QBE Insurance (Australia) Limited v Kembrey
[2025] NSWPICMP 649
•28 August 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Kembrey [2025] NSWPICMP 649 |
CLAIMANT: | Rhonda Kembrey |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | John Baker |
MEDICAL ASSESSOR: | Christopher Canaris |
DATE OF DECISION: | 28 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of degree of permanent impairment dispute; the insured vehicle was travelling towards the claimant (in her lane); there was a head-on collision; claimant’s lost consciousness momentarily; claimant eventually self-extricated from her vehicle and began to feel pain after about five minutes; claimant was diagnosed with nine fractured ribs, a fractured sacrum, two fractured thoracic vertebrae, a fractured left foot, and left knee; claimant was conscious but in intensive care for about six days and hospitalised for a total of four weeks; claimant continues to experience significant pain; claimant’s psychiatric symptoms began while the claimant was still in hospital; Medical Assessor diagnosed post-traumatic stress disorder (PTSD) and assessed 16% whole person impairment (WPI) including 1% WPI uplift for treatment effects; Held – Review Panel also diagnosed PTSD and assessed 15% WPI with uplift; certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel confirms the certificate of Medical Assessor Barrett dated 15 August 2024. |
.
(a)
STATEMENT OF REASONS
INTRODUCTION
The subject accident occurred on 27 October 2020 at Upper Orara. The claimant was driving alone in a SUV in an 80km/h zone. As her vehicle went around a bend, the insured vehicle was travelling towards the claimant, in her lane. There was a head-on collision. The claimant’s airbags deployed. She lost consciousness momentarily. The claimant eventually self-extricated from her vehicle and began to feel pain after about five minutes. Ambulance and Police Officers attended the scene. The claimant was taken to Coffs Harbour Base Hospital for admission. Her vehicle subsequently was written off for insurance purposes.
The claimant was diagnosed with nine fractured ribs, a fractured sacrum, two fractured thoracic vertebrae, a fractured left foot and left knee. She was conscious but in intensive care for about six days and hospitalised for a total of four weeks. Surgery was not required. The claimant continues to experience significant pain. Her psychiatric symptoms began while the claimant was still in hospital.
QBE (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant any damages under the Motor Accident Injuries Act 2017 (Act). The insurer concedes that the claimant has non-threshold injuries. The insurer does not concede that the claimant’s impairments exceed the 10% whole person impairment (WPI) threshold for an award of damages for non-economic loss.
ASSESSMENT UNDER REVIEW
As there is a dispute between the parties about the degree of permanent impairment under schedule 2, cl 2(a) of the Act, the claimant was referred to Medical Assessor Melissa Barrett for determination of the dispute.
Medical Assessor Barrett certified on 15 August 2024 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 16% and IS GREATER THAN 10%:
- post-traumatic stress disorder
Medical Assessor Barrett made no adjustment for apportionment – pre-existing/subsequent impairment. As to the Effects of treatment, Medical Assessor Barrett stated as follows:
“She does report some improvement with treatment and this is consistent with the contemporaneous records of the treating psychiatrist, Dr Doris. She continues to take Sertraline. However, as she remains symptomatic, I agree with Dr Anderson there is a 1% treatment effect.”
Utilising the Psychiatric Impairment Rating Scale (PIRS), Medical Assessor Barrett assessed whole person impairment (WPI) as follows:
Category
Class
Reason for Decision
1. Self-care and personal hygiene
2
Although the majority of her restrictions to performing household chores relate to physical injury and pain, which cannot be rated here under Guidelines 1.214 and 1.215, I consider that the loss of motivation due to PTSD would impact on her engagement in the household chores and contribute to her disengagement from chores, reduced frequency of showering and avoidance of going to the supermarket, now relying on her husband to do so. Therefore, there is mild impairment. This is consistent with the rating of Dr Das.
2. Social and recreational activities
3
Although she does watch television at home and attempts to read and can enjoy family visits, she no longer goes out to visit her adult children and grandchildren. She no longer goes out with friends and does not go to the beach. She prefers to avoid leaving the home and when she does, she needs a support person. This is consistent with a Class 3 impairment.
This is the excess of the rating of Dr Das but with respect the PIRS category refers to the capacity to engage in social or recreational activities outside the home, independently and Dr Das’ description of watching television but “not being able to drive and therefore not as actively involve as she used to be” and not seeing her friends due to driving dependence is more consistent with the PIRS definition of a moderate impairment.
3. Travel
3
Ms Kembrey does not drive at all. She is very anxious as a passenger and avoids travelling as a passenger, travelling only when required. Considering her need for a support person when travelling and avoidance of unnecessary travel, this is consistent with a moderate impairment.
4. Social functioning
2
Although she still has a good relationship with her partner and adult children and grandchildren, she avoids contact with friends and there has been distance in those relationships. Considering the loss of friendships, there is a mild impairment.
5. Concentration, Persistence and Phase
2
She reports reduced capacity to concentrate, from pre-morbidly being able to read for a number of hours, reduced to 30 minutes. This is consistent with a mild impairment. Dr Das was in agreement with this rating.
6. Adaptation
3
She no longer manages the household finances as she did in the past which I accept relates to symptoms of PTSD impacting motivation and interest. She is not able to perform her non-work roles, visiting her adult children and grandchildren to assist with care for the grandchildren for periods of two weeks, as she did prior to the accident, due to her inability to drive and travel restrictions.
Noting she could not perform the same non-work roles as she did in the past, this is consistent with a moderate impairment.
List classes in ascending order: 2, 2, 2, 3, 3
Medium Class Value: 2.5 = 3
Aggregate Score: 15%
WPI: 15% + 1% for treatment effects = 16% WPI
OTHER ASSESSMENT
Medical Assessor Murray Hyde-Page certified on 3 October 2023 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 4% and IS NOT GREATER THAN 10%:
· left ankle; and
· left foot.
Medical Assessor Hyde-Page made no apportionment for pre-existing/subsequent impairment nor any adjustment for treatment effects.
He found that the following injuries WERE NOT caused by the motor accident:
· cervical spine, and
· left elbow
but did not so certify.
THE REVIEW
The insurer sought a review of Medical Assessor Barrett’s certificate, on the grounds that the medical assessment was incorrect in a material respect, under s 7.26 of the Act. The insurer relied upon the particulars set out in the application and supporting documentation.
The insurer submitted that the Medical Assessor erred in her failure to appropriately consider the evidence before her, which is inconsistent with her findings and her application of the PIRS scale. Particulars are given in relation to the findings of the Medical Assessor under each of the PIRS Class categories.
The insurer submitted that the Medical Assessor erred by way of:
(a) failure to give appropriate consideration to the evidence, and
(b) failure to correctly apply the PIRS and Motor Accident Guidelines.
The insurer’s review application was opposed by the claimant on various grounds. It is not necessary to repeat those submissions in detail as they were not accepted by the President’s delegate. Briefly, those submissions can be summarised as follows:
(a) as to paragraph 3.2(c) of the insurer’s submissions, the claimant submits the Medical Assessor specifically acknowledged at page 15.1 of her Assessment that “Physical Injury and Pain cannot be rated under Guidelines 1.214 and 1.215”. The claimant says the Medical Assessor did not err and came to the same assessment as Dr Das, who opined for the insurer.
(b) the claimant refutes the insurer’s submission that a mild impairment in relation to social functioning is “contradictory” to a finding of moderate impairment of social and recreational activities. The claimant submits there is no difference between the meaning of “mild” and “moderate”. (The Panel regards that as a novel proposition).
(c) the claimant responded briefly to the insurer’s factual submissions in relation to various Classes of the PIRS assessment which it is not necessary to repeat, and
(d) the claimant made an overall submission that the Medical Assessor set out her reasons comprehensively, referring to all of the past medical records, bringing this to the claimant’s attention during the assessment, and providing opinions relevant to the matter. The claimant says that all of her pre-accident psychiatric history was brought to her attention by the Medical Assessor for response and that the review application ought to be rejected.
President’s delegate Kenneth Ho issued a Determination of an Application for Review of a Medical Assessment on 3 October 2024 which stated the satisfaction of the President’s delegate there is a reasonable cause to suspect that medical assessment was incorrect in a material respect. The basis of that decision was stated to be the grounds for review and particulars set out in the insurer’s review application. Specifically, the alleged failure of the Medical Assessor to correctly apply Clauses 6.214 and 6.215 of the Motor Accident Guidelines, which proscribe the use of the PIRS to measure impairment due to somatoform disorders or pain.
Accordingly, the review application was accepted and was referred to the Panel, which is to reassess the following matters:
(a) whether the claimant has an accident-related psychiatric condition;
(b) if so, the nature of that psychiatric condition, and
(c) the extent of the whole person impairment arising from that condition.
Pursuant to clause 128(1) of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel is to conduct and determine the proceedings, in accordance with procedures determined by the Panel.
The Panel notes that the Medical Assessors on the Panel are required, in accordance with the Guidelines, to determine if the claimant has a psychological or psychiatric injury caused by the accident, and then make a diagnosis of that injury.
The Medical Assessors may, in their clinical judgment, diagnose a condition that is the same as, or different to, the diagnosis of Medical Assessor Barrett, or the diagnosis of the treating doctors or qualified Medico-Legal experts, or the particular diagnosis that may have been included in the referral for review, in accordance with DSM-5-TR.
Having made a diagnosis, the Medical Assessors will then proceed to undertake an assessment of the whole person impairment (WIP) resulting from that injury.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (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 Medical Assessor.[1]
[1] 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.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
See Briggs v IAG Limited t/as NRMA Limited.[4] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] wherein his Honour Justice Wright stated at (35):
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.
[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.
Wright J then described the Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination;
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
BUNDLES OF DOCUMENTS
The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”. The Panel has come to its own conclusions and has taken its own history.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Panel has considered:
Item
Document Name
Date
Page
1
Claimant’s application for medical assessment (Psyc) (see later)
22.02.2024
1 - 213
2
Medical Assessor Barrett’s Certificate and Reasons (see previously)
15.08.2024
214 - 229
3
Insurer’s application for medical assessment review (see previously)
10.09.2024
225 - 256
4
Claimant’s reply to insurer’s application for medical assessment review
20.09.2024
257 – 263
5
Determination of President’s delegate
03.10.2024
264 - 265
· Claimant’s WPI submissions
The claimant submitted that there is no dispute that the claimant suffered post-traumatic stress disorder (PTSD) caused by the subject accident. Symptoms recorded:
(a)high levels of anxiety;
(b)stress;
(c)depression;
(d)struggling mentally;
(e)flashbacks;
(f)panic attacks; and
(g)irrational fears.
The claimant continues to be treated by Dr Alan Doris, psychiatrist. Has ongoing counselling and has been prescribed psychotropic medication.
· Report of Dr Alan Doris dated 13 September 2021
Diagnosis and Formulation
“Rhonda is a 58 year old woman who overcome considerable adversity in her develop mental years and went on to raise six children all of whom now independent young adults. She prides herself on her resilience and ability to overcome adversity in her life. She has not had significant mental health problems in the past though following a serious motor vehicle accident in October 2020 has developed a typical Post-Traumatic Stress Disorder syndrome. She is significantly disabled by this particularly as she lives in a rural area. She has had no specific treatment for this.”
Dr Doris noted that the claimant had a period of depression approximately one year prior to the subject accident for which a short course of amitriptyline was prescribed. No further details are given.
· Report by Dr Doris dated 26 October 2021 to Dr Jeremy Allen
Progress treatment report
· Further report by Dr Doris dated 30 November 2021 to Dr Allen
Mental State Examination: Rhonda looked well with good self-care. Her affect was bright and reactive and her mood euthymic. She continues to describe typical symptoms of PTSD… will continue with her current medication.
·Dr Alan Doris’ clinical records as at 09/02/2024.
·List of prescriptions as at 19/01/2024.
·Dr Jeremy Allen (CHC Medical Practice) clinical notes as at 19/02/2024.
·Waringah Private Hospital notes.
·Discharge notes from Coffs Harbour Health Campus clinical file.
·Dr Wong medical records as at 09/12/2022.
·NSW Ambulance report dated 27/10/2020.
·Dr Peter Anderson report dated 23/08/2023 to claimant’s lawyer.
Dr Anderson gives a diagnosis of Chronic Post-Traumatic Stress Disorder within DSM-5 and assesses WPI under the PIRS as follows:
List classes in ascending order: 1, 1, 2, 3, 3, 4
Median Class Value: 3
Aggregate score: 14
Whole person impairment: 13%
The insurer relied upon the following material which the Panel has considered:
DOC
Document Name
Date
Page
1
Insurer’s application for review of Medical Assessor Barrett’s certificate (see previously)
10.09.2024
2
2
Insurer’s WPI reply submissions
15.03.2024
23
The insurer maintains that the claimant’s psychiatric injuries do not give rise to a degree of permanent impairment greater than 10%. The insurer relies on the expert reports of Dr Das, consultant psychiatrist, dated 11 August 2022 and 8 February 2024.
3
IME report of Dr Das, consultant psychiatrist
11.08.2022
26
Dr Das opines that the described history and mental state examination findings are consistent with a diagnosis of post-traumatic stress disorder, where there has been a significant remission, if not a full recovery.
In relation to the claimant’s pre-existing mental health condition, Dr Das says as follows:
“She has in the past been a resilient person who despite all adversity she suffered had not required or sought any professional help and there is no evidence to indicate that she was psychiatrically impaired or incapacitated prior to the experience of her accident in October 2020, although she had previous physical injuries and been on Workcover and was job detached at the time of this accident.
The current condition of PTSD is a direct consequence to the traumatising experience of the motor accident ……. that could have been life-threatening and she is lucky to have recovered reasonably well from the multiple serious musculoskeletal injuries. The same has also occurred with her mental health condition where she is now stable and relatively functional.”
Dr Das utilises the PIRS to assess WPI as follows:
List classes in ascending order: 1, 1, 2, 2, 3, 4
Median Class: 2
Aggregate Score: 13
% WPI from Conversion Table: 7 + 3 = 10%
Dr Das added 3% for treatment effects because her condition is in a stable state of partial remission, where she is able to function better, albeit in a diminished manner.
4
Further report of Dr Das to the insurer’s lawyers
08.02.2024
36
Dr Das stated the same opinion as in his previous report. Referencing the claimant’s report by Dr Peter Anderson, psychiatrist, dated 23 August 2023, Dr Das said as follows:
“The report of Dr Anderson arrives at the same diagnosis of the claimant’s condition. The WPI assessment is different specifically in the category of Social and Recreational Activities thus arriving at a higher level of final impairment.
I agree with the treatment effect being 1% given that the worker’s condition is not completely remitted.”
Dr Das reassess WPI utilising the PIRS as follows:
Score class: 1, 2, 2, 3, 4
Median: 2
Aggregate Score: 14
% WPI from Conversion Table: 7%
Treatment effect: 1%
Final WPI: 8%
5
Clinical records of Dr Wong
As at 09.12.2022
50
6
Application for personal injury benefits
04.11.2020
91
7
IME report of Dr Simon Kinny, orthopaedic surgeon
28.07.2022
100
Not relevant for the Panel’s consideration.
8
Certificate of Medical Assessor Murray Hyde-Page (see previously)
03.10.2023
108
9
Clinical records of Maven Dental Park Beach
As at 28.02.2023
118
10
Clinical records of Dr Alan Doris
As at 25.11.2022
127
11
Clinical records of Baringa Private Hospital
Various
137
12
Clinical records of Dr Jovanovic
Various
405
13
Records of CHC Medical Centre
15.07.2024
437
EXAMINATION REPORT
The examination report of Medical Assessor Canaris and Medical Assessor Baker is as follows:
“Name: Rhonda Kembrey
DOA: 27 October 2020
Assessors: Canaris Baker
Legal Member: Patterson
Review of Assessor Barrett
Psychosocial history and pre-accident history
The claimant is a 62-year-old de facto married woman who at the time of the accident had been “about to get to work”. She has had various jobs, and her last employment was secretarial work for her partner’s plumbing business.
She denied any other history of psychiatric illness or “not like I am now – nowhere near it”. She said of her presentations in years past, “That was a different type of depression – now I don’t want to get out in the car anymore – since the accident, I don’t want to see anyone…”.
She was asked about her carpal tunnel syndrome which she said was “fine”. She was asked about her migraines including icepick headaches for which she had had injections in the back of her head. She thinks her headaches stopped “only last year sometime” in that she “was getting injections right until then”. In relation to her vertigo diagnosed in 2015, she said this had resolved last year while her ataxia had been diagnosed in 2010 and seems also to have resolved. She had had irritable bowel syndrome “many years ago”
There had been a WorkCover claim in 2003 with references in the documentation to her WorkCover claim as late as 2017.
She said she had suggested a chronic fatigue syndrome to her doctor as she had been feeling tired and had had glandular fever. There had been talk of fibromyalgia and she had seen a rheumatologist “a couple of times”.
She had had “partial blockages” in her heart for which she was on tablets. She did not have surgery for this.
Before her accident, she did the shopping and finances and had done invoices and accounts for her husband’s business but had stopped helping in this “before we left Newcastle” which would have been over 17 years ago.
She knew of no family history of psychiatric illness apart from her daughter who has ADHD who had been on Ritalin.
She denied any history of problems with the law. She had no other claims history.
She drinks alcohol very sparingly. She does not smoke. She does not use drugs. She does not gamble.
She has 2 brothers and 3 sisters – she is the fourth of her siblings. She has a close relationship with her siblings - most of them are now in Perth.
Her mother is still alive and may be going into aged care in the setting of dementia.
She contended with her father being “an alcoholic and abusive” and he is now deceased. He never stopped drinking until he ended up in a nursing home. Her parents remained together. Her father had been violent both to “mum and to me”. She has forgiven him reflecting that he had had a very hard life.
She completed year 9 and then a secretarial course and business diploma. She had 4 children with her first partner “who was a drinker and that’s why we ended up splitting up, but he wasn’t abusive”. She had 4 children with him and then been with Tony some 30 years and had a further 2 children.
She remains close to all her children.
She worked at Woolworths after leaving school and had then been a strapper and a baker as well as fixing shoes “and I did a few jobs in between having kids”.
She started in Tony’s plumbing business doing his paperwork which she did “on and off for probably 5 years” until he closed up shop and found a job as a truck driver. There were subsequent jobs working as a cleaner with an ensuing workers compensation claim.
Over the 5 years before her accident, she was “taking time for myself – my son had done his HSC… the idea was that I was getting bored and then I’d teach kids to be good swimmers”.
History of the motor accident
She said of the accident, “I was on my way home – there was this car in my lane – I couldn't avoid her – I still see it in my mind – it’s so vivid”. Airbags deployed and police and ambulance attended. She was able to get out of the car saying, “Funnily enough I didn’t feel any pain for the first 5 minutes – it must been the adrenaline – but when I did, it was horrific“. She was taken to hospital with “numerous fractures and broken ribs”.
She was taken to Coffs Harbour Base Hospital where she remained over 4 weeks.
History of symptoms and treatment following the motor accident
She had her fractures reduced and went home. She was “pretty bad between the pain and everything – I still am in a lot of pain – they told me I have arthritis in my foot – my tailbone aches constantly”.
She had physio “but there’s not much more they can do for physio – I need pain management, but they won’t cover it”.
She is on sertraline (an antidepressant) 75 mg daily. She is not on any other psychotropic medication. She is on Panadol for pain “but when it’s bad, I need to take the edge off” and she uses tapentadol (an opioid) which she can take as often as every second day but can otherwise go 3 or 4 days without.
She sees a psychologist “every couple of months” paid for by the insurer. She is driven to town to see him.
Details of any relevant injuries or conditions sustained since the motor accident
There have not been any further accidents or injuries.
Current symptoms
She has not driven since the accident “and being a passenger is hard enough”.
She rates her distress at being in a car as her biggest problem saying, “I just can’t handle being in a car anymore – if I have to go to the doctors… I don’t go anywhere anymore”.
Her mood can “get really low – I used to be really active – I used to see my kids – my grandkids – now I don’t want to leave the house – I don't mind it if people want to come to see me here”. She admits to “a bit” of sadness in that she has missed out on birthdays for her kids and grandkids “especially the ones in Newcastle – I do get pretty sad about it”.
She relives the accident “every day… I see it in my head all the time – I try to push it out of my mind… that’s what I’ve been trying to work on… as long as people don’t talk about it and I don’t watch anything that could take me back to it… like an accident on TV… as soon as I see it, it takes me back to my accident…”.
She does not feel as though life was not worth living saying her kids and grandkids keep her going and she is very close to them.
She has been teary of late.
Current and proposed treatment
As above. No change in treatment is proposed but her psychologist “wants to help me to get strategies to be a better passenger”.
Mental state examination
The claimant was assessed by Microsoft Teams. A good audiovisual connection was established. She was at her home. Assessors Canaris and Baker were in their respective offices. She presented as a woman of appearance consistent with her stated age who appeared reasonably groomed. She provided the history documented above. Her narrative was coherent and consistent. Her demeanour was depleted and her affect restricted. She was briefly teary when speaking of her son’s 40th birthday which she would be missing. No evidence of psychosis or cognitive impairment emerged.
Current functioning
She would spend much of the day sitting out in the sun. She used to tend to her plants before her accident but gave this away because it was too hard for her to get into the garden and she lost interest.
She keeps in touch with her kids and grandkids often via video calls and would be in contact “at least once a week”. She gets on well with her family who have been “nothing but supportive for me” and she described her husband as “my rock”. She denied arguments and quarrels saying, “I couldn’t be bothered anyway”. There has been no intimacy since the accident, but this is largely because of pain.
She lives 15-20 minutes’ drive from town and has moved 3 or 4 weeks ago to Nana Glen. Before that, she had been in Coffs Harbour.
She has not ventured out once in the last 4 weeks. She did not use public transport – there was little available, and she could not afford a taxi which in any case would be very difficult for her. She has never left home on her own and has stopped driving altogether (“I haven’t driven since that day”).
She spends her days at home doing little saying, “I used to read but I can’t concentrate on it – I’ve lost interest in that – I used to do jigsaws, but I can’t focus on them – I don’t know why”. Her energy levels are poor but said in relation to this, “It’s not so much energy – it’s more moving about…”. She leaves the finances to her partner saying she lacks the motivation. She has tried to do the finances but “I just can’t concentrate to do it – I tend to drift off – I don’t know why’.
Her appetite is poor and “if he didn’t cook, I wouldn’t eat – I tend to stare a lot into space he says – I don’t realise I do it – I’m totally a shadow of what I used to be”.
She needs help with showering and changing her clothes because of lack of interest and motivation. She said “it’s been really bad – only having a shower once a week” largely because of lack of motivation. She would brush her teeth “probably every second day these days – not as often as I should – not as often as I used to”. She has gained weight because of inactivity “and I think that makes me feel worse”. Her appetite is poor and “if he didn’t cook, I wouldn’t eat – I tend to stare a lot into space he says – I don’t realise I do it – I’m totally a shadow of what I used to be”.
She does not go out socially saying, “I used to go out and have lunch – coffee – with friends – my daughter”. she says she does not go out because “I’m totally not the way I used to be and also it’s not comfortable in seats when I’m in people’s places and I don’t want to talk to people when I go out”. She has visitors but often when people want to come over would make excuses saying she does not want to socialise with anyone. She does enjoy it when her children visit. One of her daughters lives close by and her daughter from Newcastle comes up every couple of months. They used to stay with her when she was in Coffs as it was a bigger home. She sees her reluctance to see people as largely arising from her anxiety getting into a car and partly because of physical problems citing a friend who has a lot of stairs which she finds difficult to negotiate.
She became teary as she imparted this history saying, “My son’s 40th is coming up and I can’t go down to it”.
Before her accident, she had been planning to learn to swim “but then I had a problem with my shoulder – I had that operated on – the idea was that I could get back in the pool and do stuff and get coaching credentials”. She hoped to become a swimming coach saying that herd daughter who was also a swimming teacher “was on my case to do it”. She has not been able to follow through as “I was waiting for my shoulder to get better and then I had the accident – it put everything on hold big time”. She cannot see herself doing this now partly because she would not be able to drive saying, “There’s a lot stopping me mentally and physically” including her pain.
She had 14 grandchildren but no great grandchildren. Before the accident, she spent a lot of time looking after her grandchildren for example when her daughter had to go up to Queensland. She was “always back and forth” while at Christmas time she would go down to celebrate. She does not do so now mainly because she can’t handle being in the car for that length of time. Her granddaughter might come over and “spend a night or two” which at one point was nearly every weekend until her son separated from his partner. When she does come over, Tony would see to most of the care of her granddaughter, or any other grandchildren might visit. Even though she enjoys having them over, she lacks the energy and motivation to tend to their needs remaining passive while Tony would bustle about interacting with them.
She saw her pain as stopping her from doing many things. She has difficulty sitting for long periods because of her problems with her tailbone. She has difficulty walking more than 50 minutes what with pain in her foot and her left knee. Pain In her knee and foot wakes her at night.
Comments on consistency
There was no inconsistency. She presented as an open and genuine historian.
REVIEW OF DOCUMENTATION
Summary of relevant documentation
We noted the certificate of Assessor Melissa Barrett dated 15 August 2024. Assessor Barrett made a diagnosis of posttraumatic stress disorder with a whole person impairment of 16% inclusive of a 1% uplift for treatment effects but no deduction for pre-existing impairment. Assessor Barrett rated the claimant as Class 2 for self-care and personal hygiene, social functioning, and concentration, persistence, and pace and Class 3 for social and recreational activities, travel, and adaptation. We noted the insurer’s critique of Dr Barrett’s certificate in its submissions to the Review Panel.
Comment: The Panel differed from Assessor Barrett in relation to concentration, persistence, and pace and social and recreational activities.
We noted the report of Dr Hillol Das, IME psychiatrist, dated 11 August 2022. Dr Das diagnosed posttraumatic stress disorder albeit with significant remission and assessed her at 10% whole person impairment inclusive of a 3% uplift for treatment effects but no deduction for pre-existing impairment. He assessed her as Class 1 for self-care and personal hygiene, Class 2 for social and recreational functioning and concentration, persistence, and pace, Class 3 for employability (adaptation), and Class 4 for travel. Dr Das’s updated report dated 8 February 2024 reiterated the diagnosis of posttraumatic stress disorder with significant remission but not full recovery this time with an 8% whole person impairment rating inclusive of a 1% treatment uplift but otherwise identical ratings in individual categories.
Comment: The Panel differed from Dr Das in its assessment for whole person impairment for reasons given below. However, it agreed with his assessment of Class 4 for travel.
We noted the report of Dr Peter Anderson, IME psychiatrist, dated 23 August 2023. Dr Anderson diagnosed posttraumatic stress disorder and assessed 13% whole person impairment inclusive of a 1% treatment uplift. He rated her as Class 1 for self-care and personal hygiene and social functioning, Class 2 for concentration, persistence, and pace, Class 3 for social and recreational activities and adaptation, and Class 4 for travel.
Comment: The Panel considered that the claimant had greater impairment in concentration, persistence, and pace and less impairment in relation to social and recreational functioning.
We noted variously dated correspondence from Dr Alan Doris, treating psychiatrist, who saw her for the first time on 13 September 2021. Dr Doris noted significant childhood adversity and made a diagnosis of posttraumatic stress disorder. Dr Doris organised inpatient care, but she discharged herself because her husband could not visit her as he needed to be doubly vaccinated against Covid. She was treated with citalopram 20 mg daily and melatonin. Dr Doris noted the claimant to be significantly disabled because of posttraumatic stress disorder because of her limitations in driving. There was discussion of a desensitisation program in relation to driving. On 30 April 2024, Dr Norris noted increased problems with mobility because of problems in her feet and breathlessness.
We noted clinical records of Baringa Private Hospital relating to her hospitalisation in October 2021.
We noted general practice clinical records and sundry documents related to physical injuries. There were sundry documentation relating to an earlier workers compensation claim. There were references to a fibromyalgia diagnosis and rotator cuff injury as well as vertigo, migraine, hypertension, neuropathy, and dyslipidaemia. We noted references to a diagnosis of depression in WorkCover certificates in 2013 and 2014. We noted presentations for depression in 2010 and 2011 with prescriptions for Cymbalta and prescriptions for Cymbalta in October and November 2018 increased to a dose of a dose of 120 mg daily. There were references to a WorkCover claim in 2017 from chronic pain with seem to be in dispute and for which she was launching an appeal with reference to possibly needing to go onto the disability support pension if taken off WorkCover. She appears at that time to have been on Lyrica and tramadol for a thoracic injury and was diagnosed with major depressive disorder at the time in question.
We noted the certificate of Assessor Murray Hyde Page dated 3 October 2023 relation to the claimant’s injuries to her left ankle and left foot determining a whole person impairment of 4%.
We noted the report of Dr Simon Kinny, IME orthopaedic surgeon, dated 28 July 2022 which makes notes of the claimant’s psychological injury.
DETERMINATIONS
Diagnosis and reasons
The claimant’s presentation is consistent with a diagnosis of posttraumatic stress disorder. In terms of DSM-5-TR criteria, the accident as described was consistent with a Criterion A event. She reports intrusive and distressing recall of the accident manifest in high anxiety whenever presented with reminders of the event coupled with heightened distress whenever she gets into a car (Criterion B). There is evidence of persistent avoidance manifest in reluctance to get into a car and her attempts to avoid other reminders (Criterion C). There is evidence of negative alterations and cognitions and mood manifested in low mood and social withdrawal (Criterion D). There is evidence of marked alterations and arousal and reactivity manifest in hypervigilance when in cars and problems in concentration (Criterion E). Her symptoms have been continuously present for more than 4.5 years (Criterion F) and cause her clinically significant distress and psychosocial impairment manifest in her limitations with travel and social withdrawal (Criterion G). Her disturbance is not attributable to the physiological effects of a substance or medical condition (Criterion H).
Causation and reasons
The posttraumatic stress disorder was not in evidence before the accident and comprises symptoms highly specific to that event. There is no evidence of other factors to account for its emergence.
Permanency of impairment
She has been significantly unwell for over 4.5 years. The probability of a substantial change in her level of impairment or change greater than 3% over the next year is remote.
Degree Of Permanent Impairment Psychiatric Impairment Rating Scale
Psychiatric diagnoses
1. Posttraumatic stress disorder
2.
3.
4.
Psychiatric treatment description
She is on sertraline and consults with a psychologist. She had seen a psychiatrist and had been briefly hospitalised.
Category
Class
Reason for Decision
1. Self-Care and Personal Hygiene
2
She said she lacked interest and motivation to shower and change her clothes. She said lately it’s been really bad-only having a shower once a week largely because of lack of motivation. She would brush her teeth “probably every second day these days – not as often as I should – not as often as I used to”. She has gained weight because of inactivity “and I think that makes me feel worse”. Her appetite is poor and “if he didn’t cook, I wouldn’t eat – I tend to stare a lot into space he says – I don’t realise I do it – I’m totally a shadow of what I used to be”.
2. Social and Recreational Activities
2
She does not go out socially saying, “I used to go out and have lunch – coffee – with friends – my daughter”. she says she does not go out because “I’m totally not the way I used to be and also it’s not comfortable in seats when I’m in people’s places and I don’t want to talk to people when I go out”. She has visitors but often when people want to come over would make excuses saying she does not want to socialise with anyone. She does enjoy it when her children visit. One of her daughters lives close by and her daughter from Newcastle comes up every couple of months. They used to stay with her when she was in Coffs as it was a bigger home. She sees her reluctance to see people as largely arising from her anxiety getting into a car and partly because of physical problems citing a friend who has a lot of stairs which she finds difficult to negotiate.
3. Travel
4
She has not ventured out once in the last 4 weeks. She did not use public transport – there was little available, and she could not afford a taxi which in any case would be very difficult for her. She has never left home on her own and has stopped driving altogether (“I haven’t driven since that day”).
4. Social Functioning
1
She keeps in touch with her kids and grandkids often via video calls and would be in contact “at least once a week”. She gets on well with her family who have been “nothing but supportive for me” and she described her husband as “my rock”. She denied arguments and quarrels saying, “I couldn’t be bothered anyway”.
5. Concentration, Persistence and Pace
3
She spends her days at home doing little saying, “I used to read but I can’t concentrate on it – I’ve lost interest in that – I used to do jigsaws, but I can’t focus on them – I don’t know why”. Her energy levels are poor but said in relation to this, “It’s not so much energy – it’s more moving about…”. She leaves the finances to her partner saying she lacks the motivation. She has tried to do the finances but “I just can’t concentrate to do it – I tend to drift off – I don’t know why’.
6. Adaptation
3
She had 14 grandchildren but no great grandchildren. Before the accident, she spent a lot of time looking after her grandchildren for example when her daughter had to go up to Queensland. She was “always back and forth” while at Christmas time she would go down to celebrate. She does not do so now mainly because she can’t handle being in the car for that length of time. Her granddaughter might come over and “spend a night or two” which at one point was nearly every weekend until her son separated from his partner. When she does come over, Tony would see to most of the care of her granddaughter, or any other grandchildren might visit. Even though she enjoys having them over, she lacks the energy and motivation to tend to their needs remaining passive while Tony would bustle about interacting with them.
List classes in ascending order: 1, 2, 2, 3, 3, 4
Median Class Value: 3 (rounds up from 2.5)
Aggregate Score: 15
% Whole Person Impairment: 15%
*%WPI = Percentage Whole Person Impairment
Psychiatric Impairment Rating Scale – Pre-existing/subsequent impairment
The Panel noted references in the documentation to depression and noted that the claimant admitted to having experience depression the past. It also noted her contention that her symptoms have been quite unlike her current difficulties. The Panel noted that she had been prescribed Cymbalta in 2018 with prescriptions for Panadeine Forte and Endep (an antidepressant often used in pain management). At that stage, she was thought to have a fibromyalgia diagnosis. It also noted that she did not appear to have been on antidepressant medication in any sustained fashion. The Panel also noted her history of childhood adversity and her contention that she had come to terms with this in the sense of having forgiven her father. While a diagnosis of major depressive disorder was at one point recorded in the documentation, the Panel did not find evidence to sustain the diagnosis noting that this diagnosis was recorded when she was prescribed an increased dose of Cymbalta which could be accessed as an authority script only with that diagnosis. The Panel found no evidence of an enduring psychiatric illness noting also that antidepressant prescribing had been sporadic rather than sustained. Using clinical judgement, it determined a likely diagnosis of an intermittent adjustment disorder in the setting of pain. There was no evidence that the adjustment disorder was active at the time of the subject motor vehicle accident.
Psychiatric diagnoses
1. Adjustment disorder in remission
2.
3.
4.
Psychiatric treatment description
Historic treatment with antidepressants.
Category
Class
Reason for Decision
1. Self-Care and Personal Hygiene
1
She denied any impairment in this category.
2. Social and Recreational Activities
1
She denied any impairment in this category.
3. Travel
1
She denied any impairment in this category.
4. Social Functioning
1
She denied any impairment in this category.
5. Concentration, Persistence and Pace
2
The Panel noted references in her general practice file to “worsening memory” and “memory increasingly poor” with “mental fogginess” in 2018 in the setting of what was then thought to be fibromyalgia. Using clinical judgement, this was consistent with Class 2 impairment in this category.
6. Adaptation
1
The claimant was not working but seemingly functioning in a role as a parent and grandparent.
List classes in ascending order: 1, 1, 1, 1, 1, 2
Median Class Value: 1
Aggregate Score: 7
Pre-existing % Whole Person Impairment: 0%
*%WPI
Apportionment – pre-existing/subsequent impairment
The claimant has a 15% whole person impairment of which is 0% is attributable to pre-existing conditions.
Effects of treatment
We have made an adjustment of 1% WPI for treatment effects as it has resulted in a mild improvement in symptoms.
Degree of permanent impairment caused by the motor accident
16%”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the Act
The Panel is not required to choose between medical opinions and is required to form its own opinions.[7] The Panel adopts the findings and opinions of the Medical Assessors who concur with one another. The Medical Assessors have explained the basis and rationale of their assessments. The Panel re-convened on 13 August 2025 to discuss its findings and decision. The medical assessment of permanent impairment is made at the time of examination. In that respect, the assessment made by Medical Assessor Barrett and Dr Hillol Das are outdated and do not reflect current symptomatology, in the Medical Assessors’ opinion.
[7] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31
The Medical Assessors note that their overall assessments of whole person impairment is similar to Medical Assessor Barrett’s assessment. All medical examiners make the same diagnosis of post-traumatic stress disorder.
CONCLUSION
For the above reasons, the Panel confirms the certificate issued by Medical Assessor Barrett on 15 August 2024.
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