Targa v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Targa v QBE Insurance (Australia) Limited [2025] NSWPICMP 191
CLAIMANT:	Lisa Targa
INSURER:	QBE Insurance (Australia) Ltd
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Gerald Chew
DATE OF DECISION:	21 March 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant injured in a motor vehicle accident on 12 January 2019; suffered psychological injury; Medical Assessor (MA) issued a certificate on 13 October 2022 and determined the whole person impairment (WPI) of the claimant was 9%; claimant made an application for review of the determination; the claimant died on 22 July 2023; the Review Panel provided its own decision notwithstanding the death of the claimant; Review Panel utilised the history of the claimant and material before it; Held – the Medical Assessment Certificate was revoked and the Review Panel substituted the determination of 18% WPI.
DETERMINATIONS MADE:	Review Panel Review Decision 1. The Panel revokes the certificate of Medical Assessor Shen dated 13 October 2022 and substitutes the determination of a total whole person impairment of 18%.

STATEMENT OF REASONS

INTRODUCTION

Lisa Jane Targa is the claimant (the claimant).
The claimant was involved in a motor vehicle accident on 12 January 2019 (the Accident).
The relevant Insurer is QBE Insurance (Australia) Ltd (QBE).
The claimant was born on in 1976 and died on 22 July 2023.
The claimant was assessed for psychiatric impairment by Medical Assessor Yu-Tang Shen on 10 October 2022 with his decision on 13 October 2022.
Medical Assessor Shen’s determination as to whole person impairment (WPI) was that the claimant had a WPI of 9% on the basis of a diagnosis of:
· persistent depressive disorder, and
· post-traumatic stress disorder.
Accordingly, on that determination, the claimant did not qualify for non-economic loss damages.
The claimant made an application for the review of the determination.
The review was approved and the medical review panel of legal member Terence Stern, Medical Assessor John Baker, and Medical Assessor Gerald Chew was appointed.
The medical review panel appointed a first Medical Review Panel (MRP) meeting for 11 September 2024.
The claimant committed suicide on 22 July 2023.

REVIEW PROCEDURE

The claimant sought a review of the Medical Assessment under s 7.26 of the Motor Accident Injuries Act 2017 (MAI Act) (the Review).
Pursuant to s 7.26(5A) of the MAI Act, the Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission): s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
Part 5 of thePIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.

CASE LAW

The decision of Dunford J in NRMA Insurance Ltd v Motor Accidents Authority of NSW [2004] NSWCA 56 is still good law in the sense that it has never been overturned.
In the same way, it has never been applied as far as I am aware and there are obvious problems with the formulation of his Honour which makes one question whether it would be applied or overturned if there was an occasion for a court to consider it.
The key paragraph is [21] where his Honour said:
“In my view, similar considerations apply here. What the assessor is required to assess under s 61(2)(a) is whether the degree of permanent impairment of the injured person is greater than 10 per cent. The person is injured once and for all at the time of the accident, so the injury is past; the permanent impairment on the other hand is a continuing static condition, but it is in any case only permanent up until the time of death, whether such death occurs prior to the assessment or many years after it. Accordingly, I consider that the word is in s 61(2)(a) is not used in a temporal, but rather a narrative sense and should be read as meaning ‘is or was’.”

THE ROLE OF A REVIEW PANEL IN ASSESSING WPI

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines)
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 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.
6.7    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 application for referral of a medical assessment to a Review Panel (the Panel) was made 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.
The delegate of the President referred the medical assessment to the Panel being 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.
This review is from the medical assessment when it was determined that the claimant suffered a 9% permanent impairment for the psychological injuries caused by the Accident.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd 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.”
It should be noted that the legislation requires the Review Panel to make a new assessment (Panel’s emphasis) of all matters with which the medical assessment is concerned.

DETERMINATION OF MEDICAL ASSESSOR YU TANG SHEN

Medical Assessor Shen assessed the claimant on 10 October 2022 and issued his certificate on 13 October 2022 to the effect that the claimant had a persistent depressive disorder and a post-traumatic stress disorder and that her WPI was not greater than 10%.
The Decision is set out in full as follows:
“[1]    There is a dispute between the Claimant and the insurer about the degree of permanent impairment under Schedule 2 section 2(a) of the Act
[2]    The following injuries were referred by the Personal Injury Commission for assessment:
•Psychological - PTSD, Major Depressive Disorder, Anxiety
[3]    The Claimant submitted on 26 July 2021, that she sustained injury to the cervical spine, right arm, right hand, right foot, chronic pain syndrome, PTSD, Major Depressive Disorder and Anxiety. She was assessed as having minor injuries, but there has been deterioration of her injuries since, such that they are no longer within the threshold of being minor injuries and noted by Assessor Martin Allan on 21 October 2020 to have PTSD and had no symptoms prior to the subject accident: -
[“… Diagnosis of exacerbation of PTSD from MVA and Major Depressive Disorder from the subject Accident. There, was pre-existing history in 2009 of PTSD, due to an abusive relationship, and had psychological interventions through VOC and was on alprazolam and aropax, and the PTSD resolved, with occasional anxious periods afterwards. She had ongoing symptoms of depression, anxiety, and PTSD. She had not yet seen a psychologist.”]
[4]    The insurer submitted on 31 August 2021, that the Claimant sustained minor injuries from a lowspeed accident, below threshold, and she is exaggerating the symptomatology, and there has been failure to produce necessary relevant pre-existing historical evidence, including a previous bilateral carpal tunnel syndrome, chronic pain syndrome and low back pain, depression, anxiety, gall bladder issues, with these being relevant contributors to the assessment of WPI, such that the contribution of the subject accident would not exceed the WPI 10% threshold. There is evidence from Dr Vickery that there were no psychiatric disorder from the subject accident, and that the conflicting report by Dr Teo attributed her psychiatric symptoms to a life-threatening accident, which was in contrast to the circumstances of the accident.
[5]    I considered the documents provided in the application and reply:
•Letter from QBE dated 21 July 2021, deeming the injuries not yet permanent.
•Letter from Gerard Malouf Lawyers, dated 3 August 2021.
•Statement by Lisa Targa, dated 14 October 2020. She was driving as an uber driver, and a truck collided on the driver side of the car and dragged it along, and the steering wheel was spinning anticlockwise, and her right hand was caught in the steering wheel. She did not go to hospital, until later that night, and had a scaphoid fracture, and migraines, and was diagnosed with PTSD. She said her pre-injury state was good, with working two jobs as a nanny and uber driver, and fit and athletic, in a good relationship with her partner. She said the scaphoid fracture was undiagnosed and she was in a cast for three weeks, leading to a poor prognosis and ongoing pain. She was unable to return to her previous roles due to pain and physical restrictions, and obtained work in June 2019 in customer service, but left after 5 weeks due to the pain and numbness. Her relationships were strained with her daughter and her partner due to the loss of financial support and physical limitations leading to loss of intimacy.
·Application for personal injury benefits, dated 28 February 2019.
•Patient Health summary dated 22 June 2019, with past history of carpal tunnel syndrome, peptic ulcer rupture, bowel perforation, osteoarthritis to right hand and discs.
•Patient Health summary dated 9 October 2019, treatment with melatonin 2mg, endep 25mg, Stilnox 10mg, temazepam 10mg.
•Patient Health summary dated 21 July 2021, with treatment on endep 10mg, lyrica 75mg. She had sexual assault in 2017, with anxiety and panic at the time, and improved after a few months, given diazepam, and was seeing a psychologist.
•Certificate of Capacity dated 22 February 2019.
•POWH Discharge Summary dated 13 January 2019. She was in a car going at 10kmph, sideswiped, wheel caught her arm while turning, and she had pain to her right wrist, with no fracture on imaging, and for follow up with orthopaedic clinic.
•GP referral letter dated 4 February 2019 for premature menopause, and referral letter 22 February 2019, for right scaphoid fracture.
•Letter from O&G RMO, dated 28 March 2019, regarding menopausal symptoms.
•POWH Discharge summary dated 29 March 2019, for severe epigastric pain and nausea.
•Referral letter dated 5 April 2019, regarding the epigastric pain.
•MyHand Medical History form dated 8 April 2019.
•Letter by Orthopaedic Surgeon Dr Stuart Myers, dated 9 April 2019. She had a 20-year history of right-hand pain, which has led her to change occupation and activities in the past. The MRI scan demonstrated basal thumb arthritis and bone bruise to scaphoid.
•Referral letter dated 16 April 2019, for right scaphoid fracture to Dr Ian Hargreaves.
•Letter by gastroenterologist Dr Haghighi, dated 13 May 2019, with referral to Dr Almeida for assessment for gastric ulcers.
•Letter by Dr Ian Hargreaves, dated 20 May 2019.
•Referral letter dated 22 June 2019, regarding cervical neck pain.
•Physiotherapy letter dated 4 July 2019.
•Medical certificate dated 10 July 2019, with no nerve conduction disorder in both limbs and fit for duty.
•Medical Assessment by Assessor Clive Kenna, on 5 April 2020. The cervical spine, right shoulder and right hand were minor injuries, and caused by the subject accident.
•History report dated 9 December 2021, from psychiatrist Dr Kim Maguire. She diagnosed her with depressed mood, anxiety and PTSD. Treatment included circadin, imovane, sertraline and plan for psychology. She had a history of CSA, and early parentification. There was an issue with ID fraud and stalking in 2020, and severe pain, with cervical disc damage, and has CRPS. In March 2021, she had a minor car accident in 2020, with methamphetamine in her blood and outcome resulted in a loss of licence and fined, which she will dispute. She was eventually on Lexapro 20mg, mirtazapine 15mg, lyrica 150mg bd, diazepam prn, quetiapine 200mg, endep 50mg nocte, endone, baclofen 10mg tds.
•Letter by Dr Kim Maguire, dated 15 May 2020, referring her for depression, PTSD and a past history of DV relationship, prejudicial upbringing, substance use with relapse of ice use in 2019, but this has ceased, with an increase of alcohol use, which has reduced.
•Letter by Dr Kim Maguire, dated 29 May 2020, with treatment including sertraline, circadin, imovane.
•POWH Discharge Summary dated 10 August 2020. She presented with RUL pain from radiculopathy.
•Letter by Dr Kim Maguire, dated 12 November 2020, on quetiapine 200mg, sertraline 150mg, lmovane 7.5mg and diazepam 5mg tds; and dated 10 December 2020, 11 February 2021.
•Report by Dr Kim Maguire dated 19 February 2021, with diagnoses of PTSD, MDD, CRPS, and treated with quetiapine 200mg, sertraline 150mg, diazepam 5mg tds, imovane 7.5mg, baclofen 10mg tds.
•Letter by Dr Kim Maguire dated 4 March 2021, with reference to a DUI in 2020 and court attendance. She was on lmrest, zolpidem, Latuda 60mg, allegron 62.5mg, diazepam.
•Letter by Dr Kim Maguire, dated 1 April 2021, regarding psychology sessions.
•Referral letter dated 13 August 2020, for management of RUL pain.
•letter by Dr James Yu, dated 21 August 2020, with diagnosis of right-hand pain with neuropathic pain, RUL radicular pain, and central sensitisation, with severe depression, anxiety and stress, sleep disturbance.
•Assessment by Assessor Martin Allan, dated 21 October 2020, with diagnosis of exacerbation of PTSD from MVA and Major Depressive Disorder, from the subject accident. There was preexisting history in 2009 of PTSD, due to an abusive relationship, and had psychological interventions through VOC, and was on alprazolam and aropax, and the PTSD resolved, with occasional anxious periods afterwards. She had ongoing symptoms of depression, anxiety and PTSD. She had not yet seen a psychologist.
•letter by Dr James Yu dated 4 November 2020, with right hand pain.
•Report by psychiatrist Dr Ben Teoh, dated 5 March 2021. She denied any past substance use or alcohol abuse and had psychological trauma after a violent relationship. She was diagnosed with Chronic PTSD. He gave a WPI 22% (Self-care 2, Social activities 3, travel 2, social functioning 3, concentration 3, employability 5).
•Letter by neurosurgeon Dr Peter Wilson dated 31 March 2021.
•Medical assessment by Assessor Truskett, dated 13 April 2021, with pain specialist James Yu and intensive pain management program related to the injury and being reasonable and necessary, and will improve recovery.
•Report by psychiatrist Dr Graham Vickery, dated 18 May 2021. She had PTSD in 2009, from a violent relationship, and stress related anxiety and depression. She was treated with quetiapine 100mg, amitriptyline 50mg, baclofen 10mg, diazepam 5mg bd, sertraline 50mg, zopiclone, and psychiatric reviews. She was undertaking a degree in forensic psychology, lost her relationship, and her daughter left home. She was not going to church or helping the homeless due to COVID restrictions. She has reduced driving due to pain and physical restrictions. She socialises with her daughter and only close friend. He diagnosed her with Somatic Symptom Disorder, predominant pain with WPI 0% from the subject accident.
•Letter by Dr James Yu, dated 1 July 2021, 1 April 2022.
•Consultation notes by GP Dr Linda Crighton, dated 5 October 2021, 21 October 2021.
•letter by Dr Kim Maguire, dated 25 November 2021.
•Handwritten notes from 4 Jun 2021 to 16 September 2021, regarding ongoing distress, particularly with conflict with the insurance company.
•GP letters prior to the subject accident.
[8]    She attended the assessment via Tele-Health alone.
[9]    Psychosocial history and pre-accident history
She is currently 46-years-old and she lives in Coogee alone. She has no partner, and a 23-year-old daughter, her mother and step-father and 2 half-siblings and she is in contact with her father. She has a network of close friends, though she has lost contact with her extended social network. She usually enjoyed sports, yoga, snorkelling and outdoor activities in general, and since the subject accident, she has not been doing much.
She said that about 17 years ago, she has had PTSD with panic attacks, which she said was caused by a violent assault, and she said that it lasted for about 18 months, and she had treatment including psychological interventions with a clinical psychologist, and she was on medications, including alprazolam, diazepam and she cannot recall the other ones.
After the resolution of the PTSD, she would have anxiety related to life stressors, and raising her child alone. She denied any significant anxiety symptoms or depressive symptoms and would be generally
positive and keep going. When Assessor Shen asked her about references having anxiety, she said it may have been in relation to dealing with her daughter's father, and the interactions were stressful. She was also having psychological therapy for various stressors in life. She had been seeing a psychologist in the time prior to the subject accident.
At the time of the subject accident, she denied having any significant anxiety, but she was going through early menopause in the 18 months leading up to the accident, and she was having difficulties with sleep and she was on medications for this, including diazepam and quetiapine.
Prior to the subject accident, she would be drinking a lot more a year prior to the accident, a glass of wine daily, and there was a period when she would be drinking more than that and she would see a D&A psychologist for support and she had reduced it significantly to "nothing".
She has previously used methamphetamine after she lost a baby for a period of six months, and she denied any methamphetamine use after the subject accident.
She denied any previous forensic history.
She denied any significant medical conditions, though she has had a few gynaecological issues, and IVF. She has had gastric ulcers and a gallbladder removal.
She denied any known relevant history of psychiatric issues, apart from her half-siblings with ADHD.
She was born in Hobart, with no known perinatal complications, developmental delays or learning delays.
Her mother worked in the fitness industry, and his stepfather was in the fitness industry. She was six months old when her parents separated. Her mother was "young", and close to her. He was good, and
she would do a lot of sports and he would take her to them. She met her father at 10 years old. She denied any major other traumatic experiences or major losses of significance.
She has had five relationships, and she said they were generally good, and she was pregnant on the pill and she was not happy to stay in the relationship, and she was engaged for a while for five years, but he was on medications and there was an attack of violence, which ended the relationship. She was in another 7-year relationship after that. She was in a 4-year relationship at the time of the subject accident, and she said she was happy, and they aspired to get married, and they were travelling, but that broke down as ‘everything changed’. She was unable to do anything, such as training together or traveling. She remains close to her daughter, who moved out of home.
[10]     Pre-accident employment, education, and work experience
She went to school to Year 12. She was able to make friends at school, and was popular. She denied any bullying. She denied any behavioural disturbances. She had no attentional difficulties.
She then went to Business College (18 months traineeship) and finished it. She then worked in secretarial duties and then went to do further studies in the Beauty industry, and was a beauty therapist and worked for various cosmetic companies.
She then did other studies to become a personal trainer and then did a Diploma in Business (1 year).
She has had a cleaning business, and a personal training business and a glass business. She then had a beauty business which she had launched just before the subject accident; after the accident, she was not able to use her dominant right hand anymore and not able to provide the services required in the business, like micro-blading, eye lash extensions or spray-tanning. After the accident, she did some uber driving at the end of the 2019, but was not able to sustain that due to her hand and neck and back not being able to turn. She has had two accidents since then.
She also had a job at Sydney Trains in 2020, and she spent 4 months training, but didn't stay long in the job as she was giving right of way to train, but she couldn't use her arm and it was stressful, as there was a fatality in the network one day, and there was a crowd that pushed her backwards and she found that scary.
[11]     History of the motor accident
She said a truck hit her car, and she said the truck was high-speed, and she said at the time she was in shock and wasn't sure what was happening. She refused medical attention, which she said due to being in shock, she said she was completely white and shaking. She wanted to return home. She said she didn't hit her head. She was wearing a seatbelt. Her hand was caught in the steering wheel which was spinning around and her arm was caught in that.
[12]     History of symptoms and treatment following the motor accident
She said that after the accident, she said her whole right hand couldn't be used, she couldn't pick anything up. She was uber driving, and her passengers had to help her write things down for her. Her neck and her hand and her right arm were in pain.
She said she felt upset and depressed as she was not able to drive. She was upset straight away being involved in the accident, then she was stressed not being able to work.
Since the subject accident, she then developed chronic regional pain syndrome, which has been stressful for her, and contributes to her anxiety and depression.
She said she has not had any treatment for her pain. Then she said she had been on analgesic medications.
She then developed flashbacks of the sound of the collision and seeing the wheels bouncing, which commenced a couple of weeks afterwards. She said she had nightmares that later developed, of the collision. She would then be anxious and avoidant of driving or being in cars. She then developed fear, and anger at the other driver for some time, and diminished interest in her usual activities and detached from her friends and harder to enjoy things. She has been more irritable, more hypervigilant and easily startled, particularly in the car, and her mood is more labile. Her concentration has been poor and she said she struggled to do her expenses and having difficulties with her sleep.
She then became depressed due to her loss of hope in her life, not being able to work or help her
daughter. She has some good days, and some bad days and denied a pervasive depressed mood. She has some anhedonia, and her appetite has been poor, and her weight fluctuated, with 12kg increase then a rapid weight loss. Her sleep is up and down, depending on her level of anxiety. She has had some suicidal ideations last year, with overdosing and hanging, with some self-harm with D&A use and she declined to elaborate further.
She has been seeing her psychiatrist for medications. She said that the psychiatrist has been her biggest support, and she said that the medications have been helpful for reducing her suicidality last year, with a dose increase. She has not seen a psychologist, as she has said the insurer won't approve one, and denied any other reasons.
[13]     Details of any relevant injuries or conditions sustained since the motor accident
She has not had any other injuries or conditions since the motor accident.
She later then said she broke her foot last year, when she was standing up. She then acknowledged she had been in a minor car accident this year, and another one in 2020.
[14]     Current symptoms
She has ongoing PTSD and depressive symptoms.
She said she had pervasive mood, then when Assessor Shen pointed out she said otherwise before with her mood being up and down, she then said this was more in relation to her anxiety levels. Her sleep is variable, some nights not at all. She has not been able to focus and read things or hold conversations.
She said she finds it hard to do anything, then when prompted if she doesn't shower or dress herself, she then said she can and did it today for the assessment.
She is still able to enjoy and ‘love’ seeing her daughter.
She has been having death ideations, but no suicidal ideations.
[15]     Current and proposed treatment
She has a regular GP, Dr Rachel, whom she had been seeing once every 6 weeks, and they review her physical injuries, and continuing her medications.
She also sees her psychiatrist Dr Kim Maguire, whom she has been seeing for 3 years, every three weeks, and they review her medications.
She is not seeing a counsellor or psychologist.
She sees Dr James Yu, pain specialist.
She is currently on quetiapine 100mg, sertraline 200mg, lyrica 75mg tds, diazepam 5mg prn, baclofen tds. She had been on amitriptyline, but this was ceased. She said there has been consideration of ceasing all her medications, as she has been considering a spine operation, and may be able to cease it after that. She is also considering an admission to come off her psychiatric medications, under her psychiatrist.
She has an informal carer, Tony, who helps her with shopping and transports her mother over to help cleaning.
[16]     Current employment details
She is not working now and is receiving income from the disability support pension. She has enrolled in a course - a Diploma for Criminal Psychology, and she has started, but struggling to progress through it due to loss of interest.
[17]     Mental State examination
She was groomed and engaged in the interview to a superficial extent. She would repeatedly move her neck during the interview.
Her mood was described as low and quite anxious.
Her effect was dysphoric and reactive.
She was articulate, logical, with intact prosody.
She had death ideations, and anxious about her future.
She was alert and complained of attentional difficulties. She was able to sustain her focus for the duration of the assessment. Her immediate recall was in the borderline impaired range, and her brief delayed recall and recognition were in the extremely impaired range. Her attentional capacity was in the low average range. Her estimated general intelligence was in the average range.
Her level of depression on a depression rating scale (MADRS) was in the moderate range.
[18]     Current functioning
She doesn't prepare her meals due to her hand, and she can shower and dresses herself with some difficulties due to her hand. She said she skips meals, as she is not hungry at times. Her mother makes her food and she microwaves it, or others come to help her.
She said she is not really going outside, but she does occasionally go outside with Tony to a car show, but she doesn't engage much in it and she stayed for 45 minutes before returning home, and out with Tony for a car drive.
She said she sometimes goes to buy bread herself, if needed. She drives herself, but she prefers not to.
She sees her mother regularly, and her informal carer Tony, and her few close friends as well. She has lost some friends, and she lost a relationship near the start of the subject injury, though it was on-and off for a year prior to that.
She said she could concentrate longer than 30 minutes depending on what it was, but then said not much. She said she would not be able to finish reading a newspaper article, but she would usually read in the past.
She said she would love to return to work, but she isn't sure what she can do for the rest of her work, and cannot have a life or do what she used to enjoy doing.
[19]     Comments of consistency
I undertook performance validity testing including a cognitive screening with an embedded performance validity test (RBANS Effort Index) and psychiatric symptomatology (M-FAST). She demonstrated sufficient effort with cognitive screening and failed the psychiatric symptoms validity test.
There were inconsistencies with her substance use, with possible covert use, regarding previous use, and recent use, including inconsistencies with a reference to being caught with DUI with methamphetamine in 2020. There were some inconsistencies with the reasons for her not seeing a psychologist due to lack of insurance funding, as there are alternate means of accessing this.
There were inconsistent statements with being motivated to return to work, but able to progress with her studies or motivated to find alternate work.
There were inconsistencies between reported level of impaired concentration, and able to sustain it for the duration of the interview and compared to being low average on attentional testing.
There was minimisation of adverse childhood experiences.
There are some symptom exaggerations, including overt suggestibility during the M-FAST test, which led her to finding it difficult to hear my questions due to purported tinnitus, and she had exceeded the threshold suggestive of symptom feigning.
She said she has had benefit from the treatment with Dr Maguire, particularly for her suicidality, though overall there has not been much improvement with the majority of her symptomatology or functional impairment.
There is also overall consistency with the records with her account of how distressed and impaired she has been since the subject accident.
Overall, she appears to be fairly consistent with having a level of psychiatric symptomatology and disability from the subject accident, both directly and indirectly, though the level symptomatic severity and functional disability may be exaggerated.
[20]     Summary of relevant documentation
•Statement by Lisa Targa, dated 14 October 2020. She was driving as an uber driver, and a truck collided on the driver side of the car and dragged it along, and the steering wheel was spinning anticlockwise, and her right hand was caught in the steering wheel. She did not go to hospital, until later that night, and had a scaphoid fracture, and migraines, and was diagnosed with PTSD. She said her preinjury state was good, with working two jobs as a nanny and uber driver, and fit and athletic, in a good relationship with her partner. She said the scaphoid fracture was undiagnosed and she was in a cast for three weeks, leading to poorer prognosis and ongoing pain. She was unable to return to her previous roles due to pain and physical restrictions, and obtained work in June 2019 in customer service, but left after 5 weeks due to the pain and numbness. Her relationships were strained with her daughter and her partner due to the loss of financial support and physical limitations leading to loss of intimacy.
•Patient Health summary dated 22 June 2019, with past history of carpal tunnel syndrome, peptic ulcer rupture, bowel perforation, osteoarthritis to right hand and discs.
•Patient Health summary dated 9 October 2019, treatment with melatonin 2mg, endep 25mg, stilnox 10mg, temazepam 10mg.
•Patient Health summary dated 21 July 2021, with treatment on endep 10mg, lyrica 75mg. She had sexual assault in 2017, with anxiety and panic at the time, and improved after a few months, given diazepam, and was seeing a psychologist.
•POWH Discharge Summary dated 13 January 2019. She was in a car going at 10kmph, sideswiped, wheel caught her arm while turning, and she had pain to her right wrist, with no fracture on imaging, and for follow up with orthopaedic clinic.
•Letter by Orthopaedic Surgeon Dr Stuart Myers, dated 9 April 2019. She had a 20-year history of right hand pain, which has led her to change occupation and activities in the past. The MRI scan demonstrated basal thumb arthritis and bone bruise to scaphoid.
•Medical certificate dated 10 July 2019, with no nerve conduction disorder in both limbs and fit for duty.
•Medical Assessment by Assessor Clive Kenna, on 5 April 2020. The cervical spine, right shoulder and right hand were minor injuries, and caused by the subject accident.
•History report dated 9 December 2021, from psychiatrist Dr Kim Maguire. She diagnosed her with depressed mood, anxiety and PTSD. Treatment included circadin, imovane, sertraline and plan for psychology. She had a history of CSA, and early parentification. There was an issue with ID fraud and stalking in 2020, and severe pain, with cervical disc damage, and has CRPS. In March 2021, she had a minor car accident in 2020, with methamphetamine in her blood and outcome resulted in a loss of licence and fined, which she will dispute. She was eventually on Lexapro 20mg, mirtazapine 15mg, lyrica 150mg bd, diazepam prn, quetiapine 200mg, endep 50mg nocte, endone, baclofen 10mg tds.
•Letter by Dr Kim Maguire, dated 15 May 2020, referring her for depression, PTSD and a past history of DV relationship, prejudicial upbringing, substance use with relapse of ice use in 2019, but this has ceased, with an increase of alcohol use, which has reduced.
•Letter by Dr Kim Maguire, dated 12 November 2020, on quetiapine 200mg, sertraline 150mg, lmovane 7.5mg and diazepam 5mg tds; and dated 10 December 2020, 11 February 2021.
•Report by Dr Kim Maguire dated 19 February 2021, with diagnoses of PTSD, MDD, CRPS, and treated with quetiapine 200mg, sertraline 150mg, diazepam 5mg tds, imovane 7.5mg, baclofen 10mg tds.
•Letter by Dr Kim Maguire dated 4 March 2021, with reference to a DUI in 2020 and court attendance. She was on lmrest, zolpidem, Latuda 60mg, allegron 62.5mg, diazepam.
•Letter by Dr James Yu, dated 21 August 2020, with diagnosis of right-hand pain with neuropathic pain, RUL radicular pain, and central sensitisation, with severe depression, anxiety and stress, sleep disturbance.
•Assessment by Assessor Martin Allan, dated 21 October 2020, with diagnosis of exacerbation of PTSD from MVA and Major Depressive Disorder, from the subject accident. There was pre-existing history in 2009 of PTSD, due to an abusive relationship, and had psychological interventions through VOC, and was on alprazolam and aropax, and the PTSD resolved, with occasional anxious periods afterwards. She had ongoing symptoms of depression, anxiety and PTSD. She had not yet seen a psychologist.
•Report by psychiatrist Dr Ben Teoh, dated 5 March 2021. She denied any past substance use or alcohol abuse and had psychological trauma after a violent relationship. She was diagnosed with Chronic PTSD. He gave a WPI 22% (Self-care 2, Social activities 3, travel 2, social functioning 3, concentration 3, employability 5).
•Medical assessment by Assessor Truskett, dated 13 April 2021, with pain specialist James Yu and intensive pain management program related to the injury and being reasonable and necessary, and will improve recovery.
•Report by psychiatrist Dr Graham Vickery, dated 18 May 2021. She had PTSD in 2009, from a violent relationship, and stress related anxiety and depression. She was treated with quetiapine 100mg, amitriptyline 50mg, baclofen 10mg, diazepam 5mg bd, sertraline 50mg, zopiclone, and psychiatric reviews. She was undertaking a degree in forensic psychology, lost her relationship, and her daughter left home. She was not going to church or helping the homeless due to COVID restrictions. She has reduced driving due to pain and physical restrictions. She socialises with her daughter and only close friend. He diagnosed her with Somatic Symptom Disorder, predominant pain with WPI 0% from the subject accident.
Permanency of Impairment
Statement about Permanent Impairment
Permanent impairment is defined in the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (p.315) as follows:
‘Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.’
[21]     You must provide reasons why you consider the impairment permanent or not permanent.
She is three years on from the subject accident, and her symptoms persist, and while they fluctuate to a degree, overall there is no substantial improvement or deterioration of the overall condition, with periods of exacerbation from her ongoing pain, debility, life stressors and conflict with the insurer. Her treatment appears to be fairly stable, in that there does not appear to be radical changes objectively from the notes, though she indicated there are plans for major overhaul of her medications. Overall, Assessor Shen thinks her condition, symptoms and functioning appears stably fluctuant, with low likelihood of substantial improvement in her symptoms or functioning.
Determinations - Permanent Impairment
The determination as to permanent impairment is made in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) and The Motor Accident Guidelines.
[22]     Diagnosis and reasons
Her presentation appears to be consistent with:
•Persistent Depressive Disorder - given that the depressive symptoms have persisted for over two years, and remain unabated, hence this diagnosis supersedes Major Depressive Disorder, and her symptoms for this includes low mood, anhedonia, poor appetite with fluctuating weight, poor sleep, suicidal thoughts.
•Post-Traumatic Stress Disorder
[23]     Causation and reasons
• Persistent Depressive Disorder - this is in relation to ongoing disability and pain, and subsequent adverse impact on her social and financial status, hence there is a causal link with the subject accident.
• Post-Traumatic Stress Disorder - this appears to be related to the subject accident, given the temporal onset, and content of her symptoms which feature the collision of the subject accident.
[24]     The following injuries WERE caused by the motor accident:
•Persistent Depressive Disorder
•Post-Traumatic Stress Disorder
[25]     The following injuries WERE NOT listed by the parties but WERE caused by the motor accident:
None
The determination as to permanent impairment is made in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
[26]     Psychiatric Impairment Rating Scale
Remember to include specific reasons for the assigned class for each area of function. This should relate to the findings in your Clinical Examination section.

Psychiatric diagnoses	1. Persistent Depressive Disorder	2. Post-Traumatic Stress Disorder
	Psychiatric treatment description	Psychiatric reviews, Medication management

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	2	She doesn't prepare her meals due to her hand, and she can shower and dresses herself with some difficulties due to her hand. She said she skips meals, as she is not hungry at times. Her mother makes her food and she microwaves it, or others come to help her. She was groomed in the assessment. When taking her physical injuries into account, and excluding that from the assessment, her capacity to self-care is mildly impaired
2. Social and Recreational Activities	3	She said she is not really going outside, but she does occasionally go outside with Tony to a car show, but she doesn't engage much in it and she stayed for 45 minutes before returning home, and out with Tony for a car drive.
3. Travel	2	She said she sometimes goes to buy bread herself, if needed. She drives herself, but she prefers not to.
4. Social Functioning	2	She sees her mother regularly, and her informal carer Tony, and her few close friends as well. She has lost some friends, and she lost a relationship near the start of the subject injury, though it was on-and-off for a year prior to that, hence the separation was of a lesser severe consequence, being already in a state of semi-separation prior to the subject accident.
5. Concentration, Persistence and Pace	2	She has enrolled in a course - a Diploma for Criminal Psychology, and she has started, but struggling to progress through it due to loss of interest. She said she could concentrate longer than 30 minutes depending on what it was, but then said not much. She said she would not be able to finish reading a newspaper article, but she would usually read in the past. She was able to sustain her focus for the duration of the assessment. Her immediate recall was in the borderline impaired range, and her brief delayed recall and recognition were in the extremely impaired range. Her attentional capacity was in the low average range.
6. Adaptation	4	Since the subject accident, she was able to work for a time for Sydney Trains after undertaking their training program, and enrol in her diploma in Criminal confidence course.
List classes in ascending order: 222234
Median Class Value: 2
Aggregate Score: 15
% Whole Person Impairment: 8%

[27] Psychiatric Impairment Rating Scale
Pre-existing/subsequent impairment
According to her, prior to the subject accident, she had no significant psychiatric symptoms or physical injuries, and no functional impairment.

Psychiatric diagnoses	1. PTSD in remission	2. Substance use
	Psychiatric treatment description	Psychological therapy

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	1
2. Social and Recreational Activities	1
3. Travel	1
4. Social Functioning	1
5. Concentration, Persistence and Pace	1	.
6. Adaptation	1
List classes in ascending order: 111111
Median Class Value: 1
Aggregate Score: 6
Pre-existing % Whole Person Impairment: 0%

[28] Effects of Treatment
She said there has been some benefits with ongoing psychiatric treatment, with regards to her suicidality, but the overall level of psychiatric symptomatology and disability that have not improved.
Overall, Assessor Yu Tang Shen would apportion 1% (mild treatment effect), since there is mild improvement of symptoms, but without significant alleviation of symptoms or disability.
[29] 9 % - Permanent impairment ratings take your symptoms into account; however the percentage permanent impairment is not a direct measure of disability. A finding of zero percent permanent impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides and Guidelines rate the associated impairment at 0%.”

SUBMISSIONS

Submissions by the claimant’s legal personal representative of 5 November 2024 and 7 November 2024

On 5 November 2024, the legal representative for the claimant posted to Pathways:
“The cause of action remains and the entitlement to non-economic loss subsists and vests in the estate, but only for a closed period up until the date of death, in this case being 22 July 2023.
For example, if proceedings had been litigated in Court, UCPR 6.30 provides that the cause of action does not abate upon the death of a party.
The relevant legislation which applies in this claim is Part 2 of the Law Reform (Miscellaneous Provisions) Act 1944 -- Effect of death on certain causes of action.
The only disentitling provision that is relevant is contained in s(2)(2)(d), if the motor accident caused the death, which does not apply here. This is why, as the Member alluded to in the 8 October message, in particular, in dust diseases matters (not Supreme Court matters) that a judge will take evidence at a bedside and deliver judgment before the plaintiff passes away from the disease they have contracted. Special provisions apply in dust diseases to preserve the rights for the estate to recover pain and suffering damages in the event the plaintiff dies after the filing of the SOC.
Therefore, our position is that the Commission should determine the Review Application for WPI on the papers from the date of loss to the date of death.”
The claimant’s legal personal representative on 7 November 2024 further submitted (by way of reference to paragraph numbers):
[3]    Section 2 of the Law Reform Miscellaneous Provisions) Act 1944 does not only mean the cause of action survives, but it also contains provisions which modify the available heads of damage to the estate.
[4]    Section 2 provides:
(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person's estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under Division 2 of Part 3 of the Property (Relationships) Act 1984 .
(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:
(a) shall not include:
(i) any exemplary damages, or
(ii) any damages for the loss of the capacity of the person to earn, or for the loss of future probable earnings of the person, during such time after the person's death as the person would have survived but for the act or omission which gives rise to the cause of action,
(b) in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry,
(c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to the person's estate consequent on the person's death, except that a sum in respect of funeral expenses may be included,
(d) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall not include any damages for the pain or suffering of that person or for any bodily or mental harm suffered by the person or for the curtailment of the person's expectation of life.
[5]    The claimant’s legal person representative submits that the case law supports her position.
[6]-[7] In Fitch v Hyde-Cates (1981) 150 CLR 482, the High Court held that damages for the loss of earning capacity during the ‘lost years’ was recoverable by a deceased’s estate pursuant to the legislation. That has been altered by the Motor Accidents Legislation since. However, at 490 Justice Mason (as he then was) said the following of section 2 (2)(d) by way of obiter comment:
“Section 2(2)(d) follows the form of an amendment made in 1937 to s. 3 of the Law Reform Act 1936 (N.Z.) which repeated the provisions of s. 1 of the English Act of 1934. The amending provision, to be found in s. 17(1) of the Statutes Amendment Act 1937 (N.Z.), was introduced to limit the defendant's liability for loss of expectation of life in an action by the deceased's estate, it being thought in New Zealand that Rose v. Ford had opened the door to the deceased's beneficiaries "making a profit" out of his death - see vol. 14 (1938) 33, at p. 35; see also New Zealand Law Journal vol. 14 (1938), p. 200; and the comments of Myers C.J. in McLeavey v. Marris and Campbell Ltd. reported in New Zealand Law Journal, vol. 14 (1938) 42, at pp. 42-43. The amendment was not aimed specifically at loss of earning capacity. The preceding cases and the debate which they generated had been concerned with damage for loss of expectation of life in the strict sense, that is, non-pecuniary loss. Of course, it by no means follows that the amendment is confined to non-pecuniary loss - this depends on its interpretation.”
[8]    Secondly, In BT v Oei [1999] NSWSC 1082, Justice Bell found a verdict for the defendant but made a comment (in obiter because her Honour did not find for the plaintiff) as follows:
“87 The claim in respect of general damages made on behalf of the estate of AT survives the death of AT given that his death is not said to have been caused by the tort complained of: s 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944.”
[9]-[10] Thirdly and directly on point is the decision of Dunford J in NRMA Insurance Ltd v Motor Accidents Authority of NSW [2004] NSWSC 567. This was a claim for damages brought under the Motor Accidents Compensation Act 1999 (the predecessor legislation to the MAIA). There is no material difference between the mechanical provisions of the Act dealing with WPI assessments and the entitlement to proceed to assessment between the two pieces of legislation. His Honour was considering an application by a CTP Insurer for declaratory relief on the basis that the estate was not entitled to obtain an assessment of WPI on the papers, the original Claimant having deceased as a result of other causes. His Honour disposed of NRMA’s argument and dealt directly with the same points the Member makes in the present case:
“24 It follows that in my opinion, there is nothing in the Act to prevent an assessment of permanent impairment being made in respect of an injured person who has since died. Although chapter 4.5 requires a claim (unless an exempt claim) to be submitted for assessment before court proceedings are commenced and limits the time within which such proceedings must be commenced, and chapter 5 limits the damages in certain respects, the Act does not purport to otherwise abolish or limit common law or statutory rights. Pursuant to the common law and the Law Reform (Miscellaneous Provisions) Act 1944, the estate of the deceased has a right to bring proceedings to recover damages, including damages for non-economic loss, for the injuries suffered by the deceased as a result of his accident up to the date of his death, provided that his death was not caused by the subject accident: s 2(2)(d), although, before the estate can recover any damages in such proceedings for non-economic loss, it must obtain an assessment under s 61 – see s 132.
25 If the Act were construed as preventing the estate from obtaining an assessment under s 61, it would have the effect of depriving the estate of the right to obtain damages for non-economic loss. There is nothing in the Act which suggests there was any intention to deprive estates of deceased persons of their right to obtain damages for noneconomic loss merely because the degree of the deceased’s permanent impairment resulting from the accident had not been assessed prior to the death. Damages for noneconomic loss in such actions would thus become dependent on whether or not the assessment of permanent incapacity was assessed or not before the death of the injured party, which would be an anomalous situation.”
[11]     The claimant submits that NRMA Insurance Ltd v Motor Accidents Authority of NSW [2004] NSWSC 567 remains good law.

Insurer’s submissions of 15 November 2024

I refer to QBE’s submissions of 15 November 2024 by way of reference to paragraph numbers:
[1.1]   QBE acknowledges the Claimant’s reliance upon the NSW Supreme Court decision in NRMA Insurance Ltd v Motor Accidents Authority of NSW and agrees that it remains good law. However, QBE submits that the factual circumstances in this dispute are readily distinguished from those in NRMA Insurance Ltd v Motor Accidents Authority of NSW, and as a result the precedent is not applicable in this case.
[1.2]   QBE highlights the following relevant factual elements from NRMA Insurance Ltd v Motor Accidents Authority of NSW:
(a)the relevant medical dispute was in connection to physical injuries, namely a severe head injury, a dislocated left hip, facial fractures and a fracture of the cervical spine, resulting in severe brain damage, and
(b)an application for assessment of the Deceased’s physical permanent impairment was made on 13 September 2022, and his death followed soon thereafter on 22 November 2022 before any medical assessment occurred.
[1.3]   In contrast, QBE highlights the following factual elements in this dispute:
(a)the medical dispute is in connection to psychiatric injuries, which are assessed in accordance with the Psychiatric Impairment Rating Scale (PIR scale);
(b)The claimant was examined by Medical Assessor Shen prior to her death, with Assessor Shen finding 9% impairment by way of his certificate dated 13 October 2022, and
(c)The parties have, as the claimant’s solicitors have confirmed, been unable to obtain complete copies of the claimant’s treatment records to serve in lieu of a medical examination.
[1.4]   QBE also highlights the following from the Court’s reasons in the abovementioned case:
“Pursuant to the common law and the Law Reform (Miscellaneous Provisions) Act 1944, the estate of the deceased has a right to bring proceedings to recover damages, including damages for non-economic loss, for the injuries suffered by the deceased as a result of his accident up to the date of his death, provided that his death was not caused by the subject accident: s 2(2)(d), although, before the estate can recover any damages in such proceedings for non-economic loss, it must obtain an assessment under s 61 – see s 132.”
“Damages for non-economic loss in such actions would thus become dependent on whether or not the assessment of permanent incapacity was assessed or not before the death of the injured party, which would be an anomalous situation.”
[1.5]   The Court went on to state that it may be “comparatively easy” to make an assessment of WPI by reference to hospital and clinical records and gave the example of an injured person who sustained a serious spinal injury resulting in quadriplegia. However, the Court also acknowledged there may be cases where doing so is impossible, such as when psychiatric injuries have been sustained.
[1.6]   As highlighted above, in NRMA Insurance Ltd v Motor Accidents Authority of NSW, the Court was satisfied that the Deceased’s physical WPI could be assessed on the papers after his death as no medical assessment had been performed prior to that dispute. However, in this case, the Claimant has already been examined under section 7.23 of the MAI Act. In addition, s 7.23 of the Act states that a medical certificate issued under division 7.5 of the Act is prima facie conclusive evidence of the issue certified within. In the context of these elements, QBE again submits that NRMA Insurance Ltd v Motor Accidents Authority of NSW is not an applicable authority due to significantly different factual backgrounds.
[1.7]   Furthermore, as noted above, psychiatric impairment is assessed in accordance with the PIR scale. The application of the PIR scale requires a medical assessor to “obtain a history of the injured person's pre-accident lifestyle, activities and habits, and then assess the extent to which these have changed as a result of the psychiatric injury. The Medical Assessor should take into account variations in lifestyle due to age, gender, cultural, economic, educational and other factors”, which is an inherently subjective evaluation. Unlike what may be the case for physical impairment, QBE submits that this case presents as a matter of impossibility, as was theorised by the Court in NRMA Insurance Ltd v Motor Accidents Authority of NSW and relied upon by the claimant’s solicitors in support of the application.

Claimant’s legal personal representative’s submissions in reply of 17 November 2024

I refer to the claimant’s legal personal representative’s submissions in reply by way of reference to paragraph numbers:
[2]    Firstly, the claimant submits that there is no issue that the ratio decidendi of NRMA v Motor Accidents Authority of NSW [2004] NSWSC 567 (NRMA v MAA) is that in a claim for damages the entitlement to non-economic loss subsists post the death of a claimant for reasons unrelated to the subject accident and that it is incumbent on the Medical Assessment Service (or in this case the Commission in its Medical Assessment Capacity) to assess WPI. The mechanics of how it does so is a matter for the Panel. However, that does not avoid the need for an assessment to be conducted in order for the Panel to carry out the statutory obligations which it has been tasked with.
[3]    QBE asserts that it was recognised in NRMA v MAA that it was impossible for there to be an assessment of WPI after a deceased’s death in psychiatric injury cases. It refers to paragraph 31 of the Judgment. Firstly, this paragraph was by way of obiter. Secondly, the court made no such comment with respect to psychiatric injury at all. This submission from QBE therefore has the tendency to mislead. While the court asserted that there may be cases in which it may be impossible to assess impairment, presumably cases in which there was no evidence from which to assess WPI, the court does not even refer to any difficulty with assessing psychiatric impairment post-death. A full extract of paragraph 31 of the judgment is reproduced below:
“31 In many cases it will be comparatively easy to make an assessment in respect of a deceased person by reference only to the hospital and clinical records; to take an obvious example, the injured person who in the relevant accident suffers quadriplegia and is subsequently killed in another accident. In other cases, it may be more difficult and, in some cases, impossible. In that last mentioned case, the medical assessor will be unable to issue the certificate referred to in clause 10.8 of the Medical Guidelines and without such certificate, the estate of the deceased will be unable to recover damages for non-economic loss up to his or her death as a result of the combined operation of ss 61(2)(a) and 131; but that is no reason for denying the estate of the deceased a right to an assessment if it can be carried out.”
[4]    It is not to the point to suggest, as QBE does, that the NRMA v MAA is inapplicable because it is a case with respect to physical injury. Simply put, the ratio of the decision is that the death of the claimant does not alter anything with respect to the requirement to carry out an assessment that accords with the legislation.
[5]    To answer the Member’s question, the parties are ad idem that NRMA v MAA is a binding authority in accordance with the principles of stare decisis. There is no authority to the contrary. The claimant submits that the effect is that the Member is bound by the ratio of the decision that the death of the claimant does not exhaust the estate’s rights to prosecute any claim for non-economic loss.
[6]    Secondly, the Member has raised the following question: “One difficulty that I have in respect of the general damages issue, is that general damages are awarded both as to the past and the future for pain and suffering, loss of enjoyment of life, loss of amenities, and loss of expectation of life. How do these apply to a person who has died? I would appreciate your thoughts. Maybe this question has been dealt with in other jurisdictions, if so, I would appreciate any insights you have.”
[7]    It regularly occurs in the Dust Diseases Tribunal that pain and suffering or noneconomic loss is assessed after a claimant has died and the assessment is solely for the benefit of the estate. There is a plethora of authority in this respect but a recent authority worthy of some note in respect of the issues surrounding non-economic loss where the claimant is deceased is Armitage v State of New South Wales [2023] NSWDDT That was a case in which the deceased claimant had commenced proceedings but died before the final determination of the matter and indeed, before the hearing of the matter. The assessment of non-economic loss includes an assessment of past pain and suffering, although, in dust diseases cases, in which the cause of death is invariably the disease process, the damages for this head of damage are significantly heightened.
[8]    The answer to the question posed by the Member is that in assessing damages, the Member must do their best to assess a closed period of pain and suffering, which includes loss of enjoyment and loss of amenity of life, from the date of accident up to the date of death. Necessarily, it would not involve an assessment of loss of expectation of life and loss of amenity for the future

THE PANEL’S CONSIDERATION

The Panel has arrived at the view that the Panel is required to decide the matter and give its reasons notwithstanding the death of the claimant.
The Panel acknowledges that the legislation requires it to make a new assessment.
The Panel notes that normally the Panel comes to its determination on the basis of all the material before it.
In this case, a clinical examination and assessment of the claimant is not possible.
The Panel is nonetheless not excused from performing its role to the best of its ability and with all the limitations that the non-availability of the claimant creates.
In effect, the Panel, arrives at its determination on the papers. Fortunately, the papers are extensive and include the extensive history which was reviewed.
The Medical Assessor assessed WPI at 9%. The starting point is to acknowledge that in the process of coming to his determination, the Medical Assessor exercised his clinical judgment with the advantage of a full clinical assessment of the claimant and obviously having carefully read a large volume of documentation, including relevantly:
(a)    Report of the psychiatrist Dr Kim Maguire of 9 December 2021;
(a)Dr Maguire had diagnosed a depressed mood, anxiety, and post-traumatic stress disorder. The medications she was “eventually” on were Lexapro 20mg, Mirtazapine 15mg, Lyrica 150mg by day, Diazepam, Quetiapine 200mg, Endep 50mg by night, Endone, Baclofen 10mg.
(b)    The Panel also had the letter from Dr Maguire of 15 May 2020 referring the patient for depression, post-traumatic stress disorder, and a past history of a domestic violence relationship, prejudicial upbringing, substance abuse, with a relapse of Ice use in 2019 (which had ceased) and an increase in alcohol use, which had reduced.
(c)    Report by Dr Maguire on 19 February 2021 with diagnosis of post-traumatic stress disorder.
There was the Assessment by Medical Assessor Martin Allan of 21 October 2020 to which the Panel has noted was referred to at length by the Medical Assessor – see above.
The report of psychiatrist Dr Ben Teoh of 5 March 2021. He had diagnosed her with a chronic post-traumatic stress disorder, resulting in WPI of 22%.
Of particular interest to the Panel was Dr Teoh’s PIRS Assessment of 2 for self-care, 3 for social and recreational activities, 2 for travel, 3 for social functioning, 3 for concentration, and 5 for employability.
The Panel has not taken into consideration the report of psychiatrist Dr Graham Vickery.
The Panel will now consider whether there was any error, in effect, on the papers on the PIRS scale.
The Panel sought more submissions from the parties to be provided by 5.00pm on
11 March 2025 on the following question:
“What is the correct descriptor for the category Social Functioning (Category 4) when, as clearly recognised by Medical Assessor Shen, who stated:
… and she lost a relationship near the date of the subject injury, although it was on-and-off for a year prior to that, hence the separation was of a lesser severe consequence being already in a state of semi-separation prior to the subject accident.”
The submissions were received from the claimant’s solicitor in the following terms:
“We cannot completely understand what the question is. The reference to “the correct descriptor” is puzzling.
The PIRS assesses six areas of Function (Motor Accident Guidelines Cl 6.219) and one of which is social functioning. These are placed into class descriptors (Cl 6.220).
To the extent there is a purported assertion that the loss of a relationship was of less severe consequence than would ordinarily be the case for a class 4 rating, we would assert that this would be an error. As long as the causal relationship is established, the permanent loss of a relationship, even if it were on and off prior to the accident, bespeaks of a class 4 rating, rather than something more modest. To assert otherwise, does not comply with the Guidelines and is an error.
Class 4 descriptor of social functioning speaks of:
Severe impairment. Unable to form or sustain long-term relationships. PRE-EXISTING RELATIONSHIPS ENDED; for example, lost partner, close friends. Unable to care for dependants; for example, own children, elderly parent (caps emphasis added).
Class 3 rating speaks of periods of separation – which would be relevant if the relationship became on and off after the accident.
The evidence is that the relationship ended after the accident. As we have said, as long as the accident made a material contribution, this equates to a class 4, rather than a lesser class category.”
The insurer sought an extension to serve its submissions by 18 March 2025.
The insurer failed to provide further submissions by the aforementioned date.
The Panel takes the view that all of the necessary evidence, notwithstanding the argument of the claimant is available if Medical Assessor Shen’s Certificate viewed it as the only evidence required for the assessment.
On the face of Medical Assessor Shen’s Certificate, there would appear to be an error in Table 4, social function.
The descriptor recognises that the claimant was “sleeping together” with her partner prior to the motor accident. Medical Assessor Shen used to the term “sleeping together”, in a state of “semi-separation”. The common usage of the term “semi-separation” is used when a permanent relationship (for example, a marriage), is almost over but a couple decides to live together in the same house.
Medical Assessor Shen, in his descriptor, writes that the separation clearly occurred after the motor accident.
Medical Assessor Shen relied on his interpretation, written as follows:
“….. hence the separation was of a lesser severe consequence, being already in a state of semi-separation prior to the subject accident.”
He formed his opinion that the class assessment of median class value was 2, mild impairment. The Panel considers that this is inconsistent with the Medical Assessment Guidelines.
The Guidelines are very clear on this issue. Panellist Medical Assessor Baker notes that for many years he has assessed the matters before him as in a state of “semi-separation”, that is partners live together in the same home, at class 2, mild impairment.
While separation of the couple, as in not living together in the same house, is assessed as class 3, moderate impairment, the descriptor as written by Medical Assessor Shen is clear that the separation occurred after the motor vehicle accident and the contribution of that accident was ruled negligible, as the Medical Assessor did assess in Table 4. Social function as class 2 of impairment.
Accepting all of Medical Assessor Shen’s other documentation, the Panel would complete its assessment without taking into consideration other factors.
The effect will change the outcome from 9% WPI (8% WPI + 1% WPI = 9% WPI) to 18% WPI (17% WPI + 1% WPI). The adjusted score is 2, 2, 2, 3, 3, 4, with a median class value of 3. The aggregate score is 16. The total WPI is 18%.
Adjustment for treatment of her existing condition would be 0%, with a final WPI of 18%.

DETERMINATION OF THE PANEL

Accordingly, the Panel revokes the certificate of Medical Assessor Shen dated
13 October 2022 and substitutes the determination of a total WPI of 18%.

[2025] NSWPICMP 191

21 March 2025