Thomson v QBE Insurance (Australia) Limited
[2024] NSWPICMP 319
•21 May 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Thomson v QBE Insurance (Australia) Limited [2024] NSWPICMP 319 |
CLAIMANT: | Janine Thomson |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Bridie Nolan |
MEDICAL ASSESSOR: | Samuel Lim |
MEDICAL ASSESSOR: | Samson Roberts |
DATE OF DECISION: | 21 May 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Medical dispute; whole person impairment (WPI); psychological injury; major depressive disorder; travel phobia; psychiatric impairment rating scale assessment; Held – Medical Assessment Certificate revoked; WPI greater than 10%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Rikard-Bell dated 11 March 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment which, in total, is greater than 10%: (a) Persistent Depressive Disorder, and (b) Travel Phobia. A statement setting out the Review Panel’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Janine Thomson, was injured in a motor vehicle accident on 29 July 2011.
The insurer has accepted liability for the claimant’s claim under the Motor Accidents Compensation Act 1999 (NSW) (the Act).
There is a dispute about whether the degree of permanent impairment sustained by the claimant as a result of psychological injury caused by an accident is greater than 10%. This constitutes a medical dispute within the meaning of the Act. The degree of permanent impairment is referred to in sub-s 58(1)(d) of the Act.
REVIEW PROCEDURE
The present application is a review of a medical assessment under s 63 of the Act. The relevant medical assessment was conducted by Medical Assessor Rikard-Bell the certificate in respect of which is dated 11 March 2022.
Pursuant to s 63(3A) of the Act, the review is by way of a new assessment of all matters with which the medical assessment is concerned.
The Review Panel considered it appropriate for the assessment to review all matters with which the assessment of Medical Assessor Rikard-Bell was concerned. Because the review involved the assessment of permanent impairment the Panel decided to medically examine the claimant.
The Review Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered. The parties were subsequently advised that the claimant would be examined by the Medical Assessors on the Review Panel.
The claimant was examined by the two Medical Assessor members of the Review Panel on MS Teams on behalf of the Review Panel. The Medical Assessors prepared a detailed contemporaneous report about that examination, which is set out later in these reasons.
STATUTORY PROVISIONS AND GUIDELINES
Under sub-s 63(3A) of the Act, a review of a medical assessment is not limited to a review of only what is alleged to be incorrect, it is a new assessment of all the matters with which the medical assessment is concerned. A review should also generally involve a re-examination of the claimant.
The Motor Accident Permanent Impairment Guidelines 2018 (the Guidelines) were issued under s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (AMA 4 Guides). Clause 1.2 of the Guidelines provides that Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides are followed.
The Guidelines set out the procedure to be followed when assessing the degree of permanent impairment.:
“1.18 An assessment of the degree of permanent impairment involves three stages:
1.18.1 a review and evaluation of all the available evidence including:
○ medical evidence (doctors’, hospitals’ and other health practitioners’ notes, records and reports)
○ medico-legal reports
○ diagnostic findings
○ other relevant evidence.”
Regarding issues of pre-existing impairment and subsequent injuries, the Guidelines provide as follows:
“1.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
1.34 The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”
In regard to the issue of causation of injury, the Guidelines provide as follows:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’ This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Rikard-Bell conducted a medical assessment and determined in a certificate dated 11 March 2022 that the psychological injury gave rise to permanent impairment of 7% and is not greater than 10%.
The claimant seeks a review the certificate and reasons of the Medical Assessor. The Medical Assessor determined that the claimant’s psychological condition as a result of the injuries in the motor vehicle accident constituted a chronic adjustment disorder secondary chronic pain.
Pursuant to s 63 of the Act, the President’s delegate was satisfied there was a reasonable caused to suspect that the medical assessment was incorrect in a material respect on the basis that the Medical Assessor failed to provide a history and path of reasoning in respect of the determination of class 2 of the PIRS category of Adaptation we satisfied her that the medical assessment was incorrect and a material respect.
MATERIAL BEFORE THE PANEL
In the application form, the claimant refers to the certificate of Medical Assessor Rikard-Bell dated 11 March 2022 and submits that there was an error in the classification of the categories “Self-care and Personal Hygiene”, “Concentration, Persistence and Pace” and “Adaptation” in the PIRS.
The insurer, in its reply, identified a material error in the assessment certificate completed by Dr Rikard-Bell. It noted that Dr Rikard-Bell referred to a MAS Review Panel certificate from 5 March 2019, which did not exist. It stated that the relevant Review Panel decision was issued by a certificate dated 24 September 2020. The insurer submitted that based on the material error identified, the matter should be referred to a Review Panel.
In the MAS certificate dated 12 March 2013, Medical Assessor Howpage assessed the claimant in relation to the subject motor vehicle accident. Medical Assessor Howpage noted that claimant had been involved in prior motor vehicle accidents in November 1999 and 5 June 2002. She was also noted to have had prior worker’s compensation claims for back pain in 2009 and in 2010. She was described as denying any psychological symptoms since the motor vehicle accident. Medical Assessor Howpage did not identify the claimant as having any psychological injuries from the subject motor vehicle accident.
The Review Panel’s certificate dated 24 September 2020 concerned a review of an assessment conducted by Medical Assessor Virginia Pascall on 7 November 2019 in relation to the claimant’s physical injuries related to the subject motor vehicle accident. The Review Panel determined the claimant sustained a lumbar spine muscular injury from the subject motor vehicle accident, which gave rise to a whole person impairment of 0%.
In a certificate dated 11 March 2022 by Medical Assessor Christopher Rikard-Bell, the claimant was identified as having a chronic adjustment disorder secondary to chronic pain from the subject motor vehicle accident. Medical Assessor Rikard-Bell noted that the claimant had suffered a workplace injury in 1999 with a shoulder injury which recovered after five weeks with a cortisone injection. She was noted to have been in a prior motor vehicle accident causing neck pain in 2002, which she recovered after treatment. She had worker’s compensation claims related to back problems due to posture at work in 2009 and 2010. The Medical Assessor noted that her general practitioner notes noted significant depression as well as back pain throughout 2010. Medical Assessor Rikard-Bell concluded that the medical evidence and review indicated that the subject motor vehicle accident had caused soft tissue injury to her neck, lower back, and right shoulder, which accounted for her chronic pain. He formed the view that the claimant was suffering from chronic pain in relation to her back and neck, which had led to a psychological condition with chronic adjustment disorder. Her whole person impairment was determined to be 7%.
The Patient Health Summary for the Norwest General Practice records attendances which date back to 14 December 2012. The attendance records contained within these clinical notes are relevantly set out as follows:
(a) 14 December 2012 – references the subject motor vehicle accident. She was noted to have gone to see an independent assessor, Dr Smith and was told to get psychiatric treatment, which she disagreed with. She was told that she had anxiety when driving but no depression.
(b) 17 December 2012 – notes that she had an adverse reaction to Endep, Cipramil and antidepressants, resulting in depression and suicidality. It states that she did not think she had any psychological issues.
(c) 30 January 2013 – described the claimant as having developed bad depression with hopelessness, being self-critical and a loss of belief. It states that she had never been that depressed. She described developing suicidal thoughts and looking up sites on how to suicide. She described disappointment in her attempts to find a job and that she felt discriminated against due to her age. There is a reference made to her having been abused as a child and that she might be suppressing memories of this abuse. She was felt to require cognitive behaviour therapy (CBT) and counselling. She was provided with a Mental Health Care Plan.
(d) 1 February 2013 – records the claimant as reporting bizarre thoughts, starting to think she has a mood disorder. She reports anxiety, nausea, confusion, that she is frightened “like a battle going on in her head”. Conflicting thoughts and feelings, “one size see self as logical person, one who functions etc”, as experiencing pervasive thoughts, think she has a dissociative disorder, will sexually and emotionally abused as a child, thinks might have a dissociative state. 99.9% of the time she feels like a normal person but 0.1% of the time she is a quite suicidal person. She is very depressed she has a victim mentality and a lot of shame especially when recalling childhood events. She thinks that she might not dealt with the abuse as a child now is suppressing memories and hasn’t spoken to anyone about this not even her past stuff. She was teary and distressed. The general practitioner recorded an impression that the claimant suffered perhaps from a dissociative of personality traces/disorder and needed cognitive behaviour therapy or counselling. It was arranged that day under Medicare.
(e) 13 February 2013 – the general practitioner recorded that the claimant was mentally quite great” but still in a lot of pain from last week.
(f) 12 March 2013 – the claimant reported some memory issues which she could be due to disassociate emotions in that she suppressed unpleasant memories. She had been to see a medical assessor in respect of the motor vehicle accident that day.
(g) 3 June 2014 – records that the claimant reported that she was very exhausted and overtired and not sleeping well due to pain disturbing her sleep. She was only getting six to seven hours of disturb sleep. She had tried hypnosis. She was feeling her anxiety levels were rising again. She reported an absence of depression but that she gets anxiety. It states that her lawyer wants her to be depressed as this will work better for her case.
(h) 17 July 2014 – described her as being very stressed about her court hearing on 28 July 2014. It records that her lawyer wants to go down [the] “mental health” route and that she is not comfortable with this. It records that she has been through a lot of emotional trauma throughout life since the age of 28 and had been to see counsellors before. It records that she is frightened that all her background history would be dragged up.
(i) 4 December 2014 – the claimant reported palpitations and anxiety, together with chest pains. She reported going through her “court case”.
(j) 14 January 2015 – the claimant reported that her court case had been recontacted and her compensation case had been opened again. She reported insomnia which she had tried valerian which did not help. She had an adverse reaction to Stilnox and recorded suicidal thoughts. She was prescribed valium 5mg.
(k) 3 June 2015 – the claimant reported that she was having difficulty sleeping and was walking with pain and getting a lot of anxiety. The general practitioner suggested valerian. She reported that her court case was difficult and that she had lost the case and been made out to be a liar. Her lawyer was seeking a further neurosurgical opinion. She was not depressed but felt anxious.
(l) 9 June 2015 – records that she did not find seeing a counsellor helpful. It records that anxiety is her main issue and that she is not depressed. She was referred to Ms Jennifer O’Sullivan, psychologist.
In a report by Jennifer O’Sullivan dated 10 August 2015, Ms O’Sullivan records that the claimant was referred for treatment of anxiety and had six sessions with her. The claimant was recorded to report extremely severe levels of anxiety and depression and severe levels of stress. Ms O’Sullivan opined that the claimant did not display clinical depression apart from a normal fluctuation of mood associated with her daily levels of pain. Ms O’Sullivan opined that the claimant presented with post-traumatic stress disorder symptoms for which she might require long-term counselling in relation to the subject motor vehicle accident.
The clinical notes of the claimant’s visits are as follows:
16/6/15
Referred by GP MHCP after MVA 2011 sustained major injuries, which are still being treated. PTSD symptoms and Chronic Pain. Very fearful of driving and hyper-vigilant, angry re other drivers. No current work capacity. Loss of career and lowered mood at times. Very aware of mood, strong religious beliefs.
Issues with meds due to allergies. Social withdrawal. Goals - breathing, relaxation, diet, exercise, CBT, Trauma Focused Therapy. (saw another psychologist for one session - 5 only on this plan)
23/6/15
Intense pain reported, issues with sleep, panic attacks.
Worried about money and long term security, afraid to be alone as she may fall. Feelings of worthlessness as perceives unable to meet the expectations of others. Very angry at situation. Next session - fear and anger focus.
2/7/15
Sense of loss of not working and having too much time to think.
Does not believe she has clinical depression though understands her mood changes at times when pain is intensive or when she perceives she has to defend her integrity. Pain and driving capacity continues to limit her.
7/8/15
Focus on PTSD, high symptomatology reported, discussed familv and at time suicidal ideation without plan.
10/8/15
Session six - report provided to GP.
In a report by Dr Selwyn Smith, dated 2 October 2019, Dr Smith records that he saw the claimant for an assessment on 2 October 2019 and noted that he had previously seen her on 22 October 2015. She was recorded to not have coped well and not to have been able to engage in any work since his previous examination. She was reported to experience ongoing post-traumatic stress disorder as well as a Major Depressive Disorder. Chronic pain was noted to be a major factor in her disability. Dr Smith indicated his support of the claimant’s application for a Disability Support Pension.
Dr Smith’s report, dated 17 August 2015, indicated that he examined her on 14 August 2015. She was noted to have been in good physical and emotional health prior to the subject motor vehicle accident but to have then been unable to reintegrate into any productive employment since then. She reported sustaining a whiplash injury and a lower back injury in response to a rear-ended collision from another vehicle in the subject motor vehicle accident. She reported ongoing pain with restrictions of movement. She described being fearful that she would fall. She was described as having depressed mood but with her predominant symptoms pertaining to anxiety to the point of panic. She was prescribed Lorazepam tablets to be taken on an as-required basis.
SUBMISSIONS
The claimant submits that the evidence establishes that she has suffered psychological trauma as a result of injuries of rising from the accident.
The insurer submits that the reports of Dr Smith constitute a change of position. In his first report in 2015, Dr Smith records no mention of the alleged symptoms of post-traumatic stress disorder rather psychological symptoms recorded the secondary to those caused by pain. In his second report in 2019, the doctor records diagnosis of post-traumatic stress disorder and a major depressive disorder. Neither of these disorders is diagnosed in the 2015 report. No explanation has been provided by the claimant as to why there is a four year gap and seeking any report from Dr Smith. No clinical material is proffered covering treatment to date, nor is there any explanation for this failure. It submits therefore that it can be assumed that there was no treatment during that period which accounts for there been no information in support of the application after 2015.
RE-EXAMINATION UNDERTAKEN BY THE PANEL
Re-examination report
Who attended the assessment
The claimant participated in the interview on her own.
Psychosocial history and pre-accident history
The claimant is a 60-year-old woman. She stated that she divorced many years ago. She has three adult children. She resides with her eldest daughter, a dog and a cat in Kellyville.
The claimant stated that she grew up in Sydney and in Marulan near Goulburn. The family also had a vacation home on the South Coast of New South Wales. Her mother was an accountant and her father was a hydraulic engineer. She spoke positively of her relationship with both parents and with her sister who is four years her senior.
The claimant recalled that she performed poorly in maths, but she did not have other academic issues during schooling. She recalled that she wanted to become a vet but joined the army after leaving school where she became a dental nurse. She later commenced a science degree, persisting for only one year until she fell pregnant with her first child. She married and had two further children. Her children were 5, 3½ and 6 months of age when her marriage ended. She worked as a dental nurse when her children were older. She travelled to South Australia to undertake a dental therapy course and continued to work in the dental industry.
In terms of past medical history, the claimant stated that she was previously “incredibly healthy and fit”. She attributed a bulging disc to the use of a bad chair. She has undergone an appendicectomy. Previously, she suffered meningitis which necessitated hospitalisation. She was also in a motor vehicle accident in the past which led to a left shoulder injury requiring cortisone. This condition resolved fully.
The claimant previously smoked but no longer does so. She no longer drinks alcohol and, in the past, she was a very rare drinker. She did not report having used illicit drugs.
The claimant recalled that she saw a counsellor when her mother died in 2001. She also recalled seeing a counsellor when her 16-year-old niece died in 1997. She previously sought life coaching to assist her to deal with “difficult people”. Prior to the motor accident, she had never been on medication for her moods or for anxiety.
History of the motor accident
The claimant was stationary in traffic at the time of the motor accident. She was returning from work. She was driving her Toyota Corolla. A van collided with the rear of her vehicle. She recalled that she had the handbrake on and her foot on the brake. The impact was such that her glasses flew off and landed on the back seat.
History of symptoms and treatment following the motor accident
The claimant stated that she was unable to pull the car over to the side of the road after the impact. Her neck was instantly sore. She got out of the car. She recalled that the driver who collided with her was in a state of panic and asked her not to call the police. The claimant’s car was drivable. She drove home and then called a friend who worked in a panel beating shop. He manipulated the boot to enable her to close it.
The claimant recalled that by the time she got home, she was experiencing low back pain. She took Panadeine Forte and Voltaren. She used hot and cold compresses.
The claimant saw a general practitioner a couple of days after the motor accident. She was prescribed more analgesia and referred for radiological assessment, physiotherapy and exercise therapy. She was diagnosed with a bulging disc in her neck and two annular tears in other discs. She underwent a cortisone injection with negative effects.
The claimant stated that her condition continued to decline. She expressed the understanding that she should have undergone surgery earlier. She underwent an injection which caused osteomyelitis leading to hospitalisation and the insertion of a PICC line, followed by surgery in 2018. The surgery has caused the pain to become more manageable, but it has not resolved. Previously, she required so much analgesia that she was experiencing respiratory depression. During the 2018 surgery, however, she suffered a nerve injury in her neck which has affected her right lung.
The claimant recalled that it was her expectation that her condition was going to improve, and she would return to work. She had a new job lined up for better pay. She stated however that her physical condition was not properly diagnosed for a long time. Also, she acknowledged that she remained in denial for a long time despite doctors telling her for six months after the accident that her back was such that she could not resume work. She stated that it was only after a work trial in 2012 that she came to the realisation that her condition would never improve, and it was only then that she began to accept the chronic nature of her physical injuries.
Details of any relevant injuries or conditions sustained since the motor accident
No information was identified to indicate injuries or conditions arising since the motor accident.
Current symptoms
In terms of her physical condition, the claimant stated that she has pain running down her legs and into her feet. The pain radiates across her hips, and she has occasional nerve symptoms in her abdomen and numbness in her perineum, which has caused a degree of incontinence. In the past these symptoms have caused her to fall, and in this context, she has sustained other injuries.
The claimant reported that her moods had been “very up and down”. She recalled that they were particularly bad in the period after the motor accident, but then she obtained a therapy dog, which gave her something other than herself to focus on. She reported anxiety when driving. She added that she had been affected by the traumatic nature of her medical experiences since the accident. She reported her fear of crowds, explaining that she has been bumped and knocked over, and she remains anxious about the prospect of further physical injury in this context.
On speaking of her diminished social participation, the claimant stated her belief that she is boring. She is concerned that she cannot contribute to a conversation, and she cannot answer questions about what she is doing. In this context, she believes that life is easier if she does not engage with other people, and she seeks to keep herself in what she considers to be a safe and controlled environment at her home.
The claimant stated from the outset she received mental health support. She required psychological assistance to enable her to return to the hospital for surgery. When she developed nightmares, she tried to engage in further psychological therapy. She saw a psychiatrist, Dr Selwyn Smith, who diagnosed post-traumatic stress disorder and recommended that she see Jennifer O'Sullivan. She added that her general practitioner has recently suggested that she resume psychological therapy but in the context of her distress, the claimant has decided not to resume psychological treatment.
The claimant reported feeling very flat. She expressed helplessness. She also expressed guilt stating that she feels that she is a burden. She experiences bad dreams. She is anxious and more sensitive than she would like to be. She added that she is unable to be the active grandmother that she expects she should be.
The claimant explained that her dreams often cause her to wake with an increased heart rate and sweating. Of the content of her dreams, she stated that she dreams that “some things come after me” and she dreams of cars. She dreams that bad things may happen to her family, especially to the daughter with whom she lives.
The claimant reported experiencing anxiety when travelling by car. She becomes concerned about the speed of the vehicle and believes that other cars are too close. Her daughter sometimes seeks to reassure her. Her middle daughter becomes upset at her when she comments. She stated that her youngest daughter drives too fast, and she, therefore will not travel with her. She becomes anxious when travelling in her friend’s car because her friend talks while driving and the claimant is concerned that she is distractible. She recalled that a few years ago, she travelled to a funeral in Nowra. She referred to it as a “nightmare”. She travelled there the day before, spent two nights in a hotel before driving back. She stated that she is unable to travel by bus.
Current and proposed treatment
The claimant takes oxycodone SR 10mg twice daily and Panadeine Forte on average two tablets a day. She also uses Voltaren and herbal anti-inflammatories. She sometimes uses Valium 2mg to assist her with sleep following nightmares but never takes it daily. She has also used it to manage stress prior to undergoing dental work. Previously, she tried antidepressant medication but felt suicidal.
The claimant stated that she is on a waiting list to see a new psychiatrist at St John of God Hospital.
Mental state examination
As stated above, the assessment was undertaken using Microsoft Teams. The quality of the connection was satisfactory. The claimant presented as a groomed woman. Having regard for her 60 years and consistent with her account at interview, it appeared that her hair was dyed. Neither psychomotor agitation nor retardation was evident at the interview. She exhibited a restricted range of emotional expression. Her account reflected a depressed mood. Her speech was normal in terms of rate, tone, and volume. In general, her account was logical and coherent. She expressed anxiety about the prospect of being knocked over and injured when she is out. She has also become anxious when travelling to the extent that it has contributed to her decision to cease driving. She did not report anxiety when she is at home. Her account did not reflect the presence of psychotic symptoms.
Current functioning
The claimant explained that she is a licensed registered dental assistant and a dental therapist. Prior to the accident, she was working full-time hours over four days, namely working from 7.00am to 6.00pm four days a week. She resumed work for two to three days after the motor accident, but physical factors prevented her from maintaining work. She then worked for two days in 2012, only seeing six patients a day. Again, she could not persist due to physical limitations.
The claimant recalled that in 2011 and 2012, she was driving to doctors’ appointments, and she saw a psychologist to support her to continue driving. Although she has retained her driver’s licence, she no longer drives at all due to anxiety. She added that there are also physical factors limiting her ability to drive, but over time she has become increasingly scared on the road. Her daughter drives her. The claimant explained that she does not like it when her daughter drives fast, and she remains anxious in the car. She has a friend in her 70s who has also taken her to a few appointments. Most appointments are now by telehealth.
The claimant explained that she has been compelled to attend two social events during the past year. One was her daughter’s wedding, and the other was a baby shower. She did not want to stay at either and ultimately left the baby shower early. At the wedding, she declined to sit in the front row because she found it too anxiety-provoking and, during the ceremony, she sat next to the groom’s mother for support. She stated that she did not want to be stared at.
When asked how she spends her time, the claimant acknowledged that she does not do a lot. She walks her dog, and she brushes him. She involves herself in meal preparations. She spends time listening to music. She sits in the sun in the backyard. She stated that she is able to undertake light housework such as cleaning the kitchen bench, folding the laundry, writing shopping lists and using a long-handled “poop scooper”. She may go to the shops by car with Melissa but rarely goes into the shops. She sits in the car.
The claimant acknowledged that she struggles with motivation when it comes to self-care. She does not shower daily and finds it hard to get out of her pyjamas some days. She washes her face, and she brushes her teeth twice daily. She cuts her own hair, and Melissa colours it. The claimant does not like going to the hairdresser. Prior to her daughter’s wedding, she had someone come to the house to do her hair. When speaking further of her lack of motivation, the claimant stated that her physical condition undermines her motivation, and her emotional state also undermines it. When asked regarding her memory, the claimant referred to watching and remembering renovation videos.
The claimant stated that she has lost most of her friends. When asked regarding the basis for this circumstance, she replied, “I guess because I’m boring.” She also raised the prospect that her friends do not understand her position. She added her belief that she can come across as rude. She identified that she is curt in her response to unwelcomed questions. Although she believes that her younger children do not understand her condition, they have been supportive of her. Melissa has been understanding and compassionate towards her.
Consistency of presentation
No inconsistencies were apparent with respect to the claimant’s presentation at the interview.
Diagnosis and reasons
The Review Panel considered the diagnosis of post-traumatic stress disorder, given that this diagnosis has been raised by other assessing clinicians in the past. The Review Panel considered the nature of the subject motor vehicle accident, noting that it was a rear-end accident, following which the claimant was able to drive her vehicle home. Notwithstanding the physical and psychiatric consequences of the accident, the Review Panel concluded that it represented a motor accident of modest objective severity. It is nevertheless evident that the claimant has suffered significant psychiatric symptoms as a result of the motor accident and that she continues to suffer both mood and anxiety symptoms. Aspects of her anxiety were not considered pathological. Namely, the Review Panel concluded that anxiety about the prospect of being knocked over and falling in a crowd represented an appropriate focus of anxiety in a person who has suffered significant physical injuries and who has previously sustained falls in such a context. Nevertheless, the anxiety experienced with respect to travel was found to be of a debilitating nature and relevant from a diagnostic perspective.
The Review Panel concluded that the symptoms described by the claimant are best considered to represent a Persistent Depressive Disorder and Travel Phobia. The diagnosis of Adjustment Disorder was considered, however DSM-V requires that the “stress related diagnosis does not meet criteria for another mental disorder”. The Review Panel concluded that the claimant’s symptoms met criteria for the Persistent Depressive Disorder and Travel Phobia and the diagnosis of Adjustment Disorder is therefore excluded.
Causation and reasons
62.The claimant’s account exposes the material contribution of the motor accident in the causation of her psychiatric symptomatology. The diagnosed conditions are a direct effect of the accident itself and an effect of the enduring physical symptoms ascribed to the motor accident. No other factors were identified in the history taken on re-examination and in the material before the Panel that the Panel considers constitutes a material contribution to her condition prior to or following the subject motor vehicle accident.
WHOLE PERSON IMPAIRMENT ASSESSMENT
Psychiatric diagnoses
1. Persistent Depressive Disorder
2. Travel Phobia
3.
4.
Psychiatric treatment description
Nil
Category
Class
Reason for Decision
1. Self-care and Personal Hygiene
2
The claimant explained that she participates in housework although limited by physical symptoms. She attends to her personal care with diminished frequency due to both psychiatric and physical factors. The Panel found that there was sufficient psychiatric influence on the claimant’s functioning to reflect psychiatric impairment independent of the non-psychiatric contribution. Although the claimant’s account indicated that she would likely be unable to live independently due to non-psychiatric factors, the Panel found that the claimant’s psychiatric impairment in this area was not of such a degree as to render her unable to live independently. The Panel found the claimant mildly impaired in this area.
2. Social and Recreational Activities
3
The claimant stated her preference to avoid any social activity. She was even reticent to participate in her daughter’s wedding, and she left a baby shower prematurely. She feels emotionally uncomfortable in the presence of other people, and she is reluctant to interact. She does not participate in social or recreational activities independently. Her account in this regard was considered to reflect a moderate psychiatric impairment.
3. Travel
3
The claimant reported being unable to go out without a support person other than to take her dog for a short walk. The account presented by her indicated that physical limitations contribute minimally in this area, and the Panel found that her impairment was predominantly psychiatric and of moderate psychiatric severity.
4. Social Functioning
2
The claimant spoke of the supportive nature of her interactions with her children, notwithstanding the change in the dynamics of their relationships. She described having lost friends, and by her account, the extent to which she has become reticent to interact represents a prominent psychiatric factor. The Panel concluded that she is mildly impaired due to her psychiatric diagnoses.
5. Concentration, Persistence and Pace
2
The claimant participated effectively in the assessment. She did not demonstrate evidence of memory or concentration deficits. She did not report engaging in any activities of a nature that demand persistence and pace. The Panel noted the potential that opiate analgesia may undermine concentration, persistence and pace. Having regard for the claimant’s account and taking into consideration the nature and severity of the symptoms described by her, the Panel concluded that notwithstanding limited objective information regarding her functioning in this area, on clinical grounds, it is expected that the claimant would be mildly impaired from a psychiatric perspective excluding potential non-psychiatric factors.
6. Adaptation
3
The claimant’s account reflected anxiety and self-doubt. She described deficits in her interpersonal functioning. Although she attributed her inability to sustain participation in her pre-injury role, the Panel found that the nature and severity of her psychiatric symptomatology would render her moderately impaired in this area independent of non-psychiatric factors.
List classes in ascending order: 2, 2, 2, 3, 3, 3
Median Class Value: 3
Aggregate Score: 15
% Whole Person Impairment: 15%
Apportionment
As specified in paragraphs 7.14 and 7.15 of the Guidelines, only those aspects of impairment attributable to psychiatric factors may be considered in the calculation of psychiatric whole person impairment. Namely, impairment arising as a result of pain and physical compromise has been excluded from the assessment of psychiatric whole person impairment.
Pre-existing/subsequent impairment
The Review Panel found no evidence of pre-existing or subsequent impairment relevant to her current presentation.
Effects of treatment
The claimant was in receipt of specific treatment at the time of the assessment. The claimant’s account did not reflect a change in the severity of her symptoms or a change in her impairment in response to previous treatment involving psychological therapy.
A Current % permanent impairment 15%
B Pre-existing/subsequent % permanent impairment 0%
C Adjustments % for effects of treatment 0%
Final % permanent impairment 15%
Permanency of Impairment
Having regard for the nature and severity of the claimant’s condition and the lack of change over time, the Review Panel concluded that it would not change substantially and by more than 3% in the next year.
CONCLUSION
Accordingly, the Review Panel is satisfied that the claimant sustained the following injuries by reason of the motor accident:
(a) Persistent Depressive Disorder, and
(b) Travel Phobia.
The Review Panel will revoke the certificate of Medical Assessor Rikard-Bell dated 11 March 2022 and will issue a new certificate determining that the above injuries were caused by the motor accident and give rise to a whole person impairment which, in total, is greater than 10%.
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