Serrano v AAI Limited t/as GIO
[2024] NSWPICMP 661
•17 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Serrano v AAI Limited t/as GIO [2024] NSWPICMP 661 |
CLAIMANT: | Javier Serrano |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Paul Friend |
MEDICAL ASSESSOR: | Christopher Rikard-Bell |
DATE OF DECISION: | 17 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant suffered injury in a motor vehicle accident; Medical Assessor determined the claimant’s permanent impairment at 10%; Held – the Medical Review Panel conducted an examination and diagnosed post-traumatic stress disorder giving rise to permanent impairment of 5%; the Medical Assessment Certificate was revoked and a new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Christopher Canaris and substitutes the determination to certify that that the following injury caused by the motor accident of 27 October 2016 gave rise to a permanent impairment of 5%: (A) post-traumatic stress disorder. |
STATEMENT OF REASONS
INTRODUCTION
Javier Serrano (Mr Serrano), the claimant, was born in 1960.
He was injured in a motor vehicle accident (the accident) on 27 October 2016.
He brought a claim for common law damages for the injuries he sustained under the Motor Accident Compensation Act 1999 (the MAC Act).
AAI Limited ABN 48 005 297 807 trading as GIO (GIO) is the insurer.
There is a dispute between Mr Serrano and GIO about:
(a) the degree of permanent impairment under s 58(1)(d) of the MAC Act.
This constitutes a medical dispute within the meaning of the MAC Act.
The Motor Accident Permanent Impairment Guidelines(the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.
The dispute was referred to the Personal Injury Commission (the Commission) and the Commission assigned it to Medical Assessor Christopher Canaris for assessment.
On 30 May 2023, Medical Assessor Canaris issued a certificate under s 61 of the MAC Act.
THE REVIEW
Mr Serrano requested referral to a Review Panel (the Panel) on the basis that there was reasonable cause to suspect that the Medical Assessor was incorrect in a material respect.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14(F)(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accident’s Division of the Commission.
Part 5 of 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.
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.
The review of the medical assessment is by way of a new assessment of all the matters in which the medical assessment is concerned.
DOCUMENTS CONSIDERED BY THE PANEL
The Panel issued a direction to the parties requesting provision of respective bundles for consideration.
On 21 June 2024, Mr Serrano’s solicitor uploaded to Pathway an indexed bundle of documents (Mr Serrano’s documents). On 9 July 2024, GIO’s solicitor uploaded to Pathway an indexed bundle of documents (GIO’s documents).
REVIEW PROCEDURE
Mr Serrano sought a review of the Medical Assessment.
A delegate of the President of the Commission determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the matter to a Review Panel.
The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. The President’s delegate has convened this Panel to conduct the review.
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. The review is by way of a new assessment of all matters with which the medical assessment is concerned.
Rules 127 to 130 of 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: Rule 128 of the PIC Rules.
On 24 June 2024, the Panel informed the parties that it considered a re-examination of Mr Serrano was required. Arrangements were made for Mr Serrano to be re-examined by the Panel on 17 July 2024.
LEGISLATIVE FRAMEWORK
Mr Serrano’s claim is governed by the provisions of theMAC Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of compensation by way of lump sum damages for persons injured in motor accidents in New South Wales.
WHOLE PERSON IMPAIRMENT
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and this includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) 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 implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
·2.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The Civil Liability Act 2002 (the CL Act) applies to the MAC Act in determining issues of causation. Sections 5D and 5E of the CL Act apply to the MAC Act. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s. 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
Dispute resolution
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment, further medical assessments (and the review of medical assessments by this Panel.
Applications for review of a medical assessment under s 63 of the MAC Act are made to the President of the Commission on grounds that the original assessment “was incorrect in a material respect” (sub-s (1)).
If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges for the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (sub-ss (2) and (2B).
The review is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the PIC Rules permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
ASSESSMENT UNDER REVIEW
Medical Assessor Canaris (the Medical Assessor) examined Mr Serrano on 23 May 2023, and issued a certificate under s 61 of the MAC Act.
Medical Assessor Canaris was referred the following injury for assessment:
(a) adjustment disorder with depressed mood.
Medical Assessor Canaris took a history of the accident:
“The Claimant was riding his motorbike at around 3:30 PM. A car cut him off from in front and he ‘went straight into the passenger door’. Paramedics and police attended. He was conscious throughout and was given painkillers. He was taken to Tweed Heads Hospital where he remained two weeks. He sustained serious injuries to his groin and had a bilateral testicular displacement. He had surgery to his groin. Thankfully, he had no broken bones. He was subsequently found to have internal bleeding in his groin and had to have drains. He had ‘strong painkillers’ over the next couple of weeks. I asked after his physical recovery. He said, ‘I was really lucky – I was happy to be in one piece – of course it took me a couple of weeks to go back to where it was – I have had to slow down on my heavy lifting… I’m 52 – I understand it’s part of getting older – I tried to get back to my independence…’.”
The Medical Assessor noted Mr Serrano’s history of symptoms and treatment
“He decided he would not ride his motorbike again. However, he ‘started getting panic attacks’ finding it difficult to share the road and ‘realised four years ago that I could not be independent and go into town – not even on a push bike… as soon as I heard a vehicle coming behind, I had trouble breathing – the doctors realised I had a bit of trauma – they sent me to a psychologist – they started me on antidepressant…’.”
The Medical Assessor completed a clinical examination:
“13. Mental State examination The Claimant was interviewed by Microsoft Teams. A good audiovisual connection established. He was observed to be sitting inside an outdoor shed like structure. He provided the history above speaking of his anxiety riding his pushbike and the difficulty this caused him as he could no longer ride into town on his own. He admitted to occasional flashbacks and nightmares. He showed reasonable reactivity and warmth of affect. I found no evidence of psychosis or of cognitive impairment.
14. Current functioning He leads a limited life living on an isolated rural property paying for his accommodation by keeping an eye on a roadside honesty box. He continues to receive the disability support pension.
15. Comments of consistency His account was coherent and consistent both internally and with the documentation on hand. There was no evidence of any attempt to exaggerate or dramatise his presentation.”
In the section “Causation and reasons”, the Medical Assessor stated:
“His persistent depressive disorder (dysthymia) with anxious distress comprises an ongoing motor accident-related exacerbation of a pre-existing condition.”
The Medical Assessor determined that the following injury was caused by the accident:
(a) exacerbation of persistent depressive disorder (dysthymia) with anxious distress.
Mr Serrano was diagnosed with 5% pre-existing impairment. The Medical Assessor determined a whole person impairment (WPI) of 10% resulting from the accident.
SUBMISSIONS
Mr Serrano’s submissions, dated 14 July 2023
Mr Serrano submitted that the Medical Assessor did not give sufficient weight to matters of relevance in assessing the Psychiatric Impairment Rating Scale (PIRS) categories which necessitates referral.
(a) Social and recreational activities and social functioning
(i)Mr Serrano submitted that his status as a migrant and inability to connect with other Australia was a significant factor that the Medical Assessor failed to consider when assessing his ability to socially function. He submitted that the Medical Assessor had failed to give his social factors enough weight in the assessment.
(b) Adaptation
(i)Mr Serrano submitted that his issues with cognition, short term memory and inability to travel makes it harder for him to obtain and maintain employment in an open labour market.
(c) Concentration, Persistence and Pace
(i)Medical Assessor Canaris assessed Mr Serrano as falling into Class 2 for pre-existing injury. The Medical Assessor’s certificate however provided no reason as to why that class has been selected. The same reasoning that had been stated for current impairment had been stated for the pre-existing impairment.
(ii)Mr Serrano submitted that the assessment of Class 2 for pre-existing injury in the category of Concentration, Persistence and Pace is inappropriate. He submitted that prior to the motor vehicle accident he was able to work with sufficient concentration, persistence, and pace.
GIO’s submissions in reply, dated 3 August 2023
GIO disagrees with the claimant’s submission and asserts that Medical Assessor Canaris has provided particularly insightful and clear reasons in support of his PIRS assessment.
(a) Social and recreational activities and social functioning
(i)Medical Assessor Canaris accepted that Mr Serrano had a pre- accident psychiatric diagnosis of a persistent depressive disorder with anxious distress on the background of significant trauma that stemmed from the tragic death of his son. This was consistent with Mr Serrano’s own statement dated 30 November 2017.
(ii)Medical Assessor Canaris reported that Mr Serrano has ‘always been a loner preferring his own company’. Medical Assessor Canaris also accepted that the claimant’s social interactions had reduced since the accident. The PIRS assessment provided by Medical Assessor Canaris was entirely consistent with the history provided by Mr Serrano
(iii)The claimant was socially isolated prior to the accident, both in the context of recreational activities and his family, as a consequence of a clear diagnosis of depression. Medical Assessor Canaris appropriately and insightfully assessed this pre-existing impairment as a Class 2 rating. Medical Assessor Canaris further accepted an exacerbation of the claimant’s social/recreational functionality as a result of the accident and accordingly allocated a Class 3 rating to his current condition.
(b) Adaptation
(i)GIO noted that Mr Serrano’s submissions in respect of “Adaptation” remained silent on the fact he was in receipt of the Disability Support Pension since 2005, there was frequent reference to unemployment prior to the accident and that there was very minimal evidence of his pre-accident employment. An argument could certainly be made that there had been no deterioration of his “Adaptation” since the accident and that Medical Assessor Canaris’ erred in finding a deterioration.
(ii)Medical Assessor Canaris was not tasked with establishing whether Mr Serrano had residual earning capacity on the open labour market. He was tasked with assessing the claimant’s ability to adapt to stressful circumstances. The fact that Mr Serrano was able to occupy himself by attending to the “veggie shop” so that he can retain his residency at the farm firmly suggested that there was some capacity to adapt to stressful circumstances.
(iii)Medical Assessor Canaris had plainly determined that there was no cognitive impairment following his clinical examination. As such, there was no reason for the claimant’s cognition, or supposed impairment, to feature in the assessment of Adaptation.
(c) Concentration, persistence and pace
(i)GIO submitted that there was objective evidence of impairment. As already established, Mr Serrano had been in receipt of the Disability Support Pension since 2005 for depression. It was apparent that his pre-accident depression affected his ability to concentrate and keep pace in an occupational environment.
(ii)Similarly, there was evidence of pre-existing concentration issues within the medical file. At page 283 of Mr Serrano’s bundle, Dr Christian Ifediora noted complaints of “poor concentration”. At page 296 of Mr Serrano’s bundle of evidence, under the title “attention” there is reference to “mind can wander” and “concentration problems” in the mental health assessment dated 19 March 2014.
(iii)GIO submitted that there is evidence of pre-existing impairment of “Concentration, persistence and pace”. Medical Assessor Canaris was justified in providing a Class 2 (mild) assessment of this domain. To accept there was no impairment would be inconsistent with the pre-accident medical evidence.
SUMMARY OF DOCUMENTS AND MEDICAL EVIDENCE
The claimant’s submissions dated 14 July 2023
The claimant’s submissions stated Medical Assessor Canaris made an error in assessing the WPI arising from the injuries sustained in the motor accident.
The Personal Injury Claim Form dated 3 November 2016
The form states the accident occurred when Mr Serrano was riding his motorbike in a straight line. An oncoming vehicle made a right-hand turn in front of him. He struck the passenger side of the other vehicle.
The statement by Javier Cardona Serrano regarding the motor accident on 27 October 2016
The statement provided that as a result of the motor accident, Mr Serrano sustained the following injuries:
(a) bilateral scrotum injury;
(b) bilateral testicular dislocation,
(c) left testicle laceration;
(d) haemoscrotum;
(e) ruptured medial aspect upper pole of left testicle;
(f) oedema and bruising to left epididymis and cord;
(g) ;nflammation of testicles;
(h) injury to neck;
(i) injury to pelvis;
(j) injury to lower back;
(k) shock;
(l) trauma;
(m) anxiety;
(n) depression, and
(o) post-injury acute stress disorder.
He had the following disabilities:
(a) pain, discomfort, restriction of movement, swelling and tenderness of the testicles;
(b) requirement to have stitches to testicles;
(c) bruising;
(d) pain, discomfort and restriction of movement of the neck;
(e) pain, discomfort and restriction of movement of the pelvis;
(f) pain, discomfort and restriction of movement of the lower back;
(g) increased loss of range of movement of back;
(h) stiffness to the right leg;
(i) numbness to the left leg;
(j) radiculopathy to the left leg;
(k) difficulty standing for lengthy periods of time;
(l) difficulty sitting for lengthy periods of time;
(m) difficulty walking for lengthy periods of time;
(n) difficulty squatting;
(o) difficulty kneeling;
(p) difficulty ascending and descending stairs;
(q) difficulty traversing rocky or uneven ground;
(r) difficulty bending, twisting or lifting heavy objects;
(s) disturbed sleep;
(t) fatigue;
(u) headaches;
(v) nausea;
(w) dysuria;
(x) dizziness and light-headedness;
(y) loss of appetite;
(z) weight loss;
(aa) rrisk of testicular cancer;
(bb) reduced sexual interaction;
(cc) pain upon intimacy;
(dd) recurring nightmares of the accident;
(ee) recurring flashbacks of the accident;
(ff) lack of motivation and energy;
(gg) anxiety;
(hh) panic attacks;
(ii) stress;
(jj) shock;
(kk) depressed moods;
(ll) increased irritability and tendency to feel angry;
(mm) reduced concentration and attention;
(nn) reduced self-esteem;
(oo) reduced social interaction;
(pp) exacerbation of pain cold weather;
(qq) inability to return to pre-accident employment;
(rr) diminished earning capacity;
(ss) inability to drive;
(tt) inability to ride a motorcycle;
(uu) inability to participate in normal social, recreational and sporting activities;
(vv) restriction in ability to attend gym;
(ww) difficulty performing pre-accident domestic duties;
(xx) ongoing requirement to attend medical practitioners;
(yy) requirement to take strong analgesic medication, and
(zz) loss of enjoyment of life.
Mr Serrano was diagnosed as suffering from depression and anxiety, in 2009, as a result of the death of his son in Colombia. He learned to cope with his grief and his life was getting back to normal. His condition was stable and managed prior to the motor accident.
He had received Centrelink benefits since about 2007 to date. He initially was receiving Unemployment Benefits but this was changed to Disability Benefits after being diagnosed with depression and anxiety following the death of his son.
He worked at hands-on jobs requiring manual labour and at the time of the accident was a self-employed housepainter earning approximately $600 each week.
He lived alone, prior to the motor accident and was completely self-sufficient.
The Personal Injury Certificate by Medical Assessor Canaris dated 30 May 2023
The Medical Assessor’s certificate stated that Mr Serrano suffered an exacerbation of Persistent Depressive Disorder (Dysthymia) with Anxious Distress. Medical Assessor Canaris assigned a WPI of 10%.
Mr Serrano had been receiving a Disability Support Pension since 2005. This occurred after his son was shot and killed in Colombia.
He hit rock-bottom. He was prescribed antidepressants in 2005 but ceased them because it was not his nature that he needed to use chemicals.
He was working as a handyman doing “cash in hand” work on a word-of-mouth basis.
All he did presently was the vegetable shop. He does not make any money.
He had lived in Australia since 1997. He left Colombia because he could not provide for his family.
Following the accident, he ceased riding his motorbike and had panic attacks and found it difficult to share the road. He realised four years ago he could not be independent and go into town, not even on a pushbike.
He could not stand the side-effects of antidepressant medications. He could not sleep, and his appetite was increased. His heart was racing.
He reached a low point and cut off contact with his lawyers.
He restarted antidepressants in 2019 but only took them for two months.
He now relied on locals to give him lifts from the rural property into town.
He was on the lookout for danger when travelling in a motor vehicle. He had no energy and no confidence.
He stayed on the rural property in return for some work and this could include tending a roadside vegetable shop. This role enabled him to talk to others and he was not preoccupied with his thoughts.
He had lost his mobility to do handyman work.
He had difficulty getting to sleep. He had difficulty feeling happy within himself.
He relived the accident at night when he was sleeping. He had the same dream which could come and go once a month, but it previously occurred once each week.
He woke up in the middle of the night and did not get back to sleep. He struggled to sleep most nights.
He could do activities for three hours and then could not keep going. Everything was harder and he felt like he was dragging a chain.
He had conversations with people who worked on the farm but did not have personal friends and had always been like that. He had always been one to “close myself because of anger over the way I’ve been and maybe a bit of the background from South America”. He loved being in Australia but didn’t interact much with Australians.
The report by Dr Yajuvendra Bisht, psychiatrist, dated 26 March 2018
The report stated that following the accident, Mr Serrano started to ruminate about the impact of the injuries on his life.
He had frequent recollections of the accident and became hypervigilant about having an accident.
He was very anxious when travelling in any vehicle. He avoided going to the site of the motor accident and avoided talking about the accident.
He had increased anxiety in common situations such as being in crowded places.
He had fluctuations of mood in response to minor and sometimes no obvious provocation.
He had initial insomnia, loss of interest in previous hobbies and found it difficult to sustain his concentration.
He was treated by a psychologist for a few months but had to cease because he was unable to afford the cost of the appointments.
Dr Bisht makes a diagnosis of an Adjustment Disorder with Depressed Mood.
The report by Dr Yajuvendra Bisht, psychiatrist, dated 6 July 2021
The report stated that Mr Serrano was completely unfit for any type of work for the foreseeable future and was not fit for a rehabilitation program.
Dr Yajuvendra Bisht in a separate report dated 6 July 2021
Dr Bisht reported that Mr Serrano has a diagnosis of post-traumatic stress disorder and Major Depressive Disorder. Dr Bisht assigned a WPI of 22%, assigning Class 2 to Self Care and Personal Hygiene, and Travel, Class 3 to Social and Recreational Activities, Social Functioning and Concentration Persistence and Pace, and Class 5 to Employability.
The ambulance report dated 27 October 2016
The ambulance report recorded a Glasgow Coma Scale Score of 15 on six occasions.
The Discharge Referral for the admission to Tweed Heads Hospital 1-4 November 2016
The Discharge Referral stated that Mr Serrano presented with left testicular pain and swelling following a recent motorbike accident resulting in the dislocation of both testicles requiring surgical reduction on 28 October 2016.
The testicular pain has worsened since Saturday night, was constant and associated with associated nausea.
There was one episode of haematuria and some dysuria.
He had scrotal exploration and debridement of the scrotal wall haematoma of the left testicle on 2 November 2016.
He had a ruptured medial aspect of the upper pole to the left testicle. The appendix of the left testicle was removed.
The left epididymis and cord were oedematous and bruised.
The right testicle had a normal examination.
The Discharge Referral for the admission 27-29 October 2016 to Tweed Heads Hospital
The Discharge Referral stated Mr Serrano was admitted following a motorbike versus car accident on 27 October 2016.
He sustained bilateral testicular dislocation injuries and underwent surgery to reduce the dislocation of both testicles.
He sustained a small laceration to his left testicle.
The clinical notes from the Kennedy Drive Medical Centre from 12 January 2010 to 29 May 2019
12 January 2010
The entry dated 12 January 2010 stated he was depressed and had panic attacks.
He lived alone with no social support from other Colombians. His children were in Colombia, and he sent money to support his daughter.
He was unemployed. His son got into drug use he feels because he came to Australia and was shot.
He has previously consulted a psychologist through Centrelink.
He was to start Lexapro and will be referred back to the psychologist under a Mental Healthcare Plan. He was prescribed Lexapro 10mg one tablet daily.
14 November 2011
The entry dated 14 November 2011 stated Lexapro worked well and he did not continue with them. He had a good 2010 but stresses caused him to slip back with early morning awakening on 14 November 2011. He would like to resume Lexapro and was prescribed Lexapro 10mg one in the morning.
10 March 2014
The entry dated 10 March 2014 stated he has poor sleep, low mood and poor concentration.
He lived alone and was unemployed.
He separated from his wife in 1996 or 1997. He had an ex-wife and daughter in Colombia. He was financially stressed and sent money to Colombia despite only being on Centrelink benefits.
He ceased taking escitalopram in 2011.
His scores on the depression, anxiety and stress scale (DASS-21) were:
(a) depression – 18 – severe;
(b) anxiety – 19 – severe, and
(c) stress – 19 – severe.
He was prescribed escitalopram 10mg one tablet daily.
19 March 2014
The entry dated 19 March 2014 stated he was originally from Colombia and emigrated in 1987, leaving his son and daughter.
He had one brother in the Philippines and one sister in Colombia and his remaining four siblings are in Australia.
His father was murdered in 1992 by drug gangs.
His son died five years ago at age 19 years and was involved in the drug trade.
He had a long history of depression, suicidal thoughts, generalized anxiety and had a panic attack last week.
He felt there was not much left to do in his life.
This appeared to be the last contact that Mr Serrano had with this medical practice.
The GP Mental Health Care Plan by Dr Brenton Prescott dated 12 January 2010 said he has diagnoses of depression and post-traumatic stress disorder, Panic and Anxiety Disorder and Social Isolation. He was prescribed Lexapro 10mg.
The report by Dr Warren Simpson, general practitioner, dated 8 November 2016, was a referral to Andrea Haddock. It stated he had a relapse of depression and had been restarted on escitalopram. He suffered a testicular injury and had ongoing issues with family isolation. It stated that Ms Haddock has previously seen Mr Serrano.
The report by Dr Brenton Prescott, general practitioner, dated 12 January 2010, was a referral for Mr Serrano to Andrea Haddock. It stated he was depressed, had panic attacks and had been commenced on Lexapro.
The report by Andrea Haddock dated 12 April 2010 was a letter to Dr Brenton Prescott. It stated Mr Serrano did not attend the scheduled appointment on 10 February 2010.
She attempted to treat Mr Serrano twice for his Centrelink funded counselling programs and during both periods, he was a chronically non-attending patient.
Andrea Haddock, psychologist
All clinical notes were handwritten.
The entry which appears to be dated 7 January 2009 states he identified depression, anxiety and grief and loss after his son was killed in Colombia four months ago. He didn’t know what happened as he lived alone. He was afraid for his daughter in Colombia.
He worked on his house where he lived.
His daughter had moved to another area. He was getting on with his life and was trying to improve his mood and temper.
The entry dated 9 July 2009 stated he had depression and sometimes felt very lucky. Other times he didn’t.
He did not have much anxiety or anger and didn’t blame himself but sometimes got angry with himself.
The entry dated 22 July 2009 stated he had a nice time with his mother and brother. He joined the tennis club and exercise helped him.
His decision to come to Australia would not change the outcome for his son.
The entry dated 28 August 2009 stated he was selling lawnmowers and playing tennis. His health was good. He sometimes had a feeling like a premonition, possibly anxiety.
He was recommended to have a bike ride in the morning.
The entry dated 9 November 2016 stated he had a motorbike accident two weeks ago and had commenced antidepressant medication in November plus Endone.
He had been taking care of himself for the past few years and was disappointed that he had let himself down.
The entry dated 16 November 2016 stated he had not commenced the antidepressant medication. His mood was more positive but his energy was low. He felt he was recovering physically.
He lived on a Hare Krishna farm which he felt was beneficial for him. He described it as a supportive environment.
The entry dated 24 November 2016 stated he was coping better. His anger was not as significant, and his mood was stable.
He felt he would recover from his physical injuries but he still had some grief around his injury, had a low level of energy and his mood was fluctuating.
He was more in control of his anger.
King Street Medical Centre and Cabarita Beach Medical Centre
The clinical notes from the King Street Medical Centre and Cabarita Beach Medical Centre, Murwillumbah, from 23 December 2016 to 13 October 2019 include the following entries.
The entry dated 23 December 2016 stated he had weight loss, poor appetite, low mood but was sleeping through. He had lethargy and felt easily fatigued in the last four weeks.
The list of past active history included a testicular injury and on 2 November 2016, scrotal exploration.
He was depressed in 2010.
The entry dated 13 January 2017 stated he was involved in a motorbike versus car accident in October 2016 and had been in pain since coming off oral Endone.
He was taking it for pain management for a testicular laceration sustained in the accident.
The entry dated 2 March 2017 stated he was prescribed escitalopram 10mg one daily.
The entry dated 6 March 2019 stated he had two weeks of bilateral arthralgia with fatigue and night sweats. He lived on a property with mosquitos, worked as a painter and had no animal exposure.
The arthralgia affected his hands, shoulders, hips, knees and ankles, right shoulder and wrist. The first metacarpophalangeal joint and knee were worse on the left side but both were sore.
He had drenching night sweats and needed to sleep on a beach towel.
He had no recent weight loss but some reduced appetite in the last two weeks.
He was referred for viral testing for Ross River virus, Epstein Barr virus, Barmah Forest virus, Q Fever, rickettsia, adenovirus, parvovirus, rheumatoid factor and a cyclic citrullinated peptide (CCP) antibody test.
The entry dated 13 March 2019 stated he had ongoing joint pains and fatigue. The night sweats had lessened to once per week. The affected joints included the shoulder, wrist, metacarpophalangeal (MCP), hips, knees and ankles. He had mild headaches at night. He had pain in both knees and both ankles, the right first metacarpal phalangeal joint and both wrists, right greater than the left.
Dr Tissa Kulatunge, radiologist
The report by Dr Tissa Kulatunge, radiologist, of a CT scan of the brain, cervical spine and thoracic spine dated 16 January 2017 was reported as follows.
CT brain stated normal attenuation grey and white matter. No extra-axial bleed, no cerebral bleed or contusion.
CSF space was normal.
Cervical spine stated spondylotic changes C5/6 and C6/7 with disc space narrowing and osteophytic lipping.
Moderate facet joint arthritic changes at C3/4 on the right and C5/6 and C6/7 bilaterally.
Thoracic spine stated facet joints are normal, no disc disease or stenosis.
The pathology report dated 7 March 2019 stated there was serological evidence of past infection with Epstein-Barr virus.
There was serological evidence of past infection with parvovirus B19.
The rheumatoid factor and CCP antibodies were both in the normal range.
The pathology report dated 8 March 2019 was negative for Q Fever serology.
The pathology report dated 8 March 2019 stated there was serological evidence of past infection with Ross River virus.
IgG antibodies to Ross River virus could persist for many years.
The pathology report dated 9 March 2019 states that adenovirus was not detected.
The pathology report dated 11 March 2019 was negative for rickettsial serology.
The pathology report dated 13 March 2019 stated the Q Fever Polymerase Chain Reaction (PCR) was negative, indicating Coxiella Burnetti deoxyribonucleic acid (DNA) was not detected.
The pathology report dated 13 March 2019 stated IgG and IgM testing for Barmah Forest virus was negative.
The pathology report dated 15 March 2019 was negative for IgM screening for leptospira.
The pathology report dated 14 March 2019 was negative for IgG and IgM testing for cytomegalovirus.
The Patient Health Summary from King Street Medical Centre/Cabarita Beach Medical Centre dated 18 March 2022 stated that he was prescribed levothyroxine 50mcg tablet one daily for subclinical hypothyroidism.
The list of prescribed medications indicated that levothyroxine was first prescribed on 4 June 2021.
King Street Medical Centre/Cabarita Beach Medical Centre
The clinical notes from the King Street Medical Centre / Cabarita Beach Medical Centre in Murwillumbah from 11 February 2015 to 8 December 2016 include the following entries.
The entry dated 11 February 2015 stated he was seen yesterday in Murwillumbah Emergency Department (ED) following an injury to his right shoulder. He tried to grab and then support a roof beam which had fallen. He was not employed and therefore not entitled to WorkCover.
He had a full thickness tear of supraspinatus.
He had seen a physiotherapist on multiple occasions in the past for ongoing right shoulder pain and was not keen to see a physiotherapist again.
He wanted surgery but was not insured.
The entry dated 1 November 2016 stated he was involved in a motorbike crash on 27 October 2016. He suffered a straddle injury to the groin with bilateral high riding testicles requiring closed manual reduction bilaterally.
He had a haematoma in the groin and was passing bloodstained urine.
He was referred to Dr Stephen Bourne.
The entry dated 8 November 2016 stated he felt depressed but did not have suicidal ideation.
His son was murdered in 2010 which was cocaine related. He had post-traumatic stress disorder from this and had treatment after arriving in Australia in 1997.
He sent money back to Colombia.
He was previously on escitalopram.
He was referred to Andrea Haddock, psychologist, and prescribed escitalopram 10mg one tablet daily.
The further clinical notes for the King Street Medical Centre/Cabarita Beach Medical Centre at Murwillumbah from 12 December 2019 to 18 November 2022 include the following.
The entry dated 31 May 2021 stated he continued to have difficulty passing urine since late 2016. He had difficulty initiating micturition and haematuria. He had pain which came and went, had dribbling and incontinence at times.
The entry dated 4 June 2021 stated there was no change in urinary symptoms. He had been feeling extremely lethargic for months, sleeping nine to ten hours every night and still felt tired.
His flat mate told him he was snoring a lot more recently. He would be referred for a sleep study.
The diagnosis was subclinical hypothyroidism. He was prescribed levothyroxine 50mcg daily and would have repeat thyroid function tests in six weeks.
The report by Dr Adrian Jackson, physician and endocrinologist, dated 7 March 2017 stated that Mr Serrano was a single man originally from Colombia and living locally for twenty years.
He was on a Disability Pension for mental health issues. He had a problem with ongoing fatigue on lack of stamina following a motorbike accident in October 2016.
He had ongoing lack of stamina.
He had been in the Gold Coast marathons for the last two years and was training for the 2017 event.
He was severely tired after five to six km and could not do any more for the next couple of days.
The thyroid stimulating hormone (TSH) was marginally high. Auto antibodies were negative.
His testosterone level was normal, as was his blood sugar. Iron studies, full blood count, B12 and folate were normal.
He was commenced on thyroxine 50mcg for five days each week and was to have repeat thyroid function tests in April.
It would be surprising if correcting the thyroid function made him feel substantially better.
The thyroid abnormality would not be related to the motorbike accident.
The report by Dr Sanjay Kapur of a renal tract ultrasound dated 9 June 2021 stated the bladder had a high residual volume. There was prostatomegaly and no solid renal mass.
There were multiple shadowing calculi noted within the spleen which were likely secondary to previous infection.
King Street Medical Centre Murwillumbah
The further notes from the King Street Medical Centre Murwillumbah contain the following.
The entry dated 28 February 2023 stated he had difficulty sleeping for the past six months, only sleeping for two hours each night.
He had a traumatic motorbike accident leading to two weeks of hospital admission and he almost died six years ago.
He had been unable to get back on a bike or drive a car. He relied on neighbours to help with transport to town for groceries. Six months ago, he got back on the pushbike to ride to town and had anxiety and needed to get off the bike and road.
He was not riding on the road. He needed to be on the footpath. He had been unable to sleep since. He did not want to take medication. He was referred to Ascending Psychology for post-traumatic stress disorder and prescribed melatonin.
The report by Cassandra Burford, clinical psychologist at Ascending Psychology, dated 6 March 2023, stated that he had physiological arousal when attempting to get back on his bike. He had avoided the need to do so for more than five years, relying on others for transport.
He had attempted to reestablish some independence through riding but it has not gone as expected. He had anxious responses which had negatively impacted his self-concept.
He described much self-criticism and rumination at night, impacting both sleep quality and mood.
He had difficulty engaging in meaningful activity during the day due to tiredness and lack of motivation.
The report by Harry Theodore, clinical psychologist, dated 4 April 2014, states that Mr Serrano was referred because of complex grief.
He was a 53-year-old single Colombian immigrant, currently unemployed housepainter.
He had complex grief following the loss of father and son to murder.
He was unable to work because he found it hard to wind down. He had poor initiative, over-reacts, was agitated and close to panic.
He felt that life was meaningless.
The trigger for these feelings was that his sister chose to return with her nine-year-old daughter to Colombia. She inspired him to emigrate from Colombia in 1997.
His mother lived in Australia.
He felt he had nothing to live for. His son was murdered by drug lords as a part of being a drug mule in Colombia.
His son’s last comment to Javier was that he did not need to send money back home to Colombia as he had done when he left there because he was making far more money than his father would ever make.
He witnessed the murder of his father, also by drug lords.
His scores on the DASS-21 were as follows.
(a) depression – 32 – extreme;
(b) anxiety – 30 – extreme, and
(c) stress – 28 – severe.
These scores were consistent with the DASS-42 because the maximum score in each domain on the DASS-21 is 21.
The report by Harry Theodore, psychologist, from Living Well Psychology dated 22 September 2014, stated Mr Serrano had not attended therapy since the third session on 15 May 2014.
The report by Cassandra Burford, clinical psychologist, dated 10 May 2023, stated that Mr Serrano did not return after the first session on 8 March 2023. He cancelled the second appointment, stating a desire to go away for some quiet reflection time.
The report from Murwillumbah Hospital of an ultrasound of the right shoulder dated 10 March 2015 stated there was a full thickness tear at the junction of the mid and anterior supraspinatus tendon associated with moderate subacromial/subdeltoid bursitis.
The Discharge Referral from Murwillumbah Hospital for 10 March 2015 stated that Mr Serrano injured his shoulder on the weekend trying to grab and then support a roof beam which had fallen.
He had a full thickness tear of the supraspinatus. He had been provided with a sling and it was recommended he have physiotherapy.
The Discharge Referral from Murwillumbah Hospital for the presentation on 4 June 2021 stated he had a painful left eye. He was grinding metal two days ago without wearing protective eyewear. This had happened in the past. He had been unable to sleep and he had been trying to wash out his eye.
His general practitioner that morning diagnosed him as iron deficient and having hypothyroidism. He was commenced on iron.
A foreign body was removed from his eye after examination with slit lamp and fluorescein stain.
The Discharge Referral from Murwillumbah Hospital for the presentation on 5 June 2021 stated he had a foreign body removed by Dr Gray overnight. He represented with ongoing pain in the eye and difficulty opening it due to pain. His visual acuity was 6/5 in the right eye and 6/9 in the left eye. The eye pressures were normal.
Slit lamp examination with fluorescein showed a large corneal abrasion at 9 o’clock partially covering the pupil with no rust ring.
The Personal Injury Commission Certificate by Medical Assessor Dr Christopher Oates dated 22 July 2022 stated that the injuries to the:
(a) cervical spine – soft tissue injury;
(b) lumbar spine – soft tissue injury, and
(c) right knee – patellofemoral soft tissue injury
gave rise to a permanent impairment of 5%.
The Personal Injury Commission Certificate by Medical Assessor Edward Korbel dated 5 August 2022 stated the following injuries:
(a) body area – male reproductive – injury – bilateral testicular dislocation laceration and adjacent haematoma and alternation of testicular pattern, and
(b) urethral stricture caused by trauma
gave rise to a permanent impairment of 3 %.
The Centrelink Report CT2668 dated 27 March 2014 stated that Mr Serrano was not emotionally reliable or job ready until he addressed his grief, guilt and sense of hopelessness.
It stated since migrating to Australia in 1997 he worked as a farmer in North Queensland and is a painter.
He had depression and anxiety for many years and had been treated with antidepressants but felt they were not helpful.
He was sending his whole Centrelink payment back to Colombia to support his daughter and lived off charity and declared any earnings he had from mowing lawns.
The records from Centrelink show that Mr Serrano has been receiving Newstart Allowance from 17 April 2008 to 4 March 2020.
Medical examination by the Panel
Mr Serrano was examined by video teleconference.
He attended unaccompanied.
Psychosocial history and pre-accident history
Mr Serrano lived on a rural property in a shed on the farm. He lived there rent-free in exchange for work on the farm.
He currently sat at a roadside vegetable shop where the farm sells various vegetables that it has grown.
They hsd an honesty box but he said people are not terribly honest anymore.
He currently worked four days each week at the roadside stall.
He, additionally, did work around the farm and helped various people on the farm which is described below.
Mr Serrano was born in Colombia in a rural area.
He completed his education in the capital city of Bogota. He next enrolled in several semesters in chemistry, but the financial situation of the family meant that he could not continue these studies.
The family had suffered a marked adversity in the 1980s.
His father, who was a farmer, was killed by criminals involved in one or more drug cartels.
Mr Serrano reported that at the time the drug cartels were forcing farmers to sell their land to them so they could grow cocoa leaves to make cocaine.
They had got in touch with his father a couple of days before his death saying, “we want to know the price for selling your farm”.
They came to the front door one night when the family was having dinner. His father said he would not sell the farm even though they asked for a price, and he was just shot while standing in the front door.
Mr Serrano believed he was about 15 years old when his father was killed.
The family subsequently relocated to Bogota.
Mr Serrano after leaving university completed a carpentry apprenticeship and worked as a carpenter.
He was never married but had been in a relationship with a woman from 1988. He had a daughter born in 1989 and a son born in 1990.
He stated it was common to live in a relationship with a woman in Colombia but to not marry because marriage cost money.
Mr Serrano immigrated to Australia alone in 1997. His mother was already living in Australia.
His financial situation did not allow him to bring his family to Australia.
Mr Serrano had hoped to work as a carpenter in Australia but said that carpentry in Australia was more like cabinetmaking and he was not qualified to do that work.
He subsequently did farmwork including picking grapes, picking cotton on cotton farms and had travelled around eastern parts of Australia.
He obtained an apprenticeship as a housepainter with a company in Brisbane, after his English skills improved. He completed the apprenticeship in about 2002.
He subsequently worked painting buildings in various places around Australia. He appears to have worked in Queensland, NSW and Victoria.
His son was killed in Colombia in 2005.
He did not know exactly what his son was doing at the time. His son’s mother had told him that at 14 years-old he was wearing good clothes, had money to spend and had purchased a motorbike.
Mr Serrano concluded that he was “mixed up with the wrong people” and that what he was doing “was nothing good”.
His son’s death had an immense effect on him. He had counselling, attended a psychologist and took antidepressant medications.
He gradually recovered and was able to stop counselling and antidepressant medications.
Mr Serrano commenced on Newstart Allowance in about 2008 or 2009.
He stated that this then became a Disability Support Pension.
The Panel noted this was not consistent with the records of Centrelink which showed that he had been on Newstart Allowance since about 2008 and that was continuing up to 4 March 2020. He stated that he continued to receive a Centrelink Allowance of some type.
Mr Serrano stated that he got a card in the post from Centrelink saying he was on the Disability Pension even though he then went to the Centrelink Office and said he was wanting to work.
He was told by Centrelink that he could continue to work to a certain limit.
Mr Serrano settled in Murwillumbah on the property on which he still lives where he lives in a shed and does not pay rent but helps around the farm.
Prior to the motor accident, he was working the land, preparing it for crops and weeding afterwards, which has mainly involved driving a tractor pulling various implements.
He loaded vegetables, grown on the farm, onto a truck, which others drive to various markets to sell.
He started working mainly for local real estate agents doing house repairs, taking rubbish to the tip and doing house painting as required.
He typically started work on the farm at 5.00am and was finished by 12.00pm.
He subsequently did his paid work as described above.
He estimated that he worked six to seven hours each day up to seven days each week.
Substance use
Mr Serrano was abstinent of tobacco, alcohol and illegal substances.
He drank three to four cups of tea since the accident. Before the accident he drank coffee. He had no other source of caffeine.
Pre-accident functioning
Mr Serrano was physically well prior to the motor accident.
He had not been involved in previous motor accidents or accidents of any kind. He had not undergone any surgery. He had not sustained any fractures.
Mr Serrano, prior to the motor accident, played tennis at the Murwillumbah tennis club every Thursday night which he described as a social event. He would spend about an hour after they had finished playing talking and interacting with the various members playing. This was a source of work from time to time.
He also interacted with the people who worked on the farm and would help repair their vehicles.
He did not undertake any other social activities. He went into town about every two days to purchase supplies that he needed and to talk to local real estate agents who were another source of work which was mainly painting or minor house repairs.
He was a keen bicycle rider and did long distance rides from the Gold Coast to Sydney and back again. Bicycle riding was a common activity in Colombia.
Mr Serrano reported he had no impairment of his functioning prior to the motor accident and all previous symptoms of depression had resolved.
Mr Serrano was asked about the reports and discharge referral from Murwillumbah Hospital dated 10 March 2015.
This states he had to grab onto a roof beam which had fallen and support it and had suffered pain in his right shoulder.
A subsequent ultrasound scan showed a full thickness tear of the supraspinatus tendon with moderate subacromial/subdeltoid bursitis.
Mr Serrano stated that he gradually recovered from this injury, and this was not causing him any difficulties at the time of the motor accident.
History of the motor accident
The motor accident occurred at about 3.30 pm.
Mr Serrano was riding his motorbike to the post office to collect a parcel.
Murwillumbah was busy at that time because children were being collected from school.
An oncoming vehicle made a right-hand turn. A following vehicle made the same turn without checking the road ahead. Mr Serrano was unable to avoid colliding with the passenger side door of the turning vehicle.
There was a passenger sitting in the front passenger seat.
His helmet struck the passenger side window. The tank of the bike was forced into his groin. He fell onto the ground and rolled over. He remained conscious.
The road was very hot, and people put water on the road to try to cool it for him.
He asked the driver why she had turned in front of him. She turned her back and walked away, which he found very upsetting.
Police and ambulance attended. He was given an injection of morphine to relieve the pain which was particularly severe in his groin, but also significant in his neck and left knee.
History of symptoms and treatment following the motor accident
He was taken to Tweed Heads Hospital where he was diagnosed as having a bilateral testicular displacement with his testes pushed up into his abdomen.
He had surgery the next day at Tweed Heads Hospital to relocate the testes.
He believed that he was in hospital for two weeks. The Discharge Referral for the admission 27-29 October 2016 to Tweed Heads Hospital described the relocation of bilateral testicular dislocation and stated he was discharged on 29 October 2016.
Mr Serrano subsequently re-presented to the hospital about three days later which is consistent with the subsequent Discharge Referral from Tweed Heads Hospital from
1-4 November 2016.He had a lot of pain in his groin which was swollen.
He had further surgery to insert a drain into haematoma, in the scrotal wall of the left testicle. The appendix of the left testicle was also removed.
This condition gradually improved
He took Endone every three hours until he decided to cease it about four weeks later.
He was unable to say when he was significantly physically recovered.
He continued to have pain in his lower back, left knee and neck and also headaches.
He described himself as mentally broken. He felt he was lucky to walk out of hospital after being admitted.
He, at some stage, tried to resume riding his bicycle but found that he would have a panic attack as soon as a vehicle came up behind him. The panic attacks were characterised by shortness of breath, tachycardia and palpitations, being fearful of being involved in a further motor accident and, in his words, “just freezing”.
He eventually gave up trying to ride a bicycle.
He appeared to contradict himself at one stage saying that he could ride on roads near the farm if there was no traffic. He then confirmed that he was unable to continue riding a bicycle and gave away his bicycle.
He was able to walk on the footpath to and from the town of Murwillumbah which was about a one hour walk each way.
Mr Serrano had nightmares of the motor accident at the point of impact. He was unable to say how frequent they initially occurred.
He fell asleep after reading for about an hour. He woke about 10.00pm. He got back to sleep and woke about three hours later at 1.00am and was unable to get back to sleep until 5.00am. He then slept until about 7.30am.
His dog typically woke him in the morning.
He had recurring intrusive memories of the motor accident during the day.
He felt that people were fragile.
He resumed sitting at the vegetable stall, four days each week, about three months after the motor accident. 10-15 vehicles would stop at the stall, each day, to purchase vegetables.
He stated, at this point, that he felt he was “just like a vegetable on the side of the road” and, that he didn’t have a life.
He did not return to playing tennis because of his injuries. His left knee would not bend. He had pain in his neck and lower back and “my head was not in the right place”.
Mr Serrano consulted his doctor about his physical condition and had X-rays of his neck and lower back.
The doctor advised him that surgery would not fix the problem.
He was prescribed painkillers which he did not take.
Mr Serrano did not want physiotherapy. He felt that he could do his own exercises which he had read about on the internet.
He was able to resume walking. He was able to resume some work around the farm but could not drive a tractor because of the ongoing pain.
He was prescribed escitalopram which he took for a couple of months.
He stated that he did not consult a psychologist which is inconsistent with the clinical notes of Andrea Haddock, psychologist, whose records show that he attended on 9, 16 and 24 November 2016.
It was also not consistent with the report of Cassandra Burford, clinical psychologist, whose report dated 9 March 2023 stated he attended for psychological assessment and treatment, having an initial appointment on 8 March 2023. It stated that he had physiological arousal when he attempted to get back on his bike and had avoided the need to do so by relying on others for transport.
He had attempted to re-establish some independence through riding, but this had not gone as expected.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Serrano had not been involved in any subsequent accidents of any kind, undergone any surgery unrelated to the motor accident or sustained any fractures.
Mr Serrano was asked about two events described in the General Practice notes and the records of Murwillumbah Hospital.
He was asked about the entries from 6 March 2019 to 18 April 2019 in the clinical notes of the King Street Medical Centre and Cabarita Beach Medical Centre, Murwillumbah.
He had presented with what was described as arthralgia and fatigue and night sweats in his hands, shoulders, hips, knees and ankles, right shoulder, wrist and first metacarpophalangeal joint and both knees, worse on the left.
He was then treated for mostly viral infections.
Mr Serrano could not remember those events.
Mr Serrano was asked about the Discharge Referrals from Murwillumbah Hospital dated 4 and 5 June 2021. He had presented at the hospital complaining of a painful left eye and stated he had been grinding metal two days ago without wearing protective eyewear.
Mr Serrano replied that this occurred when he was repairing a muffler on someone’s vehicle on the farm. He had cut and then ground a metal sheet to repair the hole in the muffler.
Current symptoms
Mr Serrano continued to have pain in his lower back, left knee, neck and headaches from time to time. He needs to stretch for an hour every morning to get movement into his body. He has constant niggles and pains throughout the day.
Mr Serrano described himself as mentally much the same as he was after the motor accident.
He had ceased riding a motor bike but could walk into town on the footpath, an hour each way about twice each week.
He was not experiencing panic attacks but attributed that to not trying to ride a pushbike.
He had not attempted to ride a motorbike.
He ceased driving his vehicle because he was no longer working because of his physical state and did not want to pay for the registration and insurance.
He continued to wake after about three hours of sleep and not get back to sleep until about 5.00am but sometimes he will sleep through the night.
He continued to have nightmares about the motor accident about once each month.
He described himself as feeling depressed when he was in town because he was not as interactive with the community as he was previously. He felt “a lonely man”. He continued to talk to people on the farm and continued to help them as described below.
Current and proposed treatment
There was no current or proposed treatment.
Mr Serrano was not prescribed any medication. He was prescribed Levothyroxine in about 2017 but has subsequently ceased it.
Mental state examination
Mr Serrano was on time, alert and orientated and understood the purpose of the examination.
English was not his first language and it was difficult to understand him at times.
He clearly described his physical symptoms.
Mr Serrano tended to describe his psychiatric/psychological symptoms in general terms, talking about being “a broken man” or “only half the person he was previously”. It repeatedly required more direct questions to elicit the psychiatric/psychological symptoms described above.
There was no evidence of thought disorder, psychomotor retardation, perceptual disturbance, delusional thoughts or other phenomena of psychosis.
Mr Serrano has ongoing pain in his lower back, his neck and his left knee and described having niggles of pain throughout the day.
The pain prevented him from doing most physical work.
Mr Serrano felt fearful of a further motor accident and suffered panic attacks when he tried to resume riding a bicycle on roads whenever a vehicle came up behind him.
He was generally fearful of a further motor accident. He ceased riding a bicycle and never attempted to resume riding motorbike for the same reasons.
He had recurring nightmares about the motor accident. He had recurrent intrusive memories of the accident each day.
He had disturbed sleep with waking after about three hours and not getting back to sleep for about four hours.
He was less engaged with the local community.
Current functioning
Mr Serrano continued to have disturbed sleep. He had nightmares about once each month, related to the accident.
He would get up in the morning, feed his dog and then have a cup of tea.
He prepared his own breakfast which usually involved squeezing oranges from the farm and making muesli or porridge.
He would made himself a salad again from products obtained on the farm for lunch.
Dinner was similar to lunch. He was a vegetarian.
He next would go to the roadside vegetable stall, if it was his turn to work.
He could spend his day sitting beside the river. He could do a variety of other activities on the farm, including servicing/repairing lawnmowers or motor vehicles or providing advice to others about doing these activities.
He was less motivated to keep the shed, in which he lived, tidy. He was upset that the shed was untidy when had to arrange for someone to care for his dog, when he came to Sydney for this examination.
He was less motivated to do the laundry. He was less inclined to go into town and therefore did not worry about having clean clothes. He purchased to wear to this examination.
Mr Serrano, prior to the motor accident, regularly drove to town to play tennis, to visit local real estate agents to seek work and to do quotations.
He talked to his fellow tennis players, after playing for about an hour.
He talked to the people on the farm.
He did not have any other social activities.
He no longer played tennis or visits real estate agents.
He continued to interact with others on the farm.
Mr Serrano, prior to the motor accident rode his bicycle into town most days. He drove his vehicle to transport his tools to various worksites but typically would ride his bicycle to and from worksites, until he completed the various jobs.
He now would walk into town which was an hour’s walk each way walking on the footpath. He usually went into town twice a week. He would get a lift into town when going shopping and stood beside the road, to get lift back to the farm, after completing the shopping.
He was too scared of a further motor accident to ride a bicycle and motorbike.
He could drive a motor vehicle, but ceased doing so, because he was no longer physically able to work and did not want to pay the cost of registration and insurance.
He had no difficulty sitting at the vegetable stall and interacting with people who come to the vegetable stall.
He attended his mother’s funeral in January 2023 where he interacted with his siblings.
He had a similar relationship, with his siblings, which he described as close but physically distant compared to prior to the motor accident.
Mr Serrano had owned a Jack Russell dog for the last three years. His dog was good at detecting snakes and a good companion. The dog helped protect the chooks on the farm.
Mr Serrano’s last relationship ended in 2008, after he became depressed, following the death of his son, in Columbia.
Mr Serrano had always enjoyed reading. Prior to the motor accident he could read for up to three hours at a time. He still enjoyed reading but could only read for an hour at a time. He did not own a television.
Mr Serrano continued to work as described at the vegetable stall 4-5 days each week. He serviced/repaired lawn mowers, motor vehicles and machinery on the farm, or else assisted others doing the same tasks.
He no longer drove tractors or did any other farmwork because of his physical symptoms.
Comments on consistency
Mr Serrano’s account was generally consistent within the examination.
It was not consistent with the report of Dr Yajuvendra Bisht who described many more symptoms and a much higher level of impairment in activities of daily living.
It was not consistent with the report of Assessor Christopher Canaris who determined that there was a pre-existing impairment as well as a much higher level of impairment in activities of daily living following the motor accident.
There were other consistencies regarding psychological treatment following the motor accident and the Centrelink benefits which had been noted earlier in the report.
Diagnosis and reasons
The Panel considered all the information and determined that Mr Serrano reached the criteria for a condition of post-traumatic stress disorder.
He reached the criteria as follows.
Category A
Mr Serrano was involved in a serious motor accident in which he sustained serious physical injuries and subsequently has been unable to ride a motorbike or a pushbike.
He felt that he was “only half the man” since the accident.
Category B
Mr Serrano had recurrent intrusive and distressing memories of the event, particularly about the other driver and how the accident occurred.
He had recurrent nightmares about the accident, especially the impact, although these were less frequent than previously.
Category C
Mr Serrano avoided riding his motorbike or bicycle and preferred to stay at home, going into town less than previously.
He also tried to avoid doing activities that might remind him of the accident.
Category D
Mr Serrano had a diminished interest in participation in significant activities including daily activities.
He had an inability to experience positive emotions. He described himself as half the man he was and that he was a changed person.
Category E
Mr Serrano was scared of a further motor accident and hypervigilant when he attempted to ride his bicycle after the accident. He was too scared to attempt to ride his motorbike, after the accident.
He had sleep disturbance and problems with concentration.
Category F
The disturbance had lasted more than one month.
Category G
The disturbance caused clinically significant distress and impairment in occupational and social and day to day functioning.
Category H
The disturbance was not attributable to the physiological effects of a substance or another medical condition.
Causation and reasons
Mr Serrano described having no impairment of his functioning prior to the accident.
He had ceased antidepressant medication, and he had ceased counselling which is confirmed by the various supplied documents.
Mr Serrano has not been involved in any subsequent motor accidents, accidents of any kind or suffered any significant trauma.
There was no other cause for the condition of Posttraumatic Stress Disorder other than the accident on 27 October 2016.
The Panel determined the following injury was caused by the accident:
· post-traumatic stress disorder.
PERMANENCY OF IMPAIRMENT
Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (p 315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
Mr Serrano’s accident occurred on 27 October 2016, over seven years ago.
He was not having any active treatment whether for his physical or psychiatric/psychological symptoms.
His condition was not changing.
His day-to-day functioning was not changing.
His condition was stabilised and permanent. It was unlikely to change substantially and by not more than 3% in the next year with or without medical treatment.
Degree of permanent impairment PIRS
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
Psychiatric diagnoses
1. Posttraumatic Stress Disorder
2.
3.
4.
Psychiatric treatment description
Treatment with Escitalopram.
Treatment by two psychologists.
Category
Class
Reason for Decision
1. Self Care and Personal Hygiene
2
Mild impairment. Mr Serrano lives alone, albeit on a farm with others who live separately. He can prepare meals for himself mostly from products he obtains from the farm.
He can buy what he needs in town, when required.
He is less inclined to keep his shed clean and less inclined to do his laundry because of a loss of motivation. He cares for his dog and enjoys the company of his dog.
2. Social and Recreational Activities
2
Mild impairment. Mr Serrano prior to the accident interacted with people on the farm but did not do social events with them.
He has ceased planning tennis on Thursday nights and having the social interaction with people after tennis in large part because of his physical injuries.
He has not maintained contact with any of the people from the tennis club.
3. Travel
2
Mild impairment. Mr Serrano can leave home without a support person and can walk to and from town.
He cannot ride a bicycle or a motorbike.
He gave up his other vehicle because he had no use for it as he had ceased working.
4. Social Functioning
1
No deficit. Mr Serrano was not in a relationship at the time of the accident.
He still interacts with people on the farm as he did previously.
He no longer attends tennis largely because of his physical injuries and has not maintained contact with them.
He describes having a similar relationship with his family compared to prior to the accident.
He has no difficulty interacting with people that he meets in the course of working on the vegetable stall.
5. Concentration, Persistence and Pace
2
Mild impairment. Mr Serrano reads for about an hour each day after which he feels exhausted but previously, he read for at least three hours each day. He continues to enjoy reading books. He does not own a television.
6. Adaptation
1
No impairment. Mr Serrano has ceased doing his own cash in hand work because of his physical injuries. He has ongoing niggles in his neck, lower back, left knee and sometimes headaches.
He has continued to service/repair lawnmowers, vehicles and farm equipment when required.
He no longer drives tractors or does farm work because his physical injuries.
List classes in ascending order: 1, 1, 2, 2, 2, 2
Median Class Value: 2
Aggregate Score: 10
% Whole Person Impairment: 5 %
*%WPI = Percentage Whole Person Impairment
Apportionment – pre-existing/subsequent impairment
Mr Serrano had no impairment of his day to day functioning prior to the motor accident and described himself as fit and well and able to do whatever he wanted.
He had fully recovered from his previous depression and was not taking any medication or receiving any treatment which is consistent with the supplied documents.
He had not been involved in any subsequent motor accidents or accidents of any kind and not developed any new medical conditions or sustained any fractures.
There was no need to undertake a pre or post accident apportionment.
Effects of treatment
Mr Serrano had ceased all medication. He had limited psychological treatment. There was no ongoing treatment of any kind.
No allowance was made for the effect of treatment because he had limited treatment and there had been no evidence of relapse of his condition after ceasing previous treatment.
CONCLUSION – PERMANENT IMPAIRMENT
Degree of permanent impairment caused by the motor accident
Permanent impairment ratings take symptoms into account, however the percentage permanent impairment is not a direct measure of disability.
The Panel revokes the certificate of Medical Assessor Christopher Canaris and substitutes the determination to certify that that the following injury caused by the motor accident of 27 October 2016 gave rise to a permanent impairment of 5%:
(a) post-traumatic stress disorder.
0