QBE Insurance (Australia) Limited v Zafirovski

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Zafirovski [2025] NSWPICMP 856
CLAIMANT:	Ljupco Zafirovski
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
SENIOR MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Melissa Barrett
MEDICAL ASSESSOR:	Himanshu Singh
DATE OF DECISION:	5 November 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; section 1.6(3); assessment of whole person impairment (WPI); the claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) assessed 7% WPI as a result of post-traumatic stress disorder caused by accident; insurer sought review; Held – certificate of MA revoked; history provided by claimant unreliable; Whisprun Pty Ltd v Dixon cited; 7% WPI as a result of a chronic adjustment disorder caused by the accident.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 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%. Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Yu Tang Shen dated 24 April 2024 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment of 7%: · chronic adjustment disorder.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

On 13 January 2022 Ljupco Zafirovski (the claimant) alleges he sustained injury in a motor vehicle accident (the accident).
Mr Zafirovski has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Zafirovski under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for
non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by
Mr Zafirovski as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment in respect of the claimant’s psychological injury was referred to Medical Assessor Shen. He issued a certificate dated 24 April 2024.

DOCUMENTS CONSIDERED BY THE REVIEW PANEL

The Review Panel issued a Direction to the parties on 7 March 2025 (the Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 745 (insurer’s documents). The solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 74 (claimant’s documents).

RELEVANT LEGAL AUTHORITY

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act. Clause 6.213 of the Guidelines requires the impairment to be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic and Statistical Manual of Mental Disorders, that is, the Diagnostic and Statistical Manual of Mental Disorders 5th Edition Text Revision (DSM-5) or the current edition of the International Statistical Classification of Diseases & Related Health Problems (ICD). The assessment of mental and behavioural disorders must be undertaken in accordance with the psychiatric impairment rating scale (PIRS) as set out in the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“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 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.
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.”

CERTIFICATE OF MEDICAL ASSESSOR SHEN

In a certificate dated 24 April 2024 Medical Assessor Shen certified the following injuries give rise to a permanent impairment of 7%:
· post-traumatic stress disorder.[2]

[2] Insurer’s documents p 25.

The injuries referred to Medical Assessor Shen for assessment were:
· psychiatric condition – major depressive disorder.
Medical Assessor Shen reported since the accident the claimant had lost friends as he had withdrawn from them. Prior to the accident he had many friends as he was a musician performer. He now spends most of the time in bed and has not been attending social events or gatherings. When asked about surveillance footage showing him walking alone with his dog on several occasions appearing reactive and smiling, he stated he was on his phone to his daughter and son the entire time.
The claimant stated the accident occurred when his vehicle was rear-ended by a semi-trailer at high speed. He was wearing his seat belt, the airbags did not deploy, and he hit his head on the headrest. He may have lost consciousness. His car was written off. The claimant stated he sustained physical injuries including to his neck and back and developed psychological symptoms in the days after the accident.
The claimant described recurrent intrusive memories of the accident and nightmares. He has been avoiding triggers of the accident such as when it's raining, he feels someone will hit him. He reported he avoids talking to his family and has diminished interest in his previous activities and relationships. He reported he found it hard to experience positive emotions, had ongoing hypervigilance and was easily startled with poor sleep and concentration. The claimant reportedly felt depressed all the time. He reported his appetite had been reduced although he had put on 22kg since the accident. He reported feeling hopeless and useless.
Medical Assessor Shen reported it was difficult to reconcile the claimant’s reported description of his level of functioning with the surveillance footage noting significant discrepancies regarding self-care and grooming, social and recreational functioning, travel, concentration and adaptability. He noted that reports from the psychiatrists and psychologists are consistent with the self-reported symptoms and relate to a diagnosis of post-traumatic stress disorder.
Medical Assessor Shen concluded the claimant’s symptoms were consistent with
post-traumatic stress disorder although he noted the extent of the symptomatology was unclear due to the reliability of his self-reporting. He found there was a nexus between the accident and the psychiatric injury having regard to the plausible mechanism of injury and found a temporal and thematic association between the claimant’s psychiatric symptoms and the accident.
Medical Assessor Shen found class 2 for self-care and personal hygiene, class 2 for social and recreational activities; class 1 for travel, class 2 for social functioning, class 2 for concentration, persistence and pace and class 2 for adaption after taking into account the evidence apparent from the surveillance footage. He made an adjustment of 2% for the effects of treatment.

REVIEW PROCEDURE

The insurer has sought a review of the medical assessment of Medical Assessor Shen dated 24 April 2024.
The application was lodged on 22 May 2024 within 28 days of the date on which the certificate of Medical Assessor Shen was made available to the parties.[3]
[3] Section 7.26(1)(b) of the MAI Act.
On 3 July 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[4]
[4] Section 7.26 of the MAI Act; Claimant’s bundle p 9.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 10 June 2025 the Panel agreed an examination was necessary.

EVIDENCE BEFORE THE PANEL

Application for personal injury benefits

In the Application for personal injury benefits dated 18 January 2022 the claimant reported:
“I stopped at a red light for about 3 - 5 seconds before a truck hit the back of my car. The car slided in the middle of the intersection. I got out of the car to speak with the driver at fault when he informed me that his breaks were not working and the truck hit the back of the car.... [sic]”.
And further:
“I have excruciating pain in my neck and lower back. I have pins and needles in both arms and pain radiating down the right leg. I have massive migraines. I can’t turn my neck without feeling any pain. I'm restricted in movement with both my lower back and neck. I'm unable to drive for longer of 15 mins without having a break and being in a lot of pain. I'm unable to sleep and sit in one position for a longer period of time”.[6]
[6] Insurer’s documents p 39.

Medical evidence

The claimant presented to Canterbury Hospital following the accident on 13 January 2022 where it was reported he ”did not hit head on steering wheel, no LOC, remembers entire event, whiplash injury to neck, now complains of pain down midline neck as well as both sides.” [7]
[7] Insurer’s documents p 70.
On 18 January 2022, the claimant attended upon Dr Gulyaeva of Belmore Medical Centre with complaints of “neck pain” and lower back pain radiating to the right leg.[8]
[8] Insurer’s documents p 288.
On 24 February 2022 Dr Gulyaeva referred the claimant to Ms Ewa Nowinska in respect of “depression? PTSD.”[9] On 7 March 2022 Dr Gulyaeva referred the claimant to Ms Elica Najdenska in respect of anxiety/depression.[10]
[9] Insurer’s documents pp 316 and 542.
[10] Insurer’s documents p 320.
An Allied Health Recovery Request (AHRR) of Elica Najdenska, psychologist dated
[11] Insurer’s documents p 160.
26 March 2022 stated a preliminary assessment indicated symptoms of anxiety with low mood triggered by injuries sustained in the accident.[11] The claimant reported he was in constant pain and was isolating himself at home.
On 28 March 2022, Professor James Van Gelder, treating neurosurgeon reported neck pain radiating diffusely into his arms with weakness.[12] He also reported back pain and paraesthesia radiating to his legs with numbness. Professor Van Gelder reported investigations revealed degenerative disc disease although he also concluded the claimant had cervical radicular symptoms that correlate with nerve compression in his cervical spine.
[12] Insurer’s documents p 232.
On 5 May 2022, Dr Antoun noted that the claimant had sustained only soft tissue injuries in the accident, and he questioned why the claimant was being certified as completely unfit for work.
On 25 May 2022, Professor Van Gelder reported the claimant had back pain and radicular symptoms affecting particularly his right leg. He thought cervical spondylosis may be the cause of the mechanical neck pain. He reported a normal range of motion in the shoulders, and normal strength, reflexes and sensation in the arms.[13]
[13] Insurer’s documents p 234.
On 8 June 2022, Mr Thomas O’Neill, psychologist, undertook a document review and noted that the primary complaints and symptoms were physical.[14]
[14] Insurer’s documents p 250.
On 16 July 2022 Elica Najdenska, psychologist reported the claimant had symptoms of low mood, lack of motivation, nightmares, rumination about the accident, and feelings of hopelessness and helplessness.[15] He reported irritability, lack of concentration, and deterioration in function with suicidal ideation. She reported he did not leave home unless with his daughter who drives him to all appointments and had stopped communicating with friends. The claimant reported he attempted to go for a short walk after the accident and felt dizzy and faint and since then had felt too scared to go out again in case he falls and injures himself.
[15] Insurer’s documents p 245.
The claimant saw Dr Con Yiannikas on 19 July 2022 and again on 12 September 2022 in respect of back pain. He reported improvement in right leg pain with a right L4-5 per-radicular cortisone injection.[16]
[16] Insurer’s documents pp 620 and 623.
On 9 August 2022, Dr Alan Nazha, treating pain specialist, took a history of cervical spine pain radiating into the arms and lumbar spine pain but with no significant pain in the lower limbs.[17]He reported the claimant demonstrated some fear-avoidant behaviour in relation to both the cervical and lumbar spine.
[17] Insurer’s documents p 226.
Clinical notes of Mr Goran Josifoski, psychologist as of 23 August 2024 detail treatment between 9 September 2022 and 19 October 2022.[18] On 9 September 2022 the clinical notes record a history of the accident, intrusive thoughts and flashbacks of the accident; nightmares and night terrors and waking up in a sweat, struggling to fall asleep and stay asleep, weight gain, memory problems, low mood and motivation, avoiding communication with family and friends, currently at home with blinds close, hasn’t driven at all since the accident noting his children drive him to doctor appointments. Mr Josifoski reported the claimant appeared unshaven, disheveled with depressed and anxious mood which was congruent with his affect.
[18] Insurer’s documents p 718.
On 3 January 2023 Mr David Young, physiotherapist undertook an independent assessment.[19] He reported the claimant did not drive because his licence had been cancelled. He did not socialise and was unable to play the keyboard or guitar as he was unable to press the strings of the guitar with his left hand.
[19] Insurer’s documents p 255.
On 10 May 2023 the claimant underwent a lumbar medial branch radiofrequency ablation under the care of Dr Nazha. On 20 July 2023 Dr Nazha reported no significant reduction in pain.[20]
[20] Insurer’s documents pp 698 and 699.
Clinical notes of Dr Stevans document the claimant’s attendances between 25 July 2022 and 7 September 2023.[21]
[21] Insurer’s documents p 352.
In a report dated 1 April 2023, Dr Stevans, treating psychiatrist reported the claimant had been under his care since 25 July 2022. He diagnosed post-traumatic stress disorder. He reported the circumstances of the accident as follows:
“While waiting on a red light, a truck with trailer hit him at 80km/hr without breaking. This happened on King George's Rd. His “car flew 10 metres”. There were no other cars involved as it was early morning. The airbag did not deploy. He lost consciousness and recalls opening the door and trying to get out. He felt pains in the neck and back. They didn't call the police. The ambulance didn't come either. He drove his damaged car to his house which was within a kilometre.”[22]
[22] Insurer’s documents p 362.
Dr Stevans reported the claimant has nightmares, he had gained weight, his mood was terrible, and he could not get out of the house due to his pains. He reported sleep disturbance, inability to control his emotion, low mood and impairment in cognitive functions. He reported feeling defeated and was fearful someone will hit him from behind. Dr Stevans described the claimant as unkempt and poorly groomed, with some psychomotor slowing. He had low mood and restricted affect, but no formal thought disorder. Negative cognitions were present, and he was orientated to time, place and person.
On 5 May 2023 Dr Stevans reported the claimant had constant pain and was indifferent to things.[23] He was reportedly not shaving and not looking after himself. He considered his life worthless and had lost interest in music. Nightmares had reduced with Minipress, his appetite was “forced” and his energy level was “exhausted all the time.” His mood was “not good”, his concentration terrible and short time memory absent. Dr Stevens reported he was more unkempt than last time he saw him. He diagnosed post-traumatic stress disorder with a partial response to Lexapro.
[23] Insurer’s documents p 661.
On 5 December 2023 Dr Stevans reported the claimant cannot move around the house due to pains.[24] His sleep was said to be “OK”. His appetite was not the best, his weight had increased, his energy level was low, his mood “not good” and concentration “very poor”. He reported his short-term memory was terrible, and he avoids social interactions.

Medico-legal evidence

[24] Insurer’s documents p 685.

Dr Andrew Keller, occupational physician

In a report dated 6 June 2023 Dr Keller diagnosed the claimant with a “temporary cervical spine soft tissue strain with or without exacerbation of his pre-existing degenerative changes.”[25]
[25] Insurer’s documents p 56.
After viewing the surveillance footage, Dr Keller provided a supplementary report dated
3 April 2024.[26]He described the footage as follows:
[26] Insurer’s documents p 385.
·        3 Jan 2023:
-walking freely with normal gait up to 10 minutes, and
-lumbar flexion 90 degrees to pick up and throw stick right-handed.
·        5 Jan 2023:
-driving/parking car, and
-walking, shopping, carrying a light basket in right hand.
·        5 Sep 2023:
-walking in shops more than 15 minutes;
-raising left arm overhead height;
-driving/parking car;
-deep squat, and
-looking up with neck extension exceeding 30 degrees.
·        6 Sep 2023:
-driving a car, and
-sitting and playing guitar in shop.
Dr Keller concluded that the claimant’s physical capacity was greater than he reported.
Dr Keller stated the claimant appeared independently mobile, he can drive a car, and no disability was observed that suggested he needed assistance with self-care. Dr Keller concluded there was no objective evidence for any persisting injuries relating to the accident, and no evidence to support any physician need for treatment or work restrictions.

Dr Ben Hooi-Benh Teoh, psychiatrist

Dr Teoh assessed the claimant at the request of his lawyers and provided a report dated
[27] Claimant’s documents p 53.
15 July 2023.[27]
Dr Teoh recorded the claimant reported insomnia and avoidant behaviour. He had intrusive memories of the accident, was easily startled by noises. He had been agitated and did not feel safe as a passenger in a car. He reported the claimant had not been able to drive at all. The claimant reported he preferred to be in a dark room where he felt safe. He did not care about how he looked, and did not want to be with friends. He was irritable and argumentative. He reported his daughter has to force him to shower and cut his hair.

Dr Teoh reported the claimant appeared dishevelled and sluggish. He was not communicative and had poor eye contact. He diagnosed a major depressive disorder caused by the accident which had resulted in chronic pain and disability.
Dr Teoh calculated a 24% WPI. He assessed class 2 for self-care and personal hygiene, class 3 for social and recreational activities; class 3 for travel, class 3 for social functioning, class 3 for concentration, persistence and pace and class 5 for adaption.

Dr Abhishek Nagesh, psychiatrist

In a report dated 2 May 2023 Dr Nagesh diagnosed the claimant with a major depressive disorder giving rise to 7% WPI.[28] He reported:
[28] Insurer’s documents p 60.
·        pain affected his mood and he became anxious:
·        he had panic attacks;
·        he lost interest in things he previously enjoyed;
·        he lost his appetite, has gained weight;
·        he has to rely on his daughter’s boyfriend to have a shower;
·        he is tired all day, he is socially withdrawn and spends the majority of the time lying down;
·        he cannot mobilise like before;
·        he has not been able to drive since the accident;
·        he cannot travel on his own due to anxiety but is able to go for short walks locally, and
·        he has lost interest in hobbies, which is his music.
Dr Nagesh concluded the claimant did not meet criteria A for post-traumatic stress disorder and diagnosed major depression.
Dr Nagesh provided a supplementary report dated 9 April 2024 after viewing the surveillance footage.[29] Dr Nagesh noted that the footage showed the claimant “being quite active, where the claimant has been observed travelling in his car, he has been observed going for walks with his dog, he has been observed throwing a stick and playing with his dog.” He noted the footage showed the claimant going to shopping centres independently, spending time in the presence of large crowds without any anxiety. Dr Nagesh also noted that the claimant was seen to freely mobilise.
[29] Insurer’s documents p 388.
Dr Nagesh diagnosed an adjustment disorder with depressed and anxious mood although he considered the claimant’s behavioural and psychological symptoms had resolved and that no further treatment was necessary. Dr Nagesh also considered that the claimant had capacity for suitable duties and revised his whole person impairment assessment from 7% WPI to 0% WPI.

Procare Activities of Daily Living Assessment Report

Ms Elisha Coster of Procare undertook an assessment of the claimant’s activities of daily living on 19 April 2023 and provided a report dated 10 May 2023.[30]
[30] Insurer’s documents p 171.
She reported the claimant stated pre-accident he enjoyed playing the keyboard and guitar, going on walks with and without his daughter's dog, and socialised with friends and family frequently. Currently he reported he spent most of his day in bed. He reported he no longer wants to play his instruments and “he has no enjoyment”. The claimant stated he was independent with shopping prior to the accident but now he no longer wants to go anywhere. The claimant reported he had a sitting tolerance of 30 minutes and a standing tolerance of
15 minutes.
The claimant advised he had not returned to driving since the accident. He reported currently his daughter was driving him to and from all appointments and other engagements.

Sarah O’Donnell, psychologist of IPAR

Ms Sarah O’Donnell, psychologist of IPAR undertook a psychological functional assessment of the claimant on 3 April 2023.[31] She concluded the claimant did not have the psychological capacity to return to work at the time of the assessment. She noted that the claimant’s reported symptoms were consistent with post-traumatic stress disorder.
[31] Insurer’s documents p 215.
She stated the claimant reported he had not engaged in social activities with friends or colleagues since sustaining injury noting he was ashamed of his current circumstances and had withdrawn socially.
She recorded the claimant stated he spends most days in his room with the lights off and that his adult daughter forces him to complete self-care tasks such as eating meals, showering and getting dressed. He reported he rarely leaves his home, and he no longer engages in hobbies such as playing the keyboard. He struggles to sleep at night and his sleep is disturbed by nightmares, vivid dreams of falling and being woken by startle responses. His appetite is reduced. Occasionally his daughter drives him to the grocery store and forces him to purchase groceries while she sits in the car but he noted he struggles to do this. The claimant reported he has not driven since the accident and depends on his adult daughter to drive him to all appointments.

Surveillance

Procare Investigations

Procare Investigations provided a report dated 13 January 2023.[32] The investigator undertook 97.5 hours of surveillance and recorded approximately 69 minutes of video footage of the claimant. The footage showed the following:
·        on 3 January 2023 the claimant was seen to walk a small dog outside. He then attended an appointment accompanied by a female (presumably his daughter);
·        on 4 January 2023 the claimant was seen to emerge from his address at 8 am and to take a small dog for a walk. At 8.34am he was seen to make a video call before throwing a stick to the dog with his right arm multiple times. He was seen to pat another dog in conversation with a passing walker. After checking his mailbox, the claimant returned inside at about 9.34am, and
·        on 5 January 2023 the claimant was seen to emerge from his address at 8.35am walking the small dog, throwing a stick to the dog and using his phone. He returned to his address at 9.53am. At 11.27am the claimant drove from the area to a Speedway Service Station in Roselands before proceedings to Clempton Park Shopping Village where he shopped at Coles. He returned to his vehicle at 11.58am and drove back to his address.
[32] Insurer’s documents p 392.
Procare Investigations provided a report dated 18 September 2023.[33] The investigator undertook 38 hours of surveillance and recorded approximately 27 minutes of video footage of the claimant. The footage showed the following:
· on 5 September 2023 the claimant accompanied by a female left his address at 10.14am and travelled by car as a passenger to the Queen Victoria Building. At 11.49am the claimant accompanied by the female left the area and drove to the Campsie Centre. The claimant was seen to shop with his female companion at Chemist Warehouse, Big W and Campsie Gift Land. At 12.52pm the claimant and his companion returned to the car travelling to his address, and
· on 6 September 2023 the claimant left his address at 11.06am and drove to Westfield Liverpool. He inspected items at Unique Accessories, before entering the mall area where he attended Silver Chin Jewellery and Bravas Music City where he was observed to play a guitar. He then inspected Gold Land jewellery store before browsing men’s garments in Kmart. He exited and returned to the carpark at 12.46pm.

CERTIFICATE OF MEDICAL ASSESSOR KENNA
[33] Insurer’s documents p 408.

Medical Assessor Kenna assessed the claimant on 19 April 2024 and issued a certificate dated 11 May 2024 in which he certified the following injuries caused by the accident had resolved and gave rise to no assessable impairment:
· cervical spine – soft tissue injury, and
· lumbar spine – soft tissue injury.[34]
[34] Insurer’s documents p 702.
Medical Assessor Kenna certified the following injuries referred for assessment were not caused by the accident:
· right shoulder, and
· left shoulder.
Medical Assessor Kenna reported:
“I noted the surveillance tapes involving 3 November 2022 and 4 and 5 January 2023. This indicated an individual who appeared fit, active, mobile and was not restricted. This was different to the embellishment at the time of my examination when he carried a walking stick and states that he had difficulty walking, when in actual fact he was observed carrying a case and jogging across a road, similarly with no restrictions while shopping”.
He also noted marked inconsistencies on examination repetition and marked pain behaviour. He concluded the claimant self-limited his performance in all of the test items of the assessment and concluded:
“There was no objective physical signs of restriction associated with his self-limited performance and that was confirmed by subsequent viewing also of the surveillance tapes.”

SUBMISSIONS

Insurer’s submissions

The insurer provided submissions dated 22 May 2024 in support of the application for review.[35]
[35] Insurer’s documents p 3.
The insurer submits Medical Assessor Shen erred in his psychiatric diagnosis where he failed to address the specific diagnostic criteria required by the Diagnostic and Statistical Manual of Mental Disorders 5th Edition Text Revision (DSM-5).
The insurer submitted Medical Assessor Shen failed to identify or raise key inconsistencies with the claimant in accordance with cl 6.41 of the Guidelines. Medical Assessor Shen took a history that the claimant hit his head on the headrest and may have lost consciousness and that he was left unconscious following the accident. The insurer submits this is inconsistent with the records of Canterbury Hospital which explicitly state there was no head strike or loss of consciousness.
The insurer submits Medical Assessor Shen appeared to accept the claimant’s self-reporting that he developed psychological symptoms days after the accident where clinical records confirm psychological symptoms were not raised until more than two months later.
The insurer submits Medical Assessors Shen’s reasons were conflicting and inconsistent, noting he stated:
“It is difficult to reconcile his self-reported description of his level of functioning, despite multiple opportunities to do so in the interview, with the surveillance reports and the surveillance footage, with significant discrepancies regarding his level of self-care and grooming, social and recreational functioning, travel, and concentration, and adaptability, and detracts from the reliability of his self-reporting. The surveillance footage and reports also provide contrasting evidence to the Activity of daily living report.
The reports from his psychiatrist and psychologists are consistent with his self-reported symptoms, related to a diagnosis of Post-Traumatic Stress Disorder.”
The insurer submits Medical Assessor Shen undermined his diagnosis by stating “the extent of the symptomatology is unclear due to concerns regarding the reliability of his self- reporting.” The insurer submits that the parties are unable to ascertain whether the correct diagnosis was made.
The insurer provided submissions dated 12 April 2024 in respect of the substantive dispute.
The insurer relies upon surveillance footage of the claimant throughout 2023 which, it is alleged, revealed inconsistencies compared to the claimants self-reporting and presentation to treatment providers and medical experts. The insurer notes the Procare reports dated
13 January 2023, and 18 September 2023 show the claimant engaging in the following activities:
·        walking freely with normal gait up to 10 minutes;
·        lumbar flexion 90° to pick up and throw stick right-handed;
·        driving and parking a car;
·        walking, shopping, carrying a light basket in right hand;
·        walking in shops for more than 15 minutes;
·        raising left arm above head height;
·        engaging in a deep squat;
·        looking up with neck extension exceeding 30°, and
·        sitting and playing a guitar in a shop.
The insurer submits the capacity demonstrated by the claimant in the surveillance footage is inconsistent with the following presentations:
·        in March 2022, Professor Van Gelder noted the claimant had an “in mobile back, with clutching at furniture on attempting to flex… When distracted, the claimant sat and walked normally with normal spontaneous back and neck movements”;
·        the claimant told his physiotherapist in March 2022 that he could sit for only
10 minutes, experienced pain when “bending over to pick things up” and that he could not drive as he “can't turn head without pain”;
·        the claimant told his psychologist in March 2022 that he was in constant pain which was aggravated by “moving, reaching for items, changing his clothes pain increases sharply.” The claimant reported he was avoiding friends and isolating himself at home;
·        in June 2022 the claimant told Work Focus Australia that he experiences “lower limb numbness, pins and needles and loss of balance leading to near falls”;
·        on 16 July 2022 the claimant told Ms Najdenska that:
“he was a highly active person who spent most of his free time outdoors, walking long distances as regular exercise, he reported attempting to go for a short walk after the accident and he felt dizzy and faint after which he feels too scared to go out again in case he falls and injures himself more seriously”;
·        on 9 August 2022 Dr Nazha noted that the claimant “demonstrates a very awkward gait ... range of motion of his cervical spine is limited ... he is quite tender to even light palpation of [the cervical spine and lumbar spine] ...;
·        on 18 October 2022 Dr Stevans reported the claimant told him he tries to walk around the unit, but pain prevents him;
·        Mr Young, physiotherapist, reported the claimant told him he does not drive because his licence was cancelled. He also reported that the claimant is unable to open a door because of the numbness in his hand, he has difficulty descending stairs because of back pain and he does not carry items;
·        in January 2023 Mr Young reported the claimant told him he was unable to play the guitar as he was unable to press the string of the guitar with his left hand;
·        in May 2023 Procare Injury Management reported the claimant said he can't turn his neck without feeling any pain and he was restricted in movement with both his lower back and neck;
·        in May 2023 Procare reported the claimant said prior to the accident he enjoyed playing the guitar, going on walks with and without his daughter's dog but that he no longer enjoys or wants to play his instruments and has no enjoyment;
·        Procare also reported in May 2023 that the claimant had not returned to driving since the accident;
·        in May 2023 the claimant told Procare he rarely left the unit complex only in regard to treatment;
·        in April 2023 Ipar Psychological Services reported the claimant had reduced capacity to interact with the public;
·        in April 2023 Ipar Psychological Services reported the claimant was unable to independently complete daily tasks such as showering, preparing meals, changing his bedding or cleaning. The insurer submits the surveillance footage shows the claimant engaged in activities that would be equal to or greater than the capacity required for basic self-care activities;
·        Dr Keller reported in June 2023 that the claimant said he could only sit for 30 to 60 minutes, stand for three to five minutes, walk for three to five minutes, lift no more than 0.5 kilograms and had not returned to driving. Dr Keller reported the claimant required assistance with showering and dressing, that he spent most of the day sleeping in bed and that he had only gone to the shops twice in the last year and never to socialise;
·        the claimant told Dr Nagesh in May 2023 that he “cannot mobilise, life is not normal as before, he has to rely on his daughter's boyfriend to have a shower”. He also reported the claimant stated he could not drive since the accident. Dr Nagesh reported that the claimant said he spends the majority of his time lying down and is now completely socially withdrawn;
·        Dr Nagesh reported the claimant cannot travel on his own due to anxiety;
·        on 27 July 2023 the claimant reported he “doesn't go anywhere and doesn't see the need to self-care”, and
·        in particulars dated 5 September 2023 the claimant asserts he suffers aggravation of pain when standing, sitting, or walking for long periods of time. He has difficulty walking, agoraphobia, was restricted in his preferred hobbies of running, attending the gym and playing the guitar and had been restricted in a wide variety of work, sport, social and hobby activities.
The insurer relies upon the opinion of Dr Keller who stated:
“It is clear from the observed footage that [the claimant’s] physical capacity is greater than he reports. He appears independently mobile, he can drive a car, no disability was observed that suggests he needs assistance with self-care. It is not clear to me that he has any physical work restrictions”.
Dr Keller revised his opinion. He stated, ‘there is no objective evidence for any persisting injuries relating to the accident, and no evidence to support any physician need for treatment or work restrictions”.
Dr Nagesh considered the claimant’s psychological symptoms had resolved, no further treatment was necessary, and the claimant had capacity for suitable duties where the footage did not demonstrate somebody suffering from severe depressive and anxiety symptoms.
Pursuant to r 109 of the Personal Injury Commission Rules 2021, the insurer submits that exceptional circumstances exist in this claim which justify the inclusion of the surveillance material.

Claimant’s submissions

The claimant provided submissions dated 18 June 2024 in response to the application for review.[36]
[36] Claimant’s documents p 68.
The claimant submits the criteria for a diagnosis of post-traumatic stress disorder were addressed by Medical Assessor Shen in his reasons.
The claimant also submits Medical Assessor Shen identified and put to the claimant the various inconsistencies alleged by the insurer in arriving at his findings.

MEDICAL EXAMINATION

The claimant was assessed via videoconferencing by Medical Assessors Barrett and Singh. He was located at home and was assessed unaccompanied.
An interpreter, Olga Nikolvska, NAATI number 32439, was present for the duration of the assessment.

Introduction

Mr Zafirovska is a 61-year-old man, who lives in a unit in Belmore with his adult daughter and her boyfriend. He has an adult son, who lives in Erskine Park. He is not in receipt of any income. He reported that he did not know why he was not in receipt of Centrelink, except for referring to having accessed his superannuation

Personal history

Mr Zafirovski was born in Macedonia, as the only child of his parents. He reported normal birth and achievement of milestones.
He described childhood trauma, physical abuse from his father, who he stated, “constantly belted” him. He completed 12 years of schooling and was an average student. At 18-years-old he entered military service, in live artillery, for 15 months. He denied exposure to active fighting.
He then worked as an electrician in a metal factory. He married at 23-years-old, and they had two children together, now aged 38 and 34-years-old. After seven years of marriage, his wife left the marriage to pursue a relationship with another man, leaving their children, then six and two with Mr Zafirovski. He then raised his children alone. He reasoned, “That’s why they look after me now”.
He formed a second marriage when he was about 40-years-old. He and his wife considered that there were better opportunities to work as an electrician in Australia and migrated together. His second marriage endured for about eight years and broke up because of his wife’s gambling.
He denied any history of previous workers compensation or motor accident claims. He denied any forensic history.
He started smoking at 18-years-old and currently smokes two to three cigarettes a day. Prior to the accident, he used one standard drink only, at social events. He has never used alcohol daily. He denied any other drug use history.
He denied any family psychiatric history.

He denied any pre-accident medical history, describing his pre-accident health as, “perfect”. He denies regular medications.
He denied any past psychiatric history.
Prior to 2019, he was living alone in rented accommodation. He had been working as an interstate truck driver, full time, up to 12 hours a day, for the same company since 2012. He formed a new relationship at about 52 years old. He travelled to Macedonia for a holiday in 2019. Whilst he was away, the COVID -19 pandemic began, and Australia’s borders were closed. During that period, he lost his Sydney rental accommodation, his relationship broke up as they grew apart, and he lived with his parents in Macedonia, who supported him financially. In September 2021, soon after Australia’s borders were opened, he returned to Sydney and moved into his daughter’s home. He resumed fulltime work with his former employer.
He completed chores, was clean shaven, wore his hair short and showered twice a day. He went on daily walks, for an hour. He played piano and would play other instruments in Macedonian and Serbian restaurants for friends. He had many friends. He denied previous motor accidents.

History of the accident

The accident occurred on 13 January 2022. He was driving a Honda Jazz but could not recall the year model. He was returning home from work, alone, and was stationary at a red light. He first noticed a “big sound of a bump” and realised he was hit by a truck from the rear. No airbags deployed. After the collision, he remained in the car for a period. He found it difficult to exit the car but did so eventually by leaning on the seat. He exchanged details with the other driver and took photos of the cars.
He returned to his car and attempted to drive but had to stop after about 100m because his, “head was not clear”. He called his daughter, and his son came to him. They left the car parked and his son drove him home, then to Canterbury Hospital for investigation of chest pain.
The car was taken for repair but was written off for a value of $6000 or $7000.

History of symptoms following the accident

Physical symptoms

He reported constant back pain, at an average severity of 6/10, up to 10/10, on a scale from 1 to 10, where 10 is most severe.
He has been treated with radiofrequency treatment. He states that two specialists recommended surgery but has not pursued this because he is apprehensive, explaining, “Don’t wasn’t to lose the strength I have”.
He takes Tramadol, 50mg to 100mg daily. He takes Lyrica, two to three tablets mane. He takes another medication, but he does not know its name because his daughter manages his medications as she is apparently fearful that he may take an overdose of medications. Whilst he initially shrugged his shoulders when asked why she would be fearful of this, he acknowledged that when she criticises his participation in hygiene, an argument is triggered, during which he tells his daughter, “I don’t want to live”.

Psychiatric symptoms

He reported that he used to be fit, healthy and able to work 12 hours a day, but that he, “lost faith”, “because I don’t want to live this life”, about two years ago.
He reported that he is fearful, “very, very scared”, when it rains, because it was raining at the time of the accident. He is fearful of “being hit”, including if he is inside his home when it is raining, but he could not explain the basis for those fears inside a home.
He reported that he has only driven about three times since the accident, when his son forced him to do so to confront his phobia.
At home, he sits with his blinds closed in the dark, explaining, “Don’t want anyone to look at me this way”, stating he was previously known as a happy and good person, but that he perceives he would now be regarded as, “an idiot”. Since the accident, he said “I have disconnected myself from everyone” because “I don’t want them to see me like this”. He reported avoiding speaking with anyone and is only content when on his own.
When attempting to initiate sleep he described, “I feel a sense of sinking in a deep, black hole”, “As though children jumping on mattress around legs”, as though, “My feet stuck on mattress, as though children jumping”. He reported looking around to check the source but that he does not see anyone. He reports some relief from the sensation if he kicks his legs. He sleeps only three to four hours a night. He is uncertain why he wakes but wakes wet with sweat.
He reports sensitivity to surrounding noises, such as doors in his unit block banging closed, which he finds, “annoying”, “fear about being hit from rear”.
His appetite is poor, which he attributes to constipation, but has gained weight, “because don’t burn energy”.
He reported passive suicidal thoughts, stating, “I don’t want to live this life”, referring to his loss of capacity, but has taken no action.
He saw a psychologist once every two weeks for about three to four months, before the treatment was terminated when she went on maternity leave.
He has been under the care of a psychiatrist, Dr Goran Stevens, who he has seen for about two and a half years. He is prescribed Venlafaxine 150mg daily and Escitalopram 20mg daily. With medication, he reports the sensation of his feet “stuck on the mattress”, has reduced in frequency and that his suicidal ideation is reduced, explaining that before he saw Dr Stevens he felt like jumping off the third floor because he had felt like a burden upon his children.

Current functioning

He reports no engagement in household chores, explaining, “I can’t bend”, “difficult to kneel down”, “I forget things” and “I might leave the gas on”. His daughter cooks for him and leaves a plate. He denied attending the supermarket but added, “Sometimes, very rarely”, he will go to the chemist and then to the shops. He says he needs his son to support him by the arm when walking to the chemist. He showers once every three to seven days, explaining, “I’m OK like this”. When he showers, his daughter’s boyfriend will put a chair in the shower for him because he has suffered with balance issues since the accident. For this reason, he reports needing two chairs, either side of a treadmill, “I might lose balance”.
He spends his day lying in bed. He will sometimes have a cigarette on his balcony. He denied going on any recent walks. He denied any social outings with friends or holidays.
He reports driving only three times in the last three years, explaining that he is, “scared of being hit by someone” and especially scared when at a red light.
His relationship with his adult children remains intact and they are supportive and caring of him. He described his daughter as determined to make him change. He has not had any subsequent relationships.
He does not read and rarely watches TV, despite encouragement. He reports a loss of interest in playing music.
He has not worked since the accident. He reported that it was because his heavy vehicle licence was suspended due to analgesic use and because he is “disoriented”, by which he meant “scattered” and at times unsure where he is.

Mental state examination

Mr Zafirovski was assessed via video conference.
He presented as an overweight man, wearing dark-coloured pants and long-sleeved top and eyeglasses. He had long grey hair and a long grey beard, which was clean looking. He interacted in an animated manner and displayed normal gestures.
His speech was normal in rate and volume but over inclusive and he required prompting to pause so that the interpreter could interpret and so there was an opportunity to ask questions.
His affect was dysphoric and lacked reactivity. He described his mood as depressed and anxious.
He reported a strong sense of loss regarding his physical restrictions, which have resulted in him giving up and withdrawing. He reported, “I wanted to try to go back to normal life, especially with cortisone injection, but overall, the trend is getting worse and worse”. He reported fear of another accident, of being hit from the rear when the weather is rainy, even when he is at home, without explanation as to why rainy weather would cause him to fear such an event in circumstances where he is inside. He reported unusual experiences, of his feet stuck to the bed and children jumping on his bed at night, which he reports he responds to by checking, but he denied other perceptual abnormalities. There was no formal thought disorder.
He was able to concentrate well for the duration of the assessment of more than one and half hours. He answered questions confidently and tended to repeatedly return to issues which he wanted to convey; the extent that his life has changed since the accident, rather than respond to the question asked. He was oriented to time, place and person.
He reported chronic, passive suicidal ideation, because he feels that he is a burden to his children, but without any plan. He did not report any risk to others.
He reported compliance with ongoing follow-up with his treating psychiatrist and with psychotropic medications.

Comments on consistency

Medical Assessors Barrett and Singh put to Mr Zafirovski that his observed appearance on video surveillance images was markedly different to his current appearance as observed at assessment. He agreed that he formerly dyed his hair, but stopped, “after I locked myself up”.
He elaborated that for a period after the accident he had remained optimistic and tried to recover by attending physiotherapy. He reported he then experienced “noise in my head” and then fell whilst in front of his unit building. On a subsequent occasion, he attempted to walk with his son and almost fell again but was rescued by his son. He reported that following these incidents, he “locked myself up”, but could not provide an estimated timeframe. At that time, he stopped dying his hair.
The Medical Assessors raised with him the inconsistency between his reported activities and his activities observed on video surveillance images. It was specifically raised with him that he was seen walking a dog and sitting on a park bench, which he acknowledged, but again stated he stopped doing so after the falls.
He agreed there was surveillance footage of him driving, but he reported that the images did not confirm that he was driving alone, insisting he has, “Never been alone in car”. It was put to him that footage of him exiting a vehicle in a car park appeared to show him alone, and he responded that it might have occurred prior to his second fall, after which he asserts his psychiatric condition deteriorated. He added that he has not been in any cars for the last one and half years and only goes to the shops with his son.
The Medical Assessors drew his attention to the surveillance footage of a man crossing a road, carrying a small suitcase, then using public transport. He denied this footage depicted him.
Initially, at the commencement of the assessment, he made an error with his unit number, then self-corrected, explaining he had difficulty remembering names and numbers. It was put to him that it would be very unusual for a person to not know their address of many years, and he responded, “I don’t even know registration number”, which did not explain his error with basic demographic data. Similarly, he gave his age initially as 60-years-old, then said, “No, no, 61-years-old”. It was put to him that it would be very unusual for a person to not know their age, and he reiterated, “61-years-old”. On further exploration he reiterated that he had difficulties recalling such things.
The Panel noted the timeline of information regarding his symptoms, clinical course and functioning as reported by Mr Zafirovski at previous assessments, at this assessment and compared to the observations on surveillance:
(a)    13 January 2022 – the accident;
(b)    7 June 2022 – Ms Najdenska, recorded an increase in symptom severity and worsening functioning. Unmotivated to get out of bed;
(c)    July 2022 - falls (as recorded in the ADL assessment report dated 10 May 2023). Mr Zafirovski told the Medical Assessors that after the falls, he lost hope for his recovery, and his psychiatric condition worsened, he stopped driving and stopped dying his hair;
(d)    16 July 2022 – Ms Najdenska recorded progressive worsening mood due to lack of improvement. The claimant disclosed that he had attempted a short walk, become dizzy and faint, and was subsequently too scared to go out again;
(e)    26 July 2022 - Dr Stevens wrote that the claimant reported he had not been able to drive since the accident. Dr Stevens reported on mental state examination that the claimant was unkempt and poorly groomed;
(f)    3 November 2022 – surveillance video – the claimant stated he was not the person in the video. Procare also wrote that the images were not of the claimant. This video was therefore disregarded;
(g)    4 November 2022 – surveillance video – no sighting of the claimant;
(h)    3 January 2023 – surveillance video – claimant seen outside walking. Dyed hair and clean shaven;
(i)    4 January 2023 – surveillance video - claimant seen outside walking dog. Dyed hair and clean shaven;
(j)    5 January 2023 – surveillance video - claimant seen outside walking dog, driving a silver Mercedes Benz and shopping alone at a supermarket. Dyed hair and clean shaven;
(k)    Dr Keller - commented that the claimant’s gait was normal on surveillance video.
(l)    30 January 2023 - Dr Stevens recorded that the claimant reported needing his daughter’s boyfriend to help him dress and shower;
(m)     2 May 2023 - Dr Nagesh wrote that the claimant had made an effort to improve but that, six months after the accident when he had not improved, he was “getting upset with everything because things not getting better”. Dr Nagesh recorded that he, “cannot mobilise” and that he was dependent on his daughter’s boyfriend to shower, that he went for short walks locally but was not able to drive since the accident. Dr Nagesh commented that his self-care was, “reasonable”;
(n)    10 May 2023 - ADL assessment report. His daughter reported that he no longer shaves and compared the appearance of his beard to that of Santa Claus. He reported no interest in musical instruments, he was observed to be ungroomed in bed, he spent most of his day in a dark bedroom and he was observed to mobilise slowly;
(o)    15 July 2023 - Dr Teoh wrote that the claimant reported he had not been able to drive at all. Dr Teoh described him as disheveled and sluggish on mental state examination;
(p)    5 September 2023 – surveillance video reveals the claimant walking around a chemist and shops, including a musical instrument shop, neatly groomed, with a trimmed beard, hair in a ponytail and a black cap;
(q)    6 September 2023 – surveillance video shows the claimant driving a silver Mercedes Benz, and
(r)    9 April 2024 - Dr Nagesh provided a supplementary report after viewing the surveillance videos and concluded that the claimant’s condition was in remission but maintained that he had suffered a period of adjustment disorder.
The Panel considered Mr Zafirovski’s explanation of the surveillance video content but did not accept that it was plausible that the investigator had captured events on two of the three only times he conceded he had driven since the accident. Further, his explanation did not explain his repeated assertion to doctors that he had not driven at all since the accident.
Mr Zafirovski sought to explain the level of activity depicted in the surveillance footage on the basis it occurred prior to the worsening of his mood after the post-accident falls. The Panel does not consider this a plausible explanation, where the falls were recorded to have occurred in July 2022 and the surveillance was undertaken in January 2023 and
September 2023.
Further, the Panel also notes this explanation does not explain the inconsistency between the level of activity depicted in the surveillance footage and that reported to medical assessors within weeks or months of that activity.

PANEL DETERMINATION

Noting the significant inconsistencies between Mr Zafirovski’s account of his post-accident symptoms and activity and the surveillance video, which was not explained by the claimant’s responses, the Panel considered his history, as provided to both treating doctors, independent medical examiners and the Medical Assessors, to be unreliable.

Diagnosis

The High Court in Whisprun Pty Ltd v Dixon held there was no requirement to give any weight to a medical opinion premised on an acceptance of history and complaints which were not established.[37] Furthermore, in Boateng v Dharamdas Gleeson JA referring to Whisprun stated:
“The medical opinions were premised on an acceptance of the appellant’s account of his history and complaints. Such an opinion would only be as acceptable as the history on which it was based.”[38]
[37] Whisprun Pty Ltd v Dixon [2003] HCA 48 at [60] per Gleeson CJ, McHugh and Gummow JJ.; (2003) 200 ALR 447; (2003) 77 ALJR 1598.
[38] Boateng v Dharamdas [2016] NSWCA 183 at [148].
Having regard to the Panel’s concern about the reliability of the claimant’s evidence, the Panel considered whether there was a post-accident diagnosis of post-traumatic stress disorder. When he was assessed, Mr Zafirovski did not report sufficient symptoms to fulfill the DSM 5 criteria for post-traumatic stress disorder. His account of somatic hallucinations of children jumping on the bed and his feet stuck to the bed, were unusual and not features of post-traumatic stress disorder.
The Panel did not accept the plausibility of his account that he had only driven on three occasions over the past three and half years since the accident, given there were two instances of driving proven on video surveillance, and noting the unreliability of his account to other doctors, including his treating psychiatrist, between July 2022 and July 2023 that he had not driven at all since the accident. Noting the objective evidence that he has not avoided driving, which would be a key and required feature of accident-related post-traumatic stress disorder, the Panel considered that there is insufficient evidence that he had post-traumatic stress disorder at any time since the accident.
The Panel accepts that Mr Zafirovski has experienced pain since the accident and notes that his commercial license was suspended on medical grounds, confirmed in the treating GP’s notes. The Panel accepts that these factors represent significant stressors to Mr Zafirovski. In this context, he reports an initial effort to recover, then loss of hope in recovery and despondency. Noting his reported low mood, frustration about his condition, “I don’t want to live this life”, sleep disturbance and reported social withdrawal, even when the surveillance images are considered the Panel accepts this still represents a reduction compared to his pre-injury pattern of socialising and activity. Given those findings and the objective findings at this assessment, and the previous psychiatric assessments of dysphoric affect, the Panel considers his symptoms do meet the threshold for the diagnosis of a psychiatric disorder given his reported distress and impairment. The Panel considers the most appropriate diagnosis is of a chronic adjustment disorder, where his condition is triggered by stressors.
The Panel considered but excluded a diagnosis of major depressive disorder as proposed by Dr Teoh. The Panel considered the history provided to Dr Teoh to be unreliable. Whilst the symptoms reported to the Panel were taken with caution, they did not include physiological symptoms of depression such as weight loss or anhedonia. Further, given the inconsistencies, the Panel put greater weight on the findings on mental state examination by the Medical Assessors, where there was no evidence of reduced rate or volume of speech, instead displaying increased speech such that he required interruption, and noting there was no objective evidence of impaired concentration, and where his reported difficulties with immediately recalling his age and address were not consistent with any mood or anxiety condition.

The Panel cannot explain his disheveled appearance at assessment but considering the evidence of at least average grooming in the most recent surveillance in September 2023, 20 months after the accident, the Panel excluded a causal association between the accident and his current self-care.

Causation

In accordance with cls 6.5 to 6.7 of the Guidelines the question is whether the accident could have caused or contributed to the claimant’s psychological injury and whether, in fact, it did so.
Before the accident the claimant had not experienced a significant mental health problem or impairment due to a psychological condition. He reports that he developed symptoms in the weeks following the accident and these have persisted. There have been no subsequent accidents or development of any relevant condition. The Panel is satisfied the accident could and did cause the diagnosed psychological injury.
The Panel finds the claimant has sustained a chronic adjustment disorder caused by the accident.

Permanent impairment

The Panel determined that the claimant’s condition had stabilised and that his current level of impairment was permanent in that it was unlikely to change substantially or by more than 3% over the next year.

Psychiatric Impairment Rating Scale

PIRS Category			Class		Reason for Decision
Self-Care and personal hygiene			2		The Panel concluded that the data Mr Zafirovski has provided about his functioning across all domains, at this and other assessments, is unreliable. Therefore, it is difficult to be certain of his actual functioning. Guidelines 1.214 and 1.215 state that the PIRS must not be used to measure impairment due to a physical injury or pain. Isolating only impairment due to the accident-related psychiatric condition, noting his engagement in some exercise, his ability to do groceries and his neatly groomed self-care on video surveillance, the Panel finds there is at most a mild impairment. For these reasons the Panel does not find a causal link between the accident and his dishevelled appearance on the day of their assessment.
Social and recreational activities			3		The Panel concluded that the data Mr Zafirovski has provided about his functioning across all domains, at this and other assessments, is unreliable. Therefore, it is difficult to be certain of his actual functioning. Guidelines 1.214 and 1.215 state that the PIRS must not be used to measure impairment due to a physical injury or pain. The Panel noted the video surveillance images show the claimant going out for walks in the neighbourhood, alone and with a pet dog and apparently maintaining some interest in musical instruments. However, he states that he no longer socialises with friends or goes on holidays. He reported sitting in the dark with his blinds closed, having disconnected himself from everyone. Isolating the accident-related psychiatric condition, there is at most a moderate impairment.
Travel			1		The Panel do not accept the validity of Mr Zafirovski’s account that he has only driven three times since the accident. The Panel note there is clear evidence from the surveillance video that he can drive alone, even if he did so with ongoing symptoms. The Panel notes there are non-psychiatric issues impacting his ability to drive longer distances, including the impact of opioid analgesics. Isolating only the effect of the accident-related psychiatric condition, there is no impairment.
Social functioning			2		He continues to live with his daughter and her boyfriend, without being asked to leave his daughter’s home. He has regular contact with his son. He reports that he has been single since separating from his previous partner during COVID. The Panel considered that there is at most a mild impairment, accepting his account of tension in his relationship with his adult children and loss of friendships.
Concentration, persistence and pace			2		He was noted to concentrate well during the assessment of duration more than 1.5 hours. The Panel found that his reported difficulty immediately recalling his age and unit number were not features of any psychiatric condition. The Panel considered that there was at most a mild impairment
Employability			3		There are a number of non-psychiatric barriers to him resuming work, including that his heavy vehicle licence has been suspended, apparently on the basis of non-psychiatric factors. At its highest, when the accident-related psychiatric condition is isolated it was the Panel’s clinical judgment that he had the psychiatric capacity to work part-time hours in a different and less demanding role.
Score										Median Class
1	2	2		2		3	3		2
Aggregate Score Impairment								Total			%
1+	2+	2+		2+		3 + 3	13			7%

Apportionment – pre-existing/subsequent impairment

There is no pre-existing or subsequent impairment.

Effects of treatment

The Panel considered that there was no evidence of improvement with treatment.

CONCLUSION

The Panel revokes the certificate of Medical Assessor Shen dated 24 April 2024 and issues a new certificate determining that the following injuries caused by the motor accident given rise to a whole person impairment of 7%:
· chronic adjustment disorder.

OutcomeDocumentSignee

OutcomeDocumentSignature

[2025] NSWPICMP 856

5 November 2025