Tran v Zurich Australia Insurance Ltd

[2024] NSWPICMP 510

DETERMINATION OF REVIEW PANEL

CITATION:

Tran v Zurich Australia Insurance Ltd [2024] NSWPICMP 510

CLAIMANT:

Thao Tran

INSURER:

Zurich Australia Insurance Ltd

REVIEW PANEL

PRINCIPAL MEMBER:

John Harris

MEDICAL ASSESSOR:

Wayne Mason

MEDICAL ASSESSOR:

Melissa Barrett

DATE OF DECISION:

29 July 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; permanent impairment; 2010 motor accident; subsequent motor accident in 2014; development of schizoaffective disorder in late 2014; permanent impairment from both motor accidents assessed by Medical Review Panel; application of clause 1.34 of the Motor Accident Guidelines; subsequent motor accident and development of schizoaffective disorder causatively independent; third category in State Government Insurance Commission v Oakley considered; overall impairment reduced; Held – claimant sustained permanent impairment assessed at 5%; Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

Medical Assessment – Permanent Impairment

WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS:

1.   The Review Panel revokes the certificate of Medical Assessor Ng dated 21 February 2023 and issues a new certificate that the following injury caused by the motor accident give rise to a whole person impairment which is NOT GREATER THAN 10%:

·        Adjustment Disorder with mixed anxiety and depressed mood.

REASONS

BACKGROUND

1. Mr Thao Tran (the claimant) suffered injury in a motor accident on 8 September 2010. The claimant was stationary at a set of traffic lights when the vehicle he was driving was rear-ended.

2. Zurich Australia Insurance Ltd (Zurich) is liable to pay Mr Tran any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).

3. The claimant was involved in a subsequent motor accident on 9 April 2014. NRMA were the relevant insurer liable to pay any damages for that motor accident (second motor accident).

4. The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]

   [1] See ss 57 and 58 of the MAC Act.

5. Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.

6. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]

   [2] Clause 1.2 of the Guidelines.

7. The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Ng (MA) dated 21 February 2023 (the medical assessment). The MA found no psychiatric conditions were caused by the motor accident and did not assess permanent impairment.

8. 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.[3]

   [3] Section 63(7) of the MAC Act.

9. The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]

   [4] Section 63(2B) of the MAC Act.

10. Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).

CONDUCT OF THE REVIEW

1. Part 5 of the PIC 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.[5]

   [5] Section 41(2) of the PIC Act.

2. 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.[6]

   [6] Rule 128 of the PIC Rules.

3. The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]

   [7] Section 63(3A) of the MAC Act.

4. The parties filed bundles for the Panel’s consideration. On 28 November 2023 the Panel advised all parties in both Reviews to file and serve bundles on the other insurer. There was no objection to this course.

5. On 11 April 2024 the Panel issued a direction which relevantly provided:

   “The Review Panel (the Panel) has received three bundles of documents and a further report from Dr Yenson dated 18 December 2023. The Panel accepts the further report noting that it is consistent with the doctor’s previous opinion and does not raise new issues.

   Whilst the Panel will be providing separate certificates for each motor accident, we advise that all documents filed by the parties will be considered in each medical assessment.

   The Panel directs the claimant to file and serve by 14 May 2024:

   1.Taxation returns from 1 July 2009 to 30 June 2014; and

   2.Any written submissions previously served (none are included in the claimant’s bundle).”

6. The taxation returns from 2008/2009 to 2013/2014 were supplied.

MEDICAL ASSESSMENT UNDER REVIEW

1. The MA made the following findings on causation and diagnosis.

   “I have considered the history provided by Mr Tran, the history provided by Mrs Tran and a review of the documentation. Before the 2010 accident there appeared to be no major pre-existing psychiatric history. After the 2010 accident there appeared to be emerging anxiety and depressive symptoms, consistent with either an Adjustment Disorder or a Major Depressive Disorder.

   After the 2014 accident, there was a worsening of those depressive and anxiety symptoms. Hence there was either a worsening of the Adjustment Disorder or Major Depressive Disorder.

   All of the above however was superseded by a new psychiatric diagnosis that dominated the entire psychiatric presentation for Mr Tran. He developed the first episode of psychosis. This is a debilitating psychiatric disorder and has rendered him poorly functional ever since. He has ongoing residual psychotic symptoms, and the diagnosis of schizophrenia cannot be avoided or explained away. He has ongoing positive psychotic symptoms that intensify, should he cease his medication. He has severe subjective cognitive dysfunction and significant negative symptoms which may or may not have a depressive component. He describes and presents with schizophrenia, paranoid type, DSM IV/V criteria. The only confounding factor in his situation was its late onset and that has been acknowledged by several doctors.

   I agree with Dr Doron Samuell and there is no permanent psychiatric disorder emerging from the subject motor vehicle accident because any possible psychiatric disorder that may have emerged from the 2010 accident was completely overshadowed by a new psychiatric disorder, namely schizophrenia.

   In summary, there is no ongoing psychiatric disorder related to the accident. Mr Tran may choose to attribute his ongoing psychopathology to the 2010 accident or the 2014 accident, or both. However, that stretches credibility. Just because psychiatric symptoms occurred after the accident does not mean the psychiatric symptoms were caused by the accident. He is now presenting with a completely different psychiatric disorder that has no relevance to the subject motor vehicle accident, or indeed the 2014 accident.

   The DSM IV/V diagnosis is Schizophrenia, paranoid type, chronic. This is not attributable to the subject motor vehicle accident. There is no permanent impairment.”

OTHER MOTOR ACCIDENT

1. The claimant was involved in another motor accident on 9 April 2014 which involved a claim against Insurance Australia Ltd (NRMA). The claimant was stationary at red lights when the insured vehicle struck the vehicle behind the claimant’s vehicle which then impacted with the claimant’s vehicle.[8]

   [8] NRMA bundle, p 9.

2. The claimant alleged injuries to the back, neck and head.

3. On 24 August 2023 Medical Assessor Sidorov determined that there was no assessable impairment caused by the 2014 motor accident. The reasons by the MA were:

   “Based on the account presented by Mr Tran, his presentation and review of provided documentation, he meets the diagnostic criteria for Schizophrenia, as per DSM-5. This is based on a history of experiencing delusions and hallucinations for at least a month period, as well as a period of disorganised speech, and grossly disorganised in catatonic behaviour, and evidence of negative symptoms, including diminished emotional expression and avolition. There is evidence that since Mr Tran’s first psychotic episode in 2014, he has had a decline in his functioning in multiple areas, including work, interpersonal relations and self-care, which has been markedly below the level achieved prior to the onset of the illness. He has had evidence of a disturbance for more than three months. Given that Mr Tran’s first psychotic episode occurred at the age of 50, his Schizophrenia is late onset type. Mr Tran also developed significant depressive symptoms that would qualify him for a diagnosis of Persistent Depressive Disorder or Major Depressive Disorder that has been comorbid with his Schizophrenia.

   Mr Tran’s Schizophrenia is intrinsic and is constitutional in nature. The late onset is somewhat unusual but not unheard of. The accidents that occurred in 2010 and 2014 and associated pain has caused him a degree of distress, but are not causative of the Schizophrenia. Mr Tran did experience initial distress and depressive symptoms following the accidents. It is unclear whether he met the diagnostic criteria for a Major Depressive Disorder or Persistent Depressive Disorder at the time, however, his depressive symptoms are now unrelated to the accidents, and are related to the functional decline associated with his Schizophrenia.”

4. The claimant filed an application for review of the subsequent medical assessment.

5. As noted above, that review is also being determined by the Panel.

STATUTORY PROVISIONS

1. Clause 1.7 of the Guidelines provides:

   “There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”

SUBMISSIONS

Zurich’s submissions dated 9 August 2022

1. The insurer relevantly submitted:

   “The Claimant has conceded a pre-existing history of depression prior to the subject accident. He is also noted to have a psychiatric history in his family with his brother committing suicide and his daughter being diagnosed with Bipolar Disorder.

   There is limited evidence in the contemporaneous medical records that the Claimant made any complaints of a psychological nature from the subject accident. Certainly, the most psychological complaints occur after the second accident. Dr Samuell, Psychiatrist has assessed the Claimant twice; on 7 February 2017 (6.5 years post subject accident) and in his most recent report dated 24 December 2021 (over 11 years post-accident). Dr Samuell agreed with the treating psychiatric diagnosis of late onset Schizophrenia. He noted this was a idiopathic condition not caused by trauma and thereby was unrelated to the subject accident (or indeed the second accident). He considered that all of the Claimant’s psychiatric complaints related to this diagnosis and were thereby not accident related (to either accident).”

2. Zurich submitted that any ongoing physical and psychiatric complaints do not relate to the motor accident.

Zurich’s submissions dated 4 April 2023[9]

[9] Zurich bundle, p 1.

1. Zurich submitted that the MA found that the schizophrenia diagnosis was unrelated to the subject accident and that diagnosis “superseded” any accident-related diagnosis. It submitted that the MA explained why the schizophrenia was unrelated to the accident preferring he opinion of Dr Samuell.

NRMA submissions dated 9 April 2014[10]

[10] NRMA bundle, p 2.

1. These submissions addressed the application to review the certificate of Medical Assessor Sidorov. NRMA noted that the MA found that schizophrenia was intrinsic and constitutional in nature and that the depressive symptoms and functional decline are associated with the schizophrenia.

Claimant’s submissions dated 20 March 2023

1. These submissions were filed seeking leave to review the medical assessment.

2. The claimant’s critical submission of both medical assessments is adequately summarised from the following submission set out in full:

   “The assessor does not set out the actual path of reasoning to explain how he reached his conclusion that his diagnosis of schizophrenia has no causal-relationship to either the 2010 accident or the 2014 accident. This was critical in circumstances where the assessor had already found the claimant was suffering from symptoms consistent with an adjustment disorder or a major depressive disorder following the 2010 accident which then worsened following the 2014 accident. There is also no actual path of reasoning as to why, following the 2014 accident, the assessor concluded the claimant was no longer suffering from an adjustment disorder or a major depressive disorder (which, on the assessor’s findings, was deteriorating).”

3. The claimant otherwise submitted that the MAs failed to “review and evaluate” the opinions expressed by the treating psychiatrist.

Claimant’s submissions dated 15 May 2024

1. The claimant submitted that there was “history of psychiatric symptoms or conditions” prior to the 2010 motor accident. He submitted that there was an emergence of an adjustment disorder or major depressive disorder following the 2010 motor accident and the development of major depression following the 2014 motor accident.

EVIDENCE

Pre-existing conditions prior to first motor accident

1. The references to pre-existing conditions are summarised in the hospital records following the 2014 motor accident and/or the examination report of the Medical Assessors.

Contemporaneous medical evidence

1. On 8 September 2010 the Castle Hill Imaging Centre noted pain in left side of neck and left upper arm and undertook X-rays of the neck and left arm.[11] The X-ray showed marked disillusionment C6/7 with significant narrowing of the intervertebral foramina.[12]

   [11] Claimant’s bundle, p 4.

   [12] Zurich bundle, p 261.

2. The general practitioner (GP) referred the applicant for physiotherapy for injury to the spine on 9 September 2010 with complaints of whiplash injury, mid thoracic pain and stiffness in the lower back.[13] A certificate was issued for work absence on 8 and 9 September 2010.[14]

   [13] Claimant’s bundle, p 1; Zurich bundle, p 396.

   [14] Claimant’s bundle, p 3.

3. On 10 September 2010 the physiotherapist noted complaints of pain and restriction of movement in the neck and lumbar spine.[15] Physiotherapy records show regular treatment to November 2013.[16]

   [15] Zurich bundle, p 429.

   [16] Zurich bundle, pp 429-446.

4. Within the physiotherapy records are references to being stressed due to pain (11 December 2010), difficulty sleeping due to pain, depression (29 July 2011), flashbacks of the accident and occasional nightmares and loss of interest in life (1 February 2012), “very stressful and depression after MVA, no interest or enjoy life” (17 May 2012), flashbacks of the accident and occasional nightmares and not sleeping well (30 July 2012, 28 June 2013 and 27 September 2013), cannot sleep due to pain and depression (29 August 2012 and 27 March 2013).

5. The police report noted a rear end collision.[17]

   [17] NRMA bundle, p 62.

6. The claim form also noted a rear end collision with injuries to the neck, back and chest.[18]

   [18] NRMA bundle, p 69.

Subsequent evidence

1. On 10 February 2011 the GP noted restricted neck movement with complaints of left arm pins and needles and requested imaging of the cervical spine.[19] A certificate dated 10 February 2011 noted injuries to the neck, back and anterior chest contusion.[20]

   [19] Zurich bundle, p 103.

   [20] NRMA bundle, p 75.

2. A CT scan of the cervical spine dated 10 February 2011 noted a clinical history of neck pain with left arm pins and needles. The scan showed disc protrusions at multiple levels between C2 and C7 with spinal canal deformities especially at C3/4, C4/5, C5/6, and C6/7 with C7 lateral recess stenosis and moderate bilateral C6/7 foraminal stenosis.[21]

   [21] Zurich bundle, p 101.

3. On 11 February 2011 the GP referred the claimant to Dr Kam for treatment regarding neck pain and referred left arm symptoms.[22]

   [22] Claimant’s bundle, p 5.

4. The claimant consulted the GP on 21 May 2012 noting that the doctor had not seen the claimant for 15 months. The history was that the claimant was improving but now had left shoulder and neck pain which had got worse recently and left-hand tingling on a daily basis. The doctor noted the claimant would like to see Dr Kam as he did not see him previously when referred.[23]

   [23] Zurich bundle, p 104.

5. On 23 August 2012, Dr Andrew Kam, neurosurgeon, noted the applicant had been suffering ongoing neck pain, shoulder and referred arm pain and headaches since the motor accident.[24]

   [24] Claimant’s bundle, p 7.

6. Dr Kam noted that the CT scan of the cervical spine showed left-sided posterior osteophytes at the C6/7 level causing left-sided foraminal narrowing and the disc at the C4/5 level large enough to indent the spinal cord.

7. The doctor recommended the claimant undergo an MRI scan before proceeding to surgery.

8. The MRI scan of the cervical spine dated 6 September 2012 showed posterior disc osteophyte complex with high-grade left-sided foraminal stenosis at C6/7 with impingement of the left C7 nerve root, small right paracentral disc protrusion at C5/6 partial impingement of the right C6 nerve root and disc protrusions at C3/4 and C4/5 without nerve root compression.[25]

   [25] Claimant’s bundle, p 10.

9. The GP provided a report dated 27 October 2012[26] noting an initial consultation on 10 February 2011 with a history of complaints of neck and radicular symptoms down the left arm following a motor accident in September 2010. The doctor noted that the claimant complained of pain in the lower back on the second consultation. The claimant returned in May 2012 with pain complaints in the left shoulder, neck and both hands.

   [26] Zurich bundle, p 156.

10. On 19 October 2012 Dr Kam noted the claimant was quite debilitated with ongoing brachialgia and recommended a left-sided C6/7 foraminal block.[27]

    [27] Claimant’s bundle, p 11.

11. On 14 March 2013 the GP noted that the claimant was suffering from “chronic pain causing him to be depressed” and prescribed Cymbalta for depression.[28] The claimant was then “awaiting decision on surgery”.

    [28] Zurich bundle, p 105.

Records following 2014 motor accident

1. On 9 April 2014 the claimant consulted his GP following the 2014 motor vehicle accident when he suffered whiplash and back injury.[29] The GP then referred the claimant for physiotherapy[30] and scans of the cervical, thoracic and lumbar spines.[31]

   [29] Claimant’s bundle, p 19.

   [30] Zurich bundle, p 158.

   [31] NRMA bundle, p 24.

1. The X-ray of the cervical and thoracic spines dated 10 April 2014 showed bilateral C6/7 osteophytic foraminal narrowing and normal alignment of the thoracic spines with small osteophytes at multiple levels.[32]

   [32] NRMA bundle, p 25.

2. The MRI scan of the cervical, thoracic and lumbar spines dated 17 April 2014 showed moderate foraminal narrowing bilaterally at C6/7 and degenerative changes in the lower lumbar spine.[33]

   [33] NRMA bundle, p 90.

3. On 18 September 2014 the GP noted:[34]

   “Since the accident he has been feeling down and low. He has not been coming to see me because of this. depressed, no energy, not motivated does not want to see people.

   lack of energy.

   does not want to do anything

   he said thoughts of suicide did cross his mind.

   but in front of his family he acted normally for them

   but most of the time he wants to be alone”

   [34] Zurich bundle, p 106.

4. In a statement dated 18 September 2014 the claimant asserted that the 2014 motor accident caused a severe aggravation to the neck and back injuries suffered in the first motor accident. The claimant asserted that he had grossly diminished employment prospects in a corporate executive position on the open labour market which were interrupted by the first motor accident and “now destroyed” by the 2014 motor accident.

5. A Certificate of Capacity dated 18 September 2014 noted persistent neck pain and depression caused by the 2014 motor accident.[35]

   [35] NRMA bundle, p 19.

6. On 19 October 2014 Dr Satter, GP, noted the claimant presented with his wife in an unstable mental condition, was “very vague”, had been found at the airport, could not recall anything and required urgent assessment. The doctor noted the claimant suffered from major depression but had not received any medical attention.[36]

   [36] Zurich bundle, p 317.

Hospital admission – October to November 2014

1. The claimant was admitted to hospital on 19 October 2014 with a presenting complaint of a first episode of psychosis. Recent history included being found, by police, at the airport wandering and attempting to catch a flight to Vietnam without having bought a ticket.[37]

   [37] Claimant’s bundle, p 20.

2. The records noted that the claimant had a background in engineering and worked as an engineer until 2000 and was “helping” his wife since 2009. The claimant’s daughter was diagnosed with bipolar disorder two years previously.

3. The claimant was commenced on Risperidone 1mg nocte which was increased to 2mg nocte with considerable improvement in mental state. On discharge the claimant showed logical thought and denied perceptual disturbance.

4. The brain CT scan showed no acute intracranial pathology.[38]

   [38] Zurich bundle, p 416.

5. The clinical records note that the claimant lost his employment in 2001 was separated from his wife in 2004 and lived in Melbourne and Queensland before returning to Sydney in 2010.[39] The claimant’s wife was a physiotherapist and the claimant was the manager of that practice.[40] Other records refer to the claimant working “2-3 days”, that the claimant’s wife was the primary bread winner since 2003 until 2009 when the claimant started helping out at the business.[41] The marital relationship was described as “not that great” and they had not slept in the same bed for the past 10 years. Notes also refer to the claimant’s gambling issues.

   [39] Zurich bundle, p 469.

   [40] Zurich bundle, p 470.

   [41] Zurich bundle, p 501.

6. A clinical note dated 19 October 2014 recorded history of depression since 2005 when the claimant obtained a university degree but never found work and had been helping his wife with her physiotherapy practice since that time. There were reports of increased irritability in the last three years with isolation over the past few months.[42]

   [42] Zurich bundle, p 562.

7. The notes refer to discussions with daughter who noticed odd behaviour by the claimant over last two weeks, mostly taking about politics and communism and conspiracy theories.[43]

   [43] NRMA bundle, p 228.

Subsequent to hospital admission

1. The claimant attended his GP on 25 November 2014 following discharge from hospital. The GP noted that the claimant was not hearing voices and was not delusional. A diagnosis was made of psychosis and depression.[44]

   [44] Zurich bundle, p 107.

2. In February 2015 the GP recorded that the claimant’s depression was worsening, and the psychiatrist had increased the dosage of Zoloft to 100mg daily.[45]

   [45] Zurich bundle, p 108.

3. The claimant was reviewed by Dr Kam in July 2015. The doctor noted the further motor accident in April 2014 and the history that that accident caused increased symptoms involving the upper extremity particularly on the left-hand side with more pain and discomfort that radiated into the hands.

4. Dr Kam also noted that the claimant was having some issues involving the lower back since the April 2014 motor accident with left-sided leg pain in the L5 distribution.

5. Dr Kam recommended a conservative nonsurgical approach for as long as possible noting the claimant’s troubled by a number of issues including arm depression with prescribed medication for that condition.

6. Dr Kam provide a further report dated 17 May 2022[46] noting that he had provided no further treatment since July 2015.

   [46] Claimant’s bundle, p 16.

Dr Sean Yenson

1. The first consultation with Dr Sean Yenson, psychiatrist was on 12 January 2015.[47]

   [47] Zurich bundle, p 52.

2. On 5 August 2015 Dr Jensen noted that the claimant was slightly more motivated following an increase in the dose of Risperidone.[48]

   [48] Zurich bundle, p 41.

3. On 28 October 2015 Dr Yenson noted that the claimant had a relapse with the return of psychotic symptoms with voices returning advising him to go to various places. The doctor recommended a change in medication.[49]

   [49] Claimant’s bundle, p 29.

4. On 25 November 2015, Dr Yenson noted the claimant had ceased Risperidone and was now compliant with Abilify 10mg daily. The claimant had reported that voices were slightly reduced, and he was motivated to exercise, walking around the block.[50]

   [50] Claimant’s bundle, p 31.

5. On 7 December 2016, Dr Yenson noted the claimant had become increasingly depressed with reports of lack of function from pain and poor concentration as some reasons for his depression.[51]

   [51] Claimant’s bundle, p 34.

6. Dr Yenson provided a comprehensive report dated 22 February 2022 which detailed the extensive treatment with the claimant since 12 January 2015.[52] The doctor noted a history of reduced work following the motor accident in April 2014 with a complete cessation of work after a mental health hospitalisation in September 2014.

   [52] Claimant’s bundle, p 35.

7. The history included that in August 2014 the claimant experienced psychotic symptoms and believed someone was talking to him in his head, voices were telling him to visit his family in Vietnam and travel to the airport without purchasing plane ticket. Those voices were of a derogatory nature.

8. Dr Yenson noted symptoms including irritability and insomnia. The claimant reported persistent neck pain limiting his ability to concentrate generally a marked decrease in his capacity with ongoing symptoms including poor concentration, drowsiness and high levels of anxiety with a reluctance to socialise and leave his house.

9. The claimant reported persistent neck pain which caused him to feel depressed and limited his ability to concentrate.

10. Dr Yenson diagnosed a chronic psychotic illness which was best described as chronic schizophrenia (late onset) together with a major depressive disorder. The doctor was unable to comment upon the association between the 2010 motor accident and the claimant’s mental health apart from reported depressive symptoms following that accident.

11. Dr Yenson noted a significant decline in mental health and function following the 2014 motor accident. The doctor reported that pain on a daily basis exacerbated the claimant’s depression and that there was “little doubt that the major depressive disorder is attributable to the motor vehicle accidents”.

12. Dr Yenson opined that the schizophrenia was attributable to the 2014 motor accident as the onset occurred “in the months following this motor accident resulting in a mental health hospitalisation and a clear deterioration of his functioning which persisted today”.[53]

    [53] Claimant’s bundle, p 36.

13. Dr Yenson provided a further report dated 18 December 2023 commenting on both Medical Assessment Certificates. The doctor expressed various opinions including that the major depressive disorder was attributable to the 2010 motor accident and had been exacerbated by the 2014 motor accident. The depressive symptoms are exacerbated by chronic pain.

14. Dr Yenson disagreed with the opinion of Medical Assessor Sidorov that the schizophrenia was intrinsic and believed there was a close temporal association between the 2014 motor accident and the development of the psychotic symptoms. Dr Yenson confirmed that he continued to consult with the claimant.

Qualified opinions

1. Dr James Bodel, was qualified by the claimant and provided a report dated 29 April 2013.[54] The doctor noted the claimant was a business consultant as an electrical engineer, had no formal time away from work and employed extra staff to assist with the business but continue to manage it on and off depending on the pain levels.

   [54] Claimant’s bundle, p 38.

2. Dr Bodel then noted injury to the neck with referred left arm pain and injury to the lower part of the back. The doctor opined that the long-term prognosis was guarded noting there had been a development of “significant psychological disturbance as a consequence of these injuries and their failure to resolve”.[55] The doctor assessed whole person impairment of the cervical spine at 5% with no assessable impairment of the lumbar spine.

   [55] Claimant’s bundle, p 41.

3. Dr Bodel provided a further report dated 29 May 2018.[56] The doctor noted that the motor accident in April 2014 resulted in increasing neck and back pain and in addition there were serious psychological issues resulting in the claimant not returning to work and closing the business down.

   [56] Claimant’s bundle, p 45.

4. The doctor assessed impairment from the 2010 accident at 5% (cervical spine) and the 2014 accident at 12% due to impairment of the lumbar spine and left shoulder restriction.

5. Dr Casikar, neurosurgeon, was qualified by Zurich and provided a report dated 19 March 2014.[57] The doctor opined that the claimant suffered a whiplash injury with an incorrect history of no medical attention or medication until 2012 and provided a diagnosis of post-traumatic stress syndrome with a question mark.

   [57] Zurich bundle, p 575.

6. Dr Casikar noted that the claimant had returned to work following injury and was almost normal after about six months. In a separate report the doctor assessed neck impairment at 5%.

7. Dr David Millions, surgeon, was qualified by the claimant and provided a report dated 13 October 2014 and opined that the claimant suffered a whiplash injury following the motor accident.[58] The doctor noted that the claimant was quite agitated and upset in regard to the motor accidents.

   [58] Claimant’s bundle, p 56.

8. The claimant reported that he was much worse following the 2014 motor accident. The doctor noted not inconsiderable psychological issues with difficulty concentrating and memory issues. Dr Millons recommended a review by a psychiatrist.

9. The claimant was reviewed by Dr Millons in April 2015.[59] The doctor noted that the claimant was scheduled at Westmead Hospital on 19 October 2014. At that time the claimant reported difficulty remembering anything.

   [59] Claimant’s bundle, p 69.

10. Dr Millons opined that the claimant continued to suffer the after-effects of both the motor accidents, suffering neck and upper limb pain with some back pain after the first accident which was further exacerbated in the second accident with a lot more pain in the lower back. The doctor noted a non-organic presentation with global reduction empowering both upper and lower limbs with clear psychological issues including the onset of a psychotic episode.

11. Dr Peter Klug, psychiatrist, was qualified by the claimant and provided a report dated 1 May 2015.[60] After an extensive review of the material the doctor concluded that the motor accident caused a major depressive disorder and the second motor accident caused a worsening of the psychiatric problems and the development of the major depressive disorder with psychosis. The doctor made a differential diagnosis with respect to the psychiatric admission in October 2014 of late onset schizophrenia and a mood disorder with psychotic symptoms.

    [60] Claimant’s bundle, p 79.

12. Dr Klug raised the possibility of a mild traumatic brain injury caused by the second motor vehicle accident although he described this as speculative. The doctor assessed impairment after the 2010 motor accident at 7% and the impairment after the 2014 accident at 24%.

13. Dr Klug provided a further report dated 20 March 2019.[61] In that report the doctor opined that the claimant developed a chronic major depressive disorder with mood incongruent features following the 2014 motor accident.

    [61] Claimant’s bundle, p 99.

14. Dr Klug maintained his previous opinion in a further report dated 6 June 2022.[62] The doctor opined that the unusual late onset of this illness and the close temporal relationship of the development of the psychotic illness following the second motor vehicle accident, militated against the view that the applicant would have likely developed a psychotic illness without the motor vehicle accidents.

    [62] Claimant’s bundle, p 112.

15. Dr Klug assessed whole person impairment at 48%.

16. In a report dated 7 May 2015, Dr Lorraine Jones, physician, opined that the claimant was depressed which was precipitated by both motor vehicle accidents.[63]

    [63] NRMA bundle, p 174.

17. Dr Doron Samuell, psychiatrist was qualified by Zurich and provided a report dated 7 February 2017.[64] The doctor obtained a history the claimant was working 20 hours a week prior to the second motor vehicle accident. The doctor noted:[65]

    “Some months after the second motor vehicle accident, Mr Tran developed psychotic symptoms that were initially thought to be delirium in nature, but over time increase in his appearance [sic] is consistent with the late onset schizophrenia condition. He is being treated by a psychiatrist with antipsychotic and antidepressant medication. Despite this, he remains mildly psychotic.”

    [64] Zurich bundle, p 583.

    [65] Zurich bundle, p 591.

18. Dr Samuell opined there was no permanent psychiatric impairment arising out of the motor vehicle accident.

19. Dr Samuell provided a further report dated 24 December 2021.[66] The doctor noted there was a history of depression predating the motor accident, the claimant’s brother had suicided, and the daughter had a bipolar disorder. He concluded that irrespective of the motor vehicle accident the claimant was at a high-risk of depressive disorder given the family history.

    [66] Zurich bundle, p 644.

20. Dr Samuell opined that there was no reasonable causal mechanism between the motor vehicle accidents and the subsequent development of the psychiatric disorder and opined that schizophrenia is an idiopathic condition not caused by trauma.

21. Dr Nigel Menogue opined that the motor accident caused a 5% impairment of the cervical spine and no impairment of the lumbar spine.[67]

    [67] Zurich bundle, p 595.

22. Dr Cummine, orthopaedic surgeon, opined that the motor accidents caused a temporary aggravation of underlying pre-existing degenerative disease of the cervical spine and may have caused a minor soft tissue injury to the lumbosacral spine.[68]

    [68] Zurich bundle, p 617.

23. Dr Graham Vickery, psychiatrist, was qualified by NRMA and provided a report dated 8 September 2020.[69]

    [69] NRMA bundle, p 580.

24. Dr Vickery referred to the records of Westmead Hospital Emergency Department in October 2014 which noted a history of depression since 2006. The doctor also noted a history that the claimant was self-employed for a decade prior to the motor accident (query 2014) in his consulting company known as Sprintford which was in the field of electrical engineering.

25. Dr Vickery opined that the claimant was suffering from paranoid schizophrenia which was constitutional in nature and the impairment due to the motor accident was 0%.

TAXATION RETURNS

1. The taxation returns show the following earnings (excluding interest) which were described as paid by Sprintford Pty Ltd and as an “allowance, earning/tip/directors fees”.

   2008/09 – income - $25,000;

   2009/10 – income - $22,000;

   2010/11 – income - $30,500;

   2011/12 – income - $31,000;

   2012/13 – income - $50,000, and

   2013/14 – income - $18,000.

EXAMINATION

1. The claimant was examined by both MAs. The examination report is as follows.

   “Brief Personal Details

   The claimant is a 60-year-old man who lives with his 61-year-old wife in their own home in a northwestern Sydney suburb. He has not worked since 2014 and said he has no income. He was accompanied throughout the interview by Vietnamese interpreter Thanh Trung Nguyen, NAATI number 54954, but rarely needed his assistance. They have two adult children who are both dentists and living independently. Their 35-year-old daughter resides in a distant Sydney suburb and visits regularly; their 25-year-old son lives in Queensland. He said he had travelled to the interview by bus with his wife, but she was not present throughout the interview. He was interviewed in the PIC rooms in Darlinghurst by Assessors Barrett and Mason.

   Psychosocial History

   Mr Tran was born in South Vietnam in a suburb of a large city in 1964. He said his parents had a shop in the village and travelled to other villages as traders buying and selling goods. He is the youngest of 4 children. He described his birth as 2 months premature and underweight, possibly due to the need for his mother to engage in heavy physical work during pregnancy. However, he described his subsequent developmental milestones as normally met. He said his father died of gastric carcinoma when he was 6 or 7 years of age. At that time, he was too young to understand a terminal illness, but he was aware his father was ill, and people were upset and crying. He was not sure how the loss of his father affected him but said his mother remained single and always spoke of him with respect and a lot of love. He said at that time he was aware the Vietnam war going on around him, he could hear rockets and knew that people were injured but denied being directly impacted by the war. He did not refer to his mother, but it was noted from the documents that she died at 66 years of age of renal cancer.

   His sister was the oldest child and following her were 2 older brothers. He said the oldest of his brothers died in a motor accident in Vietnam. There was a report in the documentation that he had died of a drug overdose. When questioned about this Mr Tran said he was living in a refugee camp in the Philippines at that time and had no knowledge of a drug overdose. The other brother died at 17 or 18 years of age by drowning at sea while trying to escape South Vietnam.

   Mr Tran attended school in Vietnam where he completed the equivalent of the HSC. He said he went to a normal school in a major city and his education was not interrupted by the war. He said he did not realise he was academically bright until year 10 of high school when he developed a passion for science, especially physics. He said he excelled and won a state prize in physics. He went on to complete a 5-year electrical engineering degree at University in Saigon, now Ho Chi Minh City. He avoided being sent to a re-education camp after the war because he had been to University. He was then discriminated against because he had been on the South Vietnamese side, and he was unable to find work.

   He left Vietnam in 1988 and travelled to the Philippines by boat. He described this as a dangerous journey which took weeks, and his girlfriend Phuong accompanied him. He spent 18 months in a refugee camp where he said he saw people suffering so he actively volunteered to educate the young people in technology, mathematics, and science through a humanitarian organisation. He married Phuong while in the Philippines and his sister sponsored him to come to Australia. She was living in Melbourne, and he arrived there by plane. His children were born in Australia 10 years apart because they were not able to afford to have them closer together.

   He said his sister took him under her wing and helped him to get established. He did a course in English and then studied computer science at Swinburne where he obtained a graduate diploma. He said he also completed a Master of Engineering at Monash University and the Victorian Institute of Technology; later in the interview he clarified he had not completed this master’s degree. He also undertook a Master of International Business at the University of Melbourne. These classes were completed during his thirties, and he said he did them out of interest. He was also asked about attempting a law degree. He said this was at Melbourne University, but he found it too difficult; his English was not good enough and he left after a couple of subjects. He said he worked in engineering as a technician with computer companies and communication companies. He said the longest period of employment was 1 or 2 years, he was never sacked, and he always went on to a better job. He said he wanted a corporate position and was employed as a Director with Nortel, but they had financial problems. He was offered a redundancy package in 2000 and went on to establish his own business. He started his own company Sprintford Pty Ltd in 2004 when he was 40 years of age, which he described as a computer consultancy. He was a sole trader and said he used subcontractors for some of the work. He denied Sprintford was the name of his wife's physiotherapy business.

   The panel attempted to clarify various complications in his family life over the years. He initially said he remained in Melbourne for 10 years, then moved to Sydney for 10 or 15 years. He moved back to Melbourne for 5 or 6 years and then finally back to Sydney. Mr Tran explained his daughter commenced primary school in Melbourne and then completed primary school in Sydney. However, she then managed to gain entry to a selective high school in Melbourne and he lived with her there when she was between 12 and 18 years of age. When questioned about spending some time in Queensland he then remembered he had accompanied his daughter for 2 years while she was studying dentistry at Griffith University to provide her with support. In fact, his young son was also with him in Queensland and his wife was working in Sydney. During that time, they were being financially supported by his wife; he believes he may have done a couple of jobs in Queensland. He then added his wife had been supporting him for a long time before the motor accidents, but he could not accurately recall how long. It was noted in the documentation she had supported him from 2003 until 2009 and when questioned about this he said it could have been the case, but he does not remember. His daughter moved in with friends when she was in the third year of her dentistry degree and that was when he returned to Sydney with his son in 2009.

   He was questioned about his life in Sydney with his wife and son in 2009. He said at that time he was sleeping with his wife, but they were on separate couches because the couches were closer to the kitchen. He then corrected this account saying their intimate life had been non-existent for many years. He described arguments between them but not to the extent of separating. His daughter was still in University in Queensland, and he was working in his company Sprintford for an estimated 40 hours/week. He said he was reading academic journals, and he was not gambling. He said he occasionally would bet with $100 if he had the money but he denied ever losing $60,000 or $70,000. He said at that time he had many friends and went out for meals with them or to a hotel to have drinks. He was actively involved with his son by teaching him and talking with him. At that time, he was doing the shopping and cooking. It was put to him he had been functioning as both mother and father to his children while his wife had been the breadwinner; he agreed that was the case. However, he reiterated that he was also working 40 hours/week in his computer consultancy.

   Pre-accident History

   Mr Tran said there were no mental health problems prior to the 2010 motor accident. He denied any family history of mental health problems in his parents, siblings, or cousins. He was questioned about the fact that his daughter had been diagnosed with bipolar disorder and treated for that condition. He said he did not really know because she was studying in Queensland, and she told him about it later. He said she did have treatment and medications at that time but that was not the case now. The clinical record of Westmead Hospital indicated she had bipolar disorder in 2012 and was treated with quetiapine which was gradually weaned and followed up with cognitive behaviour therapy.

   Mr Tran said his physical health had been good apart from type 2 diabetes which commenced in 2009 and has been satisfactorily managed with oral medication.

   His use of substances was explored. He has between 10 and 15 cigarettes/day. Regarding alcohol, he drank only socially on rare occasions prior to 2010. He said he was unable to remember his consumption between 2010 and 2014 but said it increased after both accidents and he was consuming 1 or 2 glasses of red wine on 1 or 2 days/week. He said now he only drinks when he is really depressed and may have 1 or 2 glasses of wine twice weekly. He denied the use of recreational drugs. He said he gambled occasionally but not to excess.

   Current medications consist of the antidepressant desvenlafaxine 150 mg and brexpiprazole 3 mg daily. These have been prescribed by his treating psychiatrist Dr Sean Yenson and have been stable at this dosage for several years. He said many different medications were tried in the past, but he was unable to continue them due to side effects, largely excessive sedation. He was not able to remember the name of any of these agents.

   Prior to the 2010 accident, he had returned to live with his wife and son in Sydney. He acknowledged that his relationship with his wife was challenging. They had not formally separated but they were estranged, possibly from about 2003 although he could not clearly recall. He could recall that in the period before the accident there had been no intimacy with his wife for some time. He slept on the couch. He had many friends, with whom he would go out for meals and sometime meet at the club. He had a close relationship with his children. He enjoyed reading academic journals. He was self-employed, in his business, ‘Sprintford’, working 35 to 40 hours a week.

   History of the 2010 Motor Accident

   Mr Tran said on 8 September 2010 he was driving a Subaru Forrester and was stopped at a red light on Windsor Road. He was rear ended by another vehicle which he said was travelling quite fast. He did not see the vehicle coming. He was wearing his seatbelt and airbags did not deploy. He believes he suffered a loss of consciousness for 2 seconds. The driver of the other vehicle was a P-plate driver who approached him very politely and asked him not to report the accident to the police. He said they pulled off the road and exchanged details. Mr Tran did report the accident to the police a week or so later for insurance purposes. He was able to drive the vehicle and returned to his home.

   History of Symptoms and Treatment Following the 2010 Motor Accident

   Mr Tran said he developed neck pain immediately and consulted GP Dr Leung the next day. He was not his normal GP. He then saw his regular GP Dr Huynh who referred him to neurosurgeon Dr Kam who arranged for an MRI scan. Mr Tran said in addition to his neck pain he had numb hands, tingling in a specific finger and pain in his left elbow. The neurosurgeon recommended a steroid injection to his neck which he did not agree to because he was fearful. He also recommended an operation on his neck, but this caused even more fear. Mr Tran then said he became terribly upset and consulted with psychiatrist Dr Sean Yenson. The panel pointed out he did not see Dr Yenson until after the second motor accident. He then said he could not remember. He was asked if he had physiotherapy and he initially said he did not think so. He was reminded he had been referred to physiotherapist Mr Tony Wong and attended forty-four treatment sessions. He said he could not imagine why.

   When asked about psychological symptoms he said he felt shameful because he experienced loss of concentration and forgetfulness. He also said the pain in his neck made him feel angry, nervous, and depressed. He could not eat; his sleep was poor, and he was only able to work for 30 hours/week due to pain. He said he became depressed and stopped seeing friends. He said he was prescribed an antidepressant by his general practitioner, but he could not remember the name. He was reminded this was duloxetine 60 mg which was prescribed in March 2013, but he was unable to remember that and did not know how long he took it. The panel noted the first attendance with Dr Jean-Claude Huynh was on 10/02/2011, when he complained of pain related to the 2010 accident. There were then subsequent attendances with pain and other physical symptoms. The panel note that he first reported psychiatric symptoms to his GP, chronic pain causing depressed mood on 14 March 2013, His next attendance with his GP was 13 months later, and following the 2014 motor accident. Mr Tran confirmed there was no psychological or psychiatric treatment following the 2010 motor accident.

   The panel noted Mr Tran had significant difficulty remembering details of the treatment he had undergone following the 2010 motor accident. This was partly because it was 14 years ago but also because he had sustained a serious psychotic condition in 2014 which affected his cognitive functioning.

   Injuries or Conditions since the Subject Motor Accident

   History of the 2014 Motor Accident

   Mr Tran was involved in a second rear end motor accident on 9 April 2014. He was again driving a Subaru Forrester and was stationary at traffic lights with another stationary vehicle behind him. A third vehicle hit the second vehicle which was subsequently pushed into Mr Tran's vehicle. He said his daughter was a rear seat passenger. They were wearing seatbelts; airbags did not deploy. Mr Tran stated he had lost consciousness, and it was a big shock. He said he felt like he was ‘whacked in the back’ and he felt nauseous. They were able to move the 3 cars off the road and exchange details. Police attended and ambulance was called but did not attend. He said the pre-existing neck pain had been aggravated and he developed lower back pain, nausea and felt sleepy. He called his GP and arranged an appointment. He said he found the accident to be overwhelming. He was able to drive and took his daughter to her appointment and then drove to see GP Dr Huynh at Carlingford the next day. He said the car had been repaired but he believed he had sold it; he then added he did not remember

   History of Symptoms and Treatment Following the 2014 Motor Accident

   He said the physical symptoms consisted of increased neck pain, bilateral shoulder pain with left greater than right, left elbow pain and some tingling in his fingers. He was again referred to neurosurgeon Dr Kam but did not follow up on his suggestions for treatment with an injection. He said he continued to help his wife at home but less than after the 2010 accident. He was unable to do the gardening. He attended GP Dr Huynh again in September 2014 with symptoms of low mood, depression and some suicidal thoughts. He was commenced on the antidepressant desvenlafaxine 50 mg.

   He was then admitted to the psychiatry unit of Westmead Hospital with first episode psychosis on 19 October 2014 and was discharged on 6 November 2014. Mr Tran said he was unable to remember the events between April and September 2014. He recalled hearing someone talking to him and telling him to go to the airport. He then said he remembered ‘something happened to him after the second motor accident’ and he became depressed. He said a voice was talking to him and it got worse because of physical pain. He recalled his sleep was disturbed because of hearing a male voice; he heard the voice although no one was next to him. He said the voice told him to do a lot of things including catch a plane to Vietnam. He said he went to the airport but did not have a ticket and was not able to get through customs to board the plane. Police came to him while he was sleeping at the airport and bought him coffee. He then said at that time he was ‘bananas’. He was taken home and the next day his wife took him to the GP who arranged for his admission to Westmead Hospital for psychiatric treatment as an inpatient for 18 days.

   After discharge from hospital, he consulted the community health team for a brief period and then was referred to private psychiatrist Dr Sean Yenson at The Hills Clinic. He initially saw him monthly but for the last few years had been attending every 3 months for ‘financial reasons’. The panel notes this frequency of attendance would be entirely reasonable for a patient with a well-controlled psychotic disorder. As noted above he continues to use the antidepressant desvenlafaxine 150 mg and the antipsychotic agent brexpiprazole 3 mg. He said these medications suit him.

   Regarding symptoms he said the voices (auditory hallucinations) have always been present. They are reduced in frequency and occur every 3 to 4 weeks. He said sometimes the voices are saying ‘hello’ or ‘today is nice’. He said in recent years the voices tend to be mumbling in the background. He said he has gotten used to it. He added the voices have never told him to do bad things. Consultations with his psychiatrist have helped him to accept that the voices are symptoms, and that he should not pay too much attention to them. He was asked about difficulties with his thinking and said he does have thoughts that people are referring to him or want to hurt him. He often feels people are following him and he avoids being out in public for this reason, although can go to the shops with his wife. He believes people want to know his thoughts and are trying to influence them. There is often the idea that he is being referred to on the television.

   He was questioned about his mood and said sometimes he gets really angry. This can last a few days and occurs every 2 or 3 months or every 3 or 4 weeks. He said he has trouble with his sleep off and on. He sleeps for 5 hours with 1 or 2 breaks but often gets 7 or 8 hours. He said he is sleepy in the day. When he is angry his speech and thoughts are fast. He added his heart beats quickly. When asked what makes him angry he said he is triggered by insignificant things and something inside sets him off. He hears voices saying, ‘Tom you are lazy’ or ordering him to ‘drive fast’. He said he has episodes of road rage and wants to yell at other drivers. He is not nice to people and then is ashamed of his behaviour. He said at those times he spends too much money, eats and drinks more and smokes more cigarettes. He sometimes takes more medication. He tries to control it by breathing, meditating or going for a walk. He said he has become very withdrawn and has lost all his friends. He said thoughts of suicide come back every so often and he feels guilty. He loses motivation and is not interested in showering, but he does look after himself.

   Current Symptoms

   Mr Tran said he continues to experience low level psychotic symptoms such as hearing voices, feeling people are trying to hurt him and being concerned about being followed. There is some degree of thought control and ideas of reference. He said he is not inclined to act on any of the auditory hallucinations.

   He described intermittent episodes of anger in which his thoughts are speeded up, lasting up to a few days, previously occurring every 3 to 4 weeks and now occurring once every 2 to 3 months. He tends to eat and drink and smoke too much. He is irritable and easily gets into arguments with family members which he later regrets. His sleep is disturbed. He also has episodes lasting for a few days or up to a week, when he feels guilty, triggering suicidal thoughts.. He described total social withdrawal and loss of all friends. He said he is not able to work and not able to do the gardens although he does try to do some minimal activities in the household to help his wife.

   Current and Proposed Treatment

   Mr Tran will continue to see his psychiatrist Dr Sean Yenson regularly and will use the medications he prescribes.

   Mental State Examination

   Mr Tran was examined in the rooms of the Personal Injury Commission. He had travelled to the city with his wife but was interviewed alone. A Vietnamese interpreter was present but was rarely required to assist. Mr Tran was identified from his NSW driver license. The interview commenced at 10 AM and concluded at 12:30 PM. He was interviewed by both Assessor Barrett and Assessor Mason in relation to the 2010 motor accident and the 2014 motor accident.

   Mr Tran was neatly casually dressed and well presented. He wore a jacket with a brown hoodie covering his head. He removed the hood only later in the interview because he was too warm. Mr Tran requested a 5-minute break at 10:45 AM and the interview resumed 5 minutes later.

   He was a cooperative interviewee who provided information willingly and without prompting. He said he had been dreading the interview but nevertheless interacted openly and warmly. He displayed a full range of appropriate affect including the ability to smile. There was very little in the way of paranoid ideation evident. He stated he thought Assessor Mason was laughing at him on one occasion, but this was amenable to explanation. There was no evidence of thought disorder throughout the interview. He did endorse ongoing auditory hallucinations, ideas of reference and some paranoid ideation about being followed or people wanting to hurt him or control his thoughts. His cognition was intact apart from difficulties with memory associated with the psychotic episode in 2014.

   The panel noted his speech and behaviour were not disorganised and there were no negative symptoms of schizophrenia evident such as diminished emotional expression and avolition.

   Mr Tran was fully oriented in time, person and place and displayed no evidence of organic psychopathology.

   Pre-existing Functioning

   Mr Tran was questioned regarding his level of functioning prior to the 2014 MVA.

   Self-care and personal hygiene: He said he showered daily or second daily, changed his clothes regularly, did not help out much at home, and nutrition was adequate. He enjoyed working in his garden and talking to his neighbors. He was mildly impaired.

Social and recreational activities: Mr Tran said they were much better than they are now. He said he still had a few friends, went out to dinner occasionally but felt he was a burden on his wife to some extent. He was mildly impaired.

Travel: Mr Tran said driving was not restricted by pain to the same extent. He was able to travel by public transport. He was able to travel by air. He was unimpaired.

Social functioning: Mr Tran said his relationship with his wife at that time was a little bit better than now. He said he did have some friends although they were slightly reduced in number. His relationship with his children was okay but they spoke less frequently. He was mildly impaired.

Concentration, persistence and pace: Mr Tran said his ability to concentrate was affected by pain, but it was not as bad as it is now. He was capable of completing tasks. He was mildly impaired.

Adaptation: Mr Tran said he was working 20 to 30 hours/week. Earlier in the interview he had stated he was working 30 to 40 hours/week. He continued to perform some external tasks at home. The panel concluded he was mildly impaired due to anxiety and depression, excluding the effects of pain.

Current Functioning

Self-care and personal hygiene: Mr Tran said he has a shower and changes his clothing every 2 days. He said that area of his life has been normal since discharge from hospital. He said he does help his wife with food preparation. He occasionally puts the washing in the washing machine and then transfers it to the dryer. His wife puts it on the clothesline when necessary. He accompanies her to the local shops to buy groceries. He said he can go alone but rarely does so because he is fearful of what might happen. He does not help with the cleaning of the house because his wife has done this for many years. He is mildly impaired.

Social and recreational activities: Mr Tran said he watches cooking shows on television. He enjoys eating and smoking cigarettes. He can go to the local shop alone to purchase bread. He has recently started going for a walk once or twice weekly as a form of exercise. He speaks with the children every few days and his daughter visits weekly or fortnightly and they will sometimes have a meal together. He may go to a restaurant with his wife every few months. He does not contact any friends. He is moderately impaired.

Travel: Mr Tran is able to drive in the local area. He said distance is limited by back and shoulder pain. He prefers to travel on public transport with his wife but believes he could do so alone, although added his sense of direction is poor. He said he has not travelled by air. He is unimpaired.

Social functioning: Mr Tran said the relationship with his wife is difficult and he feels guilty for being a burden both financially and in terms of the care she provides. He said they do not talk much and do not eat meals together, but they do watch TV together. There is no talk of separation. They have a meal as a family when their daughter visits. He said he feels close to his son, but his son does not talk to him very much. He has lost friends. He is mildly impaired.

Concentration, persistence and pace: Mr Tran said he is less interested in reading, but he is able to concentrate on television programs. He said he does become distracted at times. The panel noted he did not lose concentration throughout the 2.5-hour interview. He is mildly impaired.

Adaptation: Mr Tran has not been able to work since the 2014 motor accident and subsequent psychiatric admission. He does not help a lot with household tasks, but this had always been the case. He has not been able to do the gardening because of physical injuries. He is totally impaired.

Consistency of Presentation

There were multiple inconsistencies in Mr Tran's presentation which have been referred to throughout the report. These mostly arise from his memory difficulties. The panel accepts it is now 10 and 14 years respectively since the subject motor accidents. There is also the fact of a psychotic episode in 2014 which certainly has the capacity to impair cognitive functioning. The panel also notes there are multiple discrepancies between the various documents provided for the assessment. An example is the variation in the reports of his ability to work following each motor accident, e.g. 30 to 40 hours/week after the first motor accident and 0 to 40 hours/week after the second motor accident.

When these and other discrepancies were put to Mr Tran he usually responded by saying ‘that is a very good question’ and then stating he could not remember the circumstances at the time.

Formulation 2010 MVA

The panel relies on information provided by Mr Tran and information available in the various reports that have been provided by both parties.

With regard to the motor accident in 2010, the panel notes there is a history in the Westmead Hospital documentation of Mr Tran being depressed for years prior to the 2010 accident. This is regarded as consistent with a history of a gradual deterioration in intellectual and occupational functioning from approximately 2003, suggesting a prodromal state, noting Mr Tran reported attempting various university courses in Australia but not completing them, such as the Bachelor of Engineering and a law degree, both discontinued while he was in Melbourne. Subsequent to that Mr Tran was supported by his wife over many years while he largely functioned as both father and mother to the children while his wife worked full-time. In addition, Mr Tran’s taxation records date from 2009 indicate increasing earnings until 2012 and then a significant reduction; earnings ceased in 2014.

With regard to the 2010 motor accident Mr Tran reported his functioning was impaired by physical pain. The panel attempted to clarify the clinical picture from contemporaneous symptoms as described by various treating practitioners. He attended GP Dr Francis Leung of the Castle Towers Medical Centre on 9 September 2010, one day after the motor accident, and was referred to physiotherapist Mr Tony Wong for treatment of whiplash injury. The records of physiotherapist Mr Tony Wong noted flashbacks and occasional nightmares in November 2010. In December 2010 there was difficulty driving because he could not look back over his shoulder and he was stressed by ongoing pain. In February 2011 he was driving and taking care of himself but had not returned to full-time work. In September 2011 he complained of frequent headaches and poor concentration and in November 2011 he was distressed and not enjoying life because of the neck pain. He first attended Dr Huynh of the Carlingford Medical Clinic on 10 February 2011 in relation to cervical pain arising from the motor accident. He was referred to neurosurgeon Dr Andrew Kam who first consulted with him on 23 August 2012. He obtained an MRI scan and recommended steroid injections and/or surgery for left-sided posterior osteophytes at C6/7 causing foraminal narrowing and a soft disc herniation at C4/5 and C5/6. Mr Tran did not proceed with this treatment. The clinical records of Dr Huynh of the Carlingford Medical Clinic indicate he attended in February 2011 for cervical pain but did not return until May 2012 when left shoulder and neck pain was worse. In March 2013 he was becoming depressed and was commenced on duloxetine 60 mg; Panadeine Forte 3 times daily and Lyrica 150 mg were also prescribed for pain. He next attended in September 2014. Neurosurgeon Dr Vidyasagar Casikar saw Mr Tran in March 2014, only 3 weeks prior to the 2014 motor accident, and reported he told him the problems had resolved very well and he was almost normal, so he stopped seeing his doctor 2 years after the injury. He noted there were no fresh injuries and he was taking no medication for pain.

The panel concluded that Mr Tran sustained the persistent form of an adjustment disorder with mixed anxiety and depressed mood as a consequence of the 2010 motor accident. At that time, he indicated there were no symptoms of a psychotic disorder. He reported symptoms of both anxiety and depression as a consequence of the accident and consequent pain; the presence of these symptoms is supported by contemporaneous documentation and the symptoms did not meet DSM-5 criteria for a separate mood disorder.

The panel considered he met DSM-5 diagnostic criteria for an adjustment disorder with mixed anxiety and depressed mood as follows: -
Criterion A. The development of emotional or behavioural symptoms in response to an identifiable stressor occurring within 3 months of the onset of the stressor.
Criterion B. The symptoms or behaviours are clinically significant as follows: -
     1. Marked distress out of proportion to the severity or intensity of the stressor.
     2. Cause significant impairment in social or occupational functioning.
Criterion C. The condition does not meet criteria for another mental disorder and is not merely an exacerbation of pre-existing mental disorder.
Criterion D. The symptoms do not represent normal bereavement.
Criterion E. Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months.
Persistent form (DSM-5 Page 287): ‘If the stressor or its consequences persist, the adjustment disorder may also continue to be present and becomes a persistent form’.

Formulation 2014 MVA

The panel relies on information provided by Mr Tran and information available in the various reports that have been provided by both parties.

Mr Tran reported the motor accident in 2014 was more substantial than the 2010 motor accident and resulted in increased pain in his neck, shoulders, left arm and lower back. The following day he reported the accident to Dr Huynh who noted exacerbation of physical symptoms. The next consultation was 6 months later on 18 September 2014 when he presented with persistent symptoms of depression since the 2014 accident, largely consisting of depressed mood which included suicidal thoughts and a tendency to isolation. The antidepressant desvenlafaxine was prescribed. On 19 October 2014 he was admitted to Westmead Hospital and was diagnosed with a first episode psychosis, query bipolar disorder. Subsequently he has been cared for by his private psychiatrist Dr Sean Yenson who has diagnosed schizophrenia. In a summary report dated 25 February 2022 Dr Yenson diagnosed both late onset schizophrenia and major depressive disorder; he attributed the major depressive disorder to both motor accidents and schizophrenia to the second motor accident.

IME reports have been provided by various psychiatrists. Dr Peter Klug provided reports for the claimant in May 2015, March 2019 and June 2022. He diagnosed a chronic major depressive disorder with mood incongruent psychotic features. He assessed whole person impairment at 48%; he attributed 40% to the first motor accident and 60% to the second motor accident. Dr Doron Samuell for the insurer provided reports dated February 2017 and December 2021. He diagnosed schizophrenia which he regarded as an idiopathic condition which was unrelated to the motor accidents. Dr Graham Vickery provided a report dated September 2020 and also diagnosed schizophrenia which is constitutional in nature and is not related to motor accidents. He assessed whole person impairment at 19% due to paranoid schizophrenia and not the motor accidents.

At examination on 25 June 2024 the panel identified some symptoms consistent with DSM-5 schizophrenia. Criterion A was met by the presence of both delusions and hallucinations. Criterion B was met because there was a disturbance of functioning in the major areas of work and interpersonal relations. Criterion C was met because there had been continuous signs of the disturbance for at least 6 months. However, Criterion D was not met because mood episodes have occurred during active phase symptoms.

Instead, a schizoaffective disorder was diagnosed by the panel, according to the following criteria. Criterion A is met because there is an uninterrupted period of illness during which there is a major mood episode concurrent with Criterion A of schizophrenia. Criterion B is met because there have been delusions and hallucinations for 2 or more weeks in the absence of major mood episodes. Criterion C is met in that symptoms meeting criteria for a major mood episode have been present for the majority of the total duration of the illness, noting the history of intermittent hypomanic episodes on a background of sustained depressive symptoms. Criterion D is met in that the disturbance is not attributable to the effects of a substance. The schizoaffective disorder was designated as a bipolar type, continuous.

Diagnosis

2010 MVA. Persistent adjustment disorder with mixed anxiety and depressed mood.
2014 MVA. Schizoaffective disorder of bipolar type, continuous.

Causation

2010 MVA. The panel concluded the 2010 motor accident was rather minor in nature, but it resulted in physical injuries which were capable of causing an adjustment disorder. The panel is of the view it did result in the adjustment disorder.

2014 MVA. The panel notes the pre-existing anxiety and depressive condition arising from the 2010 motor accident predisposed the claimant to the development of a schizoaffective disorder. The cause of schizoaffective disorder is still incompletely understood by psychiatry. Our current understanding is that the cause is multifactorial and includes genetic factors as well as the impact of biological, psychological or social stressors across the lifespan. In this case, there are likely underlying genetic vulnerabilities, suggested in Mr Tran’s history given the history of Bipolar Disorder in his daughter. There is also a history of developmental biological stressors, premature birth at low birth weight, psychological stressors, exposure to traumatic events, including the Vietnam War and cancer death of his father when he was in middle childhood, and social stressors, including persecution and discrimination restricting access to employment in Vietnam and later longstanding challenges in his relationship with his wife. In the period prior to the onset of his symptoms, he had experienced further stressors, accident related pain and restrictions, triggering sustained symptoms of depression for 6 months between the 2014 accident and first psychotic episode. Thus, while the motor accident was not the sole cause of his psychiatric condition, it was capable of contributing to its development to some degree. It is most likely without the motor accident the condition would not have developed.

Degree of permanent impairment 2010 MVA

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.

Psychiatric diagnoses	1. Adjustment disorder with mixed anxiety and depressed mood	2.
	3.	4.
Psychiatric treatment description	Brief use of antidepressant medication.

Category	Class	Reason for Decision
1.   Self Care and Personal Hygiene	2	Mr Tran said he showered daily or second daily, changed his clothes regularly, did not help out much at home, and nutrition was adequate. He enjoyed working in his garden and talking to his neighbors. He was mildly impaired.
2.   Social and Recreational Activities	2	Mr Tran said they were much better than they are now. He said he still had a few friends, went out to dinner occasionally but felt he was a burden on his wife to some extent. He was mildly impaired.
3.   Travel	1	Mr Tran said he was not restricted by pain to the same extent as now. He was able to travel by public transport. He was able to travel by air. He was unimpaired.
4.   Social Functioning	2	Mr Tran said his relationship with his wife at that time was a little bit better than now. He said he did have some friends although they were slightly reduced in number. His relationship with his children was okay but they spoke less frequently. He was mildly impaired.
5. Concentration, Persistence and Pace	2	Mr Tran said his ability to concentrate was affected by pain, but it was not as bad as it is now. He was capable of completing tasks. He was mildly impaired.
6. Adaptation	2	Mr Tran said he was working 20 to 30 hours/week. Earlier in the interview he had stated he was working 30 to 40 hours/week. The panel concluded he was mildly impaired due to anxiety and depression, excluding the effects of pain.
List classes in ascending order: 1 2 2 2 2 2
Median Class Value: 2
Aggregate Score: 11
% Whole Person Impairment: 5%

*%WPI ^{= Percentage Whole Person Impairment}

Degree of permanent impairment 2014 MVA

Psychiatric diagnoses	1. Schizoaffective disorder, bipolar type, continuous	2.
	3.	4.
Psychiatric treatment description	Psychiatric consultation Psychotropic medication (desvenlafaxine 150 mg, brexpiprazole 3 mg)

Category	Class	Reason for Decision
1.   Self Care and Personal Hygiene	2	Mr Tran said he has a shower and changes his clothing every 2 days. He said that area of his life has been normal since discharge from hospital. He said he does help his wife with food preparation. He occasionally puts the washing in the washing machine and then transfers it to the dryer. His wife puts it on the clothesline when necessary. He accompanies her to the local shops to buy groceries. He said he can go alone but rarely does this because he is fearful of what might happen. He does not help with the cleaning of the house because his wife has done this for many years. He is mildly impaired.
2.   Social and Recreational Activities	3	Mr Tran said he watches cooking shows on television. He enjoys eating and smoking cigarettes. He can go to the local shop alone to purchase bread. He has recently started going for a walk once or twice weekly as a form of exercise. He speaks with the children every few days and his daughter visits weekly or fortnightly. He may go to a restaurant with his wife every few months. He does not contact any friends. He is moderately impaired.
3.   Travel	1	He said driving distance is limited by back and shoulder pain. He prefers to travel on public transport with his wife but believes he could do so alone, although added his sense of direction is poor. He said he has not travelled by air. He is unimpaired.
4.   Social Functioning	2	Mr Tran said the relationship with his wife is difficult and he feels guilty for being a burden both financially and in terms of the care she provides. He said they do not talk much and do not eat meals together, but they do watch TV together. There is no talk of separation. They have a meal as a family when their daughter visits. He said he feels close to his son, but his son does not talk to him very much. He has lost friends. He is mildly impaired.
5.  Concentration, Persistence and Pace	2	Mr Tran said he is less interested in reading, but he is able to concentrate on television programs. He said he does become distracted at times. The panel noted he did not lose concentration throughout the 2.5-hour interview. He is mildly impaired.
6. Adaptation	5	Mr Tran has not been able to work since the 2014 motor accident and subsequent psychiatric admission. He does not help a lot with household tasks, but this had always been the case. He has not been able to do the gardening because of physical injuries. He is totally impaired.
List classes in ascending order: 1 2 2 2 3 5
Median Class Value: 2
Aggregate Score: 15
Pre-existing % Whole Person Impairment: 8%

*%WPI

Apportionment – pre-existing/subsequent impairment

Apportionment of 5% for the 2010 motor accident is necessary.

Effects of treatment

The panel makes a 2% treatment effect allowance for treatment since 2014.

Conclusion – Permanent Impairment

2010 MVA 5%

2014 MVA 8% + 2% = 10%

Current whole person impairment 10% - 5% = 5%”

FINDINGS

1. The review is a new assessment of all matters with which the medical assessment is concerned.

2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[70] and Insurance Australia Ltd v Marsh.[71]

   [70] [2021] NSWCA 287 at [40], [41] and [45].

   [71] [2022] NSWCA 31 at [11], [21] and [64].

3. The Panel adopts the extensive reasons provided by the MAs and adds the following reasons.

4. We are not satisfied that there is objective evidence of pre-existing impairment within the meaning of cl 1.31 of the Guidelines prior to the 2010 motor accident.

5. The decision of Bell P (as his Honour then was) in IAG Ltd v Chahoud[72] noted the distinction between the date of the records and the date of the pre-existing impairment. His Honour stated:[73]

   “IAG submitted that in so finding, the proper officer wrongly construed cl 1.31 as requiring that the evidence itself be dated ‘at the time of the accident’. It submitted that the clause should instead be read as requiring that there be ‘evidence of pre-existing impairment at some time prior to the accident, that likely still existed at the time of the accident’. What was ‘likely still to exist’, in other words, were not records of any pre-existing impairment but the pre-existing impairment itself.”

   [72] [2019] NSWSC 767 (Chahoud).

   [73] Chahoud at [70].

6. We accept that there are competing histories concerning the existence of symptoms prior to the 2010 motor accident. However, the claimant states that he was working in full-time employment, and it is likely that he was caring for his children. There is otherwise no contemporaneous record of psychological symptoms prior to the 2010 motor accident. In these circumstances we are not satisfied that there was objective evidence of pre-existing impairment prior to the 2010 motor accident.

7. The examination report of the MAs explains the various psychological diagnosis. Despite other opinions, such as from Dr Yenson, that the claimant was suffering from a major depressive disorder, we do not make that finding. This is because as at the assessment, there was no evidence of sustained depressive symptoms with suicidal ideation, nor was there evidence that the claimant was substantially impaired by mood symptoms. At worst, there were intermittent anxiety and depressive symptoms secondary to pain. This is consistent with the pattern of illness expected in Schizoaffective Disorder, where there are periods of symptoms of major depression, or hypomania, then periods of resolution of the mood symptoms but maintenance of psychotic symptoms.

8. We note that our assessment of permanent impairment is substantially less than that assessed by other psychiatrists. We are obliged to assess the claimant as at the date of assessment. The examination proceeded over two and a half hours with a short break. The claimant engaged well with the MAs and displayed a satisfactory degree of concentration. Mr Tran did not present with negative symptoms consistent with chronic schizophrenia. He had a full range of appropriate affect, and his cognitive functioning was largely intact, despite some difficulties with memory. His interpersonal skills were largely preserved as evidenced by his engagement in the 2.5-hour interview. The panel was somewhat surprised by his presentation on the day of assessment and their assessment of whole person impairment, given the range of figures provided by independent examiners which were as high as 48%. However, the panel is clear the whole person impairment assessment is consistent with his presentation on the day of the examination.

9. We are not satisfied that there is any causal relationship between the 2010 motor accident and the psychotic episode. This is because of the delay between the 2010 motor accident and the onset of symptoms of Schizoaffective Disorder in 2014 and that despite symptoms of adjustment disorder, there was maintenance of Mr Tran’s occupational functioning, including stability and then increase in work income over three years following the 2010 accident, which could be consistent with an Adjustment Disorder, but would not be consistent with the presence of an untreated Schizoaffective Disorder.

10. Instead, the Panel notes the onset of plausible triggers for schizoaffective disorder after the 2014 accident, the presence of more relevant stressors, such as greater physical discomfort and consequent reduction in work capacity.

11. Accordingly, the claimant is assessed at 10% permanent impairment. For the reasons provided we are satisfied that the effects of the 2014 motor accident and the development of schizoaffective disorder is causatively independent of the 2010 motor accident.

12. Clause 1.34 of the Guidelines was discussed by Wright J in Slade v Insurance Australia Ltd.[74] His Honour determined that the principles discussed by Malcolm CJ in State Government Insurance Commission v Oakley[75] apply.

    [74] [2020] NSWSC 1031 (Slade).

    [75] (1990) Aust Torts Rep 81-003 (Oakley).

13. We accept that there should be a deduction for the psychological condition caused by the 2014 motor accident given the effects from the 2014 motor accident are causatively independent as defined within the third Oakley category.

14. Accordingly, we conclude that after the deduction of 5% referable to the 2014 motor accident[76], the motor accident caused a permanent impairment of 5%.

    [76] See the reasons published with this decision in Tran v Insurance Australia Ltd.

CONCLUSION

1. The certificate issued by Medical Assessor Ng is revoked. A replacement certificate is attached at the commencement of these Reasons.