QBE Insurance (Australia) Limited v Stanisic
[2022] NSWPICMP 361
•13 September 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Stanisic [2022] NSWPICMP 361 |
| CLAIMANT: | Slavisa Stanisic |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| John Harris | |
| PRINCIPAL MEMBER: | |
| MEDICAL ASSESSOR: | Dr Matthew Jones |
| MEDICAL ASSESSOR: | Dr Michael Hong |
| DATE OF DECISION: | 13 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 30 November 2017; this was a medical dispute about whether the degree of impairment of the psychiatric injury caused by the motor accident was greater than 10%; the claimant was reassessed by both Medical Assessors; improvements noted in the claimant’s condition since the previous assessment partly due to the effects of medication; no statement of principle; Held – claimant reassessed at 9% permanent impairment. |
| DETERMINATIONS MADE: | The Panel revokes the certificate dated 30 July 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a permanent impairment not greater than 10%. |
REASONS
BACKGROUND
Mr Slavisa Stanisic (the claimant) was injured in a motor accident on 30 November 2017 when the insured vehicle collided into the rear of the claimant’s vehicle (the motor accident).
The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Stanisic any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[3] Section 60 of the MAC Act.
THE REVIEW
Medical Assessor Martin Allan issued a certificate dated 30 July 2021 determining that Mr Stanisic had a greater than 10% permanent impairment caused by the motor accident. The Medical Assessor stated:[4]
“I regard him as having developed a major depressive disorder and I believe this has arisen primarily as a consequence of his ongoing physical conditions which he complains of, which impact on his level of function. It is my opinion, that if he did not have physical injuries that arose as a result of the accident, he would not have developed mental health difficulties based on the information that is available to me. The final diagnosis is one of a major depressive disorder.”
[4] Insurer’s bundle, page 552.
The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[5]
[5] Section 63(7) of the MAC Act.
On 18 October 2021, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[6]
[6] Section 63(2B) of the MAC Act, insurer’s bundle, page 831.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The review provisions provide[7] that a review panel consists of two Medical Assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[7] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[10]
[10] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective and comprehensive bundles.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[11]. In Raina v CIC Allianz Insurance Ltd[12] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[11] See s 3B(2) of the CL Act.
[12] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
MATERIAL BEFORE THE REVIEW PANEL
The insurer filed a bundle of documents in accordance with the initial Direction. The claimant accepted that the bundle contained all relevant documents.
Pre-accident symptoms
Mr Stanisic suffered neck and back injuries in a motor accident in 2006.[13] There are extensive records relating to the prior motor accident claim[14] including the assessment by a Review Panel dated 20 December 2011 that the claimant was suffering 22% permanent impairment due to that motor accident.[15] Damages for that accident were assessed in the amount of slightly over $539,000.[16] The Assessor concluded that the cervical spine and right shoulder symptoms were permanent, disabling and progressive.[17] An amount was allowed for the possibility of future cervical spine surgery.
[13] Insurer’s bundle, page 32.
[14] Insurer’s bundle, pages 319-521.
[15] Insurer’s bundle, page 432.
[16] Insurer’s bundle, page 449.
[17] Insurer’s bundle, page 453.
Clinical notes from Liverpool Medical Centre from around 2000 to October 2017 relate to various health conditions.[18] Clinical notes of Dr Todorovic from 2004 to 2012 refer to the prior accidents and the various medications prescribed for the back and neck conditions.[19]
[18] Insurer’s bundle, pages 155-193.
[19] Insurer’s bundle, pages 254-270.
The clinical notes of the general practitioner in the two-year period prior to the motor accident did not refer to any associated medical conditions.[20]
[20] Insurer’s bundle, pages 88-90.
Contemporaneous evidence
Mr Stanisic attended his general practitioner on 6 December 2017 referring to the motor accident and complaining of pain in the neck, upper and lower back and both shoulders.[21] Mersyndol forte was prescribed.
[21] Insurer’s bundle, page 91.
The motor accident was reported to police on 21 December 2017 which confirmed the nature of the motor accident as alleged by the claimant.[22]
[22] Insurer’s bundle, page 140.
Mr Stanisic completed a claim form dated 27 April 2018. Reference was made to injuries to the back, neck, both shoulders/arm and left leg caused in the motor accident when the insured vehicle collided into the rear of the claimant’s vehicle.[23]
[23] Insurer’s bundle, page 21.
A medical certificate completed by Dr Tomka dated 30 April 2018 refers to injuries to the neck, both shoulders, left hand and back.[24]
[24] Insurer’s bundle, page 28.
Treating reports
Associate Professor Schwartz noted that Mr Stanisic suffered from bilateral ulnar neuropathies and expressed the view that the precise cause and how they relate to the motor accident was “not clear”.[25]
[25] Insurer’s bundle, page 201.
Dr Medhat Guirgis treated the claimant and provided a report dated 7 March 2020.[26] The doctor diagnosed cervical spine injury with C7/8 bilateral radiculopathy, bilateral shoulder impingement, aggravation of degenerative changes in the low back, symptoms affecting both right and left ulnar orbital and post-traumatic stress disorder. Dr Guirgis assessed impairment at 34%.
[26] Insurer’s bundle, page 48.
Dr Mark Nabarro, surgeon, diagnosed severe bilateral cubital tunnel syndrome. The doctor recommended anterior transposition of both ulnar nerves.[27]
[27] Insurer’s bundle, page 81.
Dr Blagoje Kuljic provided a report dated 24 April 2020.[28] The doctor noted psychiatric treatment commenced in September 2018 with treatment including various antidepressants, such as Fluoxetine up to 60mg daily.
[28] Insurer’s bundle, page 30.
Dr Kuljic diagnosed Major Depressive Disorder with symptoms of post-traumatic stress disorder in remission which arose as a consequence of the injuries causing pain and limited mobility.
Dr Kuljic assessed permanent impairment at 20% for the psychiatric condition caused by the motor accident.
Qualified reports
Dr Bosanquet, orthopaedic surgeon, noted the prior fall at work in 2004 and the motor vehicle accident in 2006.[29] The doctor opined that the weakness and clawing in both hands is unrelated to the motor accident. He accepted that there was an aggravation of degenerative condition in the neck and back and soft tissue injuries to the shoulders.
[29] Insurer’s bundle, page 119.
Dr Bosanquet did not assess any impairment related to the physical injuries suffered in the motor accident.
Professor Krishnan, neurologist, provided a report in relation to the bilateral ulnar neuropathies.[30] The doctor accepted that Mr Stanisic had bilateral ulnar neuropathy which was most likely unrelated to the motor accident. The doctor opined:
“As noted previously, ulnar nerve injury of this severity is likely to be longstanding and taken many years to develop. The aetiology of ulnar neuropathy is often unclear, but in some cases, there may be repetitive pressure on the nerve over many years which then leads to nerve degeneration.”
[30] Insurer’s bundle, page 599.
Dr Frank Chow, psychiatrist provided a report dated 11 March 2019.[31] found the Mr Stanisic’s overall clinical presentation inconsistent to what he has reported in that the affect and reactivity did not reflect the difficulties reported. The doctor noted that the claimant was visiting family and friends and attending the Serbian Club twice per week whilst portraying that he sits at home doing nothing.
[31] Insurer’s bundle, page 604.
Dr Chow noted that he could not verify the physical complaints noting that the claimant had a “significant focus on is physical disability” including his claw hand. A possible diagnosis was made of adjustment disorder with reservations considering the inconsistencies.
OTHER MEDICAL ASSESSMENTS
Assessor Bodel opined that the surgery proposed by Dr Nabarro, transposition of the ulnar nerves at both elbows, was not related to an injury caused by the motor accident.[32]
[32] Insurer’s bundle, page 94.
Medical Assessor Home assessed the impairment of the physical injuries at 9% in a certificate dated 8 April 2021.[33] The Medical Assessor found that the motor caused:
- aggravation of underlying cervical spondylosis at C5/6 and C6/7;
- soft tissue injury to the lumbar spine, musculoligamentous with underlying lumbar spondylosis where there is disc desiccation at L4/5 and L5/S1;
- right shoulder - supraspinatus tendinosis and partial thickness tear, likely degenerative in origin. Restricted right shoulder elevation secondary to neck pain, and
- left shoulder - restricted left shoulder motion secondary to neck pain.
SUBMISSIONS
[33] Insurer’s bundle, page 532.
Insurer’s submissions dated 1 June 2020[34]
[34] Insurer’s bundle, page 117.
The insurer referred to the 2006 motor accident and the determination of a prior Review Panel that Mr Stanisic sustained a 22% impairment due to a C5/6 disc protrusion and right shoulder impingement.
The insurer referred to the opinion of Dr Bosanquet who noted a fall off a ladder in 2004 and the prior motor accident in 2006, both incidents causing spinal injuries.
The insurer noted that it had qualified Dr Rikard-Bell to assess the psychological condition.
Insurer’s submissions dated 11 August 2021[35]
[35] Insurer’s bundle, page 561.
The insurer submitted that the Medical Assessor made an error with respect to calculation and that the median score was 2 which resulted in a permanent impairment of 7%.
The insurer also submitted that the finding on causation of psychological injury was based on a finding of pain caused by the motor accident. In that respect the ulnar issues of the left and right elbows were not related to the motor accident citing the opinion of Assessor Bodel. The insurer also submitted that the overall condition was unrelated to the motor accident referring to the opinion of Dr Bosanquet.
Claimant’s submissions dated 9 September 2021[36]
[36] Insurer’s bundle, page 579.
The claimant submitted that the correct assessment was 15% because the Medical Assessor assessed Class 3 for “Concentration, Persistence and Pace”.
The claimant also submitted that the Medical Assessor failed to consider the treatment provided by Dr Kuljic and the effects of medication. Consideration of the treating reports meant that an allowance was warranted for the effects of treatment pursuant to cl 1.222 of the Guidelines.
Further submissions to a similar effect were signed by the claimant’s counsel.[37]
[37] Insurer’s bundle, page 616.
RE-EXAMINATION
Mr Stanisic was examined by both Medicals Assessors of the Panel. The joint examination report of the Medical Assessors is as follows:
“1. Who attended the assessment
Video assessment with the claimant.
Mr Dejam Grahovic was the interpreter.
History2. Psychosocial history and pre-accident history
In terms of developmental history, Mr Stanisic was born in Bosnia and came to Australia in December 1997. He grew up with his parents and was an only child. There was no developmental trauma identified. He was not aware of a family history of mental illness.
He does not have epilepsy, cardiac, thyroid or liver disease.
He does not have drug or alcohol problems.
Mr Stanisic has no past psychiatric history.3. History of the motor accident
On 30 November 2017, Mr Stanisic was driving with a co-worker in his car and he recalled he had the right of way and somebody rear-ended him. He was at a railway bridge when the collision occurred. His airbag was not deployed. There were two cars involved and he suffered immediate pain in his neck and shoulders, and recalled he vomited. He went to see his GP the same day. He did not require hospital treatment. He exchanged details with the other driver and went home. His car has been repaired.
His physical injuries have persisted and he reported the bilateral shoulder pains are the worst problems. He also developed bilateral claw hands and said it is difficult for him to hold things, and maybe he can hold up to 5 kg. His physical problems have continued and he said sometimes he has trouble holding forks and spoons. He is right-handed.
His surgeon has discussed an operation to release the claw hands and said that he would do one hand first, wait two years and then do the other hand. He is on the waiting list for surgery, but because of the COVID restrictions, there has been a delay in surgical treatment. He also developed intermittent lower back pain after the subject accident.
In terms of current physical restrictions, Mr Stanisic reported he cannot run, and walking is limited by his back and shoulder pain to 10 minutes. He struggles to lift 5 kg due to having shoulder pain. He reported sitting and standing tolerances are variable between 30 minutes to 60 minutes.4. History of symptoms and treatment following the motor accident
During the accident, Mr Stanisic described he thought the bridge was falling down. He said he was worried and surprised, and he also said he had a fear that the bridge would collapse. He stated once he exited the car, he realised that it was a car accident.
He described the onset of anxiety and depressive symptoms shortly after the subject accident, and his psychological symptoms have never substantially remitted.
He stated the main psychological problem after the subject accident has been depression and a lack of emotion, or the will to do things. He has had treatment including exposure therapy, and described having watched videos about car accidents, to help him acclimatise to his anxiety, and he would drive 10km and then 15km to gradually increase his anxiety tolerance.5. Details of any relevant injuries or conditions sustained since the motor accident
Mr Stanisic has not had further car accidents or sustained other psychological injuries.
6. Current symptoms
Mr Stanisic's anxiety symptoms are triggered by watching the news, things reminding him of the subject accident, and by ‘small things’.
He reported having a constantly depressed mood.
He has reduced enjoyment and motivation.
He was 115kg before the subject accident and now 180kg. His weight has not changed during 2022. He reported he has too much junk food and eats during the night.
He reported having sleep problems and having nightmares 2 to 3 times per week.
His energy level is poor.
He described being forgetful and his concentration is ‘very bad’.
He is anxious.
He has been irritable. He said he would stop talking and walk away when angry.
He has fewer social interactions after the subject accident.
Mr Stanisic denied having had suicidal ideation.
Current and proposed treatment
Mr Stanisic is currently taking:
· Fluoxetine 60 mg
· Tramal 200 mg
· Panadol Osteo as needed for pain
He previously took Paroxetine and Duloxetine.
He has been consulting Dr Blagoje Kuljic, psychiatrist, since September 2018, recently every 2 months. He described having exposure therapy and using a scale (or exposure hierarchy). He has not had treatment with other mental health clinicians.
Mr Stanisic has never had a psychiatric admission.
Clinical Examination
7. Mental State examination
Mr Stanisic was assessed by video. He was alone, and his wife and children were also at home during the assessment. He spoke mostly in English, sometimes the interpreter would help to ensure proper communication.
The assessment took 60 minutes.
Mr Stanisic had short greying hair and a light beard and was significantly overweight. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and reactivity. He smiled and laughed briefly. He spoke spontaneously. He was not thought disordered and the provided history was easy to follow.
He recalled a reasonable amount of detail. He maintained a normal pace and speed.8. Current functioning
Mr Stanisic is 49 and lives with his wife, who is a homemaker. His parents and five children aged between 8 and 20, also live with them. The youngest two children, aged 8 and 11, are still at school.
He gets up in the morning and drinks coffee and has cigarettes, and usually eats at 11 am, and then he would eat every two or three hours thereafter. He has a large appetite and gained a significant amount of weight after the subject accident, and said sometimes he wakes up in the middle of the night and eats at 2 am before going back to bed.
Before the accident, he recalled he was quite sociable and had more than ten close friends. They would often go to the Serbian club, sometimes every night. Over time, he reported being emotionally distant and now he only has two or three regular friends. He sees them every two to five days on average.
He enjoys catching up with his friends, either at home to talk or they would go to a café and drink coffee. He does not go to large social gatherings or parties. If the children have a birthday, they would have a small celebration at home, but they would not go out to celebrate. He said he does not involve himself with other children-related activities. He does not help with their homework or take them to any activities.
He spends a lot of time at home. Sometimes he would go for a short drive. He smokes cigarettes under a pergola and said he does not have other activities.
He watches TV and watches movies at home, but stated that about halfway through, or after 30 or 45 minutes, he would need to get up, have a cigarette and then come back to it later. He cannot concentrate like he used to.
He does not have any paid cleaners or external assistance. He said his parents live with them, they are in reasonably good health and his father would help with some of the housework. He has a lot of family in Australia and some overseas but does not have much contact with them.He does not cook at all as he has ‘no emotion’ to do it. His wife does most of the shopping. He feels irritable in the shops. He goes to the shops maybe twice a week. He does not do any housework.
He has been married for around 20 years and reported the marriage is not good now. They have never separated and she complained she has to do all the household chores, and if she tells him to do something, he would not.He only drives locally after the subject accident and is anxious near traffic. He constantly checks his rear-view mirror when driving. He can drive on highways and drive around 30 minutes on his own, but avoids places with traffic. He never uses trains or buses.
He reported that he has become overweight, and he checks his weight daily. He does not exercise, such as taking walks or going to the gym.
He has not been on an aeroplane after the subject accident.
His wife tells him to shower and, without that prompting, he said he only showers every two or three days.
Previously, he said he would surf the internet and read the news, but he has stopped doing this.
Normally, Mr Stanisic said that he would go to the park with his friends and do lawn bowling every weekend. He said he does not bowl anymore due to a lack of motivation, and because he cannot hold the ball properly due to his hand and shoulder injuries.
Employment history:
He completed 12 years of school and worked in a mixed business shop and did some painting work.
He then came to Australia and always performed work as a painter. He became a self-employed painter in 2004 and said that before the subject accident he would work six days a week or about 48 hours.
After the accident, he tried to go back to work for a couple of days, but could not continue due to severe pain in his shoulders. His wife tried to help with the business, but the business has since stopped trading, but it is not yet closed.
The Panel asked Mr Stanisic whether he could perform work if his claw hands improved after surgery, and he said that he would definitely go back to doing some painting work. He also reported that he feels nervous around people, which is hard for him to explain, and sometimes he gets angry having to interact with people and this would affect his work capacity too.9. Comments of consistency
There was no inconsistency identified.
Review of Documentation
10. Summary of relevant documentation
Personal Injury Commission Certificate from Medical Assessor Martin Allan, 30 July 2021, noted a similar history and concluded major depressive disorder was sustained from the accident. He took a similar history regarding Mr Stanisic's employment and the accident. His vehicle was drivable after the subject accident. There was no immediate physical symptomatology, but his symptoms developed over the next few hours once he went home. There was no head injury. In the context of the aftermath of the accident and ongoing pain and reduced level of function, he developed marked depression.
Comment: The Panel asked him whether his physical injury contributed to his depression and anxiety, he said that he already developed his psychological symptoms after the accident and does not believe his physical problems contributed.
Assessor Allan noted Mr Stanisic reported having no social life. He had taken fluoxetine 60 mg for about 12 months by that time. He presented as unkempt and dishevelled. He has not worked since 2018 due to a combination of physical and psychological symptoms, and provided WPI ratings of 2, 3, 2, ,2, 2, 3 totalling 13%, which is incorrectly calculated and should have been 7%.Comment:
Assessor Allan rated social and recreational activities as 3 and noted that Mr Stanisic has poor motivation, social withdrawal and no real social life and lost contact with friends. The Panel took a history in recent times, he has regular contact with his friends and might catch up either at home or go to a café and this happens every two to five days, which is indicative of a higher level of functioning. The Panel noted he has had exposure therapy and gained some improvement.
In terms of concentration, persistence and pace, Dr Allan rated 2, and noted he could not read to any extent and does not attend to any complex tasks and finds himself forgetful and is observed by others. The Panel noted the appellant’s submission that this description is more consistent with 3.
The Panel noted Mr Stanisic presented as focused during the one-hour assessment. He does not read books or read online and described having poor motivation in engaging in these tasks. He watches movies and generally can focus for about half an hour to 45 minutes, and having considered his mental state examination, the Panel rated 2.
Dr Frank Chow, IME psychiatrist, report on 11 March 2019, could not provide a psychiatric diagnosis due to a number of inconsistencies, and stated Mr Stanisic might have an adjustment disorder but not PTSD.
Professor Arun Krishnan, neurologist, 27 February 2019, noted he has bilateral ulnar neuropathy and there are no inconsistencies.
Dr Blagoje Kuljic, treating psychiatrist assessed Mr Stanisic on 18 April 2020, noted he was born in Bosnia with no prior psychiatric trauma history or psychiatric injury. Following the accident, he received treatment including Duloxetine and developed major depressive disorder. He has difficulty focusing. Dr Kuljic performed a WPI assessment and rated social recreation activity as 3 as he avoids seeing friends or going out. He went to a few parties because his wife insisted and does not go out with his friends or family.
Dr Kuljic rated concentration, persistence and pace as 3, that he has significant forgetfulness or inability to focus, being able to read newspaper headlines only, but not able to set up a new electronic device or focus on learning a new skill. The Panel has considered this.Comment:
The Panel noted he has improved since that report, which is more than 2 years ago.
The GP records were generally uninformative and did not reveal a significant psychiatric history.
SIRA certificate from Assessor Dr James Bodel, 6 January 2019 noted neurolysis, anterior transposition of the ulnar nerve is not a reasonable treatment.
Handwritten notes from GP were brief and noted.
Mr Stanisic’s statement in relation to the prior accident on 22 May 2006, noted he had about two or three months off work, then in August 2006 returned to work, initially half the initial hours. He had neck, shoulder, upper and lower back injuries, and there was no psychiatric component.
Statement of Reason, dated 31 January 2008, assessed Mr Stanisic as 5% WPI for the lumbar, cervical and thoracic injuries.
Further MAS certificate 3 March 2010, which states his physical injury as 20%.MAS Reason for Decision related to the 2006 accident has been noted.
Determinations
11. Diagnosis and reasons
Mr Stanisic developed anxiety and depression after the subject accident and his psychological symptoms have improved, but not resolved. His symptoms are consistent with Major depressive disorder.
In reference to the DSM-5 criteria for a Major Depressive Disorder:Criterion A: Mr Stanisic has at least 5 depressive symptoms during a 2-week period, causing a change in his normal functioning. Mr Stanisic reported the following depressive symptoms:
· Pervasively depressed mood
· Complete anhedonia which has improved
· Significant weight gain, definitely more than 5% of his weight.
· Sleep impairment
· Marked loss of energy
Criterion B: His symptoms cause him clinically significant distress.
Criterion C: His symptoms are not due to the physiological effects of a medication or substance, and are not part of a general medical condition.
Criterion D: His symptoms are not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder or schizophrenia/psychosis spectrum disorder, acute stress disorder symptoms or adjustment disorder.
Criterion E: Mr Stanisic has never had a manic or hypomanic episode.
12. Causation and reasons
Mr Stanisic does not have a past psychiatric history. He had a previous car accident and did not develop a psychological injury, although the previous accident could have increased his vulnerability to subsequent car accident-related psychological injuries.
He developed immediate psychological symptoms following the subject accident and his psychological injury has not fully resolved at any time after the subject accident. There are no other factors identified as causative of his psychological injury in the relevant timeframe. Therefore, the Panel concluded that the subject MVA is the only cause of his current psychological condition.
Summary of injuries referred by the parties
13.The following injuries WERE caused by the motor accident:
· Major depressive disorder
Permanency of impairment
Permanent impairment is defined in the AMA4 Guides as follows:
‘Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.’
Mr Stanisic's psychological impairment is permanent and stabilised, and with or without medical treatment, is not likely to remit or change more than 3% in the next year.
14. Degree of permanent impairment Psychiatric Impairment Rating Scale
Current PIRS
Psychiatric diagnoses 1. Major depressive disorder 2. 3. 4. Psychiatric treatment description Antidepressant medications
Psychiatrist
Exposure therapy
Category Class Reason for Decision 1. Self Care and Personal Hygiene 2 Mr Stanisic reported neglecting his self-care. He binge-eats and gained weight after the subject accident, and his weight has been stable during 2022.
His wife prompts him to shower and change to clean clothes, and without prompting he would only do so every 2 or 3 days.
He is capable of independent living without regular support or prompting.2. Social and Recreational Activities 2 He attends regular social recreational activities with his family and friends. Overall, he has been attending less as a result of his psychological injury. In the past few months, he has enjoyed seeing 2 to 3 friends regularly, they would go out to cafés or catch-up at home every 2 to 5 days.
He has gone to the Serbian Club 3 to 4 times after the subject accident, and only once during 2022, and he had dinner with his wife and children at the club.
3. Travel
2 Mr Stanisic is anxious and avoids places with traffic.
He is generally independent in travel.4. Social Functioning
2 Mr Stanisic's relationship with his wife and family has deteriorated.
He has lost many friends as a result of anxiety after the subject accident.He maintains a few long-term friendships.
5. Concentration, Persistence and Pace 2 Mr Stanisic reported having poor concentration.
He no longer reads books or reads online.
He can focus on movies, for around 30 to 45 minutes.
His concentration, persistence and pace, as presented on the day of assessment, are consistent with 2.6. Adaptation
3 From a psychological perspective, the Panel concluded he has a partial capacity, around 20 hours per week in a low-stress role as he has reduced stress tolerance. List classes in ascending order: 222 223 Median Class Value: 2 Aggregate Score: 13 % Whole Person Impairment: 7 % *%WPI = Percentage Whole Person Impairment
15. Psychiatric Impairment Rating Scale - Pre-existing/subsequent impairment
Mr Stanisic has not sustained a subsequent injury.
He has no past psychiatric history.16. Apportionment
Nil.
17. Effects of Treatment
2%
Mr Stanisic has gained symptomatic improvement and moderate substantial functional improvement with exposure therapy, and his reported functional capacity is greater with treatment.Final WPI = 9%.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[38] and Insurance Australia Ltd v Marsh.[39]
[38] [2021] NSWCA 287 at [40], [41] and [45].
[39] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the extensive and comprehensive reasons from the joint medical report provided by the Medical Assessors. Given the comprehensive nature of the joint medical report the Panel adds no further reasons.
CONCLUSION
The medical assessment of Medical Assessor Allan is revoked. The new certificate is attached at the commencement of these Reasons.
3
3
0