retraining and physical limitations. On 14 February 2022 there was a Workcover review. The claimant was “showing signs of acute stress; worsened sleep, worrying about appointments he has to keep for WC, regretting losing patience with EP during last appointment. Quite distressed and crying about this incident.” Dr Balasuriya expressed the view that the attempts to get the claimant back to work were “actually beginning to be harmful.”
On 7 March 2022 Dr Balasuriya notes that Archie’s death was still affecting the claimant, that young children triggered memories and that he blamed himself. He was listening to Archie’s recorded voice and rewatching videos. He was displaying avoidance behaviour and having intrusive thoughts and imagines. He was doing a lot with his other grandchildren and visiting his mother and going for walks. It was recommended he restart psychology or psychiatry.
Mr Riley provided a report to the claimant’s solicitor dated 15 April 2023. He had not seen the claimant since the end of 2020 and had seen him on five occasions between 22 June and 30 December 2020. Mr Riley noted that the loss of Archie had a profound impact on Mr Byrnes and that while “Mr Byrnes often commented on the helpfulness of our discussion” the claimant repeatedly reflected on his loss and developed habitual behaviours. He was encouraged to spend more time with his other grandchildren but then constructed a shrine of sorts.
Mr Riley noted the claimant’s “moderate physical pain” in his neck and shoulders which contributed to the sense of malaise. Mr Riley diagnosed a Major Depressive Disorder and also a post-traumatic stress disorder.
Bank records and submissions
The claimant provided one year’s worth of transactions from an NAB “classic banking” account.
The insurer provided submissions dated 13 November 2024. The insurer noted the claimant had provided a statement saying he had no desire to socialise, avoided socialising and rarely if ever left the home.
The insurer says the bank statements suggest the claimant has attended on a regular basis a variety of social venues including the Tamworth Service Club, West Tamworth Leagues, the Star in Sydney, a sports bar in Sydney, the Court House Hotel in Sydney and West Diggers Leagues.
The insurer also says there are a number of automated teller machine (ATM) cash withdrawals made which does not support the claimant’s assertion he rarely leaves the home.
The insurer also points out to the claimant’s card being used a fuel stations, supermarkets, fast food outlets, a butcher and K-Mart.
The insurer pressed for a transaction listing from all of his accounts.
The insurer noted that Medical Assessor Shen records that the claimant no longer shops but goes to the chemist. The insurer points to a number of transactions where it suggests the claimant goes shopping.
The claimant responded saying that his bank card is held by his wife and is used by her and his sons (and gives the example of the use of the card at bars in Sydney while the claimant was having heart surgery).
The claimant says he does go to the local club on a Friday night but does not go to Woolworths, Aldi or other stores or socialise with his friends.
He says, “noting the number of people that had access to his ‘bank card’ these records should not be taken at face value.”
The claimant says he needs a support person to go out and keeps to himself while he is there.
Medico-legal reports
There is a report from Work Focus Australia, completed by Mr Vervaart dated 19 July 2019 which is headed “Coral Project report.”
The claimant gave a history of how he learned about the accident and the death of his grandson. He because “extremely emotional” and focussed on fond memories including discussion activities they did together and enjoyed.
The claimant reported poor sleep and regular thoughts about Archie and his mood was depressed. He was said to not enjoy his other grandchildren as much as before.
The claimant home was said to include toys, and a photo of Archie was displayed. The claimant said his low mood and energy led to social isolation but he had been forcing himself to go to the local RSL club. He did not like going into town because people would see him and give him advice about dealing with grief. The claimant was attending his son Luke’s football games taking one of Archie’s toys with him.
The claimant said he lacked motivation to do things in the yard or with a vehicle saying he always used to do these things with Archie. He blamed his son and others for Archie’s death, has become irritable and did drink to excess (however not anymore).
The claimant reported “his memory and concentration remain unchanged” and he enjoyed reading which he did before bed.
The claimant said he had no problems with activities of daily living and maintained his hygiene occasionally missing showers. The claimant said he was still helping his wife occasionally with cooking and cleaning and he had two large dogs which he was responsible for feeding.
The claimant reported seeing a psychologist Mr Kijurina about six times. He said he had been given strategies to assist however did not practice them and forgets them. He confirmed seeing Dr Areta but returning to his usual GP Dr Balasuriya.
The claimant documented his medication and advised that 20 years before he had suffered from depression which he self-managed.
The claimant demonstrated difficulty with concentration and could not remember his medication or the names of his treatment providers.
The claimant was encouraged to have further sessions with Mr Kijurina and adjust his medication.
The insurer relies on a report from Dr Hong dated 22 August 2019. Dr Hong had spoken with Dr Areta. Dr Hong noted that Dr Areta was an experienced GP but had also been a psychiatric registrar. He was unaware of the claimant’s past psychiatric history. The claimant’s vulnerability factors were discussed.
It does not appear that Dr Hong had examined the claimant. He expressed his concern to Dr Areta about the claimant’s lack of progress in the eight months since the accident and Dr Areta said he would encourage the claimant to return for review. The claimant’s physical health was an issue as was his engagement with psychological services, the fact that his sons were also affected by the events. The need for social engagement, medication review and consideration of a psychiatrist becoming involved were also discussed.
The claimant relies on a report from Dr Gertler dated 3 June 2022.
Dr Gertler notes the claimant had not worked for about seven years since a workers compensation claim “as a result of injuries sustained during his many years as a miner.”
The claimant gave Dr Gertler a history of being rung by his son to advise him both he and Archie had been in an accident and that Archie was “not good”. The claimant said he went to Tamworth Hospital was told Archie had died and was “extremely distressed.” While experiencing normal grief the claimant was said to have been unable to cope with Archie’s loss as they were close. Archie had been left in his care for a time and he was treated as the claimant’s child.
The claimant was referred to a counsellor and commenced on anti-depressant medication. His symptoms had not changed for 12 months.
The claimant gave a history of poor sleep with recurrent nightmares involving Archie. He has poor appetite, depressed mood, irritability and difficulty concentrating. The claimant says he tries to visualise Archie, talks to him and kisses a photo of him every night.
He avoids going to the cemetery,
He has kept Archie’s toys and prevents his other grandchildren from playing with them. He remembers what he did with Archie and feels guilty when he does the same thing with his other grandchildren. He argues with Luke his sone (Archie’s father).
Dr Gertler has no history of previous psychiatric conditions but does have a history of the past physical problems.
Dr Gertler records:
(a) the claimant managed his self-care and takes his medication;
(b) he is withdrawn socially although he does see his immediate family and visits his mother;
(c) he does not cook which he did previously;
(d) he would occasionally babysit his grandchildren and visit his children with encouragement;
(e) he had begun to attend his son’s football games, but does not socialise;
(f) he no longer goes fishing, does not go for walk s or exercise, and
(g) he drives locally and avoids going into town.
Dr Gertler diagnosed symptoms consistent with a post-traumatic stress disorder. He expressed a guarded prognosis.
He assessed WPI at 19%.
The insurer relies on a report from Dr Vickery dated 3 August 2022. Dr Vickery thought there was no incapacitating or disabling psychopathology or any diagnosable DSM 5 condition and therefore no WPI.
RE-EXAMINATION FINDINGS
Who was present at the assessment
Medical Assessors Canaris and Jones conducted the re-examination of the claimant on 5 December 2024 by way of MS Teams. Mr Byrnes was in his solicitor’s office in Tamworth. Assessor Canaris and Assessor Jones were in their respective offices in Sydney.
A good audiovisual connection was established and continued throughout the re-examination which took over one and a half hours
The claimant was accompanied by Lesley Shaw, his partner, and she was present throughout the re-examination. Ms Shaw is the grandmother of Archie. She maintained her composure throughout the examination, supporting and comforting Mr Byrnes when he was upset. She also provided assistance to the Medical Assessors repeating some of their questions as Mr Byrnes had trouble with his hearing.
The Medical Assessors were aware of the sensitive nature of the subject matter of the proceedings and took care not to upset Mr Byrnes or exacerbate his mental state. The Medical Assessors were also aware that the claimant had left school at the age of 14. He spoke simply and his answers were not expansive. The Medical Assessors adjusted their questioning as a result.
Pre-accident history
The claimant is now 64-years-old and was at the time of the subject accident not working. He currently lives with Lesley and his son Luke in Tamworth. Luke’s partner is not living with them although for a time (not clearly stated) before the accident Luke, his partner and Archie had lived with Mr Byrnes. In the months immediately before the accident Archie and his mother were not living in the family home but Luke was, and Mr Byrnes would see Archie or care for him five days a week.
Mr Byrnes denied any significant history of psychiatric illness. He felt he was “pretty good” before Archie’s death and would “get out and do a bit of fishing” and would often visit his cousin and watch a bit of footy. He felt he was enjoying life. He would take his elder grandson with Archie to the park. He had a vegetable garden, and Archie would help him water the plants. He went out socially, going to lunch or dinner every now and again, which he enjoyed. He did not struggle with motivation before Archie’s accident.
He had had some medical issues including two cardiac procedures; two pulmonary valve replacements and recently a pacemaker. The Panel noted from the documentation on hand that he had epilepsy for which he was on Dilantin (phenytoin) and that he was taking a range of other medications including antihypertensives, aspirin, and lipid-lowering agents. The claimant accepted that these were serious conditions, and he also had liver problems.
Mr Byrnes was forthright about his workers compensation claim saying he had “a lot of arthritis” with chronic pain and left work some nine years ago. He has not worked since then. He had been working in a lime mine, which he had done for many years.
He denied any history of problems with the law apart from “a couple of arguments” at the club but could not recall whether police were called. He accepted he had a temper on occasions before the accident but said he was much more even-tempered than he is now.
He has three sisters and two brothers “but me little brother passed away” about 10 years ago from aplastic anaemia. He “didn’t handle it real good but it was nothing like with Archie – I felt he had a good life and then he was sick – big difference”.
He grew up in Tamworth. His mother used to be a nurse. His father walked out on his mother – he was pretty young at the time. He saw his childhood as “pretty good”. He “never went to school much”, leaving when he was 14 years old. He worked at a chicken farm and then at the age of 16 years went to work at the mines which he did “on and off” for 30 years. He was 28 years with his last employer.
He never married. Lesley is the mother of Luke and his other son. He has one daughter from an earlier relationship.
History of the accident
The claimant’s three-year-old grandson Archie was killed in a motor vehicle accident on 16 December 2018. Luke was the driver. The car aquaplaned on a wet road and Luke lost control running into a tree which broke the window where Archie was sitting.
His son Luke rang him to say he and Archie had been in an accident and Archie was not well – he recalls he “got a bit cranky after that”. He could not recall how long Archie was in hospital but thought it may have been a few hours.
He did not see Archie in hospital before he died, which “broke me heart – just buggered me”.
Symptoms and treatment
Since then, he has been “up and down – cranky – more cranky than anything” and he finds himself dwelling on whether he could have done anything different.ly He wonders if he could have taken his car instead of Luke driving, “and I sort of blame my son a bit”. He finds he feels worse at night when he finds himself dwelling on Archie’s death.
He has “better days” and “worse days”. He feels very much stuck. He feels sad. He misses Archie greatly. He feels lonely despite the support of his family, finding that his other grandchildren do not make up for the loss of Archie.
He has seen psychologists and “they tell me to think of the good times”, but he feels this does not make any difference.
He has been prescribed an antidepressant by his GP – he could not recall what it was called. He thought it did not help much, but then had been in hospital on a couple of occasions and was not given his antidepressant and felt a lot worse. The Panel noted from the documentation on hand that he had variously been on Escitalopram, Mirtazapine, and Duloxetine (all antidepressants) as well as Belsomra (suvorexant – a sleeping medication) and Diazepam (an anxiolytic).
He says while he had chronic pain and felt down before the accident he is “a different person altogether” since the accident saying, “This has knocked me about pretty big time”.
He has found himself getting drunk “to stop it hurting” and would “feel like a few beers and it turns into a lot… helps me sleep… just numbs it a bit I suppose”. He would average “a dozen” beers a week, usually on a Friday, and “sometimes a bit more”. He finds it difficult to stop himself drinking.
He does not smoke. He does not use drugs, but for a time had tried marijuana to see if it would stop the pain, and “a taste of cocaine” which did not help.
He said before the accident he would put $50 into pokies on a Friday or Saturday at a club. On subsequent questioning in relation to banking transactions, he admitted that he had in fact gambled considerably larger sums after the accident and since his compensation payout.
He has felt as though he would rather be dead than feel his pain (which was a reference to psychological and not physical pain), although he feels he has to stay strong for his grandchildren.
Subsequent injuries
There are no subsequent injuries or mental health conditions although as discussed, he has had significant cardiac issues in recent times.
Mental state examination
Mr Byrnes provided the history documented above. His narrative was coherent and internally consistent. His demeanour was depleted and sad and he was briefly teary while reminiscing about going to Kmart to buy Archie a Transformer toy. He became teary towards the end of the interview to the point that he broke down emotionally. There was no evidence of psychosis or cognitive impairment emerged.
Current functioning
Mr Byrnes says he spends his days “lying on the lounge watching telly” and said, “I just don't feel like doing anything – I just feel too lazy…”. He will “mainly watch YouTube just to try to take me mind off things – that’s what I mean – when I go to bed, it all comes up – that’s why I watch telly”. He does not really take in what he watches. He rarely rewinds what he watches – he mainly has the TV on to zone out and distract himself from his thoughts.
His memory has been “up the shit” and his forgetfulness has sometimes led to arguments. His sleep is poor, in that he finds it hard to get off to sleep and he finds himself waking a few times during the night. He tends to stay up very late until around 1.00am and get up around 8.00 or 9.00am. His energy levels are low, and he struggles with motivation. He frequently puts off doing things because of his lack of motivation.
He has relinquished the finances to Lesley. The Panel also noted the contents of his June 2022 statement which describes his difficulty in remembering instructions, following conversations, or following complex instructions.
He had not worked for some years before Archie’s death. He received workers compensation payments for a number of years – these ceased last year. He received a lump sum on the basis of his physical problems. There had been a period when there was talk of doing a bus driver’s job or working as a pathology collector, but he could not manage the motivation. There was no thought of going back to work now because of his emotional state. In terms of current adaptation, he would “every now and then vacuum – I might hang the clothes out – mow the lawn sometimes once in a blue moon – usually my son does it – I feed the dogs”. He would cook “once in a blue moon”. He no longer does the shopping. He helps mind his grandchildren only very occasionally and usually only if Lesley is there at the time.
He is “a cranky old bugger” and he argues with Lesley, and his sons. He has “told them all to get out of the house a couple of times” and his family left to come back four or five hours later “after I calmed down a bit”. He has nine grandchildren, including Archie. He sees his grandchildren, aged two, five years and nine years from another son, and other grandchildren who are older or live elsewhere. While he loves his other grandchildren, he does not feel as close with them as he did with Archie and does not want to get close. He had also lost friends. The Panel noted the contents of his June 2022 statement which refers to his arguments with his other son because of his inability to engage with his other grandchildren and the claimant agreed with this.
Luke has two other children from another relationship, but they are with their mother. Mr Byrnes sees them only occasionally.
He does not go out socially and would “pretty much stay home all the time”, apart from Fridays, “and it takes a bit to get me out”. He says he does not want to have Archie’s death brought up by others. He said, “Me and Archie used to do the shopping”. When he is at the club, he will stay by himself, and he does not interact with others unless Lesley’s sister happens to be there. Lesley drops him off – she pushes him to go there. He will “sit at a table and have a little flutter or watch a little telly or listen to the raffles” but would mainly be “all by meself”. He doubts he would go to the club if Lesley did not drop him off or, as mostly happens, comes with him. There had been an attempt to get to Men’s Shed but he has not attempted to return in recent times saying he has no motivation. He no longer enjoys activities such as fishing and is not motivated to go.
He is “not good, I suppose” with showering and changing his clothes, and could go three to five days without. Lesley does not get on his back and “she knows I wouldn’t take any notice – I just don’t feel like it”. He will “eat a lot when I’m watching TV at night”. He things he may have been gaining weight “because I eat a lot of rubbish at night”. He eats during the day “sometimes” but otherwise skips meals or grazes. He very rarely cooks and does not shop and if left entirely to his own devices would probably “just eat out of cans”. He goes to see his doctor reluctantly “but I know I have to do that”.
He drives “every now and again” which is “because I don’t want to leave the house – I just want to stay home”. He is “alright I think” on the road and a longer journey is not on the cards because he “can’t motivate himself”.
Comments on consistency
The Medical Assessors raised with him the issue of his financial statements. He asserted that he only ever used this credit card when he was at the club and had been going to two clubs – the Diggers and the Services Club. The Panel noted sizeable transactions, and he admitted that while at the club he would spend on beer, raffle tickets, and the pokies and that this could easily amounts to several hundred dollars. He also made (TAB) bets over the phone, on the horses as well as the dogs. He has been gambling on dogs from an “Archie” blood line to which he felt very much drawn.
Additionally, Mr Byrnes said he gave his bank card to his partner and to his son Luke as well as possibly to his elder son as well. Luke had taken out cash while Lesley did the shopping. It seems he had also given Luke money to pay for his car. The Medical Assessors asked about spending at Star City. He responded, “that’s when I had me heart surgery” explaining that he and Lesley had gone to the buffet restaurant at the Casino.
The Medical Assessors raised with him entries in the medical records after the accident suggesting that he was keen on getting a job as a courier, bus driver or as a pathology collector. He acknowledged that this had been suggested to him and his workers compensation case managers were encouraging him but said that he could not manage the requisite motivation.
The Medical Assessors also noted a range of entries in his medical records of Dr Balasuriya suggesting that he was doing better (such as in July 2019, March 2020, February 2021 and March 2022). The Medical Assessors however also noted periods in between these dates (often associated with anniversaries of the accident, Archie’s birthday or holidays) that appear to have triggered a decline. It is the clinical judgment of the Medical Assessors that whatever improvements have occurred have not been sustained. The medical record reveals, at best, a fluctuating course with significant fragility. The Panel notes the lack of updated medical records and the history from the claimant suggests to the Medical Assessors that Mr Byrnes’ condition had deteriorated considerably over the last two years which is, in their clinical judgment in keeping with what is sometimes seen in mood disorders.
The Medical Assessors noted the claimant’s contention that he had been psychologically well prior to Archie’s death. It noted entries in his medical record suggesting he had not been entirely well. For example, in early 2017, there had been concerns relating to his alcohol consumption in the setting of abnormal liver function tests. On 13 April 2017, he had reportedly expressed concern about going back to work saying he was feeling overwhelmed while worrying that his chronic pain would worsen. On 27 April 2017, he was noted to be quite teary after going through a list of suggested jobs which he did not feel he could do, saying he felt a failure. On 22 September 2017, he admitted to problems with controlling his anger, while on 22 September 2017 an entry in his file, which has the character of a pre-populated list, notes poor sleep, early morning wakening, low self-esteem, depressed mood, and anxiety. The claimant acknowledged his previous medical history and anger issues along with his chronic pain condition. The Medical Assessors note the relative scarcity of mental health related entries and an absence of referrals for psychiatric or psychological intervention. While his reporting may not have been entirely accurate, he was reporting on his functioning more than seven years previously and had admitted his memory was poor.
CONSIDERATION OF THE ISSUES
Diagnosis
It is the clinical judgment of the Medical Assessors that Mr Byrnes’ presentation is consistent with a diagnosis of Prolonged Grief Disorder which is a psychiatric condition recognised in the current edition of the DSM, DSM-5-TR and with five criteria set out from page 322 of that publication.
Criterion A requires there to be “the death of someone who is close to the bereaved individual”. The claimant has experienced the death of his grandson Archie. Archie had lived with the claimant for a time and before Archie died, the claimant had been seeing him five days a week. The commentary in DSM-5-TR states that the risk of prolonged grief disorder is heightened by the death of a child.
Criterion B requires at least one of the following symptoms to be experienced on most days to a clinically significant degree and occurring nearly every day for at least the last month:
(a) intense yearning / longing for the deceased:
(b) preoccupation with thoughts or memories of the deceased person
Mr Byrnes described an ongoing intense yearning for his grandson over the whole period of the last six years and was preoccupied with thoughts or memories of him and the things they did together. While he did show some improvement at times and with counselling, this improvement has not persisted.
Criterion C requires at least three of the following symptoms to be experienced on most days to a clinically significant degree and every day for the last month:
(a) identity disruption since the death;
(b) marked sense of disbelief about the death;
(c) avoidance of reminders that the person is dead;
(d) intense emotional pain relating to the death;
(e) difficulty reintegrating into one’s relationships and activities after the death;
(f) emotional numbness as a result of the death;
(g) feeling that life is meaningless as a result of the death, and
(h) intense loneliness as result of the death.
There was evidence provided by Mr Byrnes in his history of intense emotional pain, difficulty in reintegrating with relationships and activities following his death, and continuing loneliness following Archie’s death six years ago.
Criterion D requires the presence of clinically significant distress or impairment in social, occupational or other important areas of functioning. There was evidence of clinically significant distress and psychosocial impairment (Criterion D) manifesting in his continuing sadness and distress, his disengagement from household activities, his social withdrawal, and his reluctance to leave his home.
In Criterion E, the bereavement must be out of proportion to or inconsistent with cultural, religious or age-appropriate norms. The duration and severity of his bereavement reaction exceeded social and cultural norms (Criterion E). While there have been periods of improvement, it is the clinical judgment of the medical assessors that six years of a severe bereavement reaction is beyond the norm for most cultures and certainly the case in mainstream Australian culture.
Criterion F states that the person’s symptoms are not better explained by another mental disorder and were not attributable to the physiological effects of a substance or to another medical condition. The Panel noted a comorbid mood disorder but noted the specificity of symptoms related to bereavement and considered that this did not account for his symptoms. Additionally, it noted his excessive drinking, but again noted that this was very much driven by his wish to dull his psychological pain on losing Archie.
The Medical Assessors consider that due to the chronicity of the claimant’s mood disturbance, Mr Byrnes fits the criteria for a diagnosis of persistent depressive disorder (dysthymia). In terms of DSM-5-TR criteria:
(a) the Panel noted the presence of depressed mood for most of the day for more days than not over the six years since Archie’s accident (Criterion A);
(b) the presence of overeating, insomnia, and poor concentration (Criterion B);
(c) while Mr Byrnes has had periods of improvement in mood documented in the records, on his history, he had never been without the symptoms for more than two months at a time (Criterion C);
(d) he may have at various intervals in the last six years met criteria for major depressive disorder (Criterion D);
(e) Mr Byrnes has not reported any a manic, hypomanic, or cyclothymic symptoms and there is no record of any presentation to his doctors with those symptoms (Criterion E);
(f) there is no evidence of a schizoaffective disorder, schizophrenia, schizophrenia spectrum, or other psychotic disorder either on his own history or in the records from his treatment providers (Criterion F);
(g) the claimant’s symptoms are not attributable to the physiological effects of a substance or to another medical condition (Criterion G), and
(h) the symptoms have caused Mr Byrnes clinically significant distress and psychosocial impairment in social, occupational or other areas of function (Criterion H). There was evidence in Mr Byrnes’ continuing sadness and distress, his disengagement from household activities, his social withdrawal, and his reluctance to leave his home.
In relation to Criterion G, the Medical Assessors note Mr Byrnes history of excessive drinking but again noted that it seems a very much driven by an attempt to dull his psychological pain and forget the death of Archie. It also noted the episodic (binge) quality of his drinking which typically would not be associated with ongoing depressive symptoms.
He may have an emerging alcohol use disorder and gambling disorder.
He may have sustained a grief disorder and or depressive disorder at the time of his brother’s death, but this had, on his history long since resolved.
Causation
Mr Byrnes’ Prolonged Grief Disorder is the result of the subject motor vehicle accident. His symptoms are highly specific to that event and the death of his beloved Archie.
There is some evidence in the documentation that he may have had an adjustment disorder with depressed mood in response to his physical injuries dating back to 2015, although no formal diagnosis of this appears before June 2020 and no psychotropic medications were prescribed for that. However, his persistent depressive disorder (dysthymia) comprises a considerably more severe and pervasive raft of symptoms which appears very much an intensification of his continuing sadness and grief over Archie’s death.
Even if his physical issues may have given rise to an adjustment disorder with depressed mood, there appears no evidence from the documentation, or from the claimant’s history at the re-examination, that these are an ongoing driver of his grief response or his depression. Moreover, his present raft of symptoms has taken over any symptoms emanating from his adjustment disorder.
His brother’s premature death many years previously may have made him more vulnerable at the time of Archie’s death but there was no evidence to suggest that this made a substantial contribution to his current presentation.
WHOLE PERSON IMPAIRMENT ASSESSMENT
Current whole person impairment
The evidence reveals a significant pre-existing physical injury which has continued to date. The Medical Assessors have been careful to distinguish between impairment caused by the claimant’s physical problems and his psychological issues.
Self-care and personal hygiene
He says he is “not good I suppose” with showering and changing his clothes and could go three to five days without. Lesley does not get on his back and “she knows I wouldn’t take any notice – I just don’t feel like it”. He would “eat a lot when I’m watching TV at night”. He thinks he may have been gaining weight “because I eat a lot of rubbish at night”. He eats during the day “sometimes” but otherwise skips meals or grazes. He does not cook or shop and if left entirely to his own devices would probably “just eat out of cans”. He goes to see his doctor reluctantly “but I know I have to do that” and Lesley takes him.
It is the clinical judgment of the medical members of the Panel that the claimant’s impairment is class 3. It is evident from this history that he would not care for himself adequately without his wife’s support.
Social and recreational activities
He does not go out socially and would “pretty much stay home all the time”, apart from Fridays, “and it takes a bit to get me out”. He does not want to have Archie’s death brought up by others socially, adding, “Me and Archie used to do the shopping”. When he is at the club, he would stay by himself and does not interact with others unless Lesley’s sister happens to be there. Lesley drops him off – she pushes him to go there. He would “sit at a table and have a little flutter or watch a little telly or listen to the raffles” but would mainly be “all by meself”. He doubts he would go to the club if Lesley did not encourage him.
There had been an attempt to get to Men’s Shed early on, but he found himself unable to go in the last few years. He no longer takes part in activities such as fishing due to his psychological injury and lack of motivation.
While the Panel notes the claimant goes to the club, this is a solitary activity with no significant engagement with other people and his partner is the instigator of this.
Using clinical judgment, the medical members of the Panel are of the view that this equates to a Class 3 impairment.
Travel
Mr Byrnes can drive and does drive “every now and again” which he says is “because I don’t want to leave the house – I just want to stay home”. He is “alright I think” on the road and a longer journey is not on the cards because he “can’t motivate himself”.
The Panel notes the contents of the claimant’s statement dated 23 June 2022 which referred to his avoidance of many venues that he associated with Archie. The bank records and the claimant’s explanation for it, do not support a finding of a lesser impairment and the medical members of the Panel are of the view the claimant has a Class 2 impairment for travel.
Social functioning
The claimant says he is “a cranky old bugger” and he argues with Lesley and his sons. He has “told them all to get out of the house a couple of times” and his family left to come back four or five hours later “after I calmed down a bit”. He too has left the house driving off and returning when he has cooled down. He has nine grandchildren including Archie. He sees his grandchildren, aged two, five years and nine years, from another son and other grandchildren who are older or live elsewhere. While he loves his other grandchildren, he does not feel as close with them as with Archie and does he did not want to get close to his other grandchildren for fear of sustaining a similar loss to that of Archie. He said he has also lost friends. The Panel noted the contents of his June 2022 statement which refers to his arguments with his other son because of his inability to engage with his other grandchildren.
The medical members of the Panel are of the view that this equates to a Class 2 impairment.
Concentration persistence and pace
Mr Byrnes spends his days “lying on the lounge watching telly” saying, “I just don't feel like doing anything – I just feel too lazy…”. He would “mainly watch YouTube just to try to take me mind off things – that’s what I mean – when I go to bed, it all comes up – that’s why I watch telly”. He does not really take in what he watches. He rarely rewinds what he watches – he mainly has the TV on to zone out and distract himself from his thoughts.
His memory has been “up the shit” and his forgetfulness has sometimes led to arguments with his family. His sleep is poor in that he finds it hard to get off to sleep and would find himself waking a few times during the night. He tends to stay up very late till around 1.00am and get up around 8:00am or 9:0am. His energy levels are low, and he struggles with motivation. He frequently puts off doing things because of his lack of motivation.
The Panel also noted the contents of his June 2022 statement and the claimant’s history of difficulty in remembering instructions, following conversations, or following complex instructions.
The medical members of the Panel are of the view that in their clinical judgment this equates to a Class 3 impairment.
Adaptation
Mr Byrnes has not worked for some years before Archie’s death. There was no real expectation on his part of going back to work because of his physical difficulties. He received workers compensation payments for a number of years and these ceased last year. He received lump sum compensation for his permanent physical problems.
The Panel notes the contents of cl 6.221 of the Guidelines which provides:
“Where adaptation cannot be assessed by reference to work or a work-like setting, consideration must be given to the injured person's usual pre-injury roles and functions such as caring for others, housekeeping, managing personal/family finances, voluntary work, education/study or the discharge of other obligations and responsibilities.”
There had been a period when there were suggestions of other jobs in the context of rehabilitation offered by the workers compensation insurer but nothing came of this.
In terms of current adaptation, in his role as a partner and member of the household he would “every now and then vacuum – I might hang the clothes out – mow the lawn sometimes once in a blue moon – usually my son does it – feed the dog”. He would cook “once in a blue moon”. He no longer does the shopping. In his role as a grandfather, while his grandchildren do come round and he likes seeing them, he feels guilty if he does anything with them, feeling that he should have been doing this with Archie. He can babysit them or care for them but usually Lesley is with him.
In terms of the other roles suggested in the clause, Mr Byrnes has relinquished the management of his finances to Lesley, he has been unable to maintain voluntary work at the Men’s Shed and could not continue his computer course.
The Medical Assessors are of the view that the claimant is passively disengaged from the care of his grandchildren and from his roles as spouse, parent, grandparent, and contributor to the household, amounting to an infrequent and erratic contribution well below 10 hours per week. This equates in the clinical judgment of the Medical Assessors to a Class 4 impairment.
Permanent impairment scoring
His scores on the PIRS are 2, 2, 3, 3, 3, 4 when arranged in order which produces a median score of 3 and an aggregate score of 17.
In accordance with the conversion table in the Guidelines, Table 17, this equates to 19% whole person impairment.
Pre-existing whole person impairment assessment
The Medical Assessors accept on the basis of the documentation from the GP’s notes that Mr Byrnes had a mild Adjustment Disorder with depressed mood in accordance with the criteria set out at page xxx in NDS-5-TR. This condition is secondary to the stresses associated with his physical injuries and conditions before Archie’s death. That said, it is noted that Mr Byrnes gave a history that before the subject motor vehicle accident, he had taken an active part in the household, had enjoyed being with his family, enjoyed fishing particularly, travelled freely, could focus on tasks, and the like.
Pursuant to cl 6.218, the claimant’s pre-existing impairment must be assessed and deducted from the Current impairment to determine the degree of WPI caused by the accident. Self-Care and personal hygiene
Entries in his clinical file related to his alcohol use with monthly binges raised the question of some impairment in self-care. However, his elevated liver function tests persisted despite cutting down “drastically” on his drinking and was thought to be caused by medication (Dilantin – phenytoin, an anticonvulsant for his epilepsy). There was no otherwise no evidence of impairment in the category of self-care and personal hygiene.
This would equate to Class 1 impairment.
Social and recreational activities
The Medical Assessors could find no evidence to suggest impairment in this category from a psychological perspective. The claimant may have had restrictions in going out and pursing friendships due to his physical injury but not due to relationship issues.
This would equate to Class 1 impairment.
Travel
The Medical Assessors could not find evidence in the records to suggest impairment in this category from a psychological perspective. The claimant said that before the accident he could drive and go to town or the clubs or fishing.
This would equate to Class 1 impairment.
Social functioning
The entry in his GP file on 22 September 2017 which mentions depression also notes that he “commented that he has problems with controlling his anger, he can snap at any time” and “he tries to avoid a situation by removing himself”.
The Medical Assessors are of the view this supports a finding of impairment which would equate to a Class 2 impairment.
Concentration, persistence, and pace
There were occasional entries in the GP records suggesting Mr Byrnes was feeling overwhelmed particularly when confronted with the need to explore other work options, which he felt was beyond him because he had not done anything other than manual work for many years. The Panel also noted the history elicited by Assessor Shen who noted that “he would be easily irritable and get mixed up easily. He acknowledged he likely had some difficulties with his emotional resilience and persistence”.
While it is arguable whether this amounted to an impairment in this category, the Medical Assessors are satisfied there was an impairment and assessed him as having Class 2 impairment in this category.
Adaptation
The claimant was not working before Archie’s death because of his physical difficulties. There was no evidence to suggest that before the accident his inability to work arose was significantly affected by any psychological difficulties. His difficulties in looking at non-manual work reflected the understandable challenges facing a man who had left school at the age of 14 years. There is however a suggestion in the GP’s notes around April 2017 of concerns at returning to work and tearfulness with feeling of failure and the already mentioned 22 September 2017 consultation.
In accordance with cl 6.221, if the Medical Assessors consider the claimant’s role as a partner and member of the household there was some impairment associated with his anger and chronic pain issues. In his role as a grandfather there does not appear to be any impairment as the claimant was able to care for Archie and his other grandchildren and take Archie shopping, to the park and elsewhere. There is no evidence of volunteer work before the accident, the claimant was not attempting to study due to his limited education and he was in control of his own finances.
The Medical Assessors considered there was an impairment which should be assessed as Class 2.
Permanent impairment scoring
The claimant’s scores on the PIRS are 1, 1, 1, 2, 2, 2 with a median score rounded up to two in accordance with cl 6.226 of the Guidelines. The aggregate score is 9 which converts to a whole person impairment of 4% in accordance with Table 17.
CONCLUSION
The claimant has a Prolonged Grief Disorder which is a recognisable psychiatric illness. It has resulted in a total WPI of 15% (the current impairment of 19% minus the pre-existing impairment of 4%).
There is no adjustment for the effect of treatment. The claimant is having no counselling or psychiatric treatment. While he says he felt worse when off his antidepressant during hospital visits, he is of the view the medication does not help much.
Mr Byrnes’ impairment resulting from the accident caused injury is 15%.
While the Panel has come to the same conclusion as Medical Assessor Shen, the Panel has arrived at a different percentage and Medical Assessor Shen included that percentage in his certificate. It therefore follows that the certificate must be revoked and a fresh certificate issued.
The Review Panel
Personal Injury Commission
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