QBE Insurance (Australia) Limited v Wan

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Wan [2023] NSWPICMP 649
CLAIMANT:	Lipeng Wan
INSURER:	QBE
REVIEW PANEL
MEMBER:	Hugh Macken
MEDICAL ASSESSOR:	Paul Friend
MEDICAL ASSESSOR:	Gerald Chew
DATE OF DECISION:	1 December 2023
CATCHWORDS:	MOTOR ACCIDENTS – Review of medical assessment; whole person impairment; adjustment disorder with mixed anxiety and depressed mood in partial remission; diagnosis of major depressive disorder arising from the motor vehicle accident; effect of surveillance footage on diagnosis; mental state examination by video teleconference; psychomotor retardation; delusional thoughts or other; chronic adjustment disorder with mixed anxiety and depressed mood; symptoms of an adjustment disorder in partial remission the number of symptoms described reducing; Held – Certificate of Medical Assessor Fukui revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Panel revokes the Certificate of Medical Assessor Fukui dated 30 May 2022. 2. The claimant has suffered a psychiatric disability with adjustment disorder with mixed anxiety and depressed mood in partial remission. 3. The following injuries caused by the accident give rise to a permanent impairment of 5% and is NOT greater than 10%: · adjustment disorder with mixed anxiety and depressed mood in partial remission. 4. The claimant’s whole person impairment is 5%.

STATEMENT OF REASONS

INTRODUCTION

Lipeng Wan (the claimant) is a 38 year old man who was injured in a motor vehicle accident on 23 May 2017. Following the accident the claimant alleged he had sustained physical and psychological injuries which exceeded the 10% whole person impairment threshold established by the legislation and accordingly sought compensation for non-economic loss. The insurer declined the claimant’s request that they concede this issue and accordingly the matter was referred to the Personal Injury Commission (Commission) for an assessment of permanent impairment for both physical and psychological injuries.
The claimant was examined by Medical Assessor Inglis Howe Synnott who, in a certificate dated 9 January 2019, determined that the claimant had sustained a whole person impairment of 17% consequent on a diagnosis of major depressive disorder arising from the motor vehicle accident. Following this assessment the insurer sought a further assessment of the claimant’s psychiatric impairment primarily on the basis of surveillance footage of the claimant captured over the period 29 April 2019 to 8 May 2019 which post dated the assessment of Medical Assessor Inglis Howe Synnott. The claimant opposed this application but notwithstanding this, the proper officer Heidi Elliott, in a decision dated 5 August 2020 was satisfied that the additional relevant information would be capable of having a material effect on the outcome of the previous assessment and the matter was sent for a further assessment.
The claimant was then further examined by Medical Assessor Atsumi Fukui on

4 March 2022. In the certificate and reasons he determined that the claimant suffered a whole person impairment of 17% consequent on a chronic adjustment disorder with mixed anxiety and depressed mood. The insurer sought a review of this certificate primarily on the basis that there was a failure to consider evidence and submissions, error in the permanent impairment assessment, failure to provide adequate reasons and was not provided with or did not consider all relevant documents.
The claimant opposed the further review. Thereafter the President’s delegate, Stephanie Wigan, in a certificate date 7 September 2022 determined that she was satisfied there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect and accordingly the matter was to be referred to the Review Panel. The matter was referred to the Review Panel primarily on the basis that the Medical Assessment Certificate raised some confusion regarding how the assessor’s findings were derived and particularly in the context of the reported inconsistencies and the alternative position not being addressed.
The matter was then considered by the Review Panel and a telephone conference was conducted on 19 July 2023. The Panel sought additional documents from the parties including all documents and video surveillance footage referred to in the parties’ submissions. A further telephone conference then took place on 16 August 2023 at which time a date for the examination of the claimant was set for Monday 13 November 2023. A final telephone conference to complete the certificate was conducted by the Panel on

29 November 2023.

EXAMINATION OF CLAIMANT ON 13 NOVEMBER 2023

INTRODUCTION

Mr Wan was examined via video teleconference.
He was unable to activate his microphone so the audio component was undertaken using his mobile telephone.
The Mandarin Chinese interpreter Sandy Shi, National Accreditation Authority for Translators and Interpreters Number CPN3MH13B, was present by video teleconference throughout the examination.

HISTORY

Psychosocial history and pre-accident history

Mr Wan was born in China and grew up in the province of Jiangxi.
He completed school and a degree in finance.
He immigrated to Australia in 2007 on a Student Visa and completed a degree in accounting and finance over 2½ years.
He married in about 2010.
He has sons aged 11 and 9 years and a daughter aged 7 years.
He has worked as a project coordinator for the company HEQS Furniture since 2011-2012.
He currently lives with his wife and three children.
His father came to Australia in 2021 to assist him and his mother-in-law came in 2022. Both remain in Australia.
Mr Wan suffered an injury in 2004 to his right knee whilst playing basketball. He had an arthroscopy in China and fully recovered.
He suffered a low back injury in 2014 or 2015 but according to his statement dated

13 February 2020, he did not require treatment and fully recovered.
Mr Wan stated that he was physically and mentally fit and well at the time of the motor accident.
Mr Wan was uncertain whether he had had any previous motor accidents but stated if he had been involved in any previous motor accidents, they would have been very minor, “just a scratch”.
Mr Wan is abstinent of tobacco, alcohol and illegal substances. He occasionally has a cup of tea and a cola drink but has no other intake of caffeine.

History of the motor accident

The motor accident occurred when Mr Wan was stationary at red traffic lights. His vehicle suffered a sudden unexpected rearend collision.
He was able to get out of his vehicle and exchange details with the other driver.
He then drove home.

History of symptoms and treatment following the motor accident

The next day Mr Wan was aware of pain in his lower back. He cannot remember when he sought treatment but feels it was within a few days.
The clinical notes from the Hurstville Medical Practice
record that he attended on

3 June 2017 reporting that he had been involved in a motor accident on 23 May 2017.
Mr Wan stated that he was referred for physiotherapy and for counselling sessions.
He was asked about his mental symptoms at that stage and replied that he couldn’t sleep and had anxiety issues.
He was asked about his sleep pattern, to which he replied that he slept for a maximum of 3-4 hours each night.
He was asked about his anxiety issues and replied that we should check the medical records because he could not remember them.
The low back pain had a significant adverse impact on his ability to do activities. He was required to work for the 3-4 days following the motor accident because he had a project to complete but subsequently, he had 4-5 weeks off work. He worked parted time, no more than about 20 hours each week, when he returned to work.
Mr Wan was repeatedly asked about psychiatric/psychological symptoms after the motor accident but could not provide any further information. He stated that motor accident was almost seven years ago and he found it difficult to remember how it affected him mentally.

Details of any relevant injuries or conditions sustained since the motor accident

Mr Wan twisted his left knee walking down stairs in 2022. He subsequently had surgery on the left knee. The knee is now in the “recovery stage”. He has continued to have some discomfort in the knee.
He has not been involved in any subsequent motor accidents, sustained any fractures or had any other episodes of ill health.

CURRENT SYMPTOMS

Mr Wan continues to have low back pain which has a variable intensity. It adversely affects his ability to do movements and exercise.
He finds it difficult to bend, to walk for more than 400-500m or to sit in the same position for more than about 30 minutes.
Prior to the motor accident he played basketball and did running and swimming. He has ceased all these activities.
He now walks limited distances and does self-directed hydrotherapy but no other physical activity.
Mr Wan stated that he felt mentally improved in the last two years. This had occurred after the arrival of his father in Australia two years ago and his mother-in-law in Australia one year ago.
His father did some Chinese massage on his lower back. He encouraged him to be more active. He stated that both his father and mother-in-law provided support for he and his family.
He was asked about the support that they provided. He replied that they did house chores and took care of the children.
His mother-in-law specifically helped with the children, doing house chores and cleaning and cooking. She often did the drop off and collection of children from school.
The low back pain caused him to have sleep disturbance. He woke during the night and needed to change position from time to time. The low back pain caused him to feel irritable, to have difficulty getting to sleep and staying asleep, and prevented him from having “a deep sleep”.

CURRENT AND PROPOSED TREATMENT

Mr Wan has previously ceased all psychiatric medication because it caused side-effects.
He took analgesic medication when required.
His father had encouraged him to cease taking medication.
He explained, when asked whether his father was a health professional, that his father had suffered a back injury, when he was much younger, and had tried various treatments and rehabilitation approaches. He had thereby gained knowledge about Chinese massage and physiotherapy exercises which his father administered to Mr Wan.

MENTAL STATE EXAMINATION

Mr Wan was examined by video teleconference.
At times he appeared to have difficulty understanding the interpreter but that may have been attributable to the audio component needing to be relayed by mobile telephone.
Mr Wan did not exhibit thought disorder, psychomotor retardation, delusional thoughts or other phenomena of psychosis.
He was initially sitting but after no more than 20 minutes, stood up and walked around the room until the completion of the examination which was approximately 1 hour and

45 minutes. The amount of movement increased and he moved further around the room as the examination progressed. He explained, when asked that he needed to walk because of the low back pain.
The low back pain prevented him from doing many physical activities and interfered with his ability to work.
He did not describe pain anywhere else in his body and did not describe the pain radiating from the low back.
Mr Wan has ongoing sleep disturbance. He currently sleeps for 5-6 hours each night.
He has ongoing anxiety following the motor accident, but was unable to describe it any further.
His other current psychiatric symptoms are feeling irritable, having difficulty falling asleep and being unable to have a deep sleep.
He had felt improved in the past two years since his father and later his mother-in-law had arrived in Australia to help the family with physical household chores and providing physical treatment encouragement to Mr Wan.

CURRENT FUNCTIONING

Mr Wan stated that before the motor accident there was no impairment of his ability to undertake his personal care. He assisted his wife with caring for the children, cooking, cleaning and washing the dishes and taking the children to and from school.
Mr Wan and his wife, both worked full time prior to the motor accident.
The low back pain sometimes made it difficult to attend to his personal care.
He no longer did household duties because of the low back pain, particularly because of the difficulty bending.
He no longer went shopping for groceries unaccompanied in part because he did not feel supported if he went out alone [BG1] and in part because it required lifting of heavy objects which adversely affected the low back pain.
Prior to the motor accident he did grocery shopping from time to time.
Mr Wan, prior to the motor accident played basketball and went swimming and running. He took the family to the park, the beach, and to visit friends.
Following the motor accident and continuing to the present day, he has ceased all sporting activities because of low back pain and does fewer activities with his family in part because of the back pain and in part because of what he referred to as “a lack of self-pride”.
Mr Wan limits his driving to about 20 to 30 minutes but also stated this was influenced by the driving conditions and the situation.
He was asked to clarify which situations and conditions, to which he replied weather could adversely affect his back pain.
He did not describe psychiatric/psychological symptoms impairing his ability to drive.
Mr Wan reported that prior to the motor accident he had a good relationship with his wife and children but for the first five years after the accident there was a deterioration in the relationship because he felt desperate, in pain, felt useless sand was socially withdrawn.
He stated that since his father had arrived, he had been encouraged to go out more.
He also reported that his father had mother-in-law helping with household duties and with the children had also improved his mental state.
Mr Wan reported that his ability to think and concentrate and remember had improved somewhat since the motor accident.
He stated that he would forget to bring things or keys, etc. He stated that back pain could adversely affect his ability to concentrate.
He was unable to describe other specific impairments of cognitive functioning.
Mr Wan was working full time five days each week prior to the motor accident. Following the motor accident and after he returned to work after four to five weeks off after the accident, he worked no more than four hours each day five days each week. Prior to the motor accident he was a project manager and would need to manage various projects and sometimes help with the installation of furniture if they were short-staffed.
Since the motor accident he has been doing light duties which include filling, paperwork and online ordering.
He now has his own office which has a bed on which he can lie down during the day if necessary.

COMMENTS ON CONSISTENCY

Mr Wan’s account was consistent throughout the examination but was inconsistent with some of the supplied documents.
His personal statement dated 13 February 2020 listed about 30 symptoms including multiple psychiatric/psychological symptoms which Mr Wan did not describe at this examination.
The personal statement also states in paragraph 9 that in July 2018 the family moved into a double storey five bedroom, two bathroom house in Eastwood, from the previous two bedroom apartment in Allawah.
Mr Wan was asked why he relocated in July 2018, if he was in pain and had limitations on his daily activities both at work and at home such that he was only working 20 hours each week and could not assist his wife with household duties.
Mr Wan stated that he had purchased that house in 2017, that the settlement date had been around the time of the motor accident in May 2017 and that the family had relocated to that house in July 2017. They had relocated to a bigger house because they now had three children and the house was in the catchment area of what he regarded as a good public school which was important because his eldest son was then aged 6 years.
Mr Wan was asked about the video surveillance. It showed that arrived at work around 9.00am and appeared to be driving home after 6.00pm, five days each week.
He was asked, if he only worked for about four hours each day, why did he appear to be at work for a whole day.
Mr Wan replied that the manager or owner of the company “looked after me”. He gave him an office with a bed on which he could lie down. He was socially withdrawn and preferred to stay away from home, hence he did not go home early.
Mr Wan was also asked about the two episodes when he was observed at the swimming pool on 4 May and 18 May 2019.
He was advised that he appeared to be on his feet for about 1½ hours and did not appear to have any difficulty standing for that length of time. It was noted that he helped his children into the pool and supervised them in the pool.
Mr Wan replied that he did not stand for 1½ hours. He did help his children get into the water. He emphasised that he could not stand for long and could not sit for more than 30 minutes.
He was asked about his ability to walk from the carpark into the swimming pool up the stairs into the entrance to the pool and then up the concrete seats beside the pool. He replied that the total distance was no more than 500m.

SUMMARY OF SUPPLIED DOCUMENTS

The Commission by Medical Assessor Atsumi Fukui dated 30 May 2022 states that the motor accident occurred on 25 May 2017.
The motor accident occurred when Mr Wan was stationary at a set of traffic lights and his vehicle sustained a rear end collision.
He was wearing a seatbelt. The airbags did not deploy. Police and ambulance did not attend.
He was subsequently able to drive home.
He initially developed pain in his back and abdominal region and consulted his general practitioner about a week later.
He worked for three days following the accident and then took time off from work because of ongoing symptoms.
The pain prevented him from doing anything and caused him to feel frustrated. He felt of no use. His sleep was disrupted by anxiety and pain. He had poor concentration and memory. His appetite was variable but there was no weight loss. He had little motivation and interest and was unable to do any physical activity.
He sought treatment for his psychiatric/psychological symptoms about two months after the motor accident because of poor sleep, feeling tired during the day and having a low level of energy.
His mood became more depressed.
He was prescribed antidepressant medication but did not take it each day. The medications made him feel more stable.
He had 10 sessions of treatment with a psychologist and was prescribed pain medication.
He was unable to remember the names of the medications prescribed.
His current symptoms include chronic low back pain which he attributes to a herniation. He is unable to stand or sit for long periods.
His mood is up and down over the last five years but there has been a mild improvement compared to how he felt immediately after the accident.
His father arrived from overseas in July 2021 to help the family. This has improved his mental health.
He continues to have poor concentration and disrupted sleep. There has been some weight gain. He continues to feel useless.
He is currently taking Avanza and Efexor which he takes almost every day. He is prescribed Lyrica and Mobic for pain.
Assessor Fukui makes a diagnosis of chronic adjustment disorder with mixed anxiety and depressed mood on a background of chronic pain disorder.
Medical Assessor Fukui assigns a whole person impairment of 17%, assigning Class 2 to Travel and Social and Recreational Activities and Class 3 to Self Care and Personal Hygiene, Social Functioning, Concentration Persistence and Pace, and Adaptation.

The insurer’s submissions by Elton Bien dated 10 October 2018 state that the insurer is unable to determine at this time whether the injuries sustained by the claimant gives rise to a whole person impairment of 10% and requested delay until there can be assessment by an orthopaedic surgeon and a psychiatrist.
The report by Dr Robert Breit, orthopaedic surgeon, dated 31 October 2018 states that Mr Wan arrived in Australia in 2017 and was a student studying accounting, and commenced work with his current employers HEQS Furniture which delivers and instals appliances and furniture for charities.
Dr Breit diagnoses a whiplash associated disorder and soft tissue injury to the lumbar spine.
The force of the impact of the collision was not enough to cause the disc lesions, mild disc prominence at L4/5 and small protrusion at L5/S1.
There is no evidence that the S1 nerve root is compressed.
Dr Breit assigns a whole person impairment of 5% for the injury to the lumbar spine and 0% to the injury to the cervicothoracic spine.
The report by Dr Graham Vickery, psychiatrist, dated 13 November 2018 states that

Mr Wan took four weeks off work and then returned to office administration work for 18 hours each week because of his low back pain which has continued.
His sleep was very disturbed for, sleeping for only two hours but improved after physiotherapy.
He had a total 16 sessions of psychological treatment which helped with his depression and stress but he has not been able to work full time.
He has had some couples counselling because of conflict with his wife over not being able to return to full time work which was helpful.
He does not need to shower or shave every day because he does not go to work every day. He sometimes goes out for a meal with his family.
He was only reading for 20 minutes, at a time because of the pain.
He is somewhat irritable with his children because they can be very noisy.
He currently does works doing office duties 18 hours each week.
Dr Vickery made a diagnosis of adjustment disorder and assigns a whole person impairment of 5 %, assigning Class 1 to Travel, Social Functioning and Employability, Class 2 to Self Care and Personal Hygiene and Concentration Persistence and Pace, and Class 3 to Social and Recreational Activities.
The Allied Health Recovery Request by Mou In Li, psychologist, dated 17 November 2017, states the diagnosis is an adjustment disorder. Mr Wan sleep disturbance because of pain and excessive worries about work and future financial security.
The SIRA Certificate by Medical Assessor Alan Home dated 11 December 2018 states that the injuries of soft injury to the cervical spine and lumbar spine with non-verifiable radicular complaints in the lower left extremity give rise to a whole person impairment of

10%.
His current symptoms are intermittent left-sided neck pain for several hours once or twice daily and at other times tingling in the suprascapular region.
There is discomfort in the left trapezius at the left shoulder.
There is constant lower back pain which extends from the back to the left buttock. There is intermittent paraesthesia along the lateral border of the left thigh, calf and sole of the left foot.
Coughing and sneezing exacerbate the back pain and also when opening his bowels.
He can sit for 15 minutes and drive for 20-30 minutes.
The SIRA Certificate by Medical Assessor Inglis Howe Synnott dated 9 January 2019 states the current symptoms are feeling stressed, anxious, worried, depressed and sleeping poorly. The marriage is poor and they only stay together for the sake of the children.
He also has depression, intermittent thoughts of suicide, poor sleep and initially nightmares in the first few months which have ceased. He is anxious and nervous, has difficulty relaxing and has impaired concentration and memory. He has loss of motivation and interest, is socially withdrawn, is irritable, and has a loss of appetite.
He is upset by reminders of motor accidents such as television programs or driving past motor accidents. He has recurrent and distressing memories of the motor accident. He feels anxious and nervous in a motor vehicle and is worried about having a further motor accident.
Dr Synnott made a diagnosis of major depressive disorder. He assigned a whole person impairment of 17%, assigning Class 2 to Social and Recreational Activities and Travel and Class 3 to the remaining four categories.
The insurer’s submissions which are unsigned and undated, seeks a further assessment of the claimant’s psychiatric impairment because of additional information being a surveillance report from Quantumcorp.
The surveillance shows a much greater level of psychiatric and physical functioning than was disclosed to Medical Assessor Synnott in the examination on 8 January 2019.
The report by Quantumcorp dated 30 May 2019 states that Mr Wan was surveilled for a total of 153.75 hours of surveillance with 35 minutes of film exposed during that time.
He was observed to attend his known place of work five consecutive days per week in Week 1, approximately 49.5 hours in total, and in Week 2 for approximately 48.5 hours. He was observed taking his children to Ryde Aquatic Centre and swimming in the pool with his children on two consecutive Saturdays and interacting with an unknown couple and his family.
He did not demonstrate visible signs of pain or discomfort.
The claimant’s statement dated 13 February 2020 states that at the time of the accident he was employed as a project manager at HEQS Furniture. His work involved attending work sites to supervise the installation of furniture, occasional hands-on furniture installation including lifting and using tools of trade, and office work.
At the time of the accident he lived in an apartment in Allawah with two bedrooms and one bathroom, and in July 2018 the family moved to a double storey home in Eastwood which had five bedrooms, two bathrooms, a study and a large living room in addition to dining room, kitchen, laundry, garage, deck and lawn area. There was a granny flat attached to the property.
In 2004 he injured his right knee playing basketball in China which required an arthroscopy and recovered fully.
In 2015 he experienced pain whilst lifting. He was referred for CT scan in the lumbar spine. The symptoms settled down well before the accident. He did not have physiotherapy or time off from work.
His symptoms following the motor accident were:
·        pain in the neck;
·        pain in the lower back;
·        pain radiating from lower back to buttocks and the leg;
·        intermittent paraesthesia along the lateral border of the left thigh, calf and sole of left foot;
·        left shoulder pain with discomfort;
·        left shoulder discomfort;
·        sensation of tingling in the left scapular region;
·        difficulty negotiating stairs;
·        difficulty sitting or standing for prolonged periods;
·        difficulty undertaking prolonged computer work;
·        difficulty lifting and carrying;
·        difficulty concentrating;
·        depressed mood;
·        anhedonia;
·        loss of interest;
·        loss of motivation;
·        social isolation and withdrawal;
·        easily confused;
·        reduced tolerance;
·        increased frustration;
·        difficultly attending to household chores;
·        sleep disturbance;
·        lack of self-interest;
·        concern regarding his future;
·        low self-esteem;
·        intermittent thoughts of suicide;
·        flashbacks;
·        deterioration in relationships, and
·        inability to participate in pre-injury recreational activities including basketball, running and gym.
He took a month off work following the motor accident and subsequently returned part time, working 18 hours each week over five days.
The report by George Haralambous, forensic psychologist, dated 13 December 2019, states on page 24 that the findings of the objective psychometric evaluation were not consistent with and cannot be accountable for, by a genuine diagnosable anxiety or depressive disorder and are not consistent with the genuine effects of traumatic experiences.
The findings of the objective psychometric evaluation are predominantly exaggerated and/or embellished psychological dysfunction.
It states the combined cumulative effects of the psychometric evaluation are not consistent with any genuine known form of diagnosable psychological pathology that may be reasonably attributable to the motor accident on 23 May 2017.
The report by Dr Robert Breit, orthopaedic surgeon, dated 19 June 2020 is a supplementary report reviewing the surveillance recordings from Quantumcorp.
It concludes that having reviewed the surveillance there is no evidence of physical disability. Mr Wan is seen walking freely, turning his head freely, manoeuvring his vehicle and going up and down steps. He lifts his children into a swimming pool and attends work on a daily basis.
The report by Dr Graham Vickery, psychiatrist, dated 18 July 2020, states he has reviewed the reports of Mr George Haralambous dated 13 December 2019 and the surveillance recordings of Quantumcorp dated 13 May 2019.
He makes a diagnosis of a somatic symptom disorder. He states the surveillance is consistent with malingering.
He assigns a whole person impairment of 0%.
The claimant’s submissions in response to a request for a further assessment of a further assessment application dated 10 July 2020 state that video surveillance report should be watched as a report of Quantumcorp investigations is misleading.
It states the report of Dr Haramboulis should have no weight placed upon it. Neuropsychological testing was not required as the claimant does not have a brain injury.
Dr Haramboulis was not in the room for half the assessment.
The claimant had to answer a list of over 100 questions involving computer and 300 questions on a paper to which he was required to answer yes or no after it was translated by the interpreter.
He was refused the presence of a support person.
The assessment took five hours and the claimant was mentally and physically exhausted and requested a bed to lie down.
Dr Haramboulis cannot comment on the claimant’s effort as he was not present for the entire assessment.
Tests such as word memory test and tests of malingering are not effective when the words are translated into another language which in this case was Mandarin, and therefore accurate tests cannot ensue.
The letter by Qifeng Lin, managing director of HEQS Furniture, which is undated, states that Mr Wan worked 24-26 May and 29 May 2017 after the motor accident as he had important work to complete. He could not perform the full duty and did some coordination work only. He was paid sick leave and annual leave 24 days in total until 30 June 2017.
He has worked part time for 18 hours each week in an office administrative job, being unable to do any onsite work and unable to sit or stand for long periods. This is lighter and less demanding work than previously.
The report of Sam Borenstein, clinical psychologist, dated 8 August 2018 states that

Mr Wan’s symptoms include limited ability to sit or stand for prolonged periods and difficulty maintaining concentration beyond 20-30 minutes.
He has pain in his lower back which extends to his buttocks.
He is unable to carry items and cannot lift his children.
He has mood symptoms of anhedonia, variable motivation, socialisation and withdrawal. He feels sad and confused. Prior the motor accident he did the housework and mowed the lawns, but now has a friend mow the lawns.
He has disturbed sleep, averaging six hours of interrupted sleep, and is inclined to miss meals but has gained weight.
He undertakes hydrotherapy once or twice per week.
He drives in familiar areas such as home to work. He prefers his wife to drive and he is a slower and more careful driver.
He only showers once a week.
He is worried about his future and loss of status for his family and finances.
He states his main problem is his back and if his back was fixed, his depression would be better.
His scores on the Depression, Anxiety and Stress Scale 21 Item were as follows.
·        depression - extremely severe;
·        anxiety – extremely severe, and
·        stress – extremely severe.
Mr Borenstein makes a diagnosis of a chronic adjustment disorder with mixed anxiety and depressed mood. He assigns a whole person impairment of 19 %, assigning Class 2 to Travel and Class 3 to the remaining five categories.
The report by Sam Borenstein, clinical psychologist, dated 21 August 2020, states that Mr Wan has a diagnosis of chronic adjustment disorder with mixed anxiety and depressed mood and a chronic pain disorder.
He assigns a whole person impairment of 19%, assigning Class 2 to Travel and Class 3 to the remaining five categories.
The clinical notes of the Hurstville Medical Practice from 3 June 2017 to

13 February 2018 include the following.
The entry dated 3 June 2017 states he was involved in a motor accident on 23 May 2017. He was hit on the left side of his back. He has right neck and lower back pain and back pain going to the neck. He has insomnia from anxiety and his lower back pain which has got worse in the last three or four days.
He was prescribed Endep 10mg ½ tablet at night in addition to Mobic and Panadeine.
The entry dated 10 June 2017 states he ceased Endep after a few days because of side effects.
The entry dated 24 June 2017 states he is taking Endep 5mg at night every second day.
The entry dated 15 July 2017 states he is taking Endep once a week and is back to part time work. He has money stress and anxiety. He was commenced on Valdoxan 25mg ½ tablet at night.
The entry dated 2 August 2017 states the Valdoxan is helping. He works 3-4 hours each day, office work only.
The entry dated 19 August 2017 states he takes Valdoxan 25mg at night and sleeps 5-6 hours. His mood is still low due to income stress and family stress.
The entry dated 9 September 2017 states he has been taking Efexor 37.5mg daily and Valdoxan 25mg at night. His mood has not improved much because his wife is having “problem with him and lots of family issues”. He has poor sleep, early morning waking and depressed mood and panic attacks.
The entry dated 23 September 2017 states he sleeps 5 hours each night with Valdoxan 1½ tablets.
He continues to have problems with his wife and there is not much talk. He has lost some weight.
Valdoxan was ceased and he was commenced on Avanza 30mg, one tablet at night.
The entry dated 28 October 2017 states he is taking Avanza 45mg at night. He is still depressed and is waiting for approval to see a psychologist.
He has diagnoses of anxiety and depression.
He is taking Efexor 37.5mg in addition to Avanza.
The entry dated 17 November 2017 states he is now taking Efexor 75mg daily and Avanza 45mg at night. He sleeps for five hours. There is a little improvement in his mood.
The entry dated 30 December 2017 states he is taking Lyrica up to 150mg at night, Avanza 45mg at night, Panadeine 2 at night and Efexor 75mg in the morning. His sleep has got worse in the last three days.
The entry dated 27 January 2018 states his current medications are Efexor 150mg daily, Avanza 45mg at night, Lyrica 75mg at night and Panadol Osteo three times daily. This has helped his insomnia such that he is sleeping seven hours each night and is doing self-directed hydrotherapy.
The clinical notes of MediCentral from 24 November 2019 to 23 July 2020 include the following entries.
The entry dated 24 November 2019 states he forgot to take his medication and was depressed. He had a fight with his wife two weeks ago. He has anxiety and depression and has insomnia related to depression.
His medications are Efexor XR 150mg in the morning, Avanza 30mg at night, Mobic 15mg daily.
The entry dated 22 December 2019 lists the same medications as 24 November 2019 except that he is also taking Lyrica 150mg at night.
The entry dated 16 April 2020 states he is anxious and his medications were almost running out because of fear of COVID-19. He wants to have teleconsults.
He has some lower back pain and insomnia. He will continue on his current medication which is the same as listed on 22 December 2019.
The video surveillance recordings from Quantumcorp shows the following.
The surveillance on 29 April 2019 shows Mr Wan arriving at what appears to be his office at 9:01am and apparently driving home at 6:52pm.
The video surveillance for 30 April 2019 shows Mr Wan leaving home at 8:30am and arriving at his office at 9:10am.
His vehicle is shown driving at 6:53pm.
The surveillance on 1 May 2019 shows Mr Wan walking out to the front of his house and wheeling an empty green lidded 240l garbage bin with his right hand. He is later shown wheeling in a red lidded bin 120l garbage bin using his right hand. He subsequently wheels in a second red lidded 120l garbage bin.
He is shown at 8:36am walking along the street without difficulty moving both arms, getting into vehicle registration plate CTT 54T. He appears to drive to his place of work.
His vehicle is shown driving at 6:28pm.
The video surveillance on 2 May 2019 shows the vehicle registration plate CTT 54T arriving at appears to be his place of employment. The vehicle registration plate CTT 54T is shown driving at 6:32pm.
The video surveillance on 3 May 2019 shows Mr Wan getting into vehicle registration plate CTT 54T carrying a plastic bag in his left hand. He undertakes a U-turn. The vehicle is shown driving at 6:49pm. The driver cannot be identified.
The video surveillance on 4 May 2019 shows Mr Wan driving out of a driveway in a vehicle registration DXO60H. He is shown turning the steering wheel and reversing apparently without any difficulty. He is shown lifting something out of the rear seat of the vehicle with his right hand. He closes a sliding door on the vehicle. He is shown carrying a couple of bags in his left hand.
He walks up the steps to the entrance of the swimming pool apparently accompanied by his two children. He walks up the concrete seats beside the pool without assistance carrying the plastic bags in his left hand. He uses both hands to look in his bag. He is shown walking down the concrete seats accompanied by his children.
He walks beside the pool without difficulty.
He gets into the pool using both hands to lower himself from the seated position and then lowers one of his children into the pool. He lowers the second child into the pool. He is shown supervising his children swimming. He is shown walking downstairs leaving the swimming pool at 1:15pm.
He is shown on his feet apparently continuously from 11:28am to 1:15pm.
The video surveillance on 13 May 2019 shows Mr Wan getting into his motor vehicle at 8.32am and driving. He arrives at his office at 9:06am.
The vehicle registration plate CTT 54T is shown driving at 6:49pm.
The video surveillance on 14 May 2019 shows Mr Wan getting into his vehicle at 8:31am and driving and arriving at work at 9:10am.
He is seen at 18:57 putting fuel into his vehicle using his right hand to hold the trigger on the nozzle.
The video surveillance on 15 May 2019 shows Mr Wan wheeling two red lidded 120l garbage bins and one green lidded 240l garbage bin at approximately 8:30am and subsequently walking to his vehicle.
The video surveillance on 16 May 2019 shows Mr Wan getting into his vehicle at 8:21am and arriving at work at 8:57am carrying a plastic bag in his right hand. A vehicle is shown driving at 6:53pm, but it cannot be identified.
The video surveillance on 17 May 2019 shows Mr Wan walking to his vehicle at 8:29am carrying a plastic bag in his left hand and getting into the vehicle. He is shown reversing his vehicle to turn around and subsequently is shown driving his vehicle, apparently arriving at work.
The vehicle registration plate CTT 54T is shown driving at 7:22pm on the same day.
The video surveillance on 18 May 2019 shows Mr Wan arriving at the swimming pool at about 11:52am and is last seen at the swimming pool at about 1:02pm and subsequently getting out of his vehicle at 1:23pm.

DETERMINATION
Diagnosis and reasons

Mr Wan has been previously diagnosed by Dr Atsumi Fukui as having a chronic adjustment disorder with mixed anxiety and depressed mood on a background of a chronic pain disorder.
He was previously diagnosed by Dr Howe Synnott as having a major depressive disorder.
He was initially diagnosed by Dr Graham Vickery as having an adjustment disorder prior to Dr Vickery viewing the surveillance recording.
The Review Panel considered all the information before it. It accepted that Mr Wan could be still experiencing pain and this could be having an adverse effect on his mental state. The Review Panel determined that Mr Wan had some symptoms of an adjustment disorder with mixed anxiety and depressed mood but this was now in partial remission because the number of symptoms described were significantly less.

Causation and reasons

Mr Wan reported that he had no impairment of his functioning and had fully recovered from his pre-accident injuries at the time of the motor accident.
He had no history of treatment for psychiatric/psychological conditions prior to the motor accident.
Mr Wan has suffered an injury to his left knee in 2022 but has otherwise not been involved in any subsequent motor accidents or accidents of any kind or suffered any other adverse medical events.
There is no other cause for the condition of an adjustment disorder with mixed anxiety and depressed mood in partial remission other than the subject motor accident.

SUMMARY OF INJURIES REFERRED BY THE PARTIES

The following injuries were caused by the motor accident:
· adjustment disorder with mixed anxiety and depressed mood in partial remission.

PERMANENCY OF IMPAIRMENT

Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (AMA 4) (p.315) 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.”
The determination as to permanent impairment is made in accordance with the AMA 4 and Part 6 of the Motor Accident Guidelines.
Mr Wan was involved in the motor accident on 23 May 2017.
He was subsequently treated with physiotherapy, self-directed hydrotherapy, counselling from a psychologist and medication in addition to some treatment with Chinese massage by his father.
He is not undergoing any active treatment at present. He is not taking any medication other than occasional analgesia for pain relief.
His condition is not improving or deteriorating. He is working about 20 hours each week which he has been doing for a considerable period of time.
His condition is stabilised and unlikely to change by more than 3% in the next 12 months with or without medical treatment.

Degree of permanent impairment Psychiatric Impairment Rating Scale

Psychiatric diagnoses	1. Adjustment Disorder with Mixed Anxiety and Depressed Mood in partial remission.	2.
Psychiatric treatment description	Treatment by a psychologist. Treatment with Endep. Treatment with Valdoxan. Treatment with Efexor. Treatment with Avanza.

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	2	Mild impairment. Mr Wan’s major impairment in this category can be attributed to his low back pain. He has social withdrawal, feels irritable and has lost what he refers to as self-image. It is more difficult to undertake his personal care but it is likely he could live alone without support.
2. Social and Recreational Activities	2	Mild impairment. Mr Wan’s back pain has stopped him playing sport and interferes with his ability to undertake social and recreational activities. There appears to be some component of his impaired self-esteem and lack of interest adversely impacting this category.
3. Travel	1	No impairment. Mr Wan reported that the only difficulty with driving is his low back pain which limits him to driving for no more than 20-30 minutes, which was generally consistent with the video surveillance.
4. Social Functioning	2	Mild impairment. Mr Wan’s relationship with his wife and children is strained. His account is that he stays at work rather than going home. His mental state has improved since his father and mother-in-law have come to Australia to do more of the household duties. There was no report of threatened separation or actual separation. There were reports of arguments or fights with his wife.
5. Concentration, Persistence and Pace	2	Mild impairment. Mr Wan was able to concentrate throughout an examination that lasted for about one hour and forty five minutes although he did stand up and walk around because of low back pain. He described few psychiatric/psychological symptoms stating that he could not remember them because the motor accident was so long ago. He was able to provide a good account of what he did in terms of daily activities each day and his low back pain.
6. Adaptation	2	Mild impairment. Mr Wan works approximately 20 hours each week in his current job but in part this is because of his back pain and the need to rest. He is working in an administrative capacity and no longer is on site supervising and occasionally helping with installation because of low back pain. The lack of motivation and loss of interest in tasks and activities would also impair his ability to work.
List classes in ascending order: 1, 2, 2, 2, 2, 2
Median Class Value: 2
Aggregate Score: 11
% Whole Person Impairment: 5 %

*%WPI ^{= Percentage Whole Person Impairment}

Apportionment – pre-existing/subsequent impairment

Mr Wan had no impairment of physical or psychiatric/psychological functioning prior to the motor accident.
His only injury since the motor accident was to twist his left knee walking down stairs in 2022, this is unrelated to the motor accident.
This has not altered his daily fucntioning although he continues to experince some symtoms from it.
There is no need to do a pre or a post accident apportionment.

Effects of treatment

Mr Wan is currently not undertaking any treatment whether psychiatric/psychological or physical and has ceased all medication.
No allowance is made for the effect of treatment;
Current whole person impairment      5%
Apportionment   0%
Effect of treatment  0%
Final whole person impairment   5%

CONCLUSION – PERMANENT IMPAIRMENT
Degree of permanent impairment caused by the motor accident

The degree of permanent impairment caused by the motor accident is 5%
Permanent impairment ratings take your symptoms into account, however the percentage permanent impairment is not a direct measure of disability. A finding of 0% permanent impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides and Guidelines rate the associated impairment at 0%.

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[2023] NSWPICMP 649

1 December 2023