Sorrenti v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Sorrenti v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 477
CLAIMANT:	John Sorrenti
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW Panel
MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Atsumi Fukui
MEDICAL ASSESSOR:	Wayne Mason
DATE OF DECISION:	13 September 2022
CATCHWORDS:	MOTOR ACCIDENTS – Review of medical assessment made under Motor Accidents Compensation Act 1999; whether the degree of permanent impairment of the claimant as a result of a psychological injury caused by the accident is greater than 10%; Medical Assessor gave a certificate certifying that the psychological injury caused by the accident had resolved and did not result in permanent impairment; Held – the evidence supported a diagnosis of adjustment disorder with mixed anxiety and depressed mood; condition had been caused by the accident; the claimant did not suffer from post-traumatic stress disorder; the adjustment disorder with mixed anxiety and depressed mood gave rise to a 0% permanent impairment.
DETERMINATIONS MADE:	Certificate Replacement Certificate issued under s 63(4) of the Motor Accidents Compensation Act 1999 1. The Review Panel revokes the certificate of Medical Assessor Samuell dated 21 May 2021 and issues a new certificate determining that: The following injury was caused by the motor accident but gives rise to a permanent impairment which is NOT GREATER THAN 10%: · adjustment disorder with mixed anxiety and depressed mood. The following injury WAS NOT caused by the motor accident: · post-traumatic stress disorder.

Background

John Sorrenti (the claimant) was injured in a motor accident on 11 November 2017. He made a claim for damages on the insurer of the at fault vehicle, Insurance Australia Limited t/as NRMA Insurance (the insurer), under the Motor Accidents Compensation Act 1999 (MAC Act).
There is a dispute between the claimant and the insurer as to whether, for the purposes of s 131 of the MAC Act, the degree of permanent impairment of the claimant as a result of a psychological injury caused by the accident is greater than 10% (the dispute). The dispute is a medical assessment matter for the purposes of Part 3.4 of the MAC Act: s 58(1)(d) MAC Act.
The dispute was the subject of an application for assessment of permanent impairment dated 24 July 2020, lodged with the Motor Accidents Medical Assessment Service (MAS). In so far as psychological injury is concerned, the application records that the claimant suffered from adjustment disorder with mixed anxiety and depressed mood together with post-traumatic stress disorder that was in partial remission. The dispute was the subject of an assessment by Medical Assessor Samuell (the Medical Assessor), who gave a certificate dated 21 May 2021.
On 11 June 2021 the claimant lodged with the Commission an application for review of the Medical Assessor’s assessment under s 63 of the MAC Act. On 6 September 2021 the President’s delegate found that the Medical Assessor’s assessment was incorrect in a material respect. The application for review was accepted and referred to this Panel (the Panel) for review (the Review).

The review

The Personal Injury Commission (Commission) commenced operation on 1 March 2021. The MAS was abolished by Sch 1 cl 3 of the Personal Injury Commission Act 2020 (the PIC Act).
Under Sch 1 cl 14A(1) of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Schedule 1 cl 14F of the PIC Act provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in Sch 1 cl 14A(1) of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The Panel is to conduct the Review in accordance with s 63 of the MAC Act. Section 63(3) provides that the review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 63(3A) MAC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128.
Version 5 of the Medical Assessment Guidelines (Assessment Guidelines), effective from 12 February 2021, apply to the Review as does version 1 of the Motor Accident Permanent Impairment Guidelines effective from 1 June 2018 (Impairment Guidelines).
Causation of injury is to be determined in accordance with cl 1.5 – 1.7 of the Impairment Guidelines.
On 12 April 2022 the Panel made directions for the provision of bundles containing all documents relied on by the parties. The insurer has provided a joint bundle containing the material relied on by the parties for the purposes of the Review dated 16 June 2022[1]. On 4 July 2022 the claimant’s solicitors confirmed that all the documents he relied on are contained in the bundle prepared by the insurer.
[1] AD10.
On 12 May 2022 the Panel determined that an examination of the claimant was required and directed the parties to provide submissions for the purposes of the Review. The submissions are contained in the joint bundle.
Subsequent to the joint bundle being lodged, the following additional material was provided to the Panel in response to directions made on 14 July 2022:
(a)   report of Dr Wakil dated 28 April 2022[2];
(b)   clinical notes from Gosford Hospital as at 19 May 2022[3];
(c)   MRI brain report dated 14 January 2022;[4]
(d)   CT chest, abdomen and pelvis report dated 4 May 2022;[5]
(e)   CT left foot report dated 4 May 2022[6];
(f)    clinical notes of Dr Khalil as at 26 July 2022[7], and
(g)   clinical records from Central Coast Local Health District – Gosford Cancer Care. These records include the clinical records of Dr Wong and Dr Nardone.[8]
[2] AD12.
[3] AD13 and AD14.
[4] AD14.
[5] AD14.
[6] AD14.
[7] AD14
[8] AD20 and AD21
The clinical notes from Central Coast Local Health District – Gosford Cancer Care - were received by the Panel on 5 September 2022.

Statutory framework

No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%: s 131 MAC Act.
Section 132 of the MAC Act deals with the assessment of impairment. If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, the court may not award any such damages unless the degree of permanent impairment has been assessed by a Medical Assessor under Part 3.4 (Medical assessment).
The method of assessing the degree of impairment is dealt with in s 133, which is in the following terms:
“133   Method of assessing degree of impairment
(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.
(2) The assessment of the degree of permanent impairment is to be made in accordance with—
(a)  Motor Accidents Medical Guidelines issued for that purpose, or
(b)  if there are no such guidelines in force—the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.
(3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
Note—
See Part 3.1 for Motor Accidents Medical Guidelines”
The Impairment Guidelines state as follows with respect to causation of injury:
“Causation of injury
1.5    An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6    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, therefore, involves a medical decision and a non-medical informed judgement.
1.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Impairment caused by mental and behavioural disorders is assessed in accordance with cl [1.201] – [1.228] of the Impairment Guidelines: Clause 1.35 of the Impairment Guidelines.

Assessment under review

The assessment under review is dated 21 May 2021. In his reasons, the Medical Assessor recorded that the claimant experienced difficulty sleeping due to aches and pains. He recorded that the claimant thinks about the accident, and that either he or the other driver could have been killed. The Medical Assessor noted that the claimant had nightmares twice a week. His appetite had reduced. The claimant said he could get angry and frustrated a couple of times a week. The Medical Assessor recorded that there was no clear pattern of diurnal mood variation or complaint of concentration impairment. The claimant reported that he had not been treated by a psychiatrist, psychologist or counsellor and was not taking psychotropic medication. The claimant was not observed to be distressed or disordered at any stage during the assessment. His cognitive functioning was considered to be normal at a clinical level. There was no evidence of psychosis found by the Medical Assessor.
The Medical Assessor noted that there was conflicting opinion concerning the extent to which the claimant was experiencing psychological difficulty. In this regard, he recorded that Dr Vickery was of the view that the claimant had no psychiatric difficulties at the time that he assessed him. The Medical Assessor recorded that the view presented by Dr Smith was that there was a post-traumatic stress disorder in partial remission and an adjustment disorder with mixed anxiety and depressed mood.
The Medical Assessor recorded that the psychological symptoms continued to resolve. At the time he assessed the claimant, the Medical Assessor thought that his symptoms were below the threshold of a psychiatric disorder and, therefore, his condition was not considered permanent.
In the Medical Assessor’s opinion, at some time prior to his assessment of the claimant, he was diagnosed with a post-traumatic stress disorder and an adjustment disorder with mixed anxiety and depressed mood. While the accident was serious enough to be able to cause a post-traumatic stress disorder, at the time the Medical Assessor assessed the claimant, the claimant did not have symptoms of a post-traumatic stress disorder that would enable that diagnosis.
The Medical Assessor gave a certificate certifying that the psychological injury caused by the accident had resolved and did not result in permanent impairment.

The claimant’s statement

The claimant has provided a statement dated 14 November 2019. An account of the accident is provided. He states that after the accident he was “having huge problems at work”. He states that he could not lift, weld or stand. He says he could not mow the lawn or clean the pool. His son had to help him at work. His fiancé left him shortly after the accident. The statement records that the claimant experienced constant neck pain and pain down his arms, together with back pain which radiated down his legs. He could not sleep and was in pain all the time. He had an operation on his left elbow in October 2019.
The claimant stated that his relationship with his son deteriorated as a result of the accident. He states that he used to cook, but ceased because of the accident. He has been eating take away meals and has put on weight.
The claimant stated that, at times, he felt very depressed. He has not seen anyone for treatment of his depression. He is afraid he is going to lose his business and his income.

Other evidence

The Panel has read and considered the material lodged by the parties for the purposes of the Review. In addition to the documentary material, the Panel has reviewed dashcam footage of the accident and the surveillance of the claimant relied on by the insurer. The evidence relied on by the parties is addressed further below.

The claimant’s submissions

For the purposes of the Review the claimant relies on submissions dated 2 June 2022.
The claimant submits that Dr Glen Smith has provided an extensive account of his historical psychological symptoms following the accident, including that the claimant felt distressed after the accident, and said that he could have been killed, and kept thinking of it. The claimant notes that Dr Smith recorded a history that he did not drive at all for one month after the accident due to pain and anxiety and that while he had returned to driving, the claimant felt anxious and did not travel in the right lane, particularly when driving on the M1 due to fear of being involved in another accident.
The claimant relies on what are said to be inconsistencies between the Medical Assessor’s findings and other contemporaneous evidence as follows:
(a) the Medical Assessor noted that the claimant “…did not have any nightmares while sleeping”, which is inconsistent with the evidence given to Dr Smith, and
(b) the Medical Assessor’s opinion that the claimant “…is not suicidal” does not accord with the information obtained by Dr Smith that the claimant stated that on occasions he had thought of suicide but he denied pervasive thoughts or plans to act on suicidal ideation.
The claimant submits that the following material ought to be considered:
(a)   His statement
(i)“21. My fiancé left me shortly after the accident. I do not really understand why”, and
(ii)“35. At times I feel very depressed. I have not seen anyone for treatment. I feel that my fiancé left me because of the accident…”
(b)   Statement of Matthew Sorrenti
(i)“29. After the accident occurred, my father has become a totally different person. He is always moody and is very lazy and unmotivated. He tells me his injuries are affecting his sleep which I think only exacerbates his bad mood”, and
(ii)“32. I believe that the accident has affected my father’s mental health more than he has said about it. Whenever my father is a passenger of my car, he becomes visibly anxious and distressed and becomes worried that I will have a car accident.”
(c)   Medico-legal report of Dr Sikander Khan dated 23 October 2019
(i)page 4 – “Sleep disturbances”;
(ii)page 6 – “Adjustment to injury disorder” diagnosis, and
(iii)page 6 – “Further counselling to include cognitive behavioural therapy”.
(d)   Medico-legal report of Dr Glen Smith dated 19 May 2020
(i)page 4. “…feels frustrated… and his mood is worse… he feels interested in his previous activities but he noted, ‘I miss doing them’. He described low energy…ongoing sleep disturbance characterised by initial insomnia and then multiple disruption by ruminations… sleeping only three to four hours per night. He stated that he wakes early in the morning and is unable to return to sleep. He experiences nightmares of the accident around once per week. He stated that he continues to experience intrusive thoughts about the accident and he ruminates regarding the ramifications of the accident. He stated that on occasions he had thought of suicide but he denied pervasive thoughts or plans to act on suicidal ideation. He stated that he tries to avoid thinking of the accident if possible, ‘I try to block it out’…;
(ii)page 6, “A sleeping tablet occasionally” (he was unsure of the name), and
(iii)page 10, “presented with… reduced motivation and enjoyment of activities, feelings of frustration and despondency in the context of his ongoing difficulties”.

The insurer’s submissions

For the purposes of the Review the insurer relies on submissions dated 26 August 2020, 9 May 2022 and 16 June 2022.

26 August 2020 submissions

The insurer’s submissions dated 26 August 2020 address the claimant’s physical and psychological injuries. The insurer points to pre-accident lumbar, thoracic and cervical spine conditions, left ulnar neuropathy, as well as co-morbidities, including obesity, diabetes, knee conditions and sleep apnoea.
In relation to the alleged psychological condition, the insurer submits that the claimant has not sought any treatment from a psychologist or a psychiatrist since the accident.
The insurer submits that there are issues of inconsistency and credibility. The insurer submits that the claimant provided various accounts to doctors who have assessed him in relation to his incapacity that are inconsistent with the surveillance footage recorded on 1 July 2020, 22 July 2020 and 10 August 2020. The insurer submits that the surveillance footage contradicts the assertions made by the claimant regarding his work capacity, and reported disabilities generally.
The insurer submits that Dr Smith’s assessment is based only on the reporting of the claimant, and fails to factor the other evidence available, and the lack of any documented symptoms to the extent reported.
The insurer relies upon the report of Dr Graham Vickery, psychiatrist, dated 25 May 2020. In contrast to Dr Smith, the insurer submits that the claimant did not report any intrusive re-experiencing of distressing traumatic events, dissociative symptoms, flashback episodes, excessive physiological reactivity, or efforts to avoid traumatic thoughts. The insurer notes that the doctor observed no clinically significant anxiety, melancholic depression, paranoid, delusional ideation or formal thought disorder, and that Dr Vickery considered there to be no diagnosable DSM 4/DSM 5 psychiatric disorder or injury.
The insurer says that the only practitioner to whom the claimant has reported psychological symptoms is Dr Smith, despite the fact that the claimant continued to attend upon his GP and other specialists. Accordingly, the insurer submits that the test of consistency ought to be applied, pursuant to cl 1.40 and cl 1.41 of the Impairment Guidelines.

In conjunction with the surveillance footage and the records of Dr Marinucci, the claimant’s holidays in Thailand, as well as the comments of Dr Keller, the insurer submits that there are significant questions regarding the claimant’s credibility and what he has genuinely demonstrated in terms of capacity on examination. The insurer argues that the claimant was not forthcoming in disclosing his pre-accident medical history recorded in Dr Marinucci’s records, and has made statements with respect to his business and earnings which contradict the financial documents obtained.
The insurer submits that the claimant’s alleged psychiatric injuries do not give rise to any degree of impairment above the s 131 threshold. The insurer submits that there is a lack of contemporary or corroborative medical evidence, which records any complaints of psychological symptoms since the accident, or to the extent alleged by the claimant. Accordingly, the insurer submits that there is a lack of independent medical evidence available to conclude that those alleged injuries identified by the claimant give rise to any assessable permanent impairment.

10 May 2022 submissions

In submissions dated 10 May 2022 the insurer notes that records from Wyong Village Medical Centre confirm that, since the date of the accident until the records were obtained in August 2020, the claimant did not report any psychological symptoms. It is also noted that the records of the PBS confirm that he has not been prescribed any anti-depressants in the post-accident period.
The insurer submits that the claimant has experienced external stressors since the accident, including his fiancé stealing money from him and the diagnosis of lung cancer. In relation to the cancer diagnosis, he has received treatment, been prescribed medication and admitted to hospital.
The insurer relies on the history recorded by the Medical Assessor in his amended certificate, together with the Medical Assessor’s findings on examination. The insurer submits that the Medical Assessor’s certificate is consistent with the medical evidence in terms of the finding that the claimant has no psychiatric impairment.
Issues of inconsistency and credibility are again raised in the context of the claimant’s pre-accident medical history and the surveillance.

16 June 2022 submissions

The insurer’s 16 June 2022 submissions also raise issues in relation to the claimant’s credibility arising from the surveillance footage. The insurer submits that the footage demonstrates that the claimant was involved in the daily activities of his business, and that this is inconsistent with his statement that he has ‘worries’ about his business closing as he could not be involved due to his restrictions.
The insurer also refers to the request for particulars and response, and notes that the claimant has travelled to Thailand on two occasions, each for almost a month a time (6 January 2018 – 4 February 2018 and 31 May 2019 – 26 June 2019) which, it is argued, demonstrates at least some capacity to socialise and travel, two psychiatric impairment rating scale categories.

RE-EXAMINATION

Medical Assessors Fukui and Mason (the Medical Assessors) re-examined the claimant by MS teams on 27 July 2022. The claimant was assisted to join the AV assessment by his son but attended the interview alone.

Psychosocial history and pre-accident history

The claimant lives with his son in his seven bedroom home on a seven acre property at Allison, near Wyong, on the NSW Central Coast. He is not in a relationship. He is a 62-year-old man who stated he had not worked for four and a half years since the motor accident. He said this was due to pain in his lower back, left elbow, the back of his leg and his inability to turn his neck to the left or the right. He attributed these disabilities to the accident. He said his son has taken over his steel fabrication business.
He is the son of Italian migrants and grew up in Western Sydney. He is the oldest of four children. He attended school until the end of year 7 and left with literacy and numeracy difficulties. He was employed in manual labour type jobs. He suffered a back injury while working for Boral Gypsum and was off work for between five and six years. This was the subject of a workers compensation claim. He was married for 25 years and separated from his ex-wife 20 years ago. Their 36-year-old son lives with him. His 32-year-old daughter left with his ex-wife when they separated and he has not seen her since the separation. His 28-year-old daughter maintains regular contact.
Prior to the motor accident the claimant said he worked full-time in his steel fabrication business and was assisted from time to time by his son.
His leisure activities prior to the accident consisted of riding motorcycles with a group of friends. He said they would do this every weekend. He spoke with pride about his Harley Davidson motorcycle. He said he also participated in charity work with a group in Kings Cross helping people who lived on the street.
The claimant denied any history of problems with the law apart from being caught by police in a stolen car many, many years ago. He denied any medical problems prior to the motor accident apart from his work related back injury in the distant past while working for Boral Gypsum. He said he was unable to work for five or six years, and this had been resolved by particularly vigorous osteopathic therapy. He stated he developed diabetes but the clinical record indicates type 2 diabetes was diagnosed in 2016. The claimant denied any psychiatric problems prior to the motor accident. He said he did not develop psychiatric problems when he injured his back while working for Boral Gypsum. He denied any family history of psychiatric illness.
The claimant said he does not smoke cigarettes or use recreational drugs. He has two or three beers per week and does not gamble.
Current medications consist of the antiepileptic agent levetiracetam 500 mg twice daily, gliclazide 120 mg in the morning, Nesina Met (alogliptin/metformin)12.5/1000 mg twice daily, Panadol Osteo 2 tablets daily and diclofenac 50 mg as needed for pain, especially after activity.
With regard to pre-accident activities of daily living, he said he showered daily, wore clean clothing and cleaned the house himself from front to back once per week. He had been in a relationship with a Thai lady for five years. She and her two sons lived with him, but they returned to Thailand every three months for visa reasons. He said they were engaged and had planned to marry. He maintained a good relationship with his son and younger daughter, had a very wide circle of friends and saw them regularly. He said he had no difficulty with concentration, persistence and pace.

History of the motor accident

The claimant was travelling north on the M1 Motorway in a 1993 model Toyota Land Cruiser at about 3:30 pm on 11 November 2017. His partner was with him in the front passenger seat. He said she was shelling peas. He said they were on the downhill slope approaching the Brooklyn Bridge across the Hawkesbury River. They were both wearing seat belts, but no airbags were fitted to the vehicle. He said his partner was attempting to give him some peas and he recalls telling her he did not want them.
He said he was looking at the road when suddenly a car came from the other side of the freeway over the top of the concrete barricade dividing the two carriageways. He was travelling at 110 kph and had only 4 metres to attempt to stop. He said he hit the brakes but could not avoid colliding with the left-hand rear side of the other vehicle with the front of his vehicle. He said the other car was a blue RAV4. He said his car did not rollover, but the other car spun out and then hit the front guard and passenger side door of his vehicle.
The claimant said it was a heavy impact and he felt shocked. He said he thought he had killed the other driver. He also worried that he or his partner could have been killed. He said no one was seriously injured, and they were able to get out of the cars to see if everyone was okay. He said his partner was bruised on her left-hand side. His injuries at the time consisted of pain in his neck, arm, the top of his shoulders, his elbow and his lower back with radiation down the right side of his leg. He said the tow truck drivers arrived first, followed by the ambulance service and then the police.
The ambulance officers suggested they should go to hospital to be assessed but he said his partner was afraid, so he refused the offer and they went home with a tow truck driver. He said he dropped off his partner and then his son took him to Wyong Hospital where X-rays were taken, and he was informed there were no bony injuries. He said he went home at about 2 am the following morning. The claimant said his car was repaired. He believes a tow bar he had installed on the front of his car for the purpose of launching his boat had absorbed most of the impact.

History of symptoms and treatment following the motor accident

In the days following the accident the claimant said he kept thinking about the accident and kept thinking they could have been killed. He said he kept having thoughts as to why the other car came over the wall. He wondered why he did not swerve to avoid the car but then realised if he had he could have killed other people. He believes the front steering assembly of his car was damaged and the front wheels opened up causing it to come to a stop. He continues to experience those recurring thoughts and they always occur in the middle of the night and wake him up between 2 am and 3 am.
Six weeks after the accident he started having dreams about the accident. The dreams relate to him going home on the freeway and then something jumps out in front of him. These dreams happen around 4 am and wake him up. He then thinks about it and how the accident could have killed him. He is then unable to fall asleep again and he has to get up. Initially the dreams were occurring every night but now they happen every two or three days.
The dreams are upsetting and he feels “grumpy” through the day because he is unable to sleep. He said he does get “a bit depressed”. He said he behaves awfully towards his son. He does his best to stop this from happening, so he does not yell and scream at his son. He said his son works hard to keep his business running and he should not have to put up with such behaviour from him.
He initially described some anxiety when he attempted to return to driving. He said he prefers to avoid the centre lane on the freeway and he is anxious as a passenger while his son is driving.
When asked if he had sought treatment he said he did not think he needed a psychologist or psychiatrist. He said he told his GP about the motor accident but he did not mention the dreams because he did not think he needed to know. He said he does not think a psychologist or psychiatrist could help. He said he did see a psychologist after his back injury who provided him with a relaxation tape, but he said it just put him to sleep and it did not help the back pain.

Details of any relevant injuries or conditions sustained since the motor accident

When asked if he had sustained any injuries or conditions since the motor accident the claimant said he had been diagnosed with lung cancer late in December 2021 or early January 2022. Recently provided documentation indicates that this is a stage 4b adenocarcinoma of the lung because of the presence of cerebral metastases. He explained he is currently receiving treatment. There were three metastatic lesions in his brain which had been treated with radiotherapy. He is receiving immunotherapy at Wyong Hospital every three weeks. His treatment is being managed by the Central Coast Cancer Centre; his physician is Dr Wong for immunotherapy and his oncologist is Dr Nardone. He said the treatment had aggravated his type 2 diabetes and it has been necessary for him to use insulin to bring it under control. He added there had been another admission to Gosford Hospital following the development of a urinary tract infection. When asked about prognosis he said he was not sure and would not find out until after his next immunotherapy session and review which was due in two weeks.
When asked about the psychological impact of this diagnosis, he said he was shocked when he was informed and it "drove him nuts". He said it made him feel terrible. When he wakes up at night he finds himself thinking about it and cannot switch his mind off. He said it is present along with his ruminations on the motor accident. He said he prays to God that his future is bright.

Current symptoms

Currently the dreams about the motor accident occur two or three times a week. He also keeps wondering why it happened, and that occurs two or three times a week. He described insomnia and is woken up at various times both by the dreams and by pain. He said that sometimes during the day thoughts of the motor accident just pop into his head but he is able to distract himself at times.
He said that his friends often tell him how lucky he was to survive but this does not make him feel lucky. He has a lot of friends, and they all ask him how he is going. Since the cancer diagnosis he does not see his friends as frequently, but they do come to see him sometimes on the weekend.
He stated that he is not able to get rid of the thoughts about the cancer. When he has immunotherapy he develops swelling of his elbows and back and he is in more pain for a couple of days. He said he wishes he had his health back and he could just go back to work, come home and then retire when he gets old, but he said he cannot do this because of the pain from the motor accident. He also added he does not know if it will be possible because of the cancer.

Current and proposed treatment

There is no current or proposed psychological or psychiatric treatment. When asked why, the claimant said he does not believe it can be helpful.

Mental state examination

The claimant is a right-hand dominant 62-year-old man whose appearance was consistent with his stated age. He was interviewed using the Microsoft Teams application with a good internet connection. He was assisted in joining the interview by his son. There were initial difficulties because the audio link on his computer could not be established, and it was necessary for him to switch to his mobile phone. He attended the interview alone and his son was in another part of the house. The interview commenced at 9:35 am and concluded at 10:55 am.
The claimant appeared to be casually dressed. He had rather long hair and appeared to be overweight. He was cooperative with the interview. He appeared to be of average intelligence although he acknowledged he has had difficulties in the areas of literacy and numeracy. He was not a psychologically sophisticated person and responded to questions in rather concrete terms. Nevertheless, he was fully aware of the reasons for the interview and was fully aware that he had lung cancer with brain metastases.
Throughout the interview the claimant displayed no evidence of anxiety or depression. His rate and form of thought were normal. He displayed a normal range of appropriate emotional expression.
He described trauma-related symptoms consisting of traumatic dreams and images and intrusive thoughts. He also described frustration in relation to his ongoing pain. He did not display significant pain behaviour throughout the interview, although stated he was reluctant to get out of his chair when his son was not present because of fear he would fall.
Because of his lung cancer diagnosis, cognitive functioning was screened using some elements of the mini mental state examination (Folstein). No major deficits were identified. The claimant was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.

Current functioning

The claimant said he spends his time at home and does not go to the workplace. When asked what he does with himself he said he lies around the house and watches movies.
Self-care and personal hygiene: The claimant said he showers every day although it takes him quite a long time. He changes his clothes daily. His son does the housework every weekend because of his pain. The claimant no longer does the cooking because of pain but provides instructions for his son. Occasionally they purchase takeaway food. He is unimpaired in this area from a psychiatric point of view.
Social and recreational activities: The claimant said he saw his friends on a daily basis prior to the accident. He said they would have coffee and chat together. He said this was reduced to three or four times weekly following the accident and has now been reduced again after the cancer diagnosis. He said his friends now come to visit him. He stopped riding his Harley Davidson motorcycle following the accident because it is too heavy for him to handle due to pain. He is unimpaired from a psychiatric point of view.
Travel: Currently the claimant is able to drive. He travels to the shops and to Gosford for treatment and occasionally will drive to Sydney. He said he is able to use public transport and has been able to travel overseas to Thailand twice since the motor accident, although not in the last two years. He is unimpaired from a psychiatric point of view.
Social functioning: The claimant said his Thai fiancée left him three weeks after the motor accident and returned to Thailand with her two children. He described an argument between them regarding the education of her two children. He said she wanted them to go to school here in Australia but would not believe him when he explained it was school holiday time, i.e. the long Christmas vacation. He said he took her to the local public school and they waited there all day to prove to her that it was holiday time. One week later she took $3,400 from his funds and departed and he has not seen her since. The Medical Assessors concluded the separation was not caused by problems related to the accident. The claimant said he gets along well with his son and youngest daughter. He has a circle of friends. He is unimpaired from a psychiatric point of view.
Concentration, persistence and pace: The claimant said he is able to watch movies of any type and has no difficulty following the plot. He said his son looks after the family finances because he is not able to use computers. He said he does not read because of his literacy difficulties. He confirmed he is able to persist with tasks and see them through but said he is slower because of pain. He is unimpaired from a psychiatric point of view.
Adaptation: The claimant stated he is only capable of light duties at work because of the pain he experiences. He said if he uses pain medication he can do a little more. The Medical Assessors discussed with him the surveillance videos which indicated he did attend work and had been able to drive a truck from the Central Coast to Sydney. He confirmed this was the case and insisted these were examples of him performing light duties. The Medical Assessors accepted this explanation, noting that his impairment in this area is due to pain and not his psychiatric condition. He is similarly limited by pain in the performance of household tasks. He is unimpaired from a psychiatric point of view.

Comments on consistency

The Medical Assessors concluded that the claimant's presentation was internally consistent and consistent with the documentation provided. When inconsistencies were brought to his attention he explained them on the basis of his physical difficulties and pain. Some inconsistencies in history were noted, such as the claimant saying he had never received psychiatric or psychological help in the past, and then later in the interview referring to the fact that the psychological counselling he had received in the past had not been all that helpful. The Medical Assessors did not believe this was intentionally misleading but rather a function of the claimant's concrete intellectual style.

Review of documentation

Dr Sikander Khan on 6 November 2018 diagnosed a musculoligamentous injury and facet joint trauma of the cervicothoracic spine, rotator cuff tendinitis and bursitis of the right shoulder, radiation of symptoms to both shoulders and arms causing restricted range of movements of the shoulders, non-verifiable radicular symptoms in the right and left arm, and musculoligamentous injury and facet joint trauma of the lumbosacral spine.
Dr John Davis, Occupational Physician, provided a report dated 23 October 2019. In addition to physical injuries, he diagnosed an adjustment to injury disorder. He recommended 8 - 10 further CBT counselling sessions.

Orthopaedic surgeon Dr Chris Harrington provided a report dated 25 March 2019. Presenting problems were pain in the claimant’s neck, both shoulders and lower lumbar spine. There were also occipital headaches and pins-and-needles in the fourth and fifth fingers of his left hand. The doctor diagnosed a soft tissue injury of the cervical spine, with restricted shoulder movements originating in the neck, and soft tissue injury to the lumbar spine. The doctor obtained a history that the lumbar spine was completely asymptomatic at the time of the accident. He assessed whole person impairment at 23% for physical injuries.
The clinical records of Dr Marinucci do not contain references to pre-accident attendances for psychiatric conditions. The claimant attended on 13 November 2017 following the subject accident with physical complaints. On 8 January 2018 he reported the development of vomiting and diarrhoea after visiting Thailand. On 19 March 2018 an MRI revealed C5-6 nerve root impingement. Rising blood sugars are noted. In August 2018 he had severe right shoulder pain and pins-and-needles in the left arm.
A discharge referral of Wyong Hospital dated 11 November 2017 records that the claimant had self-presented. He described a head on collision with no airbags in the vehicle and said the car was written off. He denied loss of consciousness and self-extricated. He was assessed by paramedics at the scene but did not want to leave his partner so did not accept transport to the Emergency Department. He described midline spinal tenderness at T11-12. A CT of the spine showed no acute fractures.
The clinical records of Wyong Hospital record that the claimant attended at 11 pm on the date of the accident with midline spinal tenderness. There was no reference to psychological injury.
Psychiatrist Dr Glenn Smith provided a report dated 19 May 2020. The claimant reported to Dr Smith that he thought he could have been killed in the accident and kept thinking about it. He did not drive for one month. Following that he felt anxious while driving. He described nightmares which have reduced in frequency. He said his fiancée stole $3,400 and returned to Thailand and he never heard from her again. He had not seen a psychiatrist or psychologist and had not been prescribed psychotropic medication. Current symptoms consisted of low mood secondary to shoulder pain, low energy due to pain, disturbed sleep due to both pain and ruminations, and early morning wakening. There were nightmares of the accident once weekly, plus intrusive thoughts and ruminations. There was occasional passive suicidal ideation but no intent. He attempted to avoid thinking about the accident. He had gained 10 kg. Dr Smith diagnosed major depressive disorder and post-traumatic stress disorder in partial remission. Dr Smith assessed whole person impairment at 19%.
Dr Andrew Keller provided a report dated 20 March 2020. He noted grossly inconsistent restriction of motion in the cervical spine, right shoulder, right wrist, lumbar spine and unexplained and inconsistent weakness in both ankles. There was reduced sensation in the ring and little fingers consistent with ulnar nerve entrapment, not improved following surgical release. The doctor believed the claimant suffered a temporary exacerbation of pre-existing lumbar spine degenerative changes. In the doctor’s opinion, none of the claimant’s other complaints relate to the motor accident. There were no physical injuries attributable to the accident that could be assessed for whole person impairment.
Dr Keller provided a supplementary report dated 3 July 2020 after viewing the report of

Dr Harrington and details from the GP medical records. He did not change his opinion.
Psychiatrist Dr Graham Vickery provided a report dated 25 May 2020. Symptoms reported consisted of fluctuating pain in the claimant’s arms, lower back to the bottom of his feet, and numbness in the left two outer fingers. There was a disturbed sleep pattern due to the aches and pains. He sometimes sleeps during the day. Dr Vickery stated the claimant was close to his three children. He noted no apparent psychiatric impairment in the clinical examination. He concluded there was no diagnosable psychiatric disorder.
The typewritten clinical records of Dr Marinucci of Haberfield is dated 27 August 2020. There were no psychological symptoms recorded following the subject motor accident.
Centrelink records indicate the claimant received the disability support pension between 11 July 1996 and January 1998.
Orthopaedic surgeon Dr Ashish Diwan of Kogarah provided a report dated 19 April 2018. He diagnosed axial pain/whiplash type injury. He suggested a bone scan and functional X-rays of his neck and lumbar spine because there was no clear explanation of his pain.
Over 170 pages of the claimant's financial records were included in the material relied on by the insurer in its Reply lodged with respect to the assessment undertaken by the Medical Assessor. According to the insurer, the claimant's financial documents do not indicate any drop of income in his steel fabrication business. The Panel is of the view that parties should not make a practice of including financial records in the documentation relied on in medical assessment matters. It is not clear to the Panel how such material is relevant to the task performed by medical assessors.
Medicare records to 12 May 2020 indicate no psychiatric or psychological treatment. PBS records indicate medications consist of gliclazide, alogliptin plus metformin, and dapagliflozin. These are diabetes related hypoglycaemic medications. There were no psychotropic medications prescribed.
Dr Andrew Keller provided a supplementary report dated 17 March 2021 after viewing the surveillance films. He did not change his opinion.
On 24 March 2022 the claimant’s lawyers wrote to the insurer’s lawyers and confirmed that at around December 2021 or January 2022, the claimant was diagnosed with lung cancer which had spread to the head and leg. It is recorded that he is consulting with treating oncologists Dr Matthew Wong and Dr Louise Nardone. It is confirmed that the claimant is attending Gosford Hospital for the treatment of his cancer.
A Review Panel certificate dated 11 May 2022 determined soft tissue injuries of the claimant’s cervical and lumbar spine and right shoulder referred pain from the neck were caused by the motor accident. Whole person impairment of 7% was assessed. Thoracic spine injury, left arm/left elbow neuropathy and left shoulder injury were determined not to have been caused by the accident. The Panel notes the findings of the Review Panel, including the findings in relation to consistency.
Dashcam video footage of the subject accident shows a blue 4-wheel drive vehicle travelling in the left lane of the freeway strike a stationary vehicle in the far left lane and then veer across the central nature strip and concrete barricade into the path of oncoming vehicles.
There is a letter from endocrinologist Dr Ammar Wakil to the claimant's lawyer dated 28 April 2022 in which it is recorded that the claimant suffers from diabetes managed with lifestyle, dietary modification and medication.
Further clinical records of Gosford Hospital include a discharge summary for admission from 31 December 2021 until 6 January 2022 indicated a 6-day history of generalised headache with a lesion in the left parieto-occipital region. Diagnosis was a spiculated right lung mass with three cerebral metastases. Treatment with dexamethasone resulted in hyperglycaemia requiring insulin treatment. The claimant was referred to medical and radiation oncology with a plan for an outpatient biopsy. Social history indicated he was living at home with his family, was independently mobile, was independent with ADLs, was able to drive and was employed. An MRI of the head on 1 January 2022 revealed three 1 cm lesions in the left parietal, occipital lobe and left cerebellar hemisphere with associated rim enhancement and surrounding vasogenic oedema.
There was an admission from 11-14 February 2022 for acute onset headache. A CT brain at admission was unchanged from 30 December 2021. Reason for admission was sepsis from Enterobacter urinary tract infection.
On 1 March 2022 oncologist Dr Louise Nardone diagnosed metastatic lung adenocarcinoma. Dexamethasone had been ceased. He was receiving immunotherapy from Dr Mathew Wong at Wyong Hospital.
The clinical records of GP Dr Sammy Khalil as at 26 July 2022 have been reviewed. They include a note that the claimant was dizzy at work on 24 December 2021. He was advised to attend hospital. A diagnosis of lung cancer was recorded. It is noted that the claimant was receiving treatment consisting of radiotherapy and immunotherapy. There were no presentations for psychological difficulty.
The clinical records from Central Coast Local Health District – Gosford Cancer Care – have been reviewed. The records include the clinical notes from Dr Wong and Dr Nardone. The notes confirm that the claimant has undergone stereotactic radiotherapy to three brain metastases. The notes records that the claimant had a complex post-treatment period which included an inpatient admission after presenting with headaches and fevers. He is undergoing immunotherapy under the care of Dr Wong. The notes record that a diagnosis of metastatic lung adenocarcinoma has been made. A report from Dr Nardone dated 9 August 2022 confirmed a diagnosis of metastatic renal cell carcinoma. An MRI brain performed on 8 August 2022 confirmed that all three bone metastases continued to respond and there are no new metastatic deposits in the brain.
In summary, the claimant has been diagnosed by two psychiatrists as having no psychiatric diagnosis and by another as suffering from a major depressive disorder and a resolving post-traumatic stress disorder. These differing opinions could be resolved only by a further interview to clarify the presence or absence of symptoms.

Surveillance

AHC was instructed by the insurer to undertake surveillance of the claimant. The insurer has included in the documents it relies on in this Review reports from AHC dated 13 July 2020, 6 August 2020, 20 August 2020, 17 May 2021 and 4 February 2022. There is surveillance footage associated with the 13 July 2020, 6 August 2020, 20 August 2020 and 17 May 2021 reports. There is no surveillance footage associated with the 4 February 2022 report, which records that the claimant was not sighted. The Panel has read the reports and viewed the surveillance footage provided.
The 13 July 2020 report relates to surveillance conducted on 1 and 7 July 2020. Footage was obtained on 1 July 2020. The claimant is seen driving a utility with a box trailer, refueling his vehicle at a petrol station and later disconnecting the trailer. Still frames of the claimant engaging in these activities are included in the report.
The 6 August 2020 report relates to surveillance that was conducted on 22, 23, 24 and

25 July 2020. On 22 July 2020, the claimant can be seen using a high pressure hose to wash his vehicle, driving the vehicle, securing and releasing ratchet straps, moving timber blocks, and moving and using a ladder. Still frames of the claimant engaging in these activities are included in the report.
The 20 August 2020 report relates to surveillance conducted on 5,6,10 and 14 August 2020. The report confirms that footage of the claimant was obtained on 10 August 2020. On 10 August 2020 the claimant can be seen driving a Toyota Land Cruiser. He is observed carrying a package, driving and operating a forklift on a number of occasions and securing a load on a truck. He is seen driving a large flat-bed truck and is observed climbing out of the truck. He appears able to slowly climb out of and back into the truck cabin. He waits for the truck to be unloaded and then appears to drive from the site.
The 17 May 2021 report relates to surveillance conducted on 29 April 2021 and 4 May 2021. On 29 April 2021, among other things, the claimant is observed in the Newcastle business District entering a building. He is seen driving a car. On 4 May 2021 the claimant is seen operating a Toyota forklift on a number of occasions, carrying a bin and moving a Toyota Land Cruiser. He is seen entering and exiting a truck cabin. Still frames of the claimant engaging in these activities are included in the report.

Diagnosis and reasons

The claimant was involved in a frightening and life-threatening motor accident on

11 November 2017 when an oncoming vehicle crossed the centre barricade on the M1 Motorway and he was unable to avoid a collision at 110 kph. He suffered physical injuries which have recently been assessed in a replacement physical certificate. He described ongoing pain which limits his functioning both at work and in managing his home. The claimant described frustration due to these physical limitations and said they do get him down and he constantly wishes he could have a normal life in which he was able to work, earn money and look forward to retirement. He noted anxiety symptoms while driving. These symptoms represent an adjustment disorder with mixed anxiety and depressed mood. DSM-5 criterion A is met in that these symptoms occurred in response to an identifiable stressor. Criterion B is met in that the symptoms are clinically significant.
From a psychiatric point of view, he described traumatic dreams, flashbacks and intrusive thoughts of the motor accident. He ruminates on the fact that he may have been killed, he may have killed the driver of the other vehicle, or other drivers on the freeway may have been involved in the accident with frightening consequences. The Medical Assessors concluded that the claimant did not suffer from post-traumatic stress disorder despite these symptoms.
In considering a diagnosis of post-traumatic stress disorder, the Medical Assessors noted criterion A of DSM-5 was met in that the claimant was involved in a life-threatening motor accident. Criterion B was also met in that he experiences recurrent, involuntary and intrusive memories, dreams and flashbacks of the event. However, criterion C regarding the persistence of avoidance of stimuli is not met. Similarly criterion D is not met regarding negative alteration in cognitions and mood. Criterion E is not met in that there are no marked alterations in arousal and reactivity. Criterion F is met in that the disturbance has lasted more than one month. Criterion G is not met in that it does not cause clinically significant distress or impairment in social, occupational or other important areas of functioning. Criterion H is met in that the disturbance is not attributable to the effects of a substance. The Medical Assessors concluded these trauma-related symptoms are best regarded as an anxiety component of the adjustment disorder.

In this regard, the Medical Assessors’ conclusions are most closely aligned with the conclusions arrived at by psychiatrist Dr Glen Smith who diagnosed a major depressive disorder and a resolving post-traumatic stress disorder. The major differences are that the Medical Assessors do not believe all criteria for post-traumatic stress disorder are currently met. It is considered that the psychological disturbance can best be formulated as a component of the adjustment disorder, and he does not have a major depressive disorder. The Medical Assessors do not agree with the conclusions reached by the Medical Assessor and by psychiatrist Dr Graham Vickery who concluded there was no psychiatric condition arising from the accident.

Causation and reasons

The claimant was involved in a frightening and life-threatening motor accident which was of sufficient severity to give rise to psychiatric symptoms. In fact, the claimant described both trauma-related symptoms arising directly from the motor accident, and secondary psychological symptoms arising from the pain and impairment due to the physical injuries caused by the motor accident. There were no pre-existing psychological conditions and there were no other intercurrent events that would give rise to such symptoms. The Medical Assessors were satisfied that the accident was capable of causing psychological injury and in fact did so.
The Medical Assessors noted that in late 2021 the claimant developed lung cancer with cerebral metastases. This has given rise to psychiatric symptoms not dissimilar to those arising from the motor accident in that he experiences frightening dreams and ruminates on the possible outcome of the condition. The Medical Assessors consider that this condition has not worsened his psychiatric state.

Summary of injuries referred by the parties

The following injury WAS caused by the motor accident:
· adjustment disorder with mixed anxiety and depressed mood

The following injury WAS NOT caused by the motor 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.”
It is now four and a half years since the motor accident. The claimant has chosen not to receive any treatment. The severity of his condition will not change by more than 3% in the next 12 months with or without treatment. The condition has stabilised.

Degree of permanent impairment Psychiatric Impairment Rating Scale

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 the Impairment Guidelines.

Psychiatric diagnoses	1. Adjustment disorder with mixed anxiety and depressed mood
Psychiatric treatment description	Nil

Category	Class	Reason for Decision
1. Self-Care and Personal Hygiene	1	The claimant said he showers every day although it takes him quite a long time. He changes his clothes daily. His son does the housework every weekend because of his pain. The claimant no longer does the cooking because of pain, but provides instructions for his son. Occasionally they use takeaway food. He is unimpaired from a psychiatric point of view in this area.
2. Social and Recreational Activities	1	The claimant said he saw his friends on a daily basis prior to the motor accident. He said they would have coffee and chat together. He said this was reduced to 3 or 4 times weekly following the motor accident and has now been reduced again after the cancer diagnosis. He said his friends now come to visit him. He said he stopped riding his motorcycle following the motor accident because it is a Harley Davidson and because of pain is too heavy for him to handle. He is unimpaired from a psychiatric point of view.
3. Travel	1	Currently the claimant is able to drive. He travels to the shops and to Gosford for treatment and occasionally will drive to Sydney. He said he is able to use public transport and has been able to travel overseas to Thailand twice since the motor accident, although not in the last 2 years. He is unimpaired from a psychiatric point of view.
4. Social Functioning	1	The claimant said his fiancée left him 3 weeks after the motor accident and returned to Thailand with her 2 children. He described an argument between them regarding the education of the children. He said she wanted them to go to school here in Australia but would not believe him when he explained it was school holiday time, i.e. the long Christmas vacation. He said he took her to the local public school and they waited there all day to prove to her that it was holiday time. One week later she took $3400 of his funds and departed and he has not seen her since. It was concluded the separation was not caused by problems related to the subject motor accident. The claimant said he gets along well with his son Matthew and daughter Melissa. He has a circle of friends. He is unimpaired from a psychiatric point of view .
5. Concentration, Persistence and Pace	1	The claimant said he is able to watch movies of any type and has no difficulty following the plot. He said his son looks after the family finances because he is not able to use computers. He said he does not read because of his literacy difficulties. He confirmed he is able to persist with tasks and see them through but said he is slower at things because of his pain. He is unimpaired from a psychiatric point of view.
6. Adaptation	1	The claimant stated he is only capable of light duties at work because of the pain he experiences. He said if he uses pain medication he can do a little more. The Panel discussed with him the surveillance videos which indicated he did attend work and had been able to drive a truck from the Central Coast to Sydney. He confirmed this was the case and insisted these were examples of him performing light duties. The Medical Assessors accepted this explanation, noting that his impairment in this area is due to pain and not his psychiatric condition. He is similarly limited by pain in the performance of household tasks. He is unimpaired from a psychiatric point of view.
List classes in ascending order: 1 1 1 1 1 1
Median Class Value: 1
Aggregate Score: 6
% Whole Person Impairment: 0%

*%WPI ^{= Percentage Whole Person Impairment}

Apportionment – pre-existing/subsequent impairment

There was no pre-existing psychiatric condition. The claimant developed lung cancer with cerebral metastases in late December 2021. This condition has not exacerbated his psychiatric condition and apportionment is not required.

Effects of treatment

There has been no treatment so no treatment effect has been allowed.

Degree of permanent impairment caused by the motor accident 0%

Permanent impairment ratings take symptoms into account, however the percentage permanent impairment is not a direct measure of disability. A finding of 0% permanent impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides and Guidelines rate the associated impairment at 0%.

FINDINGS

The Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[9] and Insurance Australia Ltd v Marsh.[10]
[9] [2021] NSWCA 287 at [40], [41] and [45].
[10] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the precise examination findings and conclusions of the Medical Assessors based on their examination, and the specific findings pertaining to diagnosis, causation and permanent impairment.
The Panel considers that there are inconsistencies in relation to the claimant’s reported physical limitations and the activities he is seen doing in the surveillance footage. However, the Panel is comfortably satisfied that the evidence supports a diagnosis of adjustment disorder with mixed anxiety and depressed mood and that this condition has been caused by the accident.
For the reasons given under the heading “Diagnosis and reasons”, the Panel concluded that the claimant does not suffer from post-traumatic stress disorder.
The Panel finds that the adjustment disorder with mixed anxiety and depressed mood gives rise to 0% permanent impairment.

[2022] NSWPICMP 477

13 September 2022