Stankovic v QBE Insurance (Australia) Limited
[2023] NSWPICMP 257
•8 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Stankovic v QBE Insurance (Australia) Limited [2023] NSWPICMP 257 |
CLAIMANT: | Ristina Stankovic |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
MEMBER: | Gary Patterson |
| MEDICAL ASSESSOR: | Glen Smith |
| MEDICAL ASSESSOR: | Michael Li Ying Hong |
DATE OF DECISION: | 8 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury on 13 September 2017; the dispute related to the assessment of permanent impairment of psychological injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Limited v Marsh applied; claimant diagnosed with post-traumatic stress disorder; assessments made in accordance with Psychiatric Impairment Rating Scale (PIRS) categories; Held – claimant assessed at 5% permanent impairment for the psychological injury; original assessment revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment (Review) Review Panel Assessment Certificate is issued under Part 3.4 of the Motor Accidents Compensation Act1999 The Review Panel revokes the certificate dated 31 March 2022 and issues a new certificate determining that: The following injuries caused by the motor accident give rise to a permanent impairment of 5% and IS NOT GREATER THAN 10%: · post-traumatic stress disorder. |
REASONS
Background
Ristina Stankovic (the claimant) suffered injury in a motor accident on 13 September 2017 at Liverpool. The claimant was a seat-belted driver whose vehicle was passing a service station. As she did so, the insured vehicle exited the service station at speed, T-boning the claimant’s vehicle. The impact was such that it caused the claimant’s vehicle to spin. It was hit again by the insured vehicle, causing it to flip over and slide for some distance. The claimant’s vehicle came to rest on its wheels. The claimant is uncertain whether her vehicle hit the kerb, causing it to right itself, or whether she was hit by another vehicle.
QBE (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay to the claimant any damages under the Motor Accidents Compensation Act1999 (the MAC Act).
The review
The application for referral of the medical assessment of Medical Assessor Atsumi Fukui to a Review Panel (the Panel) was made on 28 April 2022 by the claimant, within 28 days after the parties were issued with the original certificate for the medical assessment, for which the review is sought.
On 6 June 2022, the delegate of the President referred the medical assessment to the Panel, as the President’s delegate was 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.
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 cl 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.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F(2) of the PIC Act, the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedural before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
All members of the Panel had no previous involvement with the claimant or with this matter.
The review is by way of new assessment of all matters with which the medical assessment is concerned.
On 27 March 2023, the Panel issued the following Directions to the parties (the Direction):
“The claimant is to be assessed jointly by Assessors Glen Smith and Michael Li Ying Hong on 2 May 2023 commencing at 3.00pm, remotely by video conference, for 2 hours. The assessment will be a complete assessment not limited to the category of self-care and personal hygiene of the PIRS. The Panel is required to form its own opinion on diagnosis and assessment (Insurance Australia Limited v Marsh).”
Statutory provisions
The relevant statutory provision is s 63 of the MAC Act which relevantly provides as follows:
“63 Review of medical assessment by review panel
(1) A party to a medical dispute may apply to the President to refer a medical assessment under this Part by a single medical assessor to a review panel for review.
(2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.
(2A) Omitted as not relevant to this case.
(2B) The President is to arrange for any such application to be referred to a review panel, but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
(3) The review panel is to be constituted by 3 persons chosen by the President as follows:
a.2 medical assessors.
b.1 member of the Commission who is a member assigned to the Motor Accidents Division of the Commission.
(3A) The review of a medical assessment is not limited to a review only of 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.
(3B) To avoid doubt, any medical re-examination of the claimant for the purposes of the review needs to be conducted by all of the members of the panel if the members agree for it to be conducted by only some of the members.
(4) The review panel may confirm the certificate of assessment of the single medical assessor or revoke that certificate and issue a new certificate as to the matters concerned.
(5) If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review.
(6) Section 61 applies to any new certificate or new combined certificate issued under this section.
(7) An application under this section must be made within –
c.28 days after the parties to the medical dispute were issued with the original certificate for the medical assessment for which the review is sought: or
d.a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.”
Assessment under review
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of the review was conducted by Medical Assessor Atsumi Fukui and dated 8 February 2022. The referral for assessment to the Medical Assessor specified the dispute to be assessed as Permanent Impairment – 1999 and the injury to be assessed as post-traumatic stress disorder. Following her assessment of the claimant, Medical Assessor Fukui certified on 31 March 2022 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 3% and IS NOT GREATER THAN 10%.
· post-traumatic stress disorder
MATERIAL BEFORE THE REVIEW PANEL
Review Application
The claimant lodged an Application for a Review of a Medical Assessment (Review Application) on 28 April 2022 with the Commission. The claimant submitted that there were numerous errors in the psychiatric impairment rating scale (PIRS) class assessments in Medical Assessor Fukui’s report. They can be summarised as follows:
(a) Self-care and Personal Hygiene:
Medical Assessor Fukui allocated a Class 1 rating on the basis that the claimant is able to appropriately self-care, manages to care for her two young children and does rely on others to help with her domestic tasks.
The claimant submitted that relying on others to complete domestic tasks is not “a minor deficit attributable to normal variation in the general population” and submitted that a Class 3 or Class 2 rating is a more appropriate class based on the history taken by Medical Assessor Fukui.
(b) Social and Recreational Activities:
Medical Assessor Fukui allocated a Class 1 rating on the basis that the claimant has maintained friendships and still socialises. The claimant submitted that Medical Assessor Fukui’s report contains no history regarding the claimant’s social and recreational activities, which is contrasted with Dr Kaplan’s report to the insurer. The claimant submitted that Medical Assessor Fukui made no reference at all to the frequency, duration or context of the claimant’s socialising and that Class 2 would be a more appropriate rating.
(c) Travel:
Medical Assessor Fukui allocated a Class 1 rating as the claimant drives more cautiously and is anxious in the car but can travel alone. Whilst conceding that the examples of the PIRS scale class assessments “are intended to be illustrative rather than literal criteria”, the claimant submitted that a Class 2 or Class 3 rating is more appropriate, based on the history taken by Medical Assessor Fukui. The claimant cited various factual matters that, it was submitted, warrant a rating above “no deficit”.
(d) Concentration, persistence and phase:
Medical Assessor Fukui allocated a Class 1 rating as the claimant reported forgetfulness but is functioning in the same job as Finance Officer that she held prior to the accident which requires intact cognition.
The claimant submitted that Assessor Fukui’s report contains no specific reference or history taking with regard to Concentration, Persistence and Pace other than brief references to the claimant’s work. It was submitted that Class 3 is a more appropriate category especially having regard to Dr Kaplan’s findings.
(e) Adaptation:
Medical Assessor Fukui allocated a Class 1 rating as the claimant continues to work as a Finance Officer. The reduction in her working hours from full-time being attributed to her back pain with difficulty sitting for long hours.
The claimant submitted that a Class 2 mild impairment rating is more appropriate, given her impaired cognitive capacity, as found by Dr Kaplan.
Reply submissions
The insurer opposed the claimant’s Review Application. Generally, it submitted that the President’s delegate may feel that the errors alleged by the claimant have not been substantiated, nor have reason to suspect Medical Assessor Fukui did not conduct a proper examination. Further, the insurer submitted that Medical Assessor Fukui had proper regard to the material, conducted a comprehensive assessment and clinical examination of the claimant, and made appropriate findings, based on her clinical judgment, in relation to class and impairments in relation to the claimant’s injuries.
The insurer noted that Dr Kaplan’s assessment was conducted some 28 months before Medical Assessor Fukui’s assessment. It was submitted by the insurer that Medical Assessor Fukui was required by the Guidelines to consider the impairment “as it is at the time of the assessment”. As such, it can be accepted. It was also submitted that differences between Medical Assessor Fukui’s findings and Dr Kaplan’s findings could not form the basis of an obvious error.
The insurer disputed the claimant’s submission that Medical Assessor Fukui failed to record a detailed history or to conduct a proper assessment of the claimant’s injuries. The insurer’s primary submission was that, whilst the claimant disagrees with the findings of Medical Assessor Fukui, it did not follow that her certificate is erroneous. The insurer then deals specifically with the claimant’s submissions in relation to the findings and ratings made by Medical Assessor Fukui under the categories of Self-Care and Personal Hygiene, Social and Recreational Activities, Travel, Concentration, Persistence and Pace and Adaptation, which it is not necessary to detail.
Supporting documents
The following documents were lodged in support of the Review Application by the claimant:
(a) submissions;
(b) clinical notes of Liverpool Hospital;
(c) report dated 16 April 2019 by Dr Blagoje Kuljic, consultant psychiatrist;
(d) report dated 14 February 2019 by Dr Kris Tomka, general practitioner, and
(e) report dated 5 June 2018 by Dr Zoran Protulipic, clinical and forensic psychologist.
The following documents were lodged by the insurer opposing the Review Application:
(a) submissions;
(b) report dated 24 September 2019 of Associate Professor Robert Kaplan, forensic psychiatrist, and
(c) Application to Admit Late Documents with correspondence, clinical records of Keira Noble, clinical psychologist and clinical records of Bathurst Street Medical Centre.
RE-EXAMINATION
The re-examination was conducted by Medical Assessors Glen Smith and Michael Li Ying Hong on 2 May 2023 remotely, as was Medical Assessor Fukui’s assessment. The findings and reasons of the Medical Assessors are set out below:
“History
Psychosocial history and pre-accident history
Ms Stankovic was born in Bosnia and went to Serbia as a refugee, when the war started in her home country. She came to Australia in 2000. She said that she grew up with her parents as an only child, and there was always food and she would play with the other children, and therefore never felt traumatised by being displaced by the war.
She is not aware of a family history of mental illness.
She does not have a history of other major medical conditions, such as epilepsy, cardiac or liver disease. She said she has experienced an increased heart rate from anxiety after the subject accident and reflux symptoms, without a specific diagnosis.
She denied a history of drug or alcohol problems.
Ms Stankovic does not have a past psychiatric history.
History of the motor accident
On 13 September 2017, Ms Stankovic was driving on her own and was six months pregnant at the time. She remembered she had gone past Hoxton Park Road and was approaching a petrol station and driving under the speed limit. Suddenly there was a car that came out from the station and struck the left side of her car. She remembered there was a "hard impact" and her car spun. She recalled she screamed and said she was thinking that she did not want to be trapped inside her car, as she had seen in movies. Her car was struck a second time and flipped to the side and then back onto the wheels and ended up in the middle of the road. She said the other driver had left the petrol station without paying for petrol and did not wait at the scene. Her car was later written off.
She remembered she was in shock. Ms Stankovic described having injuries to her arms from impact, causing a bruise and later a scar to form. She was taken to Liverpool Hospital and they checked her baby in the maternity ward and she was released a few hours later. Her daughter is now aged five years and has developed well, but she thinks she is a sensitive child and cries easily and she wonders if this is related to the accident.
Physically, she has improved over time but still has intermittent back problems and takes Nurofen to manage this.
Previously, she was a confident driver but after the accident, she became anxious on the road. Even as a passenger, she gets anxious. When she drives, she said that she would slow down, sometimes to the point that other people in the car will say to her she is too slow and that causes an argument. She can drive on the highway with anxiety, and she can drive from Liverpool to the city. She said there is no need for her to drive further. She has driven past the same petrol station many times.
History of symptoms and treatment following the motor accident
Ms Stankovic was exposed to a life-threatening situation and she reported this triggered a fear response and gradually developed the full syndrome of posttraumatic stress disorder (PTSD).
Details of any relevant injuries or conditions sustained since the motor accident.
Ms Stankovic has not had further car accidents or sustained other psychological injuries.
Current symptoms
Aside from driving anxiety and not trusting other drivers on the road, Ms Stankovic also said she gets a bit upset when people talk about the scar on her arm from the accident.
She reported having intermittently depressed mood which does not last more than one day.
She has reduced enjoyment and motivation.
She described having reduced concentration and memory overall.
Her weight has been stable after her second child.
She reported having sleep problems due to anxiety, and over time her sleep is better. She has nightmares related to the accident, one to two times every three months.
She has experienced flashbacks but these have reduced in frequency and intensity.
She has been irritable.
Ms Stankovic denied having had suicidal ideation.
Current and proposed treatment
Ms Stankovic took escitalopram for a few months and has not had other psychotropic medication. She consulted Dr Zoran Protulipic, psychologist and then Keira Noble in Campbelltown for one year, the last time was around two years ago. She had one session with Dr Blagoje Kuljic, psychiatrist.
Ms Stankovic has never had a psychiatric admission.
There are no proposed treatments.
Clinical Examination
Mental State examination
Ms Stankovic was assessed by video. She was at home during the assessment. Dr Smith and Dr Hong were in their Sydney offices.
Ms Stankovic was neatly attired and generally talkative. She engaged well with the assessment. There was no psychomotor slowing or abnormal movements. She was not restricted in her affect, range and reactivity. She appeared anxious and cried when she discussed the subject accident.
She spoke spontaneously and readily. She provided a clear history. She recalled a reasonable amount of detail and maintained a normal speed and pace.
At the end of the assessment, the Panel asked Ms Stankovic for additional information that she thought may be relevant and she had no specific comments to make.
Current functioning
Ms Stankovic is 38. She has been living with her parents since 2018. Before the accident, she was living with her husband, and they had separated and sold their property. She has two daughters, aged five and two, living with her. Occasionally, her ex-husband will take the daughters overnight.
She prepares food for the family and the children. She takes her daughters to activities, such as dancing and gymnastics. She does not exercise herself and explained she has no motivation.
She talks to the other parents when she goes to the children’s activities. The relationship with her friends has changed, she said because she is “moody” and is not interested to go out with them.
Before the subject accident, Ms Stankovic was outgoing and liked to socialise. She recalled she was a happy person and said that she used to meet up with her friends and go to concerts and the cinema, but she does not do these activities anymore. She still goes out to coffee with her friends locally, and this might be once every four weeks.
Ms Stankovic was married in 2015 and they divorced in 2018. She said that after the accident, she became “grumpy” and expected him to step in to help, but he did not and that caused arguments. They reconciled briefly and had a second daughter and separated again two years ago. They are still on good terms. He has a physical injury and struggles with childcare activities, and she stated her two daughters only stay over at his place occasionally.
Sometimes Ms Stankovic’s parents help with her daughters, for example if she is going out to dinner with her friends.
She tried to read a book recently and after 20 pages she gave up. She does not watch television and said when the TV is on, it is mostly cartoons for her daughters. She uses social media and Instagram.
She likes baking and follows recipes. She will exchange recipes with her friends. She does not belong to a club.
Sometimes she struggles with childcare and said that if she has a headache, she will get moody or gets angry, and she would raise her voice at her daughters.
Employment history
After Year 12, Ms Stankovic studied for a Diploma in Accounting from TAFE, then a Degree in Business. She had done administration work and joined the Public service in her 20s, and her department later became part of Department of Communities and Justice. Before the accident, she was a full-time financial officer doing accounts payable.
After the accident, she took a few days off work and said that she had too much arm pain. She had maternity leave for one year and then returned to full-time work but found that she could not manage it as she was in too much pain. After maternity leave for her second daughter, she returned to work and reduced work to five hours a day, five days a week. She explained that because of the pain in her neck, she needs frequent breaks and finds it hard to do full-time work.
Ms Stankovic missed out on a promotion to be a team leader recently, and she was told that she has to be able to do full-time work to get that promotion. She said her current job is the same as what she did before the accident, she would run reports, make sure transactions are processed in a timely manner as per department guidelines, she coaches some of the staff members. If other people had accounting problems, she was one of the workers they would approach for assistance. She predominantly works on the computers and works from home sometimes. Ms Stankovic said sometimes she made mistakes and overall, she is managing okay.
Comments of consistency
There was no inconsistency identified.
Review of Documentation
Summary of relevant documentation
Mental health care plan, 22 July 2020, noted anxiety, depression and insomnia from the accident.
GP records and a report from Dr Kris Tomka, GP, 14 February 2019, noted the subject accident and she suffers severe pain, and also developed a psychological injury.
Dr Zoran Protulipic, psychologist, reported on 5 June 2018, noted symptoms of chronic pain, trauma, a level of anxiety and depression after the car accident. Applied Cognitive behavioural therapy and Acceptance commitment therapy.
Personal Injury Commission certificate from Assessor Patricia Jungfer, 4 November 2019, noted a similar history and after the accident, Ms Stankovic developed symptoms consistent with PTSD.
Assessor, Neal Berry, 15 May 2019, advised that her physical injury gave rise to an impairment of 10%.
Dr Kaplan’s IME psychiatrist report and WPI have been noted. The Panel found Ms Stankovic less impaired in terms of travel, because despite her anxiety she is still able to travel everywhere, she is more cautious on the road but does not have an impairment. In terms of concentration, persistence and pace, the Panel also found her less impaired and noted she has reduced concentration and memory, and she can focus on intellectually demanding tasks for longer than half an hour. She can focus on work in accounts payable, as well as baking with recipes.
Determinations
Diagnosis and reasons
Ms Stankovic developed symptoms consistent with the diagnosis of posttraumatic stress disorder (PTSD) as a result of the subject accident and fulfilled all of the DSM-5 diagnostic criteria. Specifically, the subject accident was a substantially frightening event and fulfilled criterion A of PTSD diagnostic requirement.
Causation and reasons
Ms Stankovic has no past psychiatric history and developed psychological symptoms immediately after the accident and her psychological injury has not resolved. There are no other contributing factors identified and the subject accident is the only cause of her psychological injury.
Permanency of impairment
Permanent impairment is defined in the AMA4 Guides 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.”
Ms Stankovic’s treatment and impairment is permanent and stabilised, with or without medical treatment, and is not likely to remit or change more than 3% with further medical treatment.
Degree of permanent impairment Psychiatric Impairment Rating Scale
Category
Class
1. Self-Care and Personal Hygiene (current)
1
Ms Stankovic showers daily and eats regularly. She cooks and shops and attends to household chores. She does not rely on others from a psychological perspective and she presented as currently independent in self-care.
2. Social and Recreational Activities
2
She attends regular social recreational activities with her family and friends. Overall, she has been attending less since her injury. She may have dinner or go out or coffee with her friends around every four weeks.
3. Travel
1
Ms Stankovic is anxious and drives slower and is more cautious on the road but she does not have a specific impairment in her travel as she is able to travel everywhere on her own, despite her anxiety.
4. Social Functioning
3
Ms Stankovic divorced after the subject accident, as a result of her irritability and they reconciled but then separated again. The relationship is improved now and they share the parenting duties.
She is stressed and finds it more difficult to care for her children and continues to do so at a reasonable level. She is able to maintain a few long-term friendships. The relationship with her parents is good.
5. Concentration, Persistence and Pace
2
Ms Stankovic reported having reduced concentration. She can follow recipes and work on computers, and engage in intellectually demanding tasks, more than 30 minutes at a time.
6. Adaptation
1
From a psychological perspective, Ms Stankovic said that she can work full-time in her pre-injury duties and this is consistent with the Panel’s assessment.
List classes in ascending order: 1, 1, 1, 2, 2, 3
Median Class Value: 1.5à 2
Aggregate Score: 10
% Whole Person Impairment: 5%
*%WPI = Percentage Whole Person Impairment
Psychiatric Impairment Rating Scale – Pre-existing/subsequent impairment
Nil.
Apportionment
Nil.
Effects of treatment
0%
No treatment now
Final WPI = 5%”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[1] The Panel adopts the extensive reasons of the joint examination findings of the two Medical Assessors.
[1] Section 63(3A) of the MAC Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[2] and Insurance Australia Ltd v Marsh,[3] The Medical Assessors have explained the basis of their assessments which are different from those provided by other specialists. Further, the medical assessment of permanent impairment is undertaken at the time of the examination. In that respect, the previous assessments are somewhat outdated and do not reflect current symptomatology.
CONCLUSIONS
[2] [2021] NSWCA 287 at [40], [41] and [45].
[3] [2021] NSWCA 31 at [11], [21] and [64].
The new certificate is attached at the commencement of these reasons.
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