Stanford v AAI Limited t/as AAMI
[2022] NSWPICMP 238
•26 May 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Stanford v AAI Limited t/as AAMI [2022] NSWPICMP 238 |
| CLAIMANT: | Darryl Stanford |
| INSURER: | AAI Limited t/as AAMI |
| REVIEW PANEL: | Principal Member John Harris Dr Paul Friend Dr Michael Hong |
| DATE OF DECISION: | 26 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Mr Stanford was involved in a motor accident in October 2017 when another car collided with his vehicle at high-speed causing it to flip on its side; the claimant was assessed by both Medical Assessors on the Panel who noted the prior psychiatric condition and the deterioration following the motor accident; on a review of the extensive material and the clinical examination of the claimant, Held- the Panel determined that there was a psychological injury caused by the motor accident; claimant reassessed at 7% permanent impairment for the psychological injury. |
| DETERMINATIONS MADE: | The Panel revokes the certificate dated 19 August 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a permanent impairment not greater than 10%. Major Depressive Disorder, in partial remission; and General Anxiety Disorder |
REASONS
BACKGROUND
Mr Darryl Stanford (the claimant) was injured in a motor accident on 7 October 2017 when another vehicle collided at speed with Mr Stanford’s vehicle causing it to flip on its side (the motor accident).
The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Stanford any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[3] Section 60 of the MAC Act.
THE REVIEW
Medical Assessor Samuell issued a medical assessment dated 19 August 2021 determining that the claimant did not suffer a psychological injury caused by the motor accident.
The Medical Assessor referred to the “considerable evidence of psychological difficulty pre-dating the subject accident” and concluded that there were no psychological injuries arising from the motor accident.
The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
On 17 December 2021, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act, insurer’s bundle, page 831.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (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 clause 14A(1) of Schedule 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 new review provisions provide[6] that a review panel consists of two Medical Assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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 matter solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective and comprehensive bundles.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the 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.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[10]. In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[10] See s 3B(2) of the CL Act.
[11] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundles of documents in accordance with the initial Direction.
Pre-motor accident psychological evidence
In December 2007 the general practitioner noted reactive depression as Mr Stanford was going through a divorce. Lexapro was prescribed at that time.[12]
[12] Claimant’s bundle, page 90.
In August 2011 the general practitioner noted Mr Stanford enquired about anger management, discussed alcohol use and mild anxiety.[13] A mental health care plan was then organised.
[13] Claimant’s bundle, page 88.
In January 2017 Mr Stanford reported struggling lately, anger outbursts, feeling low and generally fatigued.[14] Fluoxetine was prescribed at that time. A repeat prescription was requested in February 2017.
[14] Claimant’s bundle, page 83.
In May 2017 Dr Dover noted that Mr Stanford was struggling with anger management and intermittent low mood and loss of trust in his relationship. Mr Stanford admitted to occasional recreational use of cocaine and amphetamines and drinking approximately 20 units per week.[15] Sertraline was then prescribed.
[15] Claimant’s bundle, page 82.
Post-motor accident evidence
The ambulance, police and hospital records are all consistent with the nature of the motor accident described by the claimant in the claim form. At hospital, Mr Stanford complained of left sided lumbar back pain. He was charged with simple analgesia.[16]
[16] Claimant’s bundle, page 26.
Mr Stanford first consulted his general practitioner after the motor accident on 5 April 2018.[17] Dr Dover noted a long history of depression, but Mr Stanford felt that the motor accident exacerbated this, and he was unable to drive for two months. This anxiety eased when the Sertraline dose was increased.
[17] Claimant’s bundle, page 80.
The claimant completed a claim form on 5 April 2018 when he described the motor accident as occurring when the at fault driver ran a red light and collided into the passenger side back door at 70 km/hr when the impact rolled his car 180 degrees onto its side.[18] Mr Stanford referred to a number of injuries caused by the motor accident including “anxiety and depression”.
[18] Claimant’s bundle, page 4.
A medical certificate dated 5 April 2018 completed by Dr Dover certified an increase in anxiety following the motor accident.[19]
[19] Claimant’s bundle, page 7.
Dr Raymond Wallace, orthopaedic surgeon was qualified by the insurer and provided a report dated 10 December 2018.[20] The doctor opined that Mr Stanford suffered a musculoligamentous strain to the lumbar spine in the motor accident which had resolved.
[20] Insurer’s bundle, page 24.
Dr Sikander Khan, Surgeon provided a report dated 12 March 2019[21] opining that Mr Sandford suffered a musculoligamentous injury to the lumbar spine with psychological sequelae.
[21] Claimant’s bundle, page 28.
Mr Gerard Glancey, psychologist was qualified by the claimant and provided a report dated 18 June 2019.[22] The psychologist had a pre-motor accident history of “stress” with a denial of violence of heated arguments within the relationships. He noted a post-accident medical history of anxiety associated with travel and an avoidance of driving until late in January 2018. Other symptoms included flashbacks and sleep disturbance with alcohol and drug use in an attempt to ameliorate symptoms.
[22] Claimant’s bundle, page 35.
Mr Glancey assessed a Generalised Anxiety Disorder with Major Depressive Disorder and assessed impairment at 16% caused by the motor accident.
Mr Glancey provided a further report dated 12 September 2019 addressing Dr Vickery’s report.[23] He then a history of being arrested two weeks following the motor accident and the subject of an apprehended violence order with subsequent homelessness.
[23] Claimant’s bundle, page 46.
Mr Glancey otherwise noted history of pre-accident functioning and a subsequent deterioration. He concluded that “Dr Vickey appears to ignore the likely impact of the accident upon the subsequent decline in his functioning and life circumstances.”[24]
[24] Claimant’s bundle, page 47.
Dr Vickery, psychiatrist, was qualified by the insurer and provided a report dated 13 August 2019.[25] The doctor noted multiple personal stressors not related to the motor accident including homelessness and financial issues.
[25] Claimant’s bundle, page 49.
Dr Vickery concluded that the psychopathology arising from the motor accident had resolved and ongoing symptoms were pre-existing. He made no diagnosis in relation to the injuries sustained in the motor accident.
Dr Vickery provided a further report dated 2 September 2020.[26] At that time the doctor opined that there was no diagnosable psychiatric injury under the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).
[26] Insurer’s bundle, page 14.
The NSW police records show offences of a domestic nature committed in mid-October 2017 where the claimant was sentenced to community service orders.[27] The claimant was called up for breaching these orders and was sentenced to imprisonment on 17 September 2018 for a term of seven months. This sentence was suspended. Further domestic violence and breach of apprehended orders offences occurred on 22 December 2019 resulting in a sentence of 10 months imprisonment.[28]
[27] Insurer’s bundle, page 149.
[28] Insurer’s bundle, page 150.
Justice Health records referred to the use of methamphetamines in the four-week period prior to imprisonment and alcohol consumption of four to six units per day.[29]
[29] Insurer’s bundle, page 274.
SUBMISSIONS
Insurer’s submissions dated 1 April 2021[30]
[30] Insurer’s bundle, page 11.
The insurer referred to opinion expressed by Dr Graham Vickey and submitted that there was no diagnosable psychiatric disorder caused by the motor accident.
The insurer referred to the claimant’s pre-existing condition which included:
(a) prescribed Lexapro in December 2007 associated with a depressed mood and impaired work functionality with marital issues;
(b) mild anxiety, alcohol and cognitive behavioural issues in August 2011;
(c) consultations in early 2017 associated with anger problems;
(d) consultation in May 2017 confirmed drug problems and relationship difficulties, and
(e) reference in June 2017 to a history of depression.
The insurer referred to aspects of the claimant’s circumstances post-dating and unrelated to the motor accident including being charged for domestic violence offences, offences committed in December 2019 and in January 2020. The claimant was sentenced to imprisonment for some of these offences.
The clinical notes from Budegewoi Medical Centre also referred to periods of homelessness and use of “ice”.
Insurer’s submissions dated 12 October 2021[31]
[31] Insurer’s bundle, page 327.
The insurer submitted that there was no error by Medical Assessor Samuel who provided a clear path of reasoning which considered the claimant’s pre and post motor accident medical, social, criminal and employment history and formed an opinion based on clinical experience.
Claimant’s submissions dated 20 September 2021[32]
[32] Claimant’s bundle, page 250.
These submissions were filed seeking a review of the assessment provided by Medical Assessor Samuel.
The claimant submitted that the Medical Assessor failed to consider the reports of Gerard Glancy.
It was also submitted that the Medical Assessor failed to differentiate between the pre and post motor accident symptoms having regard to:
(a) the serious nature of the motor accident;
(b) the shock which the claimant suffered;
(c) the claimant’s aversion to driving for months after the motor accident;
(d) the drug and alcohol abuse following the motor accident, and
(e) the cessation of employment after the motor accident.
The combined effects from the accident taking into account the pre-existing condition was sufficient to cause psychological injury.
RE-EXAMINATION
Mr Stanford was examined by both Medicals Assessors of the Panel. The joint examination report of the Medical Assessors is as follows:
“The Medical Assessment of Permanent Impairment by Assessor Doron Samuell dated 19 August 2021 states that the injuries referred to me have been assessed and determined not to be caused by the motor accident and therefore an assessment of degree of permanent impairment is not required.
It states that Mr Stanford was aged 48 years and working in various capabilities including landscaping and warehouse work. He was landscaping 40 hours per week at the time of the claimed injury. He is presently working at Bunnings and has done so since 2021.
It states that around 2007 his wife left him with four young children. There was a possible family history of depression and substance abuse.
He currently drinks 6 standard drinks per week but was drinking up to 20 standard drinks per day following the subject accident. The accident occurred when his vehicle was stationary. He had a green light and moved forwards into an intersection. Another vehicle ran a red light and struck him. His vehicle rolled and ended up on its side hitting a street light. The windows of the car burst and he was upside down and could smell fuel. He crawled out through the back windows. Airbags deployed. He was taken to Wollongong Hospital and released later the same evening.
After the subject accident he was homeless and suffered drug addiction. He was arrested two weeks later with an AVO placed on him. He had trashed his ex-partner’s house as he had a brain explosion which is out of character.
He goes through various stages of sleep. Most of the time it is broken by thoughts from whatever is in his head at the time. He has no bad dreams. His mood is down most of the time. He is not happy living with day-to-day finances and has to rely on his daughter.
It states under Diagnosis that Mr Stanford has a history of polysubstance misuse, depression and possibly anxiety that predated the subject accident and there is no accident related diagnosis.
The medical certificate by Dr Mary Dover dated 5 April 2018 states regarding the motor accident on 7 October 2017 he had a lower back injury which settled with analgesics, rest and pain relief. He has the onset of depression and feels the accident has increased his anxiety. He was unable to drive for three months after the motor accident. He has a previous history of depression.
The Ambulance report dated 7 October 2017 states that it was a high mechanism rollover. It states the patient is a 44-year-old male. It was a medium speed motor accident. He was the driver of the rolled vehicle which rolled 90 degrees onto the driver’s side.
The airbags did not deploy as he only has front airbags. He was well orientated, perfused and has no loss of consciousness. He had full recollection of events and crawled through the car and out a back window to self-extricate. He scored a Glasgow Coma Scale score of 15 on two occasions.
The discharge referral from Wyong Hospital for the admission and discharge on 7 October 2017 states that Mr Stanford presented after a motor accident when he was hit on the rear passenger side of his vehicle flipping onto the right side. He self-extricated and was able to mobilise at the scene. He had some left-sided lumbar area pain but denied further injuries.
He was discharged home and advised to take simple analgesia including anti-inflammatories. He was given a prescription for Panadeine Forte.
The report by Dr Sikander Khan dated 12 March 2019 regarding the motor accident on 7 October 2017 states that Mr Stanford sustained the following injuries:
·musculoskeletal Injury and facet joint trauma and possible disc trauma of the lumbosacral spine;
·radiation of symptoms to the left gluteal region, left groin and upper thigh from the back injury;
·seatbelt injury to the sternum and chest wall;
·severe psychological sequelae requiring intensive psychological management and medication.
It states that his psychological injuries need to be examined by a clinical psychologist or psychiatrist.
The report by Gerard Glancey dated 18 June 2019 regarding the motor accident on 7 October 2017 states he had immediate lower back pain. He exhibited an episode of rage directed at his wife a short time following the motor accident. He was arrested and spent a night in the cells and his wife was subsequently granted an Apprehended Domestic Violence Order. He received a suspended sentence. He and his wife separated following this outburst. He was living with his second wife and her two sons, at the time of the motor accident. He was unable to work as a consequence of the back pain and stress and was homeless following separation.
He reported anxiety with car travel and avoided driving following the accident and was fearful of a further motor accident. He did not resume driving until January 2018 because of anxiety.
He had sleep disturbance due to pain and nightmares and flashbacks. He woke with a startle response and used alcohol to help him sleep.
He had flashbacks during his waking moments.
He had increasingly frequent explosive outbursts.
He subsequently obtained work as a delivery driver initially struggling with anxiety when driving but that resolved with daily exposure to driving over a period of approximately three months. He described having anxiety and depression and was couch sitting until 2018 when he got his own place to live.
He was prescribed sertraline and referred to a psychologist. He had ongoing use/abuse of alcohol and drugs until October 2018 when he underwent detoxification at Wyong Hospital and attended drug counselling before and after the admission. He was discharged on naltrexone. It states that following the motor accident he self-medicated with alcohol and also used amphetamines.
Mr Glancey made a diagnosis of Generalised Anxiety Disorder with Major Depressive Disorder.
He also disclosed he had a toxic relationship with his father and that tension persisted to the time of the assessment.
He had depression following the failure of his first marriage of 10 years.
Mr Glancey made an assessment of pre-existing whole person impairment of 2 %. He assigned a class 1 to every category except Social Functioning which was a class 2. He attended for treatment for temper control with moderate benefit. Mr Glancey added 2% for the effect of treatment, giving a final pre-existing whole person impairment of 2%.
The current assessment of whole person impairment dated 30 May 2019 assigns a class 1 to Travel, class to Self Care and Personal Hygiene, class 3 to Social and Recreational Activities; Social Functioning; and Concentration, Persistence and Pace and class 4 to Adaptation.
The median score is 3, aggregate score is 16 and a whole person impairment of 17% for which he adds 1% for the effect of treatment, providing a whole person impairment of 18% from which he deducts 2% for pre-existing whole person impairment, giving a final whole person impairment of 16%, arising from the injuries sustained in the motor accident.
The report by Dr Graham Vickery, psychiatrist and pain management consultant, dated 13 August 2019 states that Mr Stanford’s current symptoms are anxiety and depression. He has a loss of self-worth with his family and from the assault charges and until recently has not worked since the motor accident.
He is prescribed sertraline 100 mg daily and Mobic 30 mg in the morning. He attends counselling at Your Strength Psychology. It states there have been multiple personal stresses including homelessness, gambling addiction, his wife having an addiction to Valium and having attempted suicide in July 2018 for which she was hospitalised.
It describes the accident and describes him being arrested after the outburst and being sentenced to 180 hours of community service and given a seven month suspended gaol sentence and an Apprehended Violence Order.
He subsequently was prescribed sertraline 150 mg and counselling. He was using methamphetamine on occasions and became dependent on alcohol. He attended the Wyong Drug and Alcohol Unit and was treated with naltrexone for three months until early 2019.
It states he has lost his self-worth from his family as a result of his charges.
It states there is no diagnosis in relation to the injuries sustained in the motor accident.
The assessment of whole person impairment by Dr Graham Vickery dated 13 August 2019 lists the diagnoses as Generalised Anxiety Disorder, persistent Depressive Disorder, Substance Abuse in remission, Gambling Disorder in remission and Impulse Dyscontrol Disorder in remission.
It assigns a class 1 to Self Care and Personal Hygiene; Concentration, Persistence and Pace; and Employability and a class 2 to Social and Recreational Activities; and Social Functioning.
The median class value is 1, aggregate score is 8 and a whole person impairment is 1%.
It states that there is pre-existing deduction for all of this for 100%. The whole person impairment is 0%.
The medical records from Waratah Medical Service at Kanwal from 14 August 2006 to 2 April 2019 contain the following entries.
The entry dated 13 December 2007 states that he is going through a divorce after 10 years of marriage and has four children. His mood is depressed and his functionality impaired at work. He was given a sickness certificate.
There are no further entries regarding depression and the next is entry is dated 10 November 2010.
The entry dated 25 July 2011 states he is here for a check, has a busy lifestyle with issues with kids and ex (presumably ex-wife).
The entry dated 15 August 2011 states he is asking about speaking to someone about anger management. He has five kids and a new partner. His alcohol intake was discussed. He denied being depressed and said he had mild anxiety. He seems to think he snaps easily. It states he would benefit from CBT.
The entry dated 6 September 2011 by a registered nurse apparently for the creation of a mental health plan. The DASS 21 showed Stress was 16 (mild range), Anxiety was 0 and Depression was 8 (normal).
The entry dated 19 January 2017 states he has been struggling lately. He feels he has been the steady rock of the family and does not feel that anymore. He is easily irritable and has a short fuse, has had some angry verbal outbursts and punched a couple of holes in walls, smashed his guitar. He has been a bit argumentative but is not a violent person. He feels low and that everyone is against him. He generally feels fatigued. He is sleeping okay but wakes unrefreshed. He denies thoughts of self-harm and has thoughts of driving and not coming back.
He moved into a house in November which is undergoing renovations. He has a blended family of four children and his partner who has two children. He had some counselling after marriage breakdown 10 years ago and tried antidepressants around that time but did not continue them.
His father and brother both have issues with depression. His father was confrontational and sometimes violent.
He drinks every day 1-2 beers and more at weekends. He uses it as a relaxant. He has occasionally used recreational drugs and last used speed a couple of months ago.
He was prescribed fluoxetine 20 mg one daily.
The entry dated 22 February 2017 states that he wants another prescription for fluoxetine 20 mg one daily. He feels a bit more relaxed since starting the medication. He is now working in construction and surveying and feeling more positive. The hours of work suit him better. He has some alcohol free days.
The entry dated 1 May 2017 states he is struggling with anger management and intermittent low mood. He argues a lot with his wife and says he is verbally abusive and unable to control his temper. There is a loss of trust in the relationship. He is living with his current wife and two stepsons one of whom has autism. His first wife lives with their four children. He recently found out his son is gay and struggling to come to terms with this. He is now working in landscaping. He has occasional recreational drug use with cocaine, amphetamines but not intravenously. He drinks 20 U per week.
He was on fluoxetine but this did not benefit him and will now be trialled on sertraline.
He declined to go back to his regular GP because his ex-wife sees her and would prefer to see another doctor. He has a new appointment to complete a mental health care plan.
The entry dated 5 May 2017 states that he is here for the preparation of a mental health care plan. Sertraline is not causing adverse effects. He is considering calling drug and alcohol therapy as recommended in a previous consultation.
The next entry is dated 8 December 2017. It states there has been a request received from Brydens Lawyers for medical records.
The entry dated 5 April 2018 states he requested completion of insurance forms. He had an MVA last October but was not seen at this practice at that time. The ED notes were reviewed and state he had a minor back injury. Back pain settled with rest and analgesia.
It states he has a long history of depression and is seeing a psychologist and taking sertraline 150 mg. He feels that the motor accident exacerbated this and was unable to drive for two months afterwards. It states he was only able to drive once again after the sertraline dose was increased. He is starting to return to work which involves driving a truck.
The entry dated 14 May 2018 states he has been missing his community service and requested a letter for the Parole Board that he feels it is related to his depression. He was anhedonic some days and does not want to leave his house. He was living in hotels for six weeks but now is in a new home. He has no thoughts of self-harm and is continuing with psychology. It states he is to have a trial increase of sertraline to 150 mg. This is despite a statement in the entry dated 5 April 2018 that the sertraline was 150 mg but subsequently on 24 April 2018 the sertraline was 100 mg per day.
The entry dated 5 June 2018 states his mood has improved with increased sertraline and is benefiting from psychology. It states there was a long discussion following breakup with partner. He is finding the breakup with partner very difficult. It says she is harassing him and stolen money from him. He is worried he might lose his temper and end up back in prison. He is struggling with going out in public.
The entry dated 18 July 2018 states he is struggling with low mood. Sertraline 150 mg helps with angry outbursts and emotional lability. His wife tried to commit suicide two weeks ago and is currently committed under the mental health team.
He has been drinking to excess 5 U per day and gambling excessively. He is still paying his rent. There is no history of alcoholism or gambling addiction. He was supplied with information about drug and alcohol services and it was recommended he speak to Gamblers Anonymous.
The entry dated 7 August 2018 states summary faxed to Budgewoi Medical.
The discharge referral from Wyong Hospital dated 15 July 2012 states he presented with a swollen right hand. He punched a kitchen top last night and is unable to extend 4th and 5th fingers of the right hand. The x-ray of the right hand showed a fracture of the head of the 5th metacarpal which is displaced and angulated. It was advised to reduce the fracture and place in a backslab and review in the fracture clinic in two weeks.
The document entitled Assessment Documents appears to be a drug and alcohol assessment. It states that on 10 September 2018 he presented saying his drinking had become a problem and using alcohol to cope with life stresses.
There is a summary of substance use which states reported history of drinking from a young age in a social context. He was a hard worker throughout his life and described a history of drinking at the end of the work day. He had times in his life where he was not drinking but felt that his drinking increased when he faced life stresses including after his first marriage breakdown.
There is domestic violence in his current relationship. He received charges last year after an altercation with his wife. There is currently an AVO in place and he is unable to live with his wife and children who are 11 and 13 years. His drinking has increased over the last year since the altercation. He is concerned he is becoming cranky when he is drinking and noted this may be a contributor to the relationship conflict. He had a car accident one year ago and thinks this may have escalated his drinking.
The entry dated 10 September 2018 states he has rented a small flat. He is two weeks behind in his rent. He described being homeless for some time and living out of his car which was after the AVO was placed on him and he was unable to live with his current wife.
He has some relationship with his partner but remains conflicted. He often helps with the two sons who are 11 and 13. The 13-year-old son has been diagnosed with ASD. He has contact with two adult daughters aged 22 and 18. They noticed a change in him and expressed their concern. His two youngest children aged 15 and 17 live with their mother.
The entry dated 6 September 2018 states he drinks 8-12 standard drinks daily and has a history of daily drinking at different times and has been drinking daily for at least the last year and noticed his drinking has increased. He smoked ICE up to five times last month approximately one point each time.
The clinical notes from the Budgewoi Medical Centre include the following.
The entry dated 13 March 2018 states he recently commenced antidepressants 10 days ago. He has increasing levels of depression. His mother had depression and anxiety and his brother depression. He is living alone and occasionally stays with his wife or sleeps in the car. He has not fixed address. He can live with his parents but has a difficult relationship with his father and is currently unemployed.
His father was very controlling and imposing and there was little love from his father towards him and his brother. He feels that he has taken on some of his father’s traits with outbursts, he feels he can never be wrong at the moment and will argue with his wife over issues to the point where he becomes depressed. It states highly successful in his career, set up Woolworths distribution centre with four colleagues, worked for a large American company and travelled with the same company for many years, and bought and sold many houses.
His first marriage fell apart due to stresses at work which he felt he was bring home with him and his wife and children. His wife left his children in the care of Daryl to care for. His current wife helped to care for these children.
He has been married for the second time since 2014.
There is an AVO taken out against him. He is charged with property damage, intimidation, common assault and needs to complete 170 hours of community services each Monday. He feels he is unable to control his aggression. It states he is currently unemployed. He feels in the last 12 months issues from his first marriage have presented in the second marriage. It states they are fighting over issues that occurred over 10 years ago.
The report by Dallean Withers, psychologist, dated 12 September 2018 states that Mr Stanford reported a number of personal issues over the past 18 months which appear to have placed additional strains on existing difficulties and resulting in low mood, anxiety and problematic behaviours. These have affected all domains in his life leading to relationship breakdown, legal action and use of drugs and alcohol. It states he feels he has little control over his circumstances being controlled more by others which has significantly impacted his mood, ability to cope and sense of self. He acknowledged his drug and alcohol use was detrimental to his situation and advised that he commenced seeing a drug and alcohol counsellor. His level of Depression on the DASS 21 was in the moderate range and the level of Anxiety and Stress were in the mild range.
It outlines the treatment strategies. It does not record a diagnosis.
The discharge referral dated 15 October 2018 states that he was admitted on 10 October, presumably 2018, with diagnoses of Alcohol Dependence and Amphetamine Dependence to the Rauma-Li facility for alcohol detox. He drinks 90 g of alcohol per day in the last six months, first drinking at age 15 years.
He has not used cannabis for 20 years. He smokes one point of ICE per week for the last six months and last use was three days ago. He tried ICE 18 months ago and used speed years ago.
He used cocaine and ecstasy two years ago.
He denies intravenous drug use.
The report by Dr Ian Chaussivert, staff specialist in addiction medicine, dated 29 October 2018 states he was reviewed in the clinic. He has ceased using alcohol and is taking naltrexone which he finds helpful. He should continue on naltrexone for six months.
The entry dated 13 January 2019 is a discharge referral for an admission on that day. He had a wound the volar aspect of his right small finger which he sustained when he ran his hand along the top of a Colourbond fence the previous day with his fingers in flexion. He is to be referred to Royal North Shore Hospital.
The operation report from Royal North Shore Hospital dated 14 January 2019 states that he underwent a general anaesthetic for exploration, debridement and repair of structures of little finger of right hand.
The clinical notes from Your Strength Psychology include the following.
The GP mental health plan by Dr Trishul Darji dated 30 April 2019 states there is depression, anxiety and agoraphobia, low mood, agitation and struggling on medication. He has previously seen psychologist Gaye Colwell. He was under Dr Ian Chaussivert in addiction medicine and has been through six days of detox on naltrexone. Parole is ongoing. He has read ‘The Art of Happiness’ by the Dalai Lama which has given him a new outlook. He is on sertraline 150 mg daily, magnesium and apparently vitamin B12.
The Claimant’s submissions regarding the assessment of Doran Samuell dated 19 August 2021 states that Assessor Samuell failed to give regard to the report of Gerard Glancey dated 18 June 2019 who formed the opinion the claimant had a Generalised Anxiety Disorder with Major Depressive Disorder as a result of the subject accident and assigned a whole person impairment of 16%.
The assessor failed to engage with the facts.
The assessor misdirected himself in focussing on the claimant’s psychological difficulties predating the accident without making any attempt to differentiate between his problems pre and post-accident.
There are matters which require consideration including:
·serious nature of the accident;
·shock the plaintiff suffered;
·aversion to drive for months;
·drug and alcohol abuse following the accident;
·cessation in employment as a result of the accident;
·the combined effects of the accident on him in taking into account his pre-existing condition rendered him more vulnerable to severe stress reaction.
The Insurer’s submissions include in paragraph 4 the pre-accident medical history shows that Lexapro was prescribed in December 2007 as the claimant was depressed in mood with impaired functionality at work and going through divorce after 10 years of marriage.
On 15 August 2011 he sought assistance with anger management and was in a new relationship and they had five children. He was not depressed but had mild anxiety. A mental health care plan was initiated on 6 September 2011 and he was referred to Ms Coralie Brock.
At consultation on 19 January 2017 he was struggling, easily irritable, has short fuse and had angry verbal outbursts and damaged his guitar and wall. He felt fatigued and low but denied thoughts of self-harm. There was a prior period of depression following the breakdown of his first marriage and he grew up with a confrontational father who was sometimes violent towards his mother.
He used recreational drugs and mentioned speed. Fluoxetine was prescribed. His alcohol consumption was 1-2 beers each day and more at weekends. At a follow-up appointment on 22 February 2017 it states he felt a bit more relaxed.
On 1 May 2017 he was still struggling with anger management and intermittent low mood and did not think fluoxetine delivered any benefit. He was drinking 20 U alcohol each week.
On 5 May 2017 he was taking sertraline and referred to Pamela Ridgell, psychologist.
On 28 June 2017 he disclosed a history of depression and used Sertra 50 mg.
In October 2017 he was charged in relation to a string of domestic violence offences. In the two months preceding the offences the claimant’s relationship with his partner had deteriorated. On 13 October 2017 he physically assaulted his partner as they fought over car keys. He broke his partner’s phone by throwing it on the floor. On 16 October 2017 the claimant physically and verbally abused his partner and threatened to punch her in the face and kill her. Police were called and he was taken into custody.
On 22 December 2019 he and his partner were trying to reconcile the relationship. They were not living together and there was an Apprehended Violence Order between them. ‘I think on the day of the offence the claimant attended the victim’s house where he verbally and physically abused her.’ The claimant also took a knife to his own arm where the victim’s name was tattooed and cut himself. He removed the battery from the victim’s car so she could not drive away.
There was a further incident of domestic violence on 14 January 2020 where the claimant attended the victim’s workplace and verbally abused her, called her and text messaged her multiple times with abusive content. He later attended her home and turned the power off in an attempt to disable the CCTV at the house. He later threatened the victim and kicked open the security gate. He was later found by the police intoxicated whilst driving.
The criminal history provided by the New South Wales Police includes the following.
·28 December 1990 – mid-range drink driving;
·5 May 2006 – offensive behaviour exposing buttocks;
·13 June 2009 – high range drink driving claiming he was driving home from escort services;
·13-16 October 2017 – charge 20 October 2017 – destroy damage property, common assault, stalk, intimidate, intend harm, fear, domestic;
·21 December 2019 – assault occasion actual bodily harm;
·22 December – common assault, contravene prohibition AVO domestic;
·14 January 2020 – contravene prohibition AVO domestic;
·stalk, intimidate, intend fear, physical harm, domestic x 2;
·use of carriage service to menace/harass/offend mid-range drink driving.
The last sentence led to a penalty of detention laid on 14 January 2020 for breach of previous bail conditions and imprisonment commenced on 14 January 2020. There was also a sentence of 10 months’ imprisonment aggregated with the sentence events on 14 January 2020 for the offences on 21 December 2019.
The report of Dr Graham Vickery dated 2 September 2020 states under History of Complaints that Mr Stanford reported in late 2019 he was still having relationship problems and ‘I had the AVO and that had several months to go and I’d become introverted and not motivated and I had nothing to get out of bed for”’
It states ‘I was seeing the children and I had a grandson in November 2019 but would block them if they tried to give me any advice and I realised that everything in my world had fallen apart’.
He was involved in high risk behaviour and got involved in drugs and went to his former wife’s residence on 23 December 2019, kicked the door in like a rampaging animal, hit her in the throat with an open hand and she fell on the staircase and I drove off. He went back 12 hours later and then the police were called. He was bailed but on 14 January 2020 I had broken down and I thought everything done in my life had amounted to nothing. He went to her house and sat on the lawn until the police came to get him and take him to gaol. He was six months in gaol on remand. He had no medication for six weeks. It states he was reviewed and placed on parole for four months.
He was having psychological counselling and was waiting for a drug and alcohol counsellor. He takes antidepressant medication and doing a face-up course for domestic violence. He was lucky he had a place to move into when he was released from gaol.
He had a really bad sleep pattern and he had dreams of dying in a plane. He woke up every hour. Since he has been out of gaol his sleep has improved.
He has commenced going to a gym and to a church where he feels he is not judged but does not want to go back to clubs with the drugs and alcohol or to gamble on poker machines. He is close to his second daughter and close to his mother and grandson. The alleged disabilities are not the direct result of this motor vehicle accident but they are a direct result of a subsequent injury.
The report by Dr Raymond Wallace, orthopaedic surgeon, dated 10 December 2018 states that Mr Stanford was examined on 5 December 2018. It states he worked as a landscaper for a company based in Sydney from February 2017. Following the motor vehicle accident on 7 October 2017 when his vehicle was T-boned he had pain in his chest wall and lumbar spine. He was prescribed Mobic an anti-inflammatory medication.
He is taking medication for depression, has been detoxed with naltrexone in the last three months.
It states he has remained off work since the motor accident on 7 October 2017 currently on New Start allowance and is certified unfit due to unrelated psychological conditions. It states he is currently fit to resume his pre-injury work duties as a fulltime landscaper. He has no current disability as a result of the injuries sustained in the motor accident on 7 October 2017.
The clinical records from the Budgewoi Medical Practice from 2 August 2018 to 2 March 2021 include the following entries.
The entry dated 2 August 2018 states he wants to start with a new general practitioner.
He has a background of depression and agoraphobia and is taking antidepressant tablets. He is currently not working and on a Community Service Order. His marriage has broken down. He is living by himself in a one bedroom place after being homeless for a while and is drinking and gambling.
He was involved in a motor accident last year and is going through a court injury assessment. The accident was on 7 October. A vehicle came through a red light. It states he is not making much eye contact but opened up more towards the end of the consultation. It states that the diagnoses are depression and lower back pain. He is seeing a psychologist and wants another ???A-taps referral.
The entry dated 3 September 2018 states he has an appointment with Drug and Alcohol Services this Thursday. His mood was the same. He has ongoing issues with his ex-partner. He has not made contact with Pamela Goldsworthy regarding the referral. It states he needs more Mobic for lower back pain.
The entry dated 8 October 2018 states he missed the second session with the psychologist. He has detox on Wednesday for a week. It states he has taken out a Community Service Order however and has two bonds at present with a seven month suspended sentence. It states that following the motor accident there was a slight back issue which responded to Mobic.
The entry dated 19 November 2018 states he has depression and agoraphobia which are settling. He is seeing Gaye Cowell regularly. He sees Dr Ian Chaussivert in addiction medicine.
He is continuing to take sertraline 150 mg, magnesium and what appears to be vitamin B12. He has read ‘The Art of Happiness’ by the Dalai Lama. He struggles to twist and flex at the lumbar spine which is worse with emotion/driving, since the motor accident in October last year.
The entry dated 24 January 2019 states he remains abstinent from alcohol except having a few beers at Christmas. His mood is stable.
His right hand remains in a cast from when he previously severed tendons in his right hand early in January and is waiting for the stitches to be removed.
The entry dated 30 April 2019 states he had a recent trip to Queensland for
5-6 weeks to get away. His mental health remains unsettled. Ongoing agitation, no tolerance and issues with ex-partner with whom he is living.The entry dated 2 August 2019 states he is requesting extension of the medical certificate because of ongoing depression and anxiety. He is taking sertraline and has been attending Your Strength Psychology. He is currently staying with one of his daughters.
The entry dated 2 September 2019 states his mental health is up and down. He takes sertraline now two daily. He is tolerating it well. The relationship with the kids is improving. He is struggling financially. He is prescribed sertraline 100 mg daily.
The discharge referral from Wyong Hospital for 23 May 2019 is for an episode of renal colic. It notes he was using ICE regularly, most recently two days previously. He was administered Endone.
The clinical notes from the North Lakes Medical Centre appear to have just one entry on 26 June 2017 which states he was in Thailand two weeks ago. He has had flu this week and is taking pseudoephedrine and takes Sertra 50 mg daily.
The documents released by New South Wales Police relating to previous offences are as stated previously in the insurer’s submissions.
The Crime Information Report dated 10 March 2009 states that offender one went to Cabramatta Golf Club and had an argument. He was then removed by security staff. He met with offenders two and three at the front of the club and instructed offenders two and three to go and get a rifle from the home of offender three. They did and returned a short time later and handed offender one a .22 calibre rifle. Offender one then placed the magazine in the rifle and fired two shots into the air over the top of the club. Police arrived and pulled over a motor vehicle in which offenders two and three were travelling. They were arrested and informed police of the whereabouts of offender one who was arrested a short time later at his home address. All three admitted to the offence as charged, which was discharge firearm in a public place. It was also an unlicensed firearm.
History
Psychosocial history and pre-accident history
Mr Stanford was born and grew up in Liverpool.
He completed school to the end of year 12. He did one year working as a labourer and from 1992 he started working as a storeman at the International Airport. He worked for the same company until 2005 rising to the level of operations export manager for the company United Parcel Service.
He relocated to live on the Central Coast in 2002 and commuted to Sydney until obtaining employment in 2005 as the operations manager for the Woolworths distribution centre at Warnervale.
In 2007 his wife left the family leaving him with care of their four children. He subsequently had to reduce to part-time work and working casually at the same distribution centre.
He ceased working for Woolworths in either 2010 or 2011 and commenced working in landscaping.
In 2014 he completed a Certificate IV in Surveying. He subsequently worked as a storeman until 2016 and recommenced working in landscaping in 2017.
He resumed work in 2018 doing store work up to 20 hours per work which he left after two months prior to this examination. He was currently working for a landscaping company, Australian Native Landscapes, loading trucks and doing deliveries on a casual basis 30 hours each week.
He currently rents a room owned by one of his daughters where he has lived for the past 12 months. She has two children.
He has daughters aged 26, 23 and 22 years. He lives with his second daughter. He has a son aged 19 years.
Mr Stanford currently drinks 2-3 cans of alcohol on a Friday and Saturday night.
He has not used any illegal substances since 2019.
He has not gambled since being released from gaol on 30 June 2020, subsequently on parole for four months.
Mr Stanford has not been involved in any previous motor accidents.
He had undergone surgery on his right clavicle at aged 15 years for a fracture whilst playing rugby league. He has fractured both clavicles and his ribs and also sustained a spiral right fibula fracture which were all sport related.
He became divorced and had a period off work following his wife leaving in 2017. He recovered.
He subsequently formed a new relationship in 2010 and is living with his new partner after the motor accident.
He confirmed an entry in the clinical notes from the Waratah Medical Service dated 19 January 2017 that he was struggling, easily angered and had a short fuse. He had several angry outbursts and punched a couple of holes in walls and smashed his guitar. He agreed that he was prescribed fluoxetine 20 mg daily.
He agreed with the entry in the Waratah Medical Service clinical notes on 1 May 2017 that he continues to struggle with anger management and low mood and was changed from fluoxetine to sertraline but stated that he did not remember taking sertraline.
He agreed he had been convicted of mid-range drink driving in 1991 and high-range drink driving in October 2009.
He accepted that he had been charged with offensive behaviour exposing his buttocks but had not been convicted of this offence.
History of the motor accident
Mr Stanford stated that the motor accident occurred on a Saturday morning at about 8.00 am. He was stationary in a line of traffic at red traffic lights.
The traffic lights turned green and he proceeded through the intersection. All he can remember is that he saw a vehicle coming through the red light on his left striking the left side of his vehicle and turning it onto its right side.
The windows exploded. Passers-by came up to assist him. He managed to crawl out the back through the smashed rear window.
He believes he was walking around but not coherent.
Ambulance and police arrived and he was asked questions by the ambulance. He had pain in his chest and lower back. He was conveyed by ambulance to Wyong Hospital.
History of symptoms and treatment following the motor accident
He was examined and had various investigations in Wyong Hospital. He believes he was there for about four hours and then discharged.
He was collected by a friend and taken home. His wife was at work.
The next day he had pain in his lower back, bruising on his chest and was agitated.
He remained at home and took analgesic medication. He remembers that subsequently he just stayed at home, he did not want to do anything. His vehicle was written off. He believes he became depressed.
He was working as a landscaper at the time and cannot remember what he did. He believes he did not go back to working as a landscaper where he was a subcontractor to a company, AEH Projects.
He had a ‘brain explosion’ two weeks after the motor accident and smashed up the house. Police were called and he was charged with property damage, assault and intimidate and an apprehended violence order was taken out against him.
He believes he had an argument with his wife but cannot remember the details of it. He described something changing and he lost control. He remembered that he kicked in the door. He believed that he assaulted his wife trying to get something out of his hands. He accepts that he threatened and assaulted his wife and destroyed portions of the house.
He subsequently went to court, he believes in February 2018. The apprehended violence order was continued and he was placed on a good behaviour bond.
He was obliged to leave the home but had nowhere to go. He believes that he slept on couches in various people’s houses and on the street. He did not have any permanent place to live until about May 2018.
He ceased doing the community service that was required under his good behaviour bond because he could not deal with having people around him. He subsequently returned to court. He was given two suspended gaol sentences, one of seven months and one of five months, because he was determined to be ineligible or unfit to continue community service.
He cannot remember the court date when the good behaviour bond was changed to a suspended gaol sentence.
He believes he returned to work in April 2018 to work for a nursery company delivering landscaping supplies. It was a struggle because he had lower back pain. He found it difficult to deal with traffic. He was wary of having a further motor accident.
He was taking sertraline 150 mg each day.
He was gambling on poker machines and drinking at least 50 g of alcohol each day. He was very depressed, anxious in that he could not cope with situations and particularly could not cope with having people around him.
He did not want to associate with people and tended to lock himself in his room and try to go to sleep. He felt a complete loss of self-worth. He had a low mood, low energy, did not want to get out of bed or go to work. He was always distressed and/or low in mood. He did not see the point of getting up.
He remembers using cocaine recreationally during 2018 for a period of time but cannot say when.
He was admitted to Wyong Hospital in October 2018 for seven days for detoxification from alcohol and subsequently had drug and alcohol counselling after that admission.
He had flareups, as he termed it, for the next two years. He was using methamphetamine in May 2019.
On 13 January 2019 he presented to Wyong Hospital with a transverse lineal wound to the volar aspect of his right 5th finger which he had sustained the previous day on a Colourbond fence. He was unable to flex his proximal interphalangeal joint.
He was referred to Royal North Shore Hospital and on 14 January 2019 had a general anaesthetic for exploration, debridement and repair of structures of the 5th finger of his right hand at Royal North Shore Hospital.
In December 2019 he went to the property where his wife was living. He had been consuming alcohol. He assaulted her and re-offended 2-3 weeks later.
He was breathalysed after the first or second incident or perhaps both and was determined to have mid-range blood alcohol. He was charged with a breach of AVO and was gaoled in January 2020 at Bathurst for six months being discharged on 30 June 2020. He was subsequently on parole for four months.
Details of any relevant injuries or conditions sustained since the motor accident
The only additional injury or condition since the motor accident was the laceration to the volar aspect of the right 5th finger which apparently led to the laceration of a tendon requiring open surgery and repair of structures on 14 January 2019 at Royal North Shore Hospital.
Current symptoms
Mr Stanford continues to struggle with depression. He managed to complete the parole period without incident. He tends to stay in his room and struggles to get out and meet people. He has withdrawn from friends. He gets to sleep usually within 30 minutes but occasionally having trouble getting to sleep. He wakes 2-3 times each night and can find it difficult to get to sleep. He feels anxious around others. He found it difficult to get back to the workforce. He is unsure whether he is embarrassed or has self-doubt about his abilities but perhaps both.
He continues to have low back pain when he is driving a motor vehicle for which he takes analgesic medication.
He has gained 15 kg of weight.
He is currently drinking alcohol 20-30 g Friday and Saturday night, does not use illegal substances and has not gambled since being released from gaol on 30 June 2020.
Current and proposed treatment
Mr Stanford is taking sertraline 50 mg daily.
He has ceased consulting psychologists and having any other psychological treatment because it makes him agitated.
Clinical Examination
Mental State examination
Mr Stanford was examined by video teleconference. The conference lasted for about 90 minutes. At times there were difficulties with the audio volume from Mr Stanford which could be addressed to some degree but times he was asked to repeat statements that he had made.
Mr Stanford was on time, alert, orientated and understood the purpose of the examination. He tried to cooperate with the examination but admitted that times he did not remember certain events or dates of certain events.
He described becoming depressed after the motor accident and that depression continued to the present day. He had social withdrawal, lack of motivation and drive and avoidance of contact with others and distrubed sleep particularly with repeated wakening duriing the night.
He also felt very anxious, found it difficult to drive in traffic being concerned about a further motor accident and finding it difficult to return to work being concerned, it appeared, about the opinions of others.
He did not describe any specific trauma-related symptoms.
Current functioning
Mr Stanford currently rents a room in the house occupied by his second daughter.
He gets up early because he commences work at 6.30 am and works until 2.00-3.00 pm. At weekends he will stay in his room all day. He does not always eat breakfast. He buys himself some lunch and his daughter cooks him dinner in the evening.
His daughter does the grocery shopping. He sometimes does his laundry and at other times his daughter does it for him. He does find it more difficult to do activities and would prefer to stay home but is going to work.
His social activities have been restricted to attending social gatherings with his children for birthdays and Christmas. He believes in the last 12 months he has attended four birthday parties and Christmas. He has four children and two grandchildren aged 2 and 8 months. He had a good social life, prior to the original motor accident.
Mr Stanford, despite feeling anxious about driving, drives to and from work which is about 10 minutes each way. He drives to the shops. His job involves doing deliveries and driving a truck. The maximum that he will drive is 30 km each way.
Mr Stanford has good relationship with his daughter and gets on well with his other children.
He has separated from his ex-wife. The apprehended violence order is still in place. He has contact with his mother but less contact with his father.
Mr Stanford struggles to concentrate and to read a book. He finds his way when driving by putting the address in the GPS unit. He reads the Bible each day on an app for between 5 and 30 minutes.
He watches television in his room which he finds helpful in distracting him.
Mr Stanford currently works 30 hours each week but believes he could at least attempt to do fulltime work. He does deliveries for a landscape supply company. Each trip is for a maximum of 30 km each way but some are shorter trips. He does feel anxious doing the deliveries but has been able to maintain his employment.
Comments on consistency
Mr Stanford’s presentation and account of symptoms was consistent throughout the examination and was consistent with the supplied documents, with the exception of the report of Dr Graham Vickery, psychiatrist, dated 13 August 2019 which states that he has no current psychiatric diagnosis arising from the injuries sustained in the motor accident. It states the symptoms of Generalised Anxiety Disorder and persistent Depressive Disorder were pre-existing.
Panel Deliberations
Assessor Doron Samuell, in his certificate dated 19 August 2021, states that there is no current psychiatric diagnosis arising from the injuries sustained in the motor accident, Therefore, an assessment of whole person impairment is not required.
The panel determined that Mr Stanford did reach criterion for a condition of Major Depressive Disorder which appeared to have improved since at least the first couple of months following the motor accident and was in partial remission. He was very depressed, socially withdrawn, at times seemed to have a poor appetite, had disturbed sleep and a loss of interest and motivation and drive in addition to a depressed Mood.
Mr Stanford has a diagnosis of Generalised Anxiety Disorder.
He feels excessive anxious, is excessively concerned about others at work and in other situations and what they think about him. He feels uncomfortable driving in ordinary day-to-day traffic being fearful of a further motor accident but does not have any avoidance because of his concerns about driving. He is working 30 hours each week doing deliveries and feels that he could attempt to work full time 40 hours each week.
The panel noted that prior to the motor accident Mr Stanford had no restrictions on his day-to-day functioning but agreed that he did have some impairment of his daily functioning and therefore an assessment of whole person impairment was indicated.
Conclusion
The claimant submits that Assessor Samuell had failed to give regard to the report of Gerard Glancey dated 18 June 2019 and particularly that the claimant suffered from Generalised Anxiety Disorder with Major Depressive Disorder.
The Review Panel agreed that Mr Stanford did reach criterion for these two conditions although the condition of Major Depressive Disorder was in partial remission.
Mr Glancey also made a finding of 16% whole person impairment.
Mr Glancey assigned a class 1 to Travel, class 2 to Self Care and Personal Hygiene, class 3 to Social and Recreational Activities; Social Functioning; and Concentration, Persistence and Pace and a class 4 to Adaptation.
He found that there was a pre-existing whole person impairment of 0%. He did add 2% for the treatment effect of treatment for controlling his temper although that was not current at the time of the motor accident.
He also added 1% for the current whole person impairment for the effect of treatment although the only ongoing treatment was sertraline in a much lower dose than previously. This provided a current whole person impairment of 18% from which he deducted 2% for the pre-existing whole person impairment.
The Review Panel found that Mr Stanford did have impairment of his daily functioning but determined that he had current whole person impairment of 7% and there was no allowance for effect of treatment and there was no evidence of pre-existing whole person impairment. The Review Panel differed in that Social and Recreational Activities were a class 2 because Mr Stanford had attended some social functions, albeit with his children, in the last 12 months. The Review Panel found that Concentration, Persistence and Pace was a class 2 because Mr Stanford was able to undertake an examination lasting about 90 minutes. He was working and was able to read up to 30 minutes each day.
Adaptation was a class 3 rather than a class 4 because he was working in a lower skilled job 30 hours each week and had been able to maintain that employment despite his current conditions.
The Review Panel therefore agreed with Mr Glancey’s diagnoses but not the assessment of whole person impairment.
The insurer’s submissions state that the insurer relies on the reports of Dr Graham Vickery and that there is no diagnosable psychiatric condition arising from the injuries sustained in the motor accident and therefore there can be no assessment of whole person impairment.
It does make reference to previous treatment with antidepressant medication and previous treatment for angry outbursts and refers to his previous criminal behaviour and subsequent charges and convictions.
The panel disagreed with these findings noting that it disagreed with Dr Vickery’s findings there was no current psychiatric diagnosis believing that Mr Stanford did reach criteria for current psychiatric diagnoses and that there had been pre-accident treatment. At the time of the motor accident, he was not taking antidepressant medication and not receiving any psychiatric or psychological treatment.
Review Panel decision
The Review Panel found that the accident WAS a cause of the following claimed injuries:
· Major Depressive Disorder, in partial remission
· Generalised Anxiety Disorder.
The Review Panel considered that the following injuries give rise to a permanent impairment:
· Major Depressive Disorder, in partial remission
· Generalised Anxiety Disorder.
The degree of whole person permanent impairment of the injuries caused by the accident was calculated as follows:
Psychiatric Impairment Rating Scale
Psychiatric Diagnosis
· Major Depressive Disorder, in partial remission
· Generalised Anxiety Disorder
Psychiatric Treatment
· sertraline
· Treatment by various psychologists and counsellors
· Drug and alcohol detoxification
· Drug and alcohol counselling
AREA OF FUNCTION
CLASS
REASON FOR DECISION
Self Care and Personal Hygiene
2
Mild impairment. Mr Stanford does live with his second daughter and she does undertake various household activities particularly cooking the evening meal and doing the grocery shopping but Mr Stanford is able to get himself ready and get to work. He is able to buy himself lunch. He will prepare breakfast for himself some days. He would be able to live independently if required but may occasionally miss a meal or buy takeaway food.
Social and Recreational Activities
2
Mild impairment. He has attended family social functions, particularly birthday parties and Christmas with his children. He has not undertaken any other social activities recently although in the past has gone to church.
Travel
1
No impairment. Mr Stanford does feel more anxious when driving but is able to drive 30 km each way doing deliveries in the course of his work and drive to and from work and feels capable of working full time doing delivery driving.
Social Functioning
3
Moderate impairment. Mr Stanford is separated from his second wife and as a result of his ‘brain explosion’ he assaulted her and caused damage to the house. There have been subsequent incidents where he has assaulted her in 2019 albeit when intoxicated with alcohol. That relationship will not re-form.
He does have a good relationship with his four children. He has not re-formed or attempted to form a new relationship and does not feel capable of doing so.
Concentration, Persistence and Pace
2
Mild impairment. Mr Stanford does struggle with his thinking and concentration but does function day to day and does work. He is able to read the Bible up to 30 minutes each day. He does use a GPS device to find his way around when doing deliveries but he does not get lost and could sit through an examination that lasted approximately 90 minutes.
Adaptation
3
Moderate impairment. Mr Stanford is working about 30 hours each week but this is in a different position to previously. He is less skilful and is doing deliveries whereas previously he was working as a subcontractor to a landscaping company which required him to do landscaping and which involved a lot of planning in addition to generating invoices to clients. He currently does deliveries to clients of his employer. He drives travels out and back to do a delivery. He does not generate invoices or take orders for deliveries. He follows the instructions that he is given.
He does not fit the criteria for a class 2 mild impairment because he cannot work full time in a different environment with the same level of skill and intellect and he cannot work in the same position for no more than 20 hours each week.
List classes in ascending order: 1, 2, 2, 2, 3, 3
Median class value: 2
Aggregate score: 13
Whole person impairment: 7%
Permanent Impairment
Apportionment
Mr Stanford prior to the motor accident had some psychiatric symptoms.
The entry the clinical notes of the Waratah Medical Service at Kanwal dated 19 January 2017 states that he was struggling, easily irritable and had a short fuse. He had some angry outbursts, had a short fuse and had punched a couple of holes in walls and smashed his guitar. He was argumentative and irritable. He felt low in mood and that everyone was against him. He was fatigued. He woke unrefreshed, although his sleep was not disturbed. He had no thoughts of self-harm but did have thoughts of driving and not coming back.
The entries for 1 and 5 May 2017 and report similar symptoms describing difficulties with anger management, arguing a lot, being verbally abusive, using cocaine and amphetamines recreationally and drinking 20 units of alcohol each week.
He was prescribed fluoxetine on 19 January 2017 which was changed to sertraline on 1 May 2017.
The consultation on 5 May 2017 was for the preparation of a mental health plan which was required to attend a psychologist and receive Medicare rebates for up to 10 sessions each year. It states that he was considering contacting drug and alcohol therapy which was recommended at a previous consultation.
He reaches criterion for pre-motor accident diagnoses of adjustment disorder with depressed mood and alcohol use disorder.
It is to do a pre-motor accident assessment of whole person impairment.
Pre-accident whole person impairment
Psychiatric Impairment Rating Scale
Psychiatric Diagnosis
· Adjustment Disorder with Depressed Mood
· Alcohol Use Disorder
Psychiatric Treatment
· Fluoxetine
· Sertraline
· Treatment by various psychologists and counsellors
AREA OF FUNCTION
CLASS
REASON FOR DECISION
Self Care and Personal Hygiene
1
No Impairment. Mr Stanford had no difficulty with some his personal care and doing day-to-day tasks and activities at home.
Social and Recreational Activities
1
No Impairment. Mr Stanford had no difficulty in attending social functions and in his interaction with others, in a social setting.
Travel
1
No impairment. Mr Stanford had no impairment of his ability to drive and no symptoms regarding driving.
Social Functioning
2
Mild impairment. Mr Stanford was living with his second wife. There were repeated arguments between them. The general practice entry for 1 May 2017 states that there is a loss of trust in the relationship. However, there was no separation or threat of separation.
Concentration, Persistence and Pace
1
No impairment. Mr Stanford had no difficulty with his ability to think and concentrate. He was working as a self-employed landscaper subcontracting to a larger company which required him to quote and plan of various landscape works and generate invoices for clients.
Adaptation
1
No impairment. Mr Stanford was working full-time as a self-employed landscaper, subcontracting to a larger company. He had no difficulty undertaking this work.
List classes in ascending order: 1, 1, 1, 1, 1, 2
Median class value: 1
Aggregate score: 7
Whole person impairment: 0 %
He has not been involved in any subsequent motor accidents and not developed any new medical conditions.
It is not necessary to do an assessment of pre- or post-accident apportionment.
Effects of Treatment
Mr Stanford’s only current treatment is sertraline 50 mg daily. The dose has been as high as 150 mg daily.
There is no clear beneficial effect from taking this medication.
He has ceased all psychological treatment finding it was agitating.
No allowance is made for the effect of treatment.
The Review Panel did not agree with the findings of Assessor Doron Samuell in his certificate dated 19 August 2021 in that it found that Mr Stanford continues to have psychiatric symptoms which commenced soon after the motor accident and have continued to the current day although the Major Depressive Disorder has to a degree improved and Mr Stanford’s function overall has improved. No treatment, either by a psychologist, drug and alcohol counsellors, or medication, has led to a resolution of his symptoms.
A Current % permanent impairment 7 %
B Pre-existing/subsequent % permanent impairment 0 %
C Adjustments % for effects of treatment 0 %
Final % permanent impairment 7%
Determination Regarding the Degree of Whole Person Impairment of the Injured Person as a Result of the Injuries Caused by the Motor Accident
The total percentage whole person permanent impairment for assessed injuries caused by the motor accident is 7%. The total whole person impairment is not greater than 10%.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[33] and Insurance Australia Ltd v Marsh.[34]
[33] [2021] NSWCA 287 at [40], [41] and [45].
[34] [2022] NSWCA 31 at [11], [21], [64]
The Panel adopts the extensive and comprehensive reasons from the joint medical report provided by the Medical Assessors.
We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.
The examination report describes in detail why the Medical Assessors have come to conclusion that Mr Stanford suffered a psychiatric injury caused by the motor accident and the extent of the permanent impairment Is not greater than 10%. Given the extensive detail in the examination report, it is unnecessary to add any further Reasons.
CONCLUSION
The medical assessment of Medical Assessor Samuell is revoked. The new certificate is attached at the commencement of these Reasons.
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