Saleh v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 854
•3 November 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Saleh v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 854 |
CLAIMANT: | Hala Saleh |
INSURER: | Insurance Australia Limited t/as NRMA |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 3 November 2025 |
DATE OF AMENDMENT: | 5 November 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; review of Medical Assessment Certificate (MAC); alleged upper and lower gastrointestinal symptoms from medication taken for musculoskeletal and psychiatric injuries; claimant assessed by original Medical Assessor as having 1% whole person impairment (WPI); re-examination by audio-visual conference only; Held – Review Panel accepted injury to upper gastrointestinal tract injury as symptoms arose as a result of medications taken for accident-related psychiatric condition (diagnosed as gastroesophageal reflux disorder (GORD)); lower gastrointestinal tract injury accepted due to no prior history of symptoms of constipation alternating with diarrhoea (diagnosis of Irritable Bowel Syndrome (IBS)); impairment assessed under clause 1.247 of the Motor Accident Permanent Impairment Guidelines, 1 June 2018 and Table 2 of page 239 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition; GORD assessed at 1% WPI; IBS assessed at 1% WPI; total impairment 2% WPI; MAC revoked; new certificate issued; new combined certificate issued at 7% WPI. |
DETERMINATIONS MADE: | REPLACEMENT CERTIFICATE OF DETERMINATION Replacement Certificate issued under s 63(4) of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Garvey dated 16 December 2024 and issues a new certificate as follows. 2. Determines that the following injuries: (a) upper gastrointestinal tract – GORD symptoms and maintaining weight, and (b) lower gastrointestinal tract – irritable bowel syndrome, are causally related to the motor accident of 3 June 2016. That the above injuries result in a whole person impairment of 2%. |
COMBINED CERTIFICATE
Replacement Certificate issued under s 63(5) of the Motor Accidents Compensation Act 1999
The Review Panel combines the following assessments:
Certificate of Medical Assessor Michael Steiner dated 14 March 2022:
The permanent impairment in relation to the following injuries is 0%:
· both eyes – double vision.
Certificate of Medical Assessor Richard Haber dated 9 April 2022:
The permanent impairment in relation to the following injuries is 2%:
· Cardiovascular - arrhythmia.
Certificate of Medical Assessor Neil Berry dated 19 May 2023:
The permanent impairment in relation to the following injuries is 5%:
· cervical spine – soft tissue injury, and
· lumbar spine – soft tissue injury.
Certificate of the Medical Review Panel dated 3 November 2025:
The permanent impairment in relation to the following injuries is 2%:
· upper gastrointestinal tract – GORD symptoms and maintaining weight, and
· lower gastrointestinal tract – irritable bowel syndrome.
Using the Combined Values Chart at page 322 of the American Medical Association Guides to the Evaluation of Permanent Impairment, fourth edition, the combined permanent impairment is 9% and is NOT greater than 10%.
STATEMENT OF REASONS
BACKGROUND
Hala Saleh (the claimant) was involved in a motor accident on 3 June 2016. She was the driver of a car that was stationary at a stop sign when another vehicle from the opposite direction collided with another vehicle. The two vehicles then crashed into the driver’s side of her vehicle with a secondary impact with the stop sign at the front of her vehicle.
Following the accident, she suffered from pain in her neck, shoulders, low back and hip. She also had headaches, dizziness, blurred vision and diarrhoea.
An ambulance transported the claimant to Westmead Hospital where she stayed for three days.
She later developed psychological symptoms which were recorded by her general practitioner (GP) in a medical certificate as panic attacks and anxiety. She was then referred to a psychiatrist who prescribed medication. The claimant says she had upper gastrointestinal symptoms of GORD. There were also lower gastrointestinal symptoms of diarrhoea. Maintenance of weight also became an issue for her.
The claimant made a claim for personal injury benefits with Insurance Australia Limited t/as NRMA (the insurer), the third-party insurer of the vehicle that she says caused the accident.
A medical dispute arose about whether the degree of the claimant’s whole person impairment (WPI) is greater than 10% WPI. Where there is a dispute about the degree of a claimant’s WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor for determination.
[1] See Section 131 of the Motor Accidents Compensation Act 1999.
On 16 December 2024, Medical Assessor John Garvey found the claimant’s gastro-oesophageal reflux and irritable bowel syndrome to be causally related to the accident and assessed impairment at 1% WPI.
The claimant lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Garvey’s assessment.
On 3 March 2025, a delegate of the President (Ms Stephanie Wigan) accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Garvey was referred the following injury for assessment:
· Digestive system:
-oesophagus – upper gastrointestinal tract – GORD symptoms and maintaining weight, and
-oesophagus – lower gastrointestinal tract – diarrhea and maintaining weight.
The Medical Assessor stated that some of the medication the claimant was taking for her mental condition can contribute to or exacerbate gastro-oesophageal reflux symptoms. These include Lexapro, Abilify, Antenex and Lyrica.
Impairment was noted to be in the available range of between 0% and 2% under cl 1.247 of the Guidelines. The Medical Assessor found that “in the absence of any objective clinical evidence on physical examination or on digestive tract endoscopy and biopsy”, he considered the claimant’s symptoms to be at the mid-range at 1% WPI.
The Medical Assessor deemed no apportionment was necessary as there was no objective clinical evidence in the Patient Health Summary of any pre-existing symptomatic upper digestive tract impairment before the accident.
No treatment effect was allowed as the medication Nexium had not made any appreciable difference to the claimant’s symptoms.
The impairment caused by the motor accident therefore remained at 1% WPI.
SUBMISSIONS
Claimant
The claimant’s submissions in her application for further assessment primarily centre upon a report of gastroenterologist, Dr David Frommer dated 29 August 2024. The claimant gave
Dr Frommer a history of weight gain from 60kg before the subject accident of 3 June 2016 to 88kg after the accident. After three months of daily Saxenda injections, the claimant reported losing 15kg, now weighing 73-74kg. She says this is still an increase of around 13-14kg compared to her pre-accident weight.
In addition, Dr Frommer recorded that the claimant has been suffering over the past three to four years with reflux and heartburn every one to two days per week. To combat this, she relies on Nexium, Gaviscon and or Quick Eze.
The claimant also told Dr Frommer that she suffers from nausea regularly after meals and vomits three to four times a month.
She suffers from bloating and feelings of abdominal distension. The bilateral upper abdominal pain has a 9/10 severity, lasts for a few hours and assisted only by vomiting or diarrhoea.
Also, for the past two to three years, the claimant also suffered from bilateral lower abdominal pain with an 8/10 severity on most days.
Dr Frommer diagnosed the claimant with:
(a) gastroesophageal reflux disease (GORD) as a result of increased weight;
(b) diarrhoea – possibly from Lexapro;
(c) constipation – possibly from Panadeine Forte or Abilify, and
(d) nausea and vomiting – possibly from Abilify.
Dr Frommer rated impairment as follows:
(a) upper gastrointestinal tract – GORD symptoms and maintaining weight – 5%;
(b) lower gastrointestinal tract – diarrhoea and maintaining weight – 3%, and
(c) total WPI of 8%.
In her review submissions, the claimant refers to the history documented by Medical Assessor Garvey as follows:
“I asked the claimant about her digestive tract symptoms and she said that when she was consulting a psychiatrist, he recommended that she be prescribed Nexium. The claimant said that she noted abdominal pain, vomiting and nervousness and she would get aggressive and break things, sudden diarrhoea and sudden constipation, stomach bloating, feeling of heaviness in the stomach, a feeling like a needle in her stomach, her mouth became very dry and she became nauseated and she vomited with food and she had diarrhoea 6 or 7 times a day... During the physical examination she raised the matter of heartburn which had not been previously mentioned, which she described as a sour acid taste during the morning and during the daytime which was dependent upon her mood. She also experienced coughing with heartburn and got relief from quickies and Gastrogel."
The claimant says the history of her gastrointestinal symptoms recorded by Medical Assessor Garvey does not equate to the 1% WPI assessed.
The claimant notes that the Medical Assessor cited the Class 1 example on page 10/241 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). This example described lower gastrointestinal symptoms that were “occasionally annoying”. It is submitted that the claimant’s reported symptoms do not reflect this example.
Rather, it is contended that the claimant’s impairment should be assessed under the colonic and rectal impairment as set out under Table 3 of page 241 of the AMA 4 Guides, which provides for an assessment of Class 1 in the range of 0% and 9%. The claimant says her symptoms are on the more severe side of his range.
Insurer
The insurer refers to various pre-accident entries (from February 2014 to May 2016) contained primarily in the Excelsior GP records which referred to lower abdominal pain.
The insurer also refers to an abdominal ultrasound report dated 13 December 2019 which showed an anterior gallbladder wall polyp of 3mm and increased fat content in the liver, but no gallstones. The ultrasound was ordered on the background of high liver enzymes.
It is submitted that none of the medications which relate to the claimant’s alleged accident-related injuries cause elevated liver enzymes. The insurer says elevated liver enzymes are brought on by cholesterol-lowering medications (such as Crestor), if caused by medications at all.
Regarding GORD, the insurer says Nexium (used for heartburn, a core symptom of GORD) was prescribed on 19 August 2015, before the accident.
The insurer further says the claimant’s pre-pregnancy weight was recorded on
22 October 2015 as 77.5kg and on 12 September 2016 (around three months after the accident), it was recorded as 79.3kg. The insurer therefore submits that the history of her weight being 60kg prior to the accident is unlikely to be accurate. Furthermore, the insurer says while the claimant’s weight was recorded in her hospital admission 21-24 April 2019 as 87kg, she was heavily pregnant at the time. Her weight as recorded by her GP was 77kg on 12 December 2019 and on 16 June 2022, her weight was 77.6kg. It is therefore submitted that the claimant’s pre-pregnancy weight and her weight over six years post-accident were within 0.3kg of each other.
The insurer also submits that GORD is only mentioned once in the post-accident GP records on 15 May 2020.
It is therefore submitted that the information does not suggest an increase in weight associated with the subject accident, the claimant’s current weight being lower than it was prior to the pregnancy that ended three days pre-accident, nor that it gave rise to GORD.
Regarding diarrhoea, the insurer refers to Dr Frommer’s report dated in August 2024 and his finding that “For the last 2 years she has had mild diarrhoea, worse over the last 6 months, possibly from Lexapro”. The insurer contends however that the claimant’s treating psychiatrist, Dr Benjamin, introduced Lexapro in May 2017 which does not suggest there is a relationship between this medication and the claimant’s development of diarrhoea over the last two years.
Furthermore, the insurer says diarrhoea is only mentioned once in the post-accident GP records, on 9 March 2020.
The insurer relies on the report of gastroenterologist, Dr Siddath Sethi, dated 23 May 2024 who opines:
“Ms. Saleh has developed GORD, IBS and haemorrhoids entirely of her own accord and her MVA and the analgesic medications that she was prescribed did not play any causative role whatsoever. They have occurred regardless. Her obesity has contributed to her gastrointestinal symptoms.”
The insurer submits that there is 0% gastrointestinal WPI related to the accident.
In response to the claimant’s review application, the insurer says there are no errors in the assessment of Medical Assessor Garvey. The insurer says impairment is not assessed solely on the claimant’s reported symptoms but on the objective findings on examination.
The insurer submits that the class 1 example, for which there is 0% WPI (as reproduced in the claimant’s submissions above), is clearly in line with the Medical Assessor’s assessment and reasons, particularly because:
· the claimant’s symptoms have persisted for several years, with alternating constipation and diarrhea;
· the claimant’s stools have not been known to contain abnormal materials;
· there were no abnormalities identified during the examination (auscultation);
· the symptoms have not interfered with the claimant’s usual activities, and
· there is no suggestion in the certificate or elsewhere that the claimant has required any change to her diet.
Additionally, the information available to the Medical Assessor does not suggest the claimant’s weight remains volatile. The claimant weighed 70.7kg at the examination, which is very similar to her weight after three months of Saxenda injections following the accident (73-74kg) and her weight at Dr Frommer’s assessment in August 2024 (73kg).
REVIEW OF THE EVIDENCE
On 10 March 2025, the Panel issued a direction to the parties requiring indexed and paginated bundles of the information they relied upon. Both parties duly responded with the claimant’s bundle comprising of pages 1-147 and the insurer’s bundle comprising of pages 1-2,332.
Following its preliminary conference on 13 May 2025, the Panel issued a further direction requiring the following documents:
(a) a list of all prescribed medications with dates from the claimant’s GP records;
(b) updated records of Excelsior Family Medical Centre to 31 July 2020 (referred to in item 10 in the report of Dr Siddarth Sethi dated 23 May 2024 – R14, page 136 of 2332 of insurer’s bundle);
(c) clinical records of WiseMind Medical Practice as at 25 September 2021 (referred to in item 12 in the report of Dr Siddarth Sethi dated 23 May 2024 – R14, page 136 of 2,332 of insurer’s bundle);
(d) GP records of Dr Hatzidis (referred to in the Interface ADL Assessment report dated 11 July 2024 completed by Ms Dawn Piebenga – Appendix 2, page 258 of 2,332 of insurer’s bundle), and
(e) any gastroenterologist referrals and reports of colonoscopies or endoscopies.
The parties responded to the directions with the insurer uploading a joint bundle indexed and paginated with pages 1-920 comprising of:
(a) list of prescribed medications served 27 June 2025;
(b) updated records of Excelsior Family Medical as at 31 July 2020;
(c) clinical records of WiseMind Medical Practice as at September 2021, and
(d) referral to Dr Alina Stoita, gastroenterologist, dated 12 June 2025.
The documentation before the Panel is voluminous. While the Panel has read the documentation, it will not refer to or summarise every document contained in the bundles. As detailed in the Panel re-examination report, the claimant’s history and medications was discussed with her.
Clinical notes (various) – relevant entries detailed in the Panel re-examination report.
Medico-legal report of Dr Siddarth Sethi, gastroenterologist, dated 23 May 2024 – File review. Diagnosis of GORD, irritable bowel syndrome (IBS) and haemorrhoids. Not causally related to the motor accident. Developed entirely of their own accord. No direct injury to gastrointestinal tract. CT abdomen reported as normal. Claimant is obese with BMI of 32. Obesity worsens GORD as described in medical literature. Constipation strongly suggestive of IBS, also worsened by obesity. There is a pre-existing history of abdominal pain and constipation requiring laxatives.
Medico-legal report of Dr Donald Frommer (x2), gastroenterologist, dated
29 August 2024 – recorded a history of the claimant’s pre-accident weight being 60kg and afterwards it rose up to 88kg. After three months of Saxenda injections, it fell 15kg and is not 73-74kg. For three to four years had reflux and heartburn (up to 9-10/10) every one to two days per week. Takes Nexium, Gaviscon and/or Quickeze. Nausea after meals tow to three times a week and vomits three to four times a month. Also bloating and feelings of abdominal distension. Upper abdominal pains, up to 9/10 in severity, helped by vomiting or diarrhoea. Lower abdominal pain, 8/10 severity, most days. Last two years mild diarrhoea, worse over last six months. Daily three to four watery bowel actions which lead to incontinence one to two times per month. Occasional constipation but no blood or mucus. May 2020 – diagnosis of Gastroesophageal reflux disease (GORD).Assessment under AMA 4 Guides, section 10, upper GI, page 239, Table 2, Class 1, Range 0% to 9%. Assessed at 5% WPI. Diarrhoea and maintaining weight assessed under Colonic Impairment, page 241, Table 3, Class 1, Range 0% to 9%. Assessed at 3% WPI. Combined WPI = 8%.
PANEL RE-EXAMINATION REPORT
Following its preliminary conference, the Panel determined that the claimant be re-examined. The re-examination was conducted by Medical Assessors Gibson and Oates via audio-visual link on 1 August 2025.
The Panel had previously decided that re-examination could be conducted by means of video conference, as matters of history had to be clarified, whereas there were no abnormal clinical examination findings noted by the original Medical Assessor, John Garvey, and there were no issues raised by the parties.
The re-examination report is as follows:
“HALA SALEH
Age: 33
Date of Accident: 3 June 2016
Date of Assessment: 1 August 2025
Permanent impairment disputes to be assessed
· Oesophagus – lower gastrointestinal tract – diarrhoea and maintaining weight
· Oesophagus – upper gastrointestinal tract – GORD symptoms and maintaining weight
Details of who attended the Assessment
The claimant, Ms Saleh, was assessed via MS Teams video link by Medical Assessor Oates and Medical Assessor Gibson on behalf of the Medical Review Panel. The technology functioned satisfactorily.
An Arabic interpreter (NAATI No. CPN8X144D) was present for the duration of the assessment.
The interpreter was not required to translate anything at any time.
HISTORY
Pre-accident medical history and relevant personal details
The claimant confirmed a repair of umbilical and inguinal herniae as a child.
There was a history of PCOS (polycystic ovary syndrome) treated with metformin. This condition improved and medication was stopped after the birth of her second child in 2015.
She had had recurrent UTI (urinary tract infection), particularly in pregnancy, and pyelonephritis.
There was a history of haemorrhoids in May 2016 during pregnancy with her second child. This was treated with Proctosedyl for itch and heaviness. There was no rectal bleeding. She said the haemorrhoids were related to the pregnancy, as this was a big baby (her son was 3.8kg born).
She has had four live births in 2013, 1/5/2016, 6/2019 and 9/2022.
She had gestational diabetes mellitus in two of her pregnancies.
She had had lumbar disc prolapses and annular tears in June 2016.
She had had recurrent venous thromboembolism in pregnancy in 2016, 2019 and 2022; and pulmonary embolism during pregnancy in 2016.
The claimant stated there was no past history of any psychiatric problems and then qualified this by saying she had seen a counsellor, who checked her mental health when she had developed the blood clots during her pregnancies.
Prior to the index accident, she worked in early childhood education in family daycare and would have between four and seven children at her home, depending on the ages of the children.
She lived in a house with her husband who is a self-employed electrician, and children. Before the accident she did all her usual daily activities, drove a car and kept the house.
The Medical Assessors then conducted a medication review with the claimant.
Movicol prescribed 1/12/2014 – The claimant could not remember what this was given for at first (it is for constipation) and then recalled it may have been related to her treatment for polycystic ovary syndrome.
Nexium HP7 which is triple therapy for Helicobacter pylori – prescribed on 7/1/2015. The claimant explained her husband was diagnosed with this bacteria and she was told it was contagious and that she should take a 14-day course of the triple therapy as well. The file revealed that her breath test for H-pylori was negative. This bacterium can cause gastric ulceration.
Voltaren and Nexium were prescribed on 19/8/2015 but she could not recall what condition these were prescribed for. The Panel notes that Nexium (esomeprazole) is a PPI (proton pump inhibitor), usually given to counteract or treat oesophageal reflux symptoms.
Panadeine Forte prescribed on 21/3/2016 was given for lower abdominal pain associated with a urinary tract infection, and she was subsequently admitted for a kidney infection during the pregnancy for her second child, a son born on 1/5/2016.
Proctosedyl prescribed 23/5/2016 was given for symptomatic haemorrhoids of pregnancy.
After the date of accident on 3/6/2016, Maxolon, an anti-nausea drug, was prescribed on 11/7/2016. Movicol for constipation was prescribed on 29/11/2016. Nexium was first prescribed after the accident on 18/4/2017, and thereafter prescribed regularly, along with an H2 receptor antagonist Zantac on 4/3/2019, 22/6/2020 and 14/4/2022.
Ranitidine (Zantac) was prescribed on 29/8/2022 and then Nexium on 31/5/2023 and 3/4/2024, along with Panadeine Forte periodically and Norgesic, both analgesic medication, and Celebrex anti-inflammatory medication.
History of the motor accident
The claimant explained she had given birth to her son about one month before and her son was in a baby capsule in the back seat, along with her mother who was travelling as a back seat passenger. The claimant was driving to pick up her daughter who was three years old from childcare.
She was driving a seven-seater people mover. She had a seatbelt on. She was stationary at a “Stop” sign. Two other vehicles collided and one of them lost control and crashed into her vehicle. The Stop sign was then dislodged and also hit her vehicle.
Airbags did not deploy but she later found out that they were faulty. She was shaken up by the two impacts and felt aching in the left shoulder. At the time of the impact, she was turned around to her left side, holding the baby capsule with her outstretched left arm.
A bystander came up and opened the stuck driver’s door for her so she could get out and tend to her baby and mother.
One ambulance took her son to Sydney Children’s Hospital, Westmead and a second ambulance took her to Westmead Hospital, where she was admitted to the labour ward for three days for observation because she was complaining of lower abdominal pain and had some light bleeding per vaginam (vaginal bleeding), which became heavier over the next days after the accident. A CT scan of the abdomen done as part of a CT PAN scan (whole-body trauma CT) for trauma was normal.
History of symptoms and treatment following the motor accident
After discharge from hospital, she rested for a few days and returned to her childcare work a week or two after the accident to try and get back to a normal routine.
Subsequent progress
She had some continuing neck pain, left shoulder pain, low back and hip pain, along with headaches and dizziness, blurred vision and abdominal pain and diarrhoea.
She had some further investigations of her musculoskeletal injuries. She was treated with analgesics and anti-neuropathic pain agent Lyrica (pregabalin).
She noticed she had become very anxious after the accident and was easily upset.
She had her mother come out from Lebanon and stay with her for a period of six months after the accident.
She was struggling to continue work with her pain and ended up stopping the childcare work.
With respect to her mental state, she saw a psychologist for a few months but this did not help, so then she was referred to a psychiatrist, Dr Benjamin. First assessment was on 22/5/2017. She was diagnosed with major depressive disorder with psychotic features, with a differential diagnosis including schizoaffective disorder and schizophrenia. She was prescribed Lexapro, Risperdal and diazepam. Her compliance with medication was initially irregular.
At review on 29/6/2017, she was complaining of persistent headache and significant low back pain since having stopped previously prescribed Lyrica and was needing to use Panadeine frequently throughout the day. Dr Benjamin advised her to go back onto Lyrica 75mg bd and stop Panadeine because of the rebound effect of codeine withdrawal, and to use non-steroidal anti-inflammatory medication for back pain and headaches.
He stopped her Risperdal, because it was not effective in controlling her psychotic symptoms, and this was substituted with Solian 200mg at night. She was to continue Lexapro 20mg and diazepam 2mg at night.
At next review on 14/7/2017, she had started to develop reflux symptoms and Dr Benjamin added Nexium 20mg, an H2 receptor antagonist, to her medications. Her Solian was increased to 200mg twice bd and she was to continue Lexapro and Diazepam and Lyrica.
At review on 21/9/2017, she complained of breast tenderness and was diagnosed with hyperprolactinaemia, most likely caused by Solian. He psychotic symptoms had been well controlled since she was on Solian, however the side-effect caused a reduction of Solian dose and commencement of Abilify 10mg tablets bd and that she was to withdraw Solian over a one-week period and continue Lexapro and diazepam.
At review on 17/11/2017, she continued with Abilify 10mg mane, Lexapro 20mg and diazepam 5mg, both nocte, with good compliance and stable mood, adequate sleep and clear thinking. She had no psychotic symptoms such as delusional thinking or auditory hallucinations, which had been noted previously. She was socialising with friends and in-laws, caring for her children and doing some of the housework.
At review with Dr Benjamin on 19/12/2017, there was complaint of frequent vomiting and that she may need to have her stomach checked by way of gastroscopy.
The claimant told the Panel Medical Assessors that she did not proceed with the gastroscopy, as she was scared to have investigations.
At review on 29/5/2018, she continued on Lexapro 40mg at night, Lyrica 75mg bd, diazepam 5mg at night, and the dose of Abilify was increased from 10mg to 15mg and then to 20mg, which she found more effective, but she was unhappy about her weight gain over the previous 12 months of 6kg, with weight at that consultation 79kg.
She was motivated to lose weight but found it hard to engage in physical activities and considered taking an appetite suppressant medication. She was referred to her family doctor to discuss this further.
In mid-2018 she commenced on Saxenda injections to help her lose weight and at review with the psychiatrist on 10/7/2018, she had lost 7kg in the last five weeks, with her weight on that date being 74kg.
At review in September 2018, there was concern about blood pressure drop causing dizziness and also her husband was concerned about relapse in symptoms, including mood swings, explosive temperament and impulsive behaviour, and she reported feeling depressed after the death of a relative.
Dr Benjmain felt she may need to stop Saxenda injections, as it may have been contributing to irritability, and she was advised to reduce her dose of diazepam by one-half.
At review in November 2018, it transpired that she had become pregnant, which was not planned, and she had stopped anti-depressant and mood stabiliser medications and become progressively anxious, irritable and depressed, with insomnia and paranoia.
Dr Benjmain explained psychotropic medications are only to be used during pregnancy if they are essential for the well-being of the patient, which overrides potential side-effects. He prescribed Lovan 20mg, one in the morning, Abilify 10mg one at night, diazepam 5mg prn on an as needed basis.
The claimant underwent an ultrasound scan of the abdomen on 13/12/2019 as a result of high liver enzymes being found on routine blood tests. This showed no gallstones but there was an anterior gall bladder wall polyp 3 x 3mm. There was no dilatation of the intra or extra hepatic bile ducts, and the common bile duct measured 4mm in maximal diameter. There was no local liver mass seen and the spleen and kidneys were unremarkable. No further action was taken.
The Panel notes on review of the medical documentation that the first mention of gastroesophageal reflux disease by the treating GP, Dr Hatzidis, was not until 15/5/2020, some four years after the accident, but the claimant explained that this aspect of her symptoms had been monitored and treated by her psychiatrist, Dr Benjmain.
The claimant stated that the Nexium prescribed by Dr Benjamin had helped with her upper abdominal pain and with her heartburn, but she had developed constipation alternating with diarrhoea and also bouts of acid reflux in the mouth, particularly in the morning or when she felt stressed. She would take Mylanta and Gaviscon, which gave short-term benefit to these symptoms.
She said she would get diarrhoea if she were feeling stressed suddenly or sometimes she would get sudden constipation according to her mental situation. She would vomit when she was feeling stressed, with pain in the epigastrium and tightness and abdominal bloating, with tenderness around to the back. Her hands would get cold and sweaty.
She could have two or three days of constipation and then would get sudden onset diarrhoea with occasional blood per rectum. She would get the lower abdominal symptoms about five days a week and the nausea and bloating in the upper abdomen, and reflux symptoms about four days a week, and this has been the pattern over the last two or three years. She has also noticed becoming intolerant to dairy products and had not had this previously.
Her GP had previously recommended gastroscopy and colonoscopy, but she was too afraid to have them done, but now has made an appointment to see a gastroenterologist for the first time, Dr Stoita, next month.
She still gets frequent UTIs and will have courses of antibiotics.
Current treatment
Her current medications consist of Lexapro 20mg bd, Nexium 20mg mane, which she takes most days unless she forgets, and she will sometimes have an extra dose at night if the reflux is disturbing her sleep. She uses Gaviscon or Mylanta symptomatically as well.
She repeated the breath test for H pylori but this was again negative. She has Abilify 10mg daily, Antenex (diazepam) 5mg as required, and she takes this three or four days a week if sleep is an issue. She did try Lacteze but it did not seem to help her dairy intolerance.
She has Panadeine Forte alternating with Antenex for neck pain and low back pain. The neck pain radiates to the shoulders and both arms, right greater than left, and also she takes this for low back pain which radiates to the right hip and down the right leg to the foot.
She has Lyrica 75mg once daily and also uses cranberry juice and Ural sachets to help alkalinise the urine to try and prevent UTI.
She did try Ozempic for weight loss after her fourth baby for three or four months. She found that Saxenda made her less hungry and she wasn’t craving for food. Panadeine Forte makes her crave food.
She has seen a different GP, Dr Ozman, Auburn, for the last two years, as he is easier to gain access to than her previous GP, who became very busy.
She still takes Ozempic every few months, as she still can’t control her eating impulse, except when there is a bitter taste in her mouth. Panadeine Forte makes her crave food.
Current symptoms
In terms of symptoms, she has had occasional faecal incontinence and wears a pad if she is stressed or anxious. Some staining will occur if she passes flatus at times. When she has constipation, she takes pitted dates and dried plums, and other high fibre preparations. She sometimes takes Movicol or else herbal tablets for her constipation.
Her symptoms have been fairly stable over the last two or three years and they don’t vary with her weight. Her appetite is intact but increased when she is anxious. She has not required any change in her diet.
Subsequent accident, injury or condition
She had a subsequent motor vehicle accident in 2019 and 2020, both of which were minor. In one of these she was again driving the eight-seater people mover and was hit from the rear. Her daughter, who was in the back seat, was uninjured.
She did see her doctor just as a precaution, as she was worried, but she was reassured and told to take her usual medications. She did not develop any ill-effect from this accident.”
RELEVANT PROVISIONS
Permanent impairment
The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Permanent Impairment Guidelines (effective from 1 June 2018) (the Guidelines).[2]
[2] See s 44 of the Motor Accidents Compensation Act 1999.
Permanent impairment to the digestive system is assessed under the heading “Digestive system” and commence from page 56. These Guidelines apply to motor accidents that occurred between 5 October 1999 and 30 November 2017.
The Guidelines adopt the AMA 4 Guides. The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury
It is necessary for the Panel to consider whether the accident caused or contributed to the claimant’s digestive system injury.
The provisions regarding causation of injury are contained in cls 1.5 to 1.7 of the Guidelines
Clauses 1.6 and 1.7 state:
“1.6 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 the worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular ss 5D and 5E.
DETERMINATIONS
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 63(3A) of the 1999 Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[4] and Insurance Australia Ltd v Marsh.[5]
[4] [2021] NSWCA 287.
[5] [2021] NSWSC 619.
The evaluation should only consider the impairment as it is at the time of the assessment.[6]
[6] Clause 1.21 of the Guidelines.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[7]
[7] Section 63(4) of the 1999 Act.
The Panel refers to the above re-examination report of Medical Assessors Oates and Gibson. The Panel reconvened on 18 August 2025 and discussed the re-examination report findings before collectively making the below determinations.
Diagnosis and causation
The first referred injury is redefined as upper gastrointestinal tract – oesophagus – GORD (gastroesophageal reflux disorder) symptoms and maintaining weight.
The Panel considered that the accident was a cause of this injury, as symptoms arose as a result of medications taken for a psychological condition treated by a psychiatrist, which manifested after the accident.
The second referred injury is redefined as lower gastrointestinal tract – diarrhoea and maintaining weight. Irritable bowel syndrome is the appropriate medical diagnosis in this instance.
The Panel considered that this condition has arisen as a result of the accident because there was no prior history of symptoms of constipation alternating with diarrhoea. The clinical picture was most suggestive of a functional gastrointestinal disorder affecting the lower gastrointestinal tract brought about by stress and anxiety, which is documented as having been in existence since the motor vehicle accident.
There was a past history of haemorrhoids and constipation associated with pregnancy but this condition was temporary and resolved after delivery.
Summary of injuries referred by the parties
The following injuries WERE caused by the motor accident:
· upper gastrointestinal tract – GORD symptoms and maintaining weight, and
· lower gastrointestinal tract – irritable bowel syndrome.
Permanent impairment
Upper gastrointestinal tract – GORD symptoms and maintaining weight
This is assessed with reference to cl 1.247 of the Guidelines which states upper digestive tract disease caused by the commencement and ongoing use of anti-inflammatory medications must be assessed as 0 – 2% WPI Class 1 impairment, according to Table 2 of page 239, AMA 4 Guides.
In this case, the Panel used analogy and found that the upper digestive tract disease was caused by the commencement and ongoing use of anti-psychotic medications rather than anti-inflammatory medication. However, there were no specific signs or any evidence on investigations of a specific disease process causing the symptoms to manifest.
The Panel agreed that 1% whole person impairment is appropriate in the circumstances, because the symptoms, although frequent, are not constantly present and are controlled by the use of appropriate H2 receptor antagonist or PPI medication. There has been no change of diet required and her weight is maintained.
Lower gastrointestinal tract – irritable bowel syndrome
The Panel referred to cl 1.248 of the Guidelines, which states colonic and/or rectal disease caused by the use of opiate medication must be assessed as 0 – 2% WPI Class 1 impairment according to Table 2 of page 239, AMA 4 Guides. Assessment of constipation alone results in 0% WPI.
In this case, there is constipation alternating with diarrhoea and 1% whole person impairment was assessed by the Panel.
Again, the symptoms though frequent are not constant, and there has been no requirement for a change in diet and her weight is maintained, indicating that the condition is at the mild end of the range of 0 – 2%.
The Panel noted that constipation is being addressed by use of high fibre supplements by the claimant, and diarrhoea similarly by symptomatic treatment.
CONCLUSION
The Panel concluded that for the gastrointestinal injuries referred for assessment, the claimant’s degree of permanent impairment is 2% WPI.
The Panel revokes the certificate of Medical Assessor Garvey dated 16 December 2024 and issues a new certificate in accordance with the Panel’s above findings and reasons for assessment.
The Panel also issues a combined certificate combining its assessment with the certificates of Medical Assessors Berry, Medical Accessor Steiner and Medical Assessor Haber.
Both certificates are located at the front page of this decision.
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