Rotella v AAI Limited t/as AAMI
[2024] NSWPICMP 805
•28 November 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Rotella v AAI Limited t/as AAMI [2024] NSWPICMP 805 |
| CLAIMANT: | Mario Rotella |
| INSURER: | AAI Limited t/as AAMI |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Christopher Canaris |
| DATE OF DECISION: | 28 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical dispute as to whole person impairment (WPI); the claimant was the driver of a motor vehicle stopped at an intersection on Belmore Road at Riverwood; his car was struck in the rear by the insured vehicle; the claimant was able to drive his car home; claimant attended Bankstown Hospital the following day complaining of pain in the back of his head and neck, shoulders and lower back; claimant says that he has experienced psychological symptoms from the time of the accident; insurer admitted liability for the claim; Medical Assessor Rikard-Bell certified that all injuries referred for assessment were not caused by the subject accident; Held – Review Panel of contrary opinion; Review Panel assesses 3% WPI for aggravation of pre-existing major depressive disorder with psychotic symptoms; apportionment and adjustment for treatment effects; certificate revoked |
| DETERMINATIONS MADE: | CERTIFICATE 1. The Review Panel revokes the certificate dated 11 April 2023 and issues a new certificate as follows: (a) the following injuries caused by the motor accident give rise to a permanent impairment of 3% which is not greater than 10%: · aggravation of pre-existing Major Depressive Disorder with psychotic symptons. |
STATEMENT OF REASONS
INTRODUCTION
Mario Rotella (the claimant) was the driver of a motor vehicle stopped at an intersection on Belmore Road at Riverwood. His car was struck in the rear by the insured vehicle. The claimant exchanged details with the female driver of the insured vehicle but failed to obtain its registration number. Neither ambulance nor police officers attended the scene. The claimant was able to drive his car home. The claimant arranged for his vehicle to be repaired. He says that issues with the repair were instigated by the driver of the other vehicle whom, he says, harassed him over a period of time. The claimant attended Bankstown Hospital the following day complaining of pain in the back of his head and neck, shoulders and lower back. The claimant says that he has experienced psychological symptoms from the time of the accident.
AAMI (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages under the Motor Accidents Compensation Act 1999 (the Act). The insurer admitted liability for the claim.
ASSESSMENT UNDER REVIEW
As there is a dispute between the claimant and the insurer about the degree of permanent impairment under s 58(1)(d) of the Act, the following injuries were referred to Medical Assessor Rikard-Bell for assessment:
· Psychiatric disorder – adjustment disorder with anxiety and depressed mood.
Medical Assessor Rikard-Bell certified on 11 April 2023 that all of the injuries referred for assessment were determined not caused by the motor accident. An assessment of the degree of permanent impairment was therefore not required.
PREVIOUS ASSESSMENT
The same injury previously was assessed by Medical Assessor Inglis Howe Synnott who certified on 9 March 2018 (less than 10 months after the accident) as follows:
“The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10%:
·Adjustment disorder with anxiety and depressed mood.”
Medical Assessor Synnott found 15% whole person impairment. He made no adjustment for pre-existing/subsequent impairment nor treatment effects.
It is not clear to the Review Panel why a further assessment was allowed by the Proper Officer as no reasons have been provided, nor has any of the additional material to which Medical Assessor Rikard-Bell refers.
THE REVIEW
The claimant sought a review of Medical Assessor Rikard-Bell’s certificate, on the grounds that the medical assessment was incorrect in a material respect, under s 63 of the Act. The claimant relied on the particulars set out in the application and supporting documentation.
The claimant conceded that he bears the onus of proving that Medical Assessor Rikard-Bell’s assessment and certificate is incorrect in a material respect.
The claimant submitted that Medical Assessor Rikard-Bell provided a finding with respect to the claimant’s psychiatric injury which is wholly inconsistent with the certificate of Medical Assessor Synnott and does not provide sufficient reasoning as to why his opinion is different to that of Medical Assessor Synnott, who assessed the claimant in person, whereas Medical Assessor Rikard-Bell performed his assessment remotely.
The claimant submitted that Medical Assessor Rikard-Bell failed to consider the proper history of symptoms and treatment following the accident and did not address the psychiatric impairment rating scale (PIRS) in accordance with the Motor Accident Impairment Guidelines.
The claimant submitted that no reasoning nor explanation was provided by Medical Assessor Rikard-Bell why a PIRS assessment was not made.
The claimant disputed Medical Assessor Rikard-Bell’s finding that the accident was minor and that there is no diagnosable psychiatric injury attributable to the accident.
The claimant contrasted Medical Assessor Rikard-Bell’s finding that “the anxiety problems with paranoia and panic symptoms pre-dated the accident” with Medical Assessor Synnott’s finding that “for several years prior to the accident, he experienced no significant psychological symptoms and had only occasional contact with his GP or psychologist”.
The claimant disputes that he was involved in a minor accident. The claimant says that he was involved in a serious accident and that he suffered significant injuries as a result.
The claimant submitted that Medical Assessor Rikard-Bell did not pay sufficient, or any, attention to the claimant’s medico-legal experts, referencing only the insurer’s experts in his findings.
The claimant’s application for review was opposed by the insurer which submitted that the claimant’s application ought to be dismissed on the basis that there is no material error in Medical Assessor Rikard-Bell’s certificate so as to satisfy the s 63 criteria. The insurer responded to each of the claimant’s submissions in detail. Briefly, the insurer said there is no error in Medical Assessor Rikard-Bell’s making a finding which is inconsistent with the certificate of Medical Assessor Synnott, as Medical Assessor Rikard-Bell made a fresh further assessment, at the time of the assessment. The insurer submitted that it was not necessary for Medical Assessor Rikard-Bell to apply the PIRS for the assessment of psychiatric injuries, having found that the injury referred for assessment was not caused by the accident.
President’s delegate Ratula Gupta issued a Determination of an Application for Review of a Medical Assessment on 7 August 2023 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that Medical Assessor Rikard-Bell’s assessment was incorrect in a material respect. The basis of that decision was stated to be that Medical Assessor Rikard-Bell did not provide sufficient reasons for his finding that there was no diagnosable psychological injury caused by the accident. Accordingly, the claimant’s review application was accepted.
The Review Panel is to assess the following psychiatric condition:
· Psychiatric disorder – adjustment disorder with anxiety and depressed mood
which is the same condition that was referred to Medical Assessor Rikard-Bell for assessment.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Motor Accident Injuries Act 2017 (MAI Act). The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
‘Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination’.
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7There 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.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) claimant’s submissions dated 31 May 2023 in support of review application (previously summarised), and
(b) Certificate and Reasons of Medical Assessor Rikard-Bell dated 11 April 2023 (previously summarised).
The insurer relied upon the following material which the Review Panel has considered:
(a) insurer’s submissions dated 13 June 2023 in reply to claimant’s review application (previously summarised);
(b) medical record of Riverwood Plaza Medical Centre as at 10 May 2024;
(c) medical records of Southside Medical Centre including those of Dr Moosad, Dr Tang, Dr Sivaseelan and Dr Baheerathan as at 19 December 2022;
(d) report dated 28 February 2019 by Dr Moniru Younan, consultant psychiatrist, to Dr Sivaseelan;
(e) Dr Younan reported that, following the subject accident, the claimant was left with a state of high level of anxiety and insecurity. Dr Younan prescribed Pristiq and Endep, and
(f) clinical notes of Dr Xie from 26 January 2019 to 31 October 2022.
The Review Panel notes that the relevant medical documentation is sufficiently summarised in the examination report.
EXAMINATION REPORT
The claimant was assessed jointly by Medical Assessors Canaris and Hong on 3 September 2024 remotely. He was assisted by an interpreter in the Italian language. The Medical Assessors’ examination report is as follows:
“1. Who attended the assessment
Video assessment.
Mr Rotella was at home and his son was at home in another room.
Drs Canaris and Hong were in their Sydney offices.
Mr Tony Cavallero was the interpreter.
The interpreter engaged by the PIC
History2. Psychosocial history and pre-accident history
Mr Rotella was born in Italy and went to France before coming to Australia when he was 20 years old. He was one of five siblings.
After high school, he worked as a linesman and in rigging and then had a bathroom renovation business.
After an assault in 2005, he developed anxiety and depression. He explained that someone, a neighbour, was upset with him because of a dispute with his wife and physically assaulted him. He said the altercation began when he asked to use the neighbour's toilet.
In terms of general medical history, he has sleep apnoea, and said he did not have stroke (the Panel discussed lacunar infarct around 2013). He said he has a brain problem with dizziness since the accident.
He does not have drug or alcohol problems.
He does not have a forensic history.
Mr Rotella had been on the Disability Pension since 2008 and is now on the Aged Pension from Centrelink. He said he was placed on DSP because he could not work due to stress.
Mr Rotella said he had taken several antidepressant medications after the 2005 assault, and was on Pristiq for maybe four or five years and then stopped it for two years. But when he went to TAFE and he was bullied. He experienced depression anxiety again, and resumed Pristiq in 2012. He was taking Pristiq 50mg when the subject accident happened. After the accident, Pristiq was increased to 100mg and now back to 50mg.
The Panel asked him about Risperidone and Invega anti-psychotic medications before the accident but he said he does not remember them, and didn't think he took any anti-psychotic medications.
He said before the accident he enjoyed ballroom dancing and bushwalking and had three walking groups. He wants to go back to it but said he cannot do it because he cannot even stand up and he's fallen over several times.
The Panel asked Mr Rotella about the problems with the ex-wife and whether she was in the mafia as some of the doctors had recorded. He initially said he wouldn't know about it, and later said that ‘everybody is in the mafia’.3. History of the motor accident
Mr Rotella had an accident on 26 May 2017 and said he was driving alone and stopped in a line of traffic on Belmore Road, waiting at a red light, when a female driver rear-ended him at a high speed. He could see her car approaching in his rear-view mirror. He recalled his car was shaken on impact, causing his head to jolt back and forth, and his head struck his chest. He felt nauseous and his body went numb. The airbags in Mr Rotella's car did not deploy.
Mr Rotella recalled the woman from the other car exited her vehicle and told him there was no damage to the cars, and said ‘see you later’ and attempted to leave. He requested her details and took a photo of her license. She then returned to her car and drove away. She had said, ‘I will pay you,’ but when he contacted her later, she denied responsibility, and said, ‘I did not do it.’ He confirmed that she did not run away from the scene, as noted in the file.
Mr Rotella described her as looking like a drug addict and she claimed to be pregnant but did not behave as such, and although she stated she had children in her car, he did not see any. He said she was not elderly and was a young woman.
The Panel discussed the different elements in the history regarding the accident, contained in some of the other reports, including Dr Christopher Rikard-Bell's certificate, that Mr Rotella said the other driver was an elderly woman with children in the car but he could not see any children, and she had swapped her car as the damages were different to what he recalled, but he did not take a photograph of the other car. Mr Rotella told the Panel she was a young woman who claimed to be pregnant and he did not say swapped her car later.
His car was subsequently repaired.
Mr Rotella reported that since the accident, he has developed balance problems and now takes medication for vertigo, and balance problems makes it difficult for him to go out or do shopping. He reported that his main physical problem is his balance.
Mr Rotella spontaneously went on from discussing the accident, to discuss his ex-wife. He said he receives no help from his family because his ex-wife and children do not support him. He said his ex-wife prevents him from seeing the children, wanting to maintain control. He said he has no family now (and later said, his children resumed contact with him). He said that the court allowed him access to the children every two weeks, 35 years ago, but he could never access his children because of her.
He stated that he now requires assistance 24 hours a day, because he cannot put on his trousers due to body stiffness and has difficulty walking, even inside his home, due to dizziness, and having fallen many times. After a fall, he said he could not get up himself. When he goes shopping, he behaves like a ‘drug addict’ because he is unsteady on his feet and dizzy. He said he had plans to extend his home but could not proceed due to his physical health and due to financial reasons.4. History of symptoms and treatment following the motor accident
Mr Rotella said that since the accident, he has developed depression, anxiety, and worries about having another accident, which has led to a reluctance to drive. He said there are too many liarson the road which the Panel understood to mean bad drivers. He struggles with turning his head driving, and said he has no other issues with driving.
5. He continued driving after the accident
until he lost his driver's licence, today. He said he lost his driver's licence because his CPAP machine had problems and the medical specialist conducted a test. He told his doctor he had not been using his CPAP machine, and his licence was cancelled, today.
6. Details of any relevant injuries or conditions sustained since the motor accident
Mr Rotella has not had further car accidents or sustained other psychological injuries.
Current symptoms
Mr Rotella confirmed Dr Younan, his psychiatrist diagnosed psychosis or psychotic symptoms, which he said he now ‘accepts’. Since taking the prescribed medications, he does not have acute psychotic symptoms now. The Panel asked about his psychological symptoms before taking his current antipsychotic medication, and he said he had very few psychological problems.
Mr Rotella confirmed having low moods but denied any suicidal ideation. He has concentration difficulties.
He said he sleeps well using his CPAP machine and wants to regain his driver's licence soon.
He is currently 90kg, and is aiming for 80kg. He has been losing weight successfully by changing his diet, he said he makes stir-fries instead of eating too much meat. However, he cannot exercise due to pain in his right side and back.
He said he gets angry easily, especially at his son, but does not act out or push anyone.7. Current and proposed treatment
Mr Rotella is currently taking:
·Pristiq 50 mg
·He confirmed he takes an antipsychotic medication. His file showed Aripiprazole.
·All medications were in a Webster pack but the names were not legible on video
Mr Rotella has never had a psychiatric admission. There are no proposed treatments.
He has not consulted a psychologist for many years.
He has been consulting Dr Monir Younan, psychiatrist around 7 years and reported Dr Younan recently retired.Clinical Examination
8. Mental State examination
Mr Rotella was well groomed. He wore a tie, collared shirt and a suit jacket. He had short greying hair and was clean-shaven. He wore glasses. He engaged well with the assessment process. However, he seemed to struggle at times even when responding in Italian. He was moderately restricted in his affect range and somewhat blunted and laughed towards the end of the assessment. He spoke spontaneously. He had a disorganized narrative but was not thought disordered.
9. Current functioning
Mr Rotella is 75 and lives alone and has two adult children.
He said he was married for seven years and separated in 1998, and then divorced. He has had three further partners, with the last relationship lasting seven years and ending in 2004.
He now sees his two children at Christmas and when he asks them to come, as was the case today. He also sees his grandchildren, and the relationship with them is ‘not bad’ now.
He had friends related to different activities at the time of the accident, but after the accident, he said because he could not do things or go bush walking, they ceased contact. He said there were no arguments with them.
Mr Rotella has four siblings and still talks to his sisters in Italy. He has two brothers, one has passed away. There was a dispute regarding inheritance after his parents passed away, and the relationship with his surviving brother has been strained since then. In Australia, he has no siblings.
He said he showers daily without prompting, using one hand on the shower rail. He does not cook much, and orders takeaway food, he said because he cannot stand up to cook. He goes shopping and buys groceries.
On good days, he takes walks for half an hour and enjoys it, saying, ‘it is good for me mentally.’ He watches TV and the news and enjoys movies. He asked his son to get him Pay TV for international programmes, such as dancing, and Italian and European movies. He watches half a movie at a time and finishes it the next day, often re-watching it as he cannot recall the story well.
He does yoga and stretches at home. He wants to reconnect with his friends but does not know their addresses.
He spends time on the computer and said he had one million friends on Facebook. However, after the accident, he could no longer use Facebook and deleted his page because some people threatened him online, and followed him, after he posted that Anglo-Saxons were killing Aborigines. He clarified that this has nothing to do with the accident and does not happen anymore, and that no one follows him now.
Regarding recent news on TV, Mr Rotella said it involves politics, bad news, people fighting each other, the Gaza Strip, where people are treated like animals, strong people killing the weak, and the war involving Russia. In Italy, he said politicians fight instead of doing their job, and he correctly identified the prime ministers of Italy and Australia.10. Comments of consistency
There were some variations in his recalled history and the history recorded in his file, and this variation is consistent with his psychological condition.
Review of Documentation
8. Summary of relevant documentation
Riverwood Plaza medical centre:
GP summary noted: 2017 MVA hit from behind, 2018 depression and fatty liver and OSA, osteoporosis, and meniscus tear, 2019 Chronic obstructive pulmonary disease, 2023 incomplete cervical cord lesion and neurologist report, 2023 memory deficit secondary to accident, 2018 lacunar stroke. On Jardiamet in 2024.
GP entries:·29/7/22, weight loss management, lots medical conditions, thyroid damages in accident?, father CVA, 100kg and goal weight is 70kg, on Amitriptyline
·3/8/18, chronic pain syndrome and depression, referred to pain specialist in St George, Pristiq 50 mg
·17/7/18, Mingga Anggawan psychologist, hypervigilant, move away if does not feel comfortable or safe around person or group of people on the street, not helpful reading people’s body language to assess if they mean harm.
·9/11/17, flare up anxiety from chronic neck and back symptoms, mental health care plan but no psychological history.
·20/9/17, 94.8kg, weight excess
·31/5/17, hit behind MVA 5 days ago, the other car ran off, self-presented to Emergency department next day with increased pain. No psychological history recorded.
·30/1/17, (4 months before the subject accident), Pristiq 50 mg ceased. Headaches and stiff neck. No psychological history. Comment: he told the Panel he did not stop Pristiq before the subject accident.
·21/9/16, Risperidone antipsychotic medication 1 mg ceased, Pristiq changed from 100 mg to 50 mg, no psychological history. Body fat 33%, metabolic age 81!!! Advised lifestyle changes.
·27/8/14, increased from Pristiq 50 to 100 mg.
·9/12/13, 94.5kg
·29/10/13, see Dr Ali for depression, Risperidone 2 mg ceased, Effexor 75 mg ceased. added Pristiq 50 mg.
·17/9/12, Effexor 75 mg suggested by Dr Ali and Seroquel.
·20/8/12, Risperidone 2 mg.
·7/8/12, Seroquel 100 mg antipsychotic ceased and Risperidone 2 mg added.
·6/6/12, referral to Dr Ishrat Ali, psychiatrist
·30/5/12, will find psychologist.
·24/1/12, mental health care plan
·14/4/11 95kg
·14/7/10, referral psychologist mental health care plan, Mr Anthony. Counselling regarding phobia and anxiety.
·22/9/09, wants to see psychologist again, David Said (name), 6 months ago seen Tom Jones.
·14/7/09 Avanza and Pristiq
·6/5/09 Effexor and Pristiq
·28/1/09 psychiatrist review
·23/1/07, lethargic, low sex drive, ? testosterone deficiency
·28/2/07, Celapram antidepressant 40 mg halved
·28/2/06, non drinker
·12/1/04, antibiotic for infection
Southside Medical Centre, type 2 diabetes and problem with BSL from 20/2/20. 6/5/20 MMSE 26/30, Dr Moosad, referral to Dr Nick Cordato neurologist. No significant cognitive difficulties. Delusional disorder noted on 26/6/20 by Dr Siavaeelan, Mr Rotella believes someone getting into his house many times, poisoning his food for years giving rise to gastric symptoms, they got a key from someone, not found anything lost, never reported to police, discussed see psychiatrist or psychologist, denied this is paranoid or delusional and refused to see psychiatrist.
GP’s referral letter to psychiatrist Dr Monir Younan 13/12/18, long-term depressive illness, MVA, was on Pristiq 50 mg and ceased 4 months ago, panic attacks, anxiety and depression, sleep problems, irritable, concentration difficulties, chronic pain symptoms, motivation difficulties and energy low. Dr Ali retired.
GP to Dr Kohan neurologist, 18/6/19, neck and head pain for a long time since MVA 2007.
Psychiatrist letter to the GP, from Dr Younan, 28/2/19, MVA 26/5/17, high anxiety and insecurity, he instaledl cameras around the house and worried about safety, now less paranoid than previously, mood reasonably stable and benefited from Pristiq. Add Endep for sleep.
Dr Younan, Psychiatrist letter 28/3/19, on Endep and Pristiq. 13/6/19, mood bit better but still paranoid. 1/10/19, remains very paranoid and firmly believes people want to kill him, denied voices, clearly psychotic and commenced Invega 3 mg. 27/1/22, Frankly paranoid, hell last year, people harass and follow him, go into his house, ex-wife’s parents are mafia. Mr Rotella did not take Invega as prescribed. Abilify was recommended. 17/2/22, compliant with Aripiprazole 10 mg and mood better. 13/5/22, Abilify and Endep, increase Pristiq to 100 mg, 85% depressed and persistent paranoia. 7/7/22, increased Aripiprazole to 15 mg.
Dr Younan 1/11/22, wrote to lawyer and supplied the psychiatrist file:·26/2/19, 69M divorced, panic attacks, anxiety and depressive symptoms. many similar entries related to paranoia, anxiety and depressive symptoms, people follow him.
·1/8/19, bad nightmares, people trying to steal his car.
·25/1/22, delusional disorder. Aripiprazole.
·31/10/22, phone call, Pristiq 100 mg, Aripiprazole 15 mg antipsychotic.
Personal Injury Commission certificate by psychiatrist Medical Assessor Dr Christopher Rikard-Bell 11/4/23, concluded Mr Rotella does not have a psychological injury caused by the subject accident and therefore, no WPI assessment. An Adjustment disorder was referred to him for assessment. He said Mr Rotella saw Dr Younan under victims of crime claim related to 2005, where he was assault for being Italian. He worries about the other driver (an elderly lady from the subject accident) coming into his house and she did try to jump over his gate with an assailant and he is still in danger. He could do serial 3s and recalled 2 or 3 items in short-term memory tests. He said he was bullied on Facebook. He reviewed Dr Anthony Pignataro’s report and said he agreed with Mr Rotella's treating psychologist, that Mr Rotella has pre-existing paranoid personality disorder, since assault 2005, causing difficulties, unable to return to work, estranged from children, ongoing difficulties adjusting after a minor accident in 2017.
SIRA Medical Assessment Service certificate by Assessor Dr Inglis Howe Synnott, 5/3/18 diagnosed Adjustment disorder and assessed Mr Rotella's WPI at 15%. He said before the subject accident, he was fit and healthy, except some problems with right leg and neck. He had psychological symptoms after assault 2005 and saw a psychologist on-and-off over the years, attended a psychiatrist 4-5 years before the subject accident, and his symptoms markedly improved and had no symptoms at the time of the subject injury. He said parts of the history, presentation and documentation were not entirely consistent with each other, he denied memory or cognitive difficulties before the subject accident, but medical reports suggested they were present several years before the subject accident, with CT scan 2013 reporting right lacunar infarct and memory loss, 2012 diagnosed memory loss, 2012 Dr Ali Seroquel changed to Risperidone and paranoid symptoms noted previously. He provided a PIRS with ratings 233 322, 15%, and explained the PIRS ratings based on the following impairment and activities:, in the past 2 months, three times gone out for coffee otherwise stays at home most of the time (social and recreational activities 3), catch train to appointment (travel 3), lost contact with friends (social functioning 3), concentration, persistence and pace 2 as no overt cognitive impairment, adaptation 2, loss of reliance and difficulties concentrating therefore not as capable in managing own affairs.
The Panel noted:·Dr Synnott did not diagnose a paranoid disorder or psychotic disorder and did not do a pre-accident PIRS. As the Panel has come to a different diagnosis, and noted he now accepts he has a psychotic disorder as his psychiatrist has diagnosed, the Panel formed the view that Dr Synnott's WPI is no longer valid as it was based on incomplete history and different diagnosis.
·Dr Synnott wrote his cognitive difficulties are unrelated to the accident and are pre-existing. The Panel took a history he did not have pre-existing cognitive difficulties.
Determinations
9. Diagnosis and Causation
Mr Rotella has a long history of psychological symptoms, and was previously treated, or prescribed antidepressant and antipsychotic medications. At the time of the subject injury, he was only taking an antidepressant and described a higher level of functioning, predominately in social and recreational activities.
After the subject accident, anxiety and depressive symptoms returned and he experienced symptoms consistent with psychosis or delusions, and has been treated with a combination of antidepressant and antipsychotic medications, and his psychological condition has improved.
The Panel concluded he sustained an aggravation of pre-existing Major depressive disorder with psychotic symptoms. The Panel subsumed his delusional symptoms as part of the Major depressive disorder, rather than a standalone delusional disorder.
His psychological impairment is permanent and stabilized, with or without medical treatment, and is not likely to remit or change more than 3% with further medical treatment.10. Degree of permanent impairment Psychiatric Impairment Rating Scale
Current PIRS
Category Class Reason for Decision 1. Self Care and Personal Hygiene 1 Mr Rotella said he eats regularly and showers daily without prompting, and successfully lost weight. He cooks and orders takeaway food.
From a psychological perspective, he is capable of independent living without regular support, and does not need prompting with self-care.2. Social and Recreational Activities 2 He has regular recreational activities and does not need a support person. He enjoys movies, TV and taking walks. He wants to do more, e.g. bush walking and dancing but cannot physically. His physical injuries and pain are not assessable in the PIRS. 3. Travel
1 Mr Rotella can drive and go out on his own, and lost his driver’s licence due to a physical condition. From a psychological perspective, there is no impairment now. 4. Social Functioning
2 He lost friends as he does not engage in activities with them due to his physical injury, and not because of his psychological injury. He wants to reconnect with them.
He reconnected with his children and has a reasonable relationship with his children and sisters overseas. His psychotic symptoms did contribute to some tension in his relationships after the accident.5. Concentration, Persistence and Pace 3 Mr Rotella described having poor concentration.
He can watch half a movie at a time but has to rewind and cannot follow the plot.
He cannot focus on intellectually demanding tasks for 30 minutes and presented with cognitive difficulties during the assessment.6. Adaptation
4 Mr Rotella engages in age-appropriate life roles, less than 20 hours per fortnight.
He said he has been on Disability support pension from Centrelink for ‘stress’.List classes in ascending order: 112234 Median Class Value: 2 Aggregate Score: 13 % Whole Person Impairment: 7 % *%WPI = Percentage Whole Person Impairment
11. Psychiatric Impairment Rating Scale - Pre-existing/subsequent impairment
Mr Rotella has not sustained a subsequent injury.Pre-accident PIRS
Category Class Reason for Decision Self-care & Personal Hygiene
2 Mr Rotella was overweight as noted in his GP records, and was counselled to lose weight, for years. He struggled with weight management over the years and his long-term depressive symptoms was a factor in poor weight management. Social & Recreational Activities 1 No impairment before the subject accident.
He engaged in regular social and recreational activities with his friends.Travel 1 No impairment before the subject accident. Social Function
2 His relationship with his children were estranged, and his mental health contributed to the relationship difficulties. However, he had many friends. At the same time, the Panel noted that his recall of his functioning at this time was poor. Concentration, Persistence & Pace 1 No impairment before the subject accident Adaptation
4 Mr Rotella engaged in age-appropriate life roles, less than 20 hours per fortnight.
He said he had been on Disability support pension from Centrelink for ‘stress’.List classes in ascending order:
1 1 1 2 2 4 Median Class Value: Aggregate Score:
2 11 Whole Person Impairment:
5
Medication adjustment 1% Mr Rotella's symptoms had improved somewhat on Pristiq, but some impairment remained WPI before the subject accident = 6%
12. Apportionment
Pre-existing impairment = 6%
13. Effects of Treatment
2%
His symptoms and impairment have significantly improved with current treatment, but some impairment remains and he has not reached total remission.
Final WPI
7-6+2=3%.”
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[5] The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6]
[5] Section 63(3A) of the Act.
[6] Insurance Australia Group Limited v Keen [2021] NSWCA 287.
The parties did not provide the Review Panel with the documentation that was before Medical Assessor Inglis Howe Synnott. Medical Assessor Synnott did not make an assessment of pre-existing psychiatric impairment. The Review Panel has conducted a fresh assessment and arrived at a different rating to Dr Inglis Howe Synnott, and noted his psychiatric diagnoses and treatment has changed since Dr Synnott’s certificate, that assessment is outdated.
The Review Panel notes the opinion of Medical Assessor Rikard-Bell that all of the injuries referred for assessment were determined not caused by the motor accident. The Review Panel respectfully disagrees with that opinion for the reasons stated in the examination report.
CONCLUSIONS
For the reasons stated, the Review Panel concludes that the certificate issued by Medical Assessor Rikard-Bell on 11 April 2023 should be revoked. The new certificate appears at the commencement of these reasons.
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