Sharma v QBE Insurance (Australia) Limited
[2025] NSWPICMP 155
•13 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Sharma v QBE Insurance (Australia) Limited [2025] NSWPICMP 155 |
CLAIMANT: | Nidhi Sharma |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Mathew Jones |
MEDICAL ASSESSOR: | Michael Hong |
DATE OF DECISION: | 13 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; degree of permanent impairment and threshold injury dispute; claimant’s three year old daughter was a pedestrian hit by a car; child let go of her father’s hand and ran ahead when a car hit her; child sustained injuries to her leg; incident was witnessed by the claimant; her daughter admitted to Westmead Hospital for surgical treatment; child required four separate surgical interventions over a period of about fourteen days; insurer admitted liability for the claim but did not concede that the claimant’s psychiatric condition was related to the subject accident; Medical Assessor found that the accident caused an adjustment disorder which is a threshold injury and did not assess whole person impairment (WPI); Held – Review Panel found the claimant suffered accident-related post-traumatic stress disorder (PTSD) which is not a threshold injury; Review Panel assessed 0% WPI; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the Certificate issued by Medical Assessor Doron Samuell dated 4 September 2023 and issues a new Certificate determining that: (a) The following injury caused by the motor accident: (i) post-traumatic stress disorder is not a THRESHOLD INJURY for the purposes of the Act. CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act) 2. The Review Panel revokes the Certificate issued of Medical Assessor Doron Samuell dated 4 September 2023 and issues a new Certificate determining that: (a) the following injury caused by the motor accident give rise to a permanent impairment of 0% and IS NOT GREATER THAN 10%: (i) post-traumatic stress disorder. |
(ii)
STATEMENT OF REASONS
INTRODUCTION
The subject accident occurred on 21 March 2019 on Lexington Drive at Bella Vista. The claimant’s then three-year-old daughter was a pedestrian hit by a car when she was crossing the road. The child let go of her father’s hand and ran ahead when a car hit her. The child sustained injuries to her leg. The incident was witnessed by the claimant. Her daughter was admitted to Westmead Hospital for surgical treatment. The child required four separate surgical interventions over a period of about 14 days.
At the time of the subject accident, the claimant was working full-time at Coles as a customer service worker. Following the subject accident, there was a major accident affecting the claimant’s brother, who sustained a brain injury. The claimant’s daughter has unrelated development delays that are concerning to the claimant. There also had been financial strains because the claimant is working fewer hours than she did prior to the subject accident.
QBE (the insurer) identifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory compensation benefits under the Motor Accident Injuries Act 2017 (the Act).
The insurer admitted liability for the claim but did not concede that the claimant’s psychiatric condition was related to the subject accident and did not exceed the 10% permanent impairment threshold.
ASSESSMENT UNDER REVIEW
As there is a dispute between the parties about:
· whether the injury is a threshold injury under Schedule 2, cl 2(e) of the Act, and
· the degree of permanent impairment under Schedule 2, cl 2(a) of the Act,
the claimant was referred to Medical Assessor Doron Samuell for assessment of her post-traumatic stress disorder.
Medical Assessor Samuell certified on 4 September 2023 as follows:
The following injury caused by the motor accident:
· Adjustment Disorder
is a THRESHOLD INJURY for the purposes of the Act.
The following injuries caused by the motor accident have resolved and give rise to no assessable permanent impairment:
· Adjustment Disorder
An assessment of degree of permanent impairment of these injuries is therefore not required.
Medical Assessor Samuell found that, on balance, the claimant did not satisfy the threshold criterion for an adjustment disorder at the time that he assessed her. He thought that Criterion D of a post-traumatic stress disorder was not satisfied.
THE REVIEW
The claimant sought a review of Medical Assessor Samuell’s certificate, on the grounds that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The claimant relies on the particulars set out in the application and supporting documentation.
The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act, and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant submits that Medical Assessor Samuell incorrectly applied the DSM 5 in his determination of diagnosis of the claimant. The claimant submits that she suffered from post-traumatic stress disorder, which is a non-threshold injury, as a result of witnessing her three-year-old daughter struck and run over by a motor vehicle.
The claimant relies on the assessment of Dr Rastogi and asserts that, as a result of her post-traumatic stress disorder, her degree of permanent impairment exceeds the 10% threshold. That is not relevant for the Panel’s consideration.
There is a lengthy dissertation as to the DSM 5 diagnostic criteria for post-traumatic stress disorder which it is not necessary to summarise. The claimant’s submissions then address and compare those diagnostic criteria with Medical Assessor Samuell’s factual findings, particularly in relation to Criterion D, which Medical Assessor Samuell found was not satisfied at the time of his assessment.
It is submitted that Medical Assessor Samuell failed to apply s 6.1 of the Motor Accident Guidelines (the Guidelines) which require inconsistencies between the Medical Assessor’s clinical findings and information obtained through medical records and/or observations of non-clinical activities, to be brought to the claimant’s attention. It is submitted that Medical Assessor Samuell failed to apply s 6.41 of the Guidelines as he did not bring the inconsistencies in the diagnosis made by Dr Rastogi to the claimant’s attention during the medical examination. It is further submitted that Medical Assessor Samuell’s certificate demonstrate that no inconsistencies were raised with the claimant at all.
The claimant’s review application was opposed by the insurer on various grounds. It is not necessary to deal with them in detail as they were not accepted by the President’s delegate.
Briefly, the insurer submits that the central issue for the claimant appears to be the Medical Assessor’s determination that her symptoms, history and functionality did not meet the Criterion D to satisfy a diagnosis of post-traumatic stress disorder. The insurer submits that, at pages 3 to 4 of his certificate, Medical Assessor Samuell records a very detailed history of the claimant’s pre-accident medical and social history, the history of the accident circumstances, history of symptoms and treatment following the accident and current symptoms. The insurer submits the claimant’s assertion that the Medical Assessor “failed to take a proper history” is simply inconsistent with the contents of the certificate. The insurer submits Medical Assessor Samuell explicitly notes the change in work hours and the affect of the accident on her social relationships.
In relation to paragraph 6.41 of the Guidelines, the insurer submits that the Medical Assessor is not required to align his diagnosis with that of another medical practitioner within the medical evidence. The insurer further submits that paragraph 6.41 of the Guidelines does not require a Medical Assessor to put to the claimant the various different diagnoses in the medical evidence. Rather, it is submitted, the purpose is to bring to the claimant’s attention any inconsistencies in her presentation, compared with that in the medical evidence.
The insurer notes that Medical Assessor Samuell referenced Dr Rastogi’s findings. It is submitted that, based on the claimant’s presentation and history as told to Medical Assessor Samuell on the day of the assessment, it is clear that he came to his own conclusion as to the appropriate diagnosis within the DSM 5.
The insurer acknowledges that Medical Assessor Samuell should have determined the degree of permanent impairment arising out of the psychiatric injury. It submitted that error is better dealt with by way of an obvious error application, rather than a re-assessment of the claimant’s injuries.
President’s delegate Tami O’Carroll issued a Determination of an Application for Review of a Medical Assessment on 13 November 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The bases of that decision were stated as follows:
“The claimant submits the Assessor did not comment on history and symptoms that were reported and were relevant to the determination of the diagnosis and, in particular, Criterion D for post-traumatic stress disorder. The claimant also submits that the Assessor incorrectly records on page 8, when providing reasons for the diagnosis, that she works on a full-time basis without psychological restriction”.
Accordingly, the review application was accepted and was referred to the Panel, which is to re-assess the injuries referred to Medical Assessor Samuell, for the purpose of determining a threshold injury and whole person impairment.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
THRESHOLD INJURY
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the MAI Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft-tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
a.comprehensive accurate history, including pre-accident history and pre-existing conditions;
b.a review of all relevant records available at the assessment;
c.a comprehensive description of the injured person’s current symptoms;
d.a careful and thorough physical and/or psychological examination;
e.diagnostic tests available at the assessment.
Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
A1 Claimant’s submissions dated 3 October 2023 for review of Medical Assessor Samuell’s certificate (summarised previously).
A2 Claimant’s submissions dated 11 April 2022 – threshold injury dispute:
·The claimant submits that the insurer’s assertion that she has sustained a minor psychological injury is incorrect. The claimant says there is no evidence available from her treatment providers that she has sustained either an Acute Stress Disorder or an Adjustment Disorder.
·The claimant submits that minor psychological disorders are characterised as being short-term conditions. Noting that the claimant’s psychological injuries occurred a number of years ago, the long-standing traumatic nature and characterisation of her symptoms, the claimant maintains she is suffering from a non-minor psychological injury.
·The claimant then describes her ongoing symptoms in response to the injuries suffered by her daughter in the motor accident. Noting her symptomology and exposure to a traumatic event, the claimant submits that she meets the criteria for a diagnosis of post-traumatic stress disorder (PTSD).
·The claimant submits that PTSD is a diagnosable psychological illness under DSM-5 and is therefore a non-minor psychological injury in accordance with the definition prescribed by the Act.
A3 The claimant’s reply submissions dated 30 June 2023 – whole person impairment (WPI).
These submissions deal with the insurer’s criticism of the opinions expressed by the claimant’s qualified psychologist, Dr Richa Rastogi (see later) and the insurer’s contention that the subject accident was not causative of any psychiatric injury.
A4 Certificate of Medical Assessor Doron Samuell dated 4 September 2023 (see previously).
A5 Application for personal injury benefits dated 11 February 2022.
A6 Certificate of Capacity by Dr Vinay Mehra dated 10 February 2022.
A11 Report of Ms Swate Tyagi, treating psychologist (see examination report).
A12 Report dated 24 May 2023 by Dr Richa Rastogi, consultant psychiatrist, to the claimant’s solicitors (see examination report).
A13 Clinical records from Dee Why Medical Centre as at 20 May 2022.
A14 Clinical records from MedClinic Family Practice as at 15 October 2022.
A15 Clinical records from Stanhope Medical Centre – various dates.
A16 Clinical records from Warringah Medical and Dental Centre as at 24 April 2023.
A17 Claimant’s statement (see examination report).
The insurer relied upon the following material which the Review Panel has considered:
(a) Insurer’s submissions dated 24 October 2022 responding to Application for Review (previously summarised).
(b) Insurer’s submissions (threshold injury dispute) dated 19 May 2022.
(i)the insurer notes that a minor psychological disorder, in accordance with s 1.6(2) of the Act, is defined as “a psychological or psychiatric injury that is not a recognised psychiatric illness” (emphasis added);
(ii)clause 5.11 of the Motor Accident Guidelines (Guidelines) provides that any psychiatric injury which does not meet the assessment criteria for a recognised psychiatric illness in accordance with the DSM-5 will be considered a minor injury;
(iii)in accordance with the relevant legislation and Guidelines, the insurer submits the claimant has not suffered a recognised psychiatric injury in accordance with DSM-5;
(iv)the insurer submits that the claimant’s psychological symptoms, as noted in the cited clinical notes, do not satisfy a DSM-5 diagnosis of post-traumatic stress disorder or any psychiatric illness, in accordance with the DSM-5, and
(v)even if the claimant is deemed to have suffered a psychiatric disorder (which the insurer denies), the insurer submits any psychiatric disorder is not related to the subject accident, but to other external factors. The insurer says there are clearly external social and medical factors impacting the claimant’s psychological health.
(c) The insurer’s submissions dated 27 June 2023 (WPI dispute).
(d) The insurer submits that the report and assessment of WPI by Dr Rastogi, as relied on by the claimant, should carry little to no weight, for the following reasons:
(i)the claimant sustained a lower back and neck injury from a fall at work which occurred in February 2019, one month prior to the subject accident;
(ii)the claimant also sustained a right shoulder injury whilst scanning at the checkout in her role at Aldi in June 2021, more than two years after the subject accident; and
(iii)Dr Rastogi does not mention those work incidents in her report. Consequently, she does not address the impact that those unrelated injuries have had on the claimant’s ability to perform her activities of daily living, her ability to work and her overall mental health. Instead, Dr Rastogi simply attributes all the claimant’s alleged psychological symptoms to the subject accident.
(e) There is also well-documented evidence of external factors affecting the claimant’s psychological state, including:
(i)“Nidhi’s brother met with an accident and is recovering in India. Irritability increased” – Clinical notes of Swate Tyagi dated 24 March 2022;
(ii)“Constantly worried about her finances….. might be going to India to help Mum who is caring for her disabled brother and her brother who has met with an accident” – Clinical notes of Swate Tyagi dated 4 April 2022;
(iii)the clinical notes of the claimant’s treating general practitioner, from at least 10 July 2019 to at least November 2022, do not mention the subject motor vehicle accident at all. There are no clinical entries addressing the claimant’s psychological stress or related psychological symptomology, in connection with the subject accident;
(iv)the first mention to her GP at Burdekin Road Medical Centre of any psychological symptoms appears to be on 1 February 2022, almost three years after the accident. The claimant attended the clinic since at least 18 October 2021 and never made a complaint about the accident before 10 February 2022, and
(v)“The claimant’s daughter….. developing behaviour and cognitive delay. This is affecting Nidhi with her mental health” – Certificate of Capacity dated 10 February 2022.
(f) Whilst the insurer concedes that it is reasonable to expect that the claimant’s psychological health would be impacted by the daughters’ behavioural and cognitive delay, the insurer submits that such behavioural or cognitive delay was not caused by the subject accident.
(g) The insurer submits that any psychological symptoms suffered by the claimant consequential to the alleged behavioural problems of her daughter are not causally related to the subject accident.
In the absence of absence of Dr Rastogi’s addressing the abovementioned factors in her report, the insurer is of the view that little weight can be placed on her WPI assessment.
(h) The insurer’s primary submission is that the claimant psychological symptoms and any psychiatric injury suffered is not caused by the subject accident. Rather, the insurer submits the claimant’s mental health has been affected by unrelated events, as previously described.
(i) In the event that it is deemed the claimant has sustained a psychiatric injury as a result of the subject accident, the insurer submits that there is no permanent impairment resulting from this incident.
(j) Clinical notes of Swate Tyagi.
(k) Clinical notes of Our Medical Home Marsden Park as at 23 January 2023.
(l) Clinical notes of Burdekin Road Medical Centre as at 30 January 2023.
EXAMINATION REPORT
The medical report of Medical Assessors Hong and Matthew Jones is as follows:
Nidhi Sharma
1. Who attended the assessment
Video assessment, with Ms Sharma, Dr Michael Hong and Dr Matthew Jones present.
History
2. Psychosocial history and pre-accident history
Background:
Ms Sharma was born in India and came to Australia in 2011. Her father has passed away and her mother and two brothers are in India. There was no developmental trauma identified.
In terms of general medical history, she had gestational diabetes and not now.
She does not have drug or alcohol problems.
She is not aware of a family history of mental illness.
She does not have a forensic history.
The Panel asked about her back injury sustained at Coles supermarket about a month before her daughter's accident. She said there was no back injury and she did not stop working from a physical injury.
Past psychiatric history:
In terms of past psychiatric history, the Panel began by discussing that we have read the GP records and noted a pre-accident psychiatric history, and Ms Sharma's response was "never", she had never attended any doctors or seen anyone in relation to her mental health. She said her mental health problems only started after the subject accident. She worked 38 hours per week before the subject accident and was good in her mental health.
In terms of other stressors, Ms Sharma had a shoulder injury in June 2021 from work. She has a tear and she worries about some tasks. She reported chronic financial difficulties. Her brother had a motorcycle accident in India, in 2022 or 2023. He cannot walk and is paralysed, has a brain injury, and has a carer. Her other brother is handicapped from a bathroom accident at age 4 years.
3. History of the motor accident
On 21st March 2019, Ms Sharma went out to dinner with her husband, her mother, brother and two children at Bella Vista. Her mother and brother were going back to India the next day.
Her daughters were 3.5 years (Saanvi) and 2.5 years old at the time of the subject accident. She said they just bought a property and were very happy. The youngest daughter had just started walking. Her brother is handicapped and her husband was helping him.
Ms Sharma was not sure what happened, and did not witness Saanvi being struck by a car (as Dr Richa Rastogi wrote).
She saw her daughter under the car and recalled for a moment she thought that Saanvi was dead or seriously injured as her daughter was not crying, then said “I am okay”. She was bleeding. Ms Sharma confirmed her daughter was breathing. She said she has never been in such a situation before.
There was a crowd and some passers-by came and she saw them lifting the car and they pulled Saanvi out from under the car.
Ms Sharma's file noted the driver in the subject accident then transported Ms Sharma and her daughter to Norwest Private Hospital.
Ms Sharma felt shocked and her concern was about her daughter's injuries. She noticed Saanvi's left leg was bleeding.
4. History of symptoms and treatment following the motor accident
Psychologically, Ms Sharma had worrying thoughts related to her daughter all the time after the accident. Ms Sharma first consulted a GP in the same year of the accident but then the COVID pandemic started, and doctors did not want in-person reviews with her. The first psychologist was Swate Tyagi, 2.5 years after the accident. She was offered other psychologists but she has not proceeded with them, and said there are always some appointments for her daughter and she wants to stay with her daughter, and also, psychologists charge a lot of money, so she has not gone to anyone else. She has never taken antidepressant medications.
Regarding the delay in seeing a psychologist, Ms Sharma said she found it difficult talking about the accident and there was a financial barrier to have psychological treatment, and as a busy parent, she has no time to see a psychologist. Her daughter goes to 3-4 different activities. She said her daughter said "why is this happening to me?" and she thinks about her daughter first, and cannot think about herself.
Ms Sharma said she never attended any medical appointments with her daughter, her husband attended. She said she cannot handle her daughter as her daughter does not listen to her.
She said she had a lot of pressure with no help, and no family around to help. She only started driving 1 year ago and has a full driver's licence now.
Ms Sharma's daughter had many surgeries. Her youngest daughter wants to go out but Saanvi does not want to. As a mother, she said she feels emotional and worries something bad will happen to her if she goes outside.
Ms Sharma gave a long narrative and spoke without stopping more than 10 minutes to summarize all the events since the accident.
Ms Sharma reported that since her daughter's accident, she has never returned to that location as it causes too much anxiety. The doctors wanted to talk to her about, and show her, her daughter's injury from the accident, but she said she has always refused, as it would cause too much anxiety.
5. Details of any relevant injuries or conditions sustained since the motor accident
Ms Sharma has not had further car accidents or sustained other psychological injuries.
Unrelated to the accident, Ms Sharma has had physical injuries and reported having a shoulder injury from Aldi work.
6. Current symptoms
Ms Sharma said she does not have big issues, but she worries about something bad would happen, and has anger. She does not want to go out or go to social gatherings. She does not want her daughter to go out and wants to hold her daughter's hand all the time when out. Even in playgrounds, she wants to follow her daughter around.
She gets angry and has been irritable. She said her daughter does not listen to her and this upsets her too. She gets the children ready in the morning for school and tells them to brush their teeth, but they take too long and she gets angry.
She reported chronically disrupted sleep and reported her shoulder injury affects her sleep. She said she has distressing dreams related to her daughter. Her mind is constantly busy and she has anxiety and worrying thoughts.
In the past 12 months, her weight has fluctuated by 2-3kg and said this is normal for her.
She said she does not have depression now.
She described having reduced memory and concentration and said sometimes, it takes her a couple of seconds to think of what she wanted to say.
7. Current and proposed treatment
Ms Sharma consulted Swate Tyagi, psychologist, and had 3 sessions. There was a gap of 2.5 years before she had psychologist treatment.
She has never taken a psychiatric medication.
There are no proposed treatments.
Clinical Examination
8. Mental State examination
Ms Sharma was bespectacled and her hair was tied back. She gestured regularly and was talkative. She spoke without interruption for more than 10 minutes, and the Panel then explained why we interrupted her, so we could clarify some of the history with her. She was preoccupied with her daughter in her narrative. She engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. She was not restricted in her affect, and she presented as anxious.
9. Current functioning
Ms Sharma is 35 and lives with her husband, who is a full-time bus driver, and their two daughters who are aged 8 and 9 now. She has been married since 2011.
The marital relationship is good and said he is a good husband and helps her and with their children.
In terms of driving now, Ms Sharma said she does the school drop-off, only 3 minutes away. She can drive further, but usually her husband drives. She feels safer if her husband drives, as her husband is more experienced and works as a bus driver.
She does the household chores, cooking and shopping, but generally with her husband. She buys small items (e.g. milk) on her own. Her husband loves cooking and helps her with cooking. She is the main carer for the daughters and helps them with everything.
She showers daily without prompting and helps her daughters, and instructs them to attend to their showering and brush teeth.
Ms Sharma said she has recreational activities, e.g. go out to parties with friends and her children, and eating out.
She said they have friends, with 14 couples, and they catch up once a month recently. She takes videos and they talk. They have dinner and lunch at home and in restaurants, and have celebrations.
She has never been one to read books herself and scrolls on her mobile phone and reads the news. She reads children books to her daughters, and said there is no issue with her focus on reading.
Employment history:
After 12 years of school, she completed a Bachelor of Arts degree.
She said in India she had worked in a family business doing marketing with clothing. Since she came to Australia, she worked in hospitality as a waitress and made coffee. Then she started working at Coles supermarket initially doing night fill, and later she worked in the Coles kitchen and would cook about 200 chickens in a day.
She said that because they purchased a new home and were moving house, she took a month off work and was on leave when her daughter had the accident. She thinks she has never gone back to work at Coles after the accident or if she did, it was only one or two shifts. She wanted to return to work with Coles, but said that because she didn't drive at that time and her new home was too far from the Coles supermarket store, and there was no other job available with other Coles stores, she didn't go back to work there.
About two years after the accident, Ms Sharma then started working at Aldi supermarket and said that she only recently left that job.
She confirmed in June 2021 she had suffered a shoulder injury at Aldi, and said that she recently left that job because she didn't want to suffer any further aggravation and her GP advised her to change job. Before she stopped at Aldi, she recalled she was working about 70 hours per fortnight. She said she could have done more but if she worked more hours, she would have needed to be on a different contract. She said she did everything there, served customers and managed the specials table. Aldi has specials every Wednesday and Saturday.
Ms Sharma has more recently obtained a job with Sydney Trains, and said that she is still thinking whether she should do it. It is a customer service job but also involve helping people with wheelchairs, and she worries that the lifting tasks would affect her shoulder pain. She said she wants full time work, but she could only obtain part time work at present.
Review of Documentation
10. Summary of relevant documentation
The applicant's submission noted that treating psychologist Swate Tyagi, in 2021 noted Ms Sharma's daughter’s accident, amongst other entries related to Ms Sharma's psychological injury, and Dr Richa Rastogi assessed her has having significant psychiatric impairment; she diagnosed Post-traumatic stress disorder and Major depressive disorder, with WPI 15%.
Hand written Application for personal injury benefits form noted the nature of the accident involving her daughter. Ms Sharma was a witness and her daughter was 3 years old at the time of the accident.
Certificates of capacity noted Ms Sharma's daughter in MVA and caused long-term leg injury and needed operation, with behavioural and cognitive delay, affecting Ms Sharma's mental health. Pre-existing factor was recorded as nil. Certified as having work capacity 8 hours, 5 days per week including March 2022; Dr Vinay Mehra.
The insurer’s liability notice regarding benefits after 26 weeks has been noted.
The internal review certificate from the insurer noted the claimant submitted the subject accident has caused a psychological injury, and discussed Ms Tyagi psychologist diagnosis of PTSD, but no information available regarding these sessions or evidence to support DSM-5 diagnostic criteria.
Treating psychologist, Swate Tyagi, report dated 8/4/22, The first session was 16/12/21. She witnessed her daughter’s accident and suffered psychological difficulties. She helped her daughter’s recovery but it has been prolonged. She started working at Aldi and needed days off work to support her daughter. She has nightmares, concentration difficulties, fatigue, loss of interest. No family history of psychiatric illness. She does not use recreational drugs and does not abuse alcohol. PCL-5 score out of 80 indicated possible PTSD. DASS score and K10 score, GAD-7 score noted, PHQ9 have been noted. She addressed each of the DSM-5 diagnostic criteria for PTSD.
Dr Richa Rastogi IME psychiatrist’s report dated, 24/5/23, noted Ms Sharma worked at Coles supermarket at the time of the subject accident, and was full-time at Bilgola. She did not return to work until 2021, after the subject accident, and commenced work at Aldi Stanhope gardens, 25 hours per week. No past psychiatric history was identified. She married in 2011. Dr Rastogi diagnosed PTSD and secondary Major depressive disorder in partial remission. Dr Rastogi had had a few sessions of psychologist treatment. Dr Rastogi provided a PIRS with ratings 133 233, Dr Rastogi explained the PIRS ratings based the following impairment and activities:
· She does not get too involved in social activities, does not connect with friends and less interested in doing things. The Panel noted her recorded history is outdated, and she reported having regular social and recreational activities with a group of friends now.
· Stopping driving due to anxiety and relies on husband. The Panel confirmed she did not stop driving, as she did not have a driver’s licence at the time of the subject injury. She has obtained a full driver’s licence and is driving now.
· Tired and exhausted and struggled to concentrate, struggled with multi-tasking and overwhelmed. The Panel noted this is consistent with a rating of 2 and rated 2.
· Working 25 hours per week. The Panel noted she has worked 70 hours per fortnight since the accident and could perform full-time work from a psychological perspective.
Dee Why medical centre GP complete records: The top entry began on 20/5/22. No problematic alcohol use was identified.
Warringah medical centre GP records: The top entry began on 20/2/19. Ms Sharma is vegetarian. 4/11/17, Dr Chamarthy Raju noted depression, unable to cope with family, DASS score 14-12-13, long discussion with family. Mental health care plan. Comment: before the subject accident. 15/8/15, Dr Bullen, back pain, stress and breast feeding.
GP letter to psychologist Charmaine Skea, 4/11/17, noted stress and other problems. Written by Dr Raju.
Comment: Ms Sharma told the Panel that Dr Raju was an Indian doctor and her GP, and they discussed about her mother in-law. She said she worked in Coles supermarket and it was normal issue, and only had one session with her GP, and never saw a mental health clinician. She said she had family issue in India, but then said there was no issue. She recalled she did the questionnaires (DASS) and she needed someone to help with her children, who were small and she wanted to return to work, but she did not go to see the psychologist.
The claimant’s statement discussed Medical Assessor Dr Doron Samuell’s certificate, her daughter was not the sole reason she ceased working and she explained to Dr Doron Samuell she was extremely emotional and worried and blamed herself. She discussed her symptoms. She worried about her brother who had an accident too.
10/2/22, Dr Mehra, GP wrote daughter MVA, Ms Sharma has low moods, seen psychologist, anxiety, low moods, ongoing trauma.
Dr Mark Sabaz, neuropsychologist, 9/2/22 wrote about Ms Sharma's daughter, who was age 6 years and 6 months and has psychological symptoms and behavioural problems.
The insurer noted the claimant submitted the subject accident has caused a psychological injury, but her daughter’s behavioural and cognitive problems are unrelated to the accident. She started new work at Aldi and had an injury 6/6/21 with right shoulder tears. Her psychologist noted her brother had an accident in India and she reported needing to go to India to assist, and there are clear external stressors. If Ms Sharma has a recognized psychiatric illness diagnosed according to DSM-5 criteria then it is unrelated to the accident. Regarding WPI and Dr Richa Rastogi’s assessment, the insurer said she had a fall at work February 2019, 1 month before the subject accident, then another injury to her shoulder June 2021, 2 years after the subject accident, Dr Rastogi did not mention these, or other stressors, related to her brother, financial worries, and her GP “at least 10/7/19 and November 2022”, did not mention the subject accident, the first mention of any psychological symptoms was 10/2/22, almost 3 years after the subject accident. GP certificate noted Ms Sharma's daughter developed behavioural and cognitive difficulties 10/2/22, but this has not been accepted as related to the accident. Dr Rastogi was not provided an accurate history or did not appropriately address their relevancy. If Ms Sharma had a psychological injury, she had no impairment as a result of that injury. Her work incapacity and functional problems, are related to her physical injuries before and after the subject accident.
DASS score 5/4/22, 13-12-11. PHQ9, K10 score 25. PCL-5 4/4/22 questionnaire (not scored), GAD-7 score 12.
Treating psychologist file, from Swate Tyagi: 16/12/21, overwhelmed after daughter accident 2019, disturbed by daughter’s emotional distress, time off work to support daughter. Angry, fatigue, guilt, blame. Regular entries related to daughter and Ms Sharma's emotional symptoms. 4/4/22, tried going out as family, daughter still anxious. Ms Sharma scared to drive since the accident, tried to appear for driving test, unable to complete test, affected her work and personal life as forced to use public transportation. Unable to enjoy outings due to anxiety, no previous psychiatrist support reported. No history of panic attacks. Worried financial and daughter.
Certificates of capacity right shoulder tear, right forearm and hand, CRPS? Date of injury 6/6/21. Written by Dr Mehra.
Determinations
11. Diagnosis and reasons
In summary, Ms Sharma disputed she had suffered any psychological difficulty previously, and the Panel noted her GP records seem to suggest that she did suffer a psychiatric condition for a period of time, and she had recovered from that episode.
Following the 2019 accident, where she saw her daughter being pulled out from under the car, she developed chronic depression and anxiety, and trauma symptoms consistent with Post-traumatic stress disorder.
She has had limited treatment but given the time that has passed, her psychological condition has become entrenched and is permanent.
The Panel does not believe she has an adjustment disorder as the only diagnosis, given the nature of the subject accident, her level of distress, and her avoidant behaviour are consistent with PTSD, and the circumstances of the subject accident was consistent with a DSM-5 PTSD criterion A event description.
Ms Sharma's psychological symptoms have fulfilled criterion A to H of the DSM-5-TR diagnostic criteria for PTSD, which is a non-threshold injury.
Criterion A was fulfilled as the subject incident was a major traumatic incident, specifically the subject injury was an objectively major traumatic event. She saw her daughter being pulled out from under a car and felt in shock and frightened.
Criterion B was fulfilled, as she has developed recurrent, involuntary, and intrusive distressing memories of the subject accident, nightmares and flashbacks, and intense and prolonged psychological distress when exposed to MVA-related triggers.
Criterion C was fulfilled as she described avoidant behaviour related to the triggers associated with the subject MVA, including her daughter’s injuries and doctors’ appointments.
Criterion D was fulfilled, as she has negative alterations in cognitions and low mood associated with the subject MVA, including persistent and exaggerated negative beliefs about herself, persistent distorted cognitions that she was responsible or should be blamed, fear and severe anxiety.
Criterion E was fulfilled, as she has marked alterations in arousal and reactivity associated with the subject MVA, including irritability, concentration difficulties and sleep disturbance. The Panel noted that her symptoms have improved in some ways over the years.
Criterion F was fulfilled as the above symptoms have lasted more than 1 month.
Criterion G was fulfilled as her psychological symptoms cause clinically significant distress with impairment in her social and occupational functioning.
Criterion H was fulfilled as her trauma-related symptoms are not attributable to the physiological effects of a substance or another medical condition.
The Panel noted other stresses relating to Ms Sharma's family, the family's finance, her brother’s and also her physical injuries which are not related to the accident.
The Panel noted her aversion to driving and that it took many years before she could obtain a driver's license, and her aversion to details of her daughter's injury, to the point she could not attend her daughter's appointments or participate in any discussion about her daughter's injuries with the doctors, and the fact that she has not returned to the location where her daughter was injured due to anxiety, are all consistent with a psychological injury caused by the subject accident. The Panel concluded there is more than a negligible contribution from the subject accident to Ms Sharma's current psychological injury.
The Panel noted the neuropsychologist’s opinion, that her daughter may have developmental issues and this is unrelated to the accident. The Panel noted Autism spectrum disorder or Attention deficit hyperactivity disorder have never been diagnosed by the treating team. The Panel also noted, from a psychological perspective, the more relevant issue is whether Ms Sharma interpreted Saanvi's changes as caused by the subject accident. The Panel noted that she had seen her daughter bleeding from being under the car during the accident, and she observed behavioural changes since the accident and Ms Sharma related this change to the accident.
12. Psychiatric Impairment Rating Scale
Category
1. Self-Care and Personal Hygiene
1
Ms Sharma is independent in living and has good self-care and personal hygiene.
2. Social and Recreational Activities
1
Ms Sharma has regular social and recreational activities with 14 couples, and is actively involved without needing a support person.
There is no deficit or a minor deficit, attributable to the normal variation in the general population.
3. Travel
1
Ms Sharma is anxious driving, and obtained her driver's licence after the subject accident. She can go everywhere on her own now.
4. Social Functioning
1
Ms Sharma's relationship with her husband, children and family overseas are all good.
She described having good friends and can relate to her friends well now.
There is no deficit or a minor deficit, attributable to the normal variation in the general population.
5. Concentration, Persistence and Pace
2
Ms Sharma reported having reduced concentration. She can focus on reading to her daughters and when watching TV.
Her mental state examination is consistent with 1 or 2.
6. Adaptation
1
Ms Sharma's physical injuries and pain are not assessable in the PIRS.
She has returned to work after the subject accident and performed pre-injury duties with a different supermarket. There were no psychiatric restrictions to return to work in her pre-accident employment in full time capacity.
List classes in ascending order: 111112
Median Class Value: 1
Aggregate Score: 7
% Whole Person Impairment: 0 %
*%WPI = Percentage Whole Person Impairment
13. Psychiatric Impairment Rating Scale
Pre-existing/subsequent impairment
Ms Sharma has not sustained a subsequent injury.
Ms Sharma had recovered from previous psychological symptoms.
14. Apportionment
Pre-existing and subsequent impairment = 0
15. Effects of Treatment
0%
No treatment now.
Conclusion
Ms Sharma has developed Post-traumatic stress disorder, a non-threshold injury, and her WPI is 0% WPI now.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[4] The Review Panel adopts the examination findings and reasons of the Medical assessors. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion[5] The Medical Assessors have explained why they have come to different conclusions and a different diagnosis to those of Medical Assessor Samuell with whom they respectfully disagree.
[4] Section 7.26(6) of the Act.
[5] Allianz Insurance Australia Group-v-Keen [2021] NSWCA 287.
CONCLUSION
For the above reasons, the Review Panel concludes that the Certificates issued by Medical Assessor Doron Samuell dated 4 September 2023 should be revoked. The new Certificate appears at the commencement of these reasons.
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