Vo v QBE Insurance (Australia) Limited
[2025] NSWPICMP 10
•7 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Vo v QBE Insurance (Australia) Limited [2025] NSWPICMP 10 |
CLAIMANT: | Van Hung Vo |
INSURER: | QBE |
REVIEW PANEL | |
MEMBER: | Nolan |
MEDICAL ASSESSOR: | Smith |
MEDICAL ASSESSOR: | Hong |
DATE OF DECISION: | 7 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; psychological injury; review of Medical Assessment Certificate under section 7.23(1); whether psychological symptoms caused by the motor accident gave rise to permanent impairment greater than 10% whole person impairment (WPI); claimant, a pedestrian struck by a vehicle, sustained an adjustment disorder caused by the motor accident, with anxiety related to crossing roads and concerns about physical recovery; no evidence of aggravated pre-existing PTSD or depressive disorder; psychological injury resolved, with no ongoing impairment attributable to the motor accident; Held – adjustment disorder caused by the motor accident did not result in permanent impairment; injury no longer amenable to a permanent impairment assessment; Medical Assessor’s findings partially revised. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 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% 1. The Review Panel revokes the Certificate of Medical Assessor Medical Assessor Yu Tang Shen dated 15 February 2023 and issues a new certificate determining that the following injury was caused by the motor accident and do not give rise to whole person impairment: · adjustment disorder. |
INTRODUCTION
On 12 May 2019, the claimant, Van Hung Vo, was involved in a motor vehicle accident as a pedestrian at the intersection of Olympic Parade and Marion Street in Bankstown, New South Wales (the motor accident). The motor accident occurred at approximately 12.50pm when the claimant was crossing the road at a pedestrian crossing with a green light in his favour. As the claimant was mid-way across the intersection, a vehicle, later identified as making an illegal right turn from Olympic Parade onto Marion Street, collided with him. The vehicle struck the claimant’s right side, causing him to fall to the ground.
The collision resulted in multiple physical injuries, including abrasions to both elbows and the left knee, and significant trauma to the right foot. The claimant also complained of pain in the cervical spine, lumbar spine, and right shoulder following the motor accident. He reported that the impact from the vehicle’s side mirror spun him around, causing him to land heavily on the road. The claimant did not lose consciousness but stated that he was in immediate pain and shock.
Emergency services were contacted, and paramedics arrived on the scene to provide initial care. The NSW Ambulance Report documented that the claimant presented with abrasions on both elbows, his left knee, and the top of his right foot. He also reported pain in his lower back. The ambulance report noted that the claimant denied cervical spine pain at the scene and there was no apparent head strike or loss of consciousness. Pain relief was administered on-site, including paracetamol and ibuprofen, and an ice pack was applied to the claimant’s right foot.
The claimant was transported by ambulance to Bankstown-Lidcombe Hospital for further evaluation and treatment. Hospital records indicated that he was alert and oriented upon arrival. A physical examination confirmed tenderness and swelling on the dorsum of the right foot, consistent with a suspected fracture. Imaging studies, including X-rays and a CT scan, were performed and revealed multiple undisplaced fractures in the right foot, including the first, second, and third metatarsals. The claimant was subsequently discharged with instructions to manage his injuries with a CAM boot for immobilisation, pain medication, and follow-up appointments for his recovery.
In addition to his physical injuries, the claimant reported experiencing immediate psychological distress as a result of the motor accident. He stated that he feared the worst when he was struck, particularly regarding his ability to walk again. These fears reportedly triggered acute anxiety, which persisted throughout his hospitalisation and subsequent recovery period.
The claimant later described the motor accident as a traumatic event that left him feeling unsafe and hypervigilant in public spaces. He reported an inability to cross roads without experiencing overwhelming anxiety and a fear of encountering motor vehicles.
The claimant lodged a claim for Personal Injury Benefits with QBE Insurance (Australia) Limited, the insurer. The motor accident’s circumstances were undisputed, and the vehicle driver was found to have been at fault for failing to yield to the pedestrian right of way at the crossing.
THE MEDICAL ASSESSMENT MATTER DISPUTE
The medical dispute referred to the Personal Injury Commission (the Commission) concerned the degree of whole person impairment (WPI) arising from the motor accident, in relation to the claimant’s psychological injuries. The claimant sought a determination that his psychological injuries caused by the motor accident resulted in a WPI exceeding 10%, the statutory threshold for permanent impairment under the Motor Accident Injuries Act 2017 (the Act).
The dispute focused on whether the psychological symptoms experienced by the claimant, including anxiety, depression, and post-traumatic stress disorder, were predominantly caused or significantly aggravated by the motor accident, or whether they were primarily attributable to his pre-existing psychological conditions.
The claimant argued that the motor accident had caused a marked deterioration in his mental health, resulting in severe functional impairments, including social withdrawal, inability to cross roads due to overwhelming anxiety, and recurring nightmares about the collision.
The insurer challenged the claimant’s position, arguing that his psychological symptoms were largely a continuation of pre-existing conditions documented in his medical records before the motor accident. The insurer contended that the motor accident caused only a minor, temporary aggravation of these conditions and that the available evidence, including medical and psychological assessments, did not support a WPI exceeding the 10% threshold.
The medical assessment matter referred to the Commission was the degree of WPI attributable to the claimant’s psychological injuries caused by the motor accident under Schedule 2, cl 2(a) of the Act. This medical assessment matter was initially referred to a single medical assessor for determination.
MEDICAL ASSESSMENT THE SUBJECT OF THE REVIEW
By certificate and reasons dated 15 February 2023 (the MAC), Medical Assessor Yu Tang Shen (the Medical Assessor), determined that the claimant’s psychological and psychiatric injuries, arising from a motor accident resulted in a permanent impairment of 4%, below the statutory threshold of greater than 10%.
Substantial evidence of pre-existing psychological impairments was identified. Records indicated that the claimant had received treatment for chronic anxiety, depression, and post-traumatic stress disorder, including psychotherapy and medication, well before the motor accident. Historical records from 2015 described symptoms of chronic anxiety and post-traumatic stress disorder linked to prior traumatic events, including a war experience and a motor vehicle accident that occurred a decade earlier. Progress notes from a psychologist dated 2016 further detailed significant distress related to anxiety, depression, and chronic pain. These records conflicted with the claimant’s statements during the assessment, where he initially denied any history of mental health conditions or treatment before the motor accident.
The claimant participated in the assessment via video conference, assisted by an interpreter. During the mental state examination, he was observed as mildly dishevelled and presenting symptoms of depression and anxiety, with limited emotional reactivity. He reported recurrent intrusive memories of the accident, nightmares, poor concentration, and difficulties with social interaction and personal care. However, the Medical Assessor noted that many of these symptoms aligned with the claimant’s pre-existing mental health conditions, with only minimal new impairment attributable to the motor accident.
The claimant’s account of his social and functional limitations was evaluated in light of his documented history. The Medical Assessor found that his reported avoidance of social interactions and crowded places, cessation of hobbies such as poetry and chess, and diminished engagement with friends predated the motor accident. Furthermore, the Medical Assessor highlighted inconsistencies in the claimant’s statements, such as contradictory accounts of his social activity levels prior to 2019. The documented pre-accident history pointed to significant pre-existing social isolation and impairments in functioning.
Using the Psychiatric Impairment Rating Scale (PIRS), the Medical Assessor evaluated the claimant’s impairments across several domains. Moderate impairment was assigned for self-care and personal hygiene based on reports of declining hygiene and reliance on housemates for meals and daily tasks. Similarly, moderate impairment was noted for social and recreational activities, consistent with pre-existing isolation and avoidance of social engagements. Mild impairment was recorded for travel, as the claimant could still use public transport independently. Severe impairment was observed in social functioning, largely attributable to pre-existing conditions, including loss of relationships and friendships before the motor accident. Moderate impairment was noted for concentration, persistence, and pace, reflecting difficulties likely exacerbated by both pre-existing conditions and the subsequent fall with brain injury. Severe impairment was identified in adaptation, as the claimant had been unable to secure employment since 2010, which was primarily attributed to pre-existing conditions.
The Medical Assessor apportioned 22% WPI to pre-existing conditions, reflecting longstanding depression, anxiety, and post-traumatic stress disorder, and attributed only 4% WPI to the aggravation caused by the motor accident. The minor aggravation was determined to have limited functional impact when viewed against the backdrop of the claimant’s established psychological impairments.
The claimant’s psychological impairment was determined not to be permanent. While he had undergone some psychological therapy and used medications such as Endep (amitriptyline), there had been no comprehensive review by a psychiatrist, and his adherence to treatment was inconsistent. The Medical Assessor opined that with appropriate interventions, further improvement of the claimant’s psychological state was possible and could exceed 3%, thereby not meeting the threshold for permanency.
The Medical Assessor determined that the claimant had sustained an aggravation of pre-existing conditions, namely Persistent Depressive Disorder and post-traumatic stress disorder, as a result of the motor accident. However, the majority of his psychological impairments – 22% WPI – were attributed to pre-existing conditions. The additional 4% WPI caused by the motor accident represented only a minor aggravation.
APPLICATION FOR REVIEW
The claimant made an application for review of the MAC, wherein he submitted that the MAC determination was incorrect in a material respect and sought a referral to a Medical Review Panel under s 7.26 of the Act.
The basis for the claimant’s application was twofold.
First, the claimant contended that the Medical Assessor improperly provided an assessment of impairment in circumstances where the impairment had not been considered permanent.
Second, it was submitted that the methodology employed by the Medical Assessor in apportioning the impairment was incorrect.
The insurer did not consent to or oppose the application for review and adopted a neutral position in the matter. The absence of opposition from the insurer, while noted, did not absolve the President’s Delegate of the responsibility to assess the application independently and determine whether it met the statutory criteria for referral.
In reaching his decision, the President’s Delegate reviewed the application, reply, and supporting materials submitted by the claimant and insurer. He further considered the MAC, as well as the legislative framework set out in the Act and the Motor Accident Guidelines (the Guidelines).
The President’s Delegate was satisfied that the claimant’s submissions raised valid concerns regarding the permanency of the assessed impairment and the apportionment methodology used by the medical assessor. These concerns provided reasonable cause to suspect that the original assessment was materially incorrect. Accordingly, the President’s Delegate determined that the application for review should be accepted and that the matter should be referred to the Review Panel, presently constituted (the Panel), for further examination.
REVIEW PROCEDURE
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
Section 7.26(5A) of the MAI Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. Accordingly, the President’s delegate referred the matter to this Panel to assess.
Section 41(2) 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 Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. Rule 128 of the PIC Rules provides that a review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
By directions issued on 13 December 2023, the parties were directed to provide the Panel a joint bundle of material on which they relied upon the Review. That direction was complied with. The following is a summary of the relevant material provided.
MATERIAL ON THE REVIEW
On 20 March 2015, the claimant attended a consultation with his general practitioner (GP), Dr Tuan Kiet Nguyen, who documented symptoms of chronic depression, anxiety, and post-traumatic stress disorder. These symptoms were noted to have originated from traumatic experiences during the Vietnam War, including narrowly escaping gunfire while crossing a river, and a motor vehicle accident that occurred over a decade prior. Dr Nguyen observed that the claimant exhibited significant emotional distress, including low mood, insomnia, and recurring intrusive thoughts. A mental health treatment plan was prepared, and the claimant was referred to VT Psychological Services for therapy.
On 18 April 2015, psychologist Viet Thang Tran conducted an in-depth psychological assessment of the claimant. The report detailed severe levels of depression and anxiety, with the claimant describing recurrent nightmares, hypervigilance, and heightened startle responses. He reported an overwhelming fear of being harmed in public spaces and described withdrawing from social interactions due to feelings of inadequacy and failure. Mr Tran attributed the claimant’s symptoms to a combination of his traumatic past, chronic physical health issues (including joint pain and asthma), and his earlier motor vehicle accident. The claimant expressed feelings of hopelessness and described difficulty maintaining basic daily routines due to pervasive anxiety and low energy.
Dr Nguyen’s records from July 2015 documented further consultations with the claimant, who continued to report symptoms consistent with mixed anxiety and depressive disorder. On 7 July 2015, Dr Nguyen formalised a diagnosis of post-traumatic stress disorder, noting that the claimant experienced vivid flashbacks and nightmares related to both his war experiences and his earlier motor vehicle accident. The claimant was prescribed Endep to address his disrupted sleep and depressive symptoms. During follow-up consultations, Dr Nguyen recorded that the claimant’s symptoms were somewhat managed with medication, although social isolation and low mood persisted.
In 2016, the claimant attended regular sessions at VT Psychological Services. Progress notes indicated that his symptoms of anxiety and depression remained severe, with limited improvement despite ongoing therapy. In one session, the claimant described episodes of emotional dysregulation, including feelings of anger and helplessness when reflecting on his past. He continued to avoid crowded spaces and reported a pervasive fear of interacting with others. Mr Tran noted that while the claimant engaged in therapeutic exercises, his deep-seated trauma and chronic physical conditions significantly hindered his progress.
Between 2017 and early 2019, Dr Nguyen’s records reflected relative stabilisation of the claimant’s psychological symptoms. While he continued to experience low mood and occasional episodes of heightened anxiety, these were described as being under control with medication and sporadic psychological therapy. The claimant reported attending social events intermittently and expressed a degree of optimism about managing his mental health. Dr Nguyen observed that while the claimant remained socially withdrawn to some extent, there were no acute exacerbations of his condition during this period.
On 12 May 2019, the claimant was involved the motor accident. Medical records from Bankstown-Lidcombe Hospital indicated that while the claimant’s initial treatment focused on his physical injuries, he expressed significant emotional distress, including fears of permanent disability and an inability to walk again. These concerns reportedly amplified his anxiety and feelings of vulnerability.
On 26 June 2019, Dr Nguyen prepared a new mental health treatment plan in response to the claimant’s post-accident psychological deterioration. The claimant reported heightened anxiety, particularly in situations involving motor vehicles. He described recurring intrusive thoughts and nightmares about the motor accident, as well as avoidance behaviours such as an inability to cross roads. Dr Nguyen noted that the claimant exhibited visible distress during consultations, including tearfulness and difficulty articulating his emotions. He was re-prescribed Endep and referred for psychological therapy to address his worsening symptoms.
Records from the claimant’s psychologist during late 2019 detailed significant ongoing psychological distress. The claimant reported persistent fears related to vehicles and an inability to feel safe in public spaces. He described losing interest in activities he once enjoyed, such as writing poetry and socialising with friends. Sessions focused on managing anxiety and developing coping mechanisms for intrusive thoughts, but the psychologist observed that the claimant’s progress was limited. Avoidance behaviours, such as refusing to leave his home unless necessary, became a dominant feature of his condition.
Throughout 2020 and 2021, Dr Nguyen continued to document the claimant’s struggles with anxiety, depression, and social isolation. The claimant described feelings of hopelessness, loss of independence, and frustration with his physical recovery. He frequently reported difficulty sleeping due to recurring nightmares and stated that his concentration had declined significantly. This was particularly evident in his inability to read or write poetry, a previously cherished activity. Dr Nguyen noted that the claimant’s psychological symptoms appeared to be severe and persistent, with little improvement despite ongoing therapy and medication.
By late 2021, the claimant’s condition remained largely unchanged. Dr Nguyen’s records emphasised the claimant’s continued reliance on psychological therapy to manage his symptoms, although he expressed doubts about his ability to recover fully. The claimant reported that his fear of crossing roads and encountering vehicles was as strong as ever and that his social isolation had become total. Dr Nguyen observed that the claimant’s psychological symptoms were profoundly impairing his ability to function in daily life.
SUBMISSIONS
By submissions dated 1 May 2024, the claimant argued that the Medical Assessor had erred in determining the WPI attributable to the subject accident. Specifically, the Medical Assessor had diagnosed the claimant with aggravations of pre-existing persistent depressive disorder and post-traumatic stress disorder, ultimately concluding that the claimant’s WPI was 26%, with only 4% attributable to the accident. The claimant maintained that the Medical Assessor’s deduction of 22% for pre-existing psychological impairment was inappropriate and lacked a robust evidentiary basis. It was asserted that no contemporaneous symptoms of psychological impairment were evident in the years leading up to the motor accident, and the Medical Assessor had improperly relied on medical records from 2016, which the claimant contended were outdated and irrelevant.
The submissions further stated that the claimant’s pre-existing psychological conditions had resolved by the time of the motor accident and that the Medical Assessor had failed to give adequate weight to the post-accident deterioration in the claimant’s mental health. It was highlighted that the claimant had consistently sought psychological treatment after the motor accident, as evidenced by regular consultations with a psychologist and GP. These records, the claimant argued, demonstrated a sincere effort to manage and address the psychological injuries sustained as a result of the motor accident.
The claimant also contended that the Medical Assessor had not appropriately adhered to the relevant Guide and Guidelines. Specifically, the claimant criticised the Medical Assessor for proceeding with a WPI assessment despite acknowledging that the claimant’s psychological condition had not stabilised and might improve with appropriate treatment.
The insurer’s submissions dated 1 May 2024 disputed the claimant’s psychological injuries resulting from a motor accident exceeded the 10% WPI threshold. The insurer maintained that the claimant had failed to establish sufficient evidence to demonstrate that his injuries met the statutory requirements.
The insurer highlighted the claimant’s extensive pre-existing psychological history, which included diagnoses of depression, post-traumatic stress disorder, and chronic stress, documented well before the subject accident. These conditions, the insurer contended, were not only long-standing but also exacerbated by prior traumatic experiences, including wartime events in Vietnam and a separate motor vehicle accident over a decade earlier. The insurer submitted that the claimant’s psychological symptoms following the motor accident were consistent with this pre-existing history and were not attributable to the motor accident.
The submissions further addressed the insufficiency of the evidence provided by the claimant to substantiate his assertion that his psychological injuries exceeded the 10% WPI threshold. The insurer referred to Procedural Direction PIC6, which mandates that claimants present substantive evidence to demonstrate the required level of impairment. It was noted that the claimant had failed to produce any expert psychiatric assessment confirming that his condition met or surpassed the statutory threshold. The insurer relied on the MAC, which concluded that the claimant’s psychological impairment was limited to 4%, far below the required threshold. The report also attributed much of the claimant’s symptoms to his pre-existing conditions and a subsequent traumatic brain injury sustained in a fall.
The insurer argued that the claimant’s psychological condition was predominantly a continuation of his pre-existing conditions, with only a minor and temporary aggravation linked to the motor accident. The claimant’s failure to adhere to treatment recommendations, including psychological therapy and prescribed medication, was cited as a significant factor in the persistence of his symptoms. Moreover, discrepancies in the claimant’s accounts and inconsistencies within his medical records were emphasised as undermining the credibility of his claims regarding both the severity and causation of his current psychological state.
RECONSIDERATION BY THE PANEL
The Panel determined that a re-examination of the claimant was required.
Re-examination
The claimant was at his solicitor’s office.
Ms Thuy Dang was the interpreter.
Medical Assessors Hong and Smith were in their Sydney offices.
The re-examination was conducted by MS Teams.
History
Psychosocial history and pre-accident history
In terms of developmental history, the claimant was born in Vietnam and reported he had encountered war experiences and fled to Malaysia after 1978, before he came to Australia.
He had done different jobs in Australia over time. He worked in factories and then started a travel agency with a friend. He recalled he went to Thailand to set up the business and his friend was in Australia to manage the travel agency. He said that she did not manage it well and lost money, and he went bankrupt in around 1994. The claimant had been involved in a prior car accident, although he could not recall when the accident occurred – the Panel noted evidence in his file that it was in around 2005. He also recalled that around that time there was some family conflict involving a sibling in Vietnam which made him feel depressed and anxious. The Panel noted he had experienced a range of symptoms consistent with post-traumatic stress disorder and he reported having some depression and anxiety symptoms over the years. He said that he saw a psychologist and took Endep (amitriptyline, tricyclic antidepressant medication) previously. He also struggled to recall any of the specifics, such as names of the clinicians, medications or exact time. The claimant experienced flashbacks and nightmares and concentration problems in the past. He felt insulted when people did not appreciate his poetry, and he said he wanted to be left alone.
The last work the claimant performed was in a post office in about 2010. He resigned and then lived in Vietnam between 2010 and 2014 and did not see any counsellor overseas. He said he then tried to apply for a disability support pension from Centrelink, which he related to the negative experiences he had during the war in Vietnam and having post-traumatic stress disorder, but he said that Centrelink did not approve his application. The Panel had some difficulties ascertaining what kind of payment he had received over the years, and noted he has since received the Age pension.
The Panel asked the claimant about depression and anxiety symptoms in the two years before the motor accident and discussed the GP entries. He said he was still having a lot of worrying thoughts and some depression and anxiety, and the GP sent him to a psychologist, but he only went for a short time and could not recall other specifics.
The Panel noted that in his GP records, even in February 2019, he was recorded to have problems with concentration, sleep, tiredness and this was only three months before the motor accident, and this was consistent with his general recollection of his pre-accident psychological health.
In terms of general medical history, he has asthma.
He does not have drug or alcohol problems.
He does not have a forensic history.
History of the motor accident
The motor accident occurred on 12 May 2019. The claimant recalled he was in Bankstown at a traffic light, he was crossing the road and was halfway across and there was a car that wanted to turn right and made an illegal turn. He recalled the car was driving very fast and ran over his right foot, and he fell. He did not lose consciousness. During the motor accident, he recalled he was worried about having a broken foot because he had severe pain. He tried to check his foot but said he could not bend properly, and some people came to help. The claimant was taken to Bankstown Hospital and stayed for two or three days. He had fractures in his right metatarsal bones and wore a CAM boot for several weeks and recalled he had anticoagulant injections to prevent blood clots. He recalled he had anxieties and worries about having injections and physical treatment. He has not had surgical treatment.
In terms of his physical health now, he said he can walk slowly for 30 minutes and if he walks fast, then only for 15 minutes, and after that, his left foot and knee pain would become severe.
History of symptoms and treatment following the motor accident
The claimant saw a psychologist a couple of months after the motor accident and said the GP recommended treatment, because he had worrying thoughts.
He explained that normally, he was independent and had no problem with his mobility but after the motor accident, he had to use crutches for many weeks and was in severe pain. He said the people in the street did not pay attention to people with poor mobility like him. He worried that somebody would bump into him, he would fall and be injured. He recalled he had trouble getting in and out of a car and all these issues caused him to have worrying thoughts and anxieties.
Details of any relevant injuries or conditions sustained since the motor accident
The Panel noted there had been several stressors after the motor accident including the COVID pandemic, a problem with an English teacher at TAFE and with Centrelink. The Panel noted these stressors have resolved and no longer impact on his mental state.
He has had several falls and on 21 June 2022, he recalled that he had fallen and went to Liverpool Hospital. The Panel discussed there was some evidence that he had raised intracranial pressure and a skull fracture. He struggled to explain the medical terms and said that the doctors told him he had some bleeding, and he saw a specialist for it, and later the problem healed without needing surgery, and that this condition does not impact on him now. He said his memory had not changed after the skull fracture.
The claimant has not sustained further psychological injuries.
Current symptoms
The claimant reported depression and anxiety symptoms sometimes, but he said this is not all the time.
He reported that he feels that his mental and physical energies have declined since the motor accident, although these difficulties do not seem to impact his ability to perform specific daily tasks.
As he improved physically, he said psychologically he has also improved, especially since 2022. He said the anxiety from the motor accident now, is to do with crossing the road and even three months ago when he was walking in Bankstown, somebody almost drove into him again. He has been scared to cross the road but is still able to do it on his own.
In terms of other triggers of worrying thoughts, he said if something bad happens he will have negative thoughts.
In terms of other general psychological symptoms, the claimant said that he has no relatives in Australia and feels lonely. He said he has other worries and those worrying thoughts are not related to the motor accident.
He has low moods and negative thoughts, and he reported that he can be cheered up when writing these thoughts down. He said if he has somebody, he can show it to so they can read it, he will feel even better because he can share his personal experiences.
He had suicidal thoughts about a month after the motor accident and again in 2022. He said at that time he did not see a future and then, his psychological health was better without specific treatment. He has never attempted suicide.
The claimant has felt frustrated, and he does not have an anger problem.
His sleep is still not good, and this has been a long-term problem. He was taking Endep 50mg for many years to help him sleep and said he stopped Endep a few months ago, because when he read the pamphlet, he discovered there were a lot of potential side effects.
He reported that he has weighed 59kg to 60kg for many years and this has not changed for a long time. The Panel noted this corresponded to the GP entry in February 2019, when he was 60kg.
Current and proposed treatment
The claimant is not taking any psychotropic medication now. He consulted Viet Than Tran, psychologist before and after the motor accident, and the last time was in 2020. He said he had a disagreement and so he did not return for further sessions. He does not want further psychological/psychiatric treatment now, and explained his psychologist kept focusing on bad memories and he does not want to do it.
The claimant has never had a psychiatric admission or consulted a psychiatrist.
CLINICAL EXAMINATION
Mental state examination
The claimant had receding hair and grey/white shoulder-length hair, and a neatly maintained moustache. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and reactivity. He spoke spontaneously and communicated well with the interpreter. He was not thought disordered and the provided history was easy to follow. There was no overt cognitive impairment.
Current functioning
The claimant is 68 and is single. He rents a room from a family and reported that he has been living there for about seven years now.
He reported that he pays for food and lodging, he has his own room and the landlord cooks for him. If the landlord does not cook, then he would buy food or cook instant noodles. He said before he started living with this family, this has always been the case because he cannot cook more complex meals, and he would normally cook rice at home and then buy dishes from the shops and this has not changed since the motor accident.
He initially said he remembers to shower every day and does not need assistance, and he said later, he might skip showering for one day before he remembers.
The claimant has not had a car or driven for a long time – he thought he probably last drove a car when he was still working. He generally catches trains and buses to go where he needs to go. He said he is slower now and takes extra precautions on public transportation, and he can catch trains or buses and go everywhere he wants to.
Whilst he has anxiety crossing the road, it does not stop him from being able to use a pedestrian crossing or to walk to where he wants to.
The claimant talks to the landlord’s family but said it is “not a big conversation” and he usually eats his meals alone. He goes to the shops and talks to the shopkeepers there. He talks to his family every one or two months and recently, he had a video call with them via Facebook.
He said that he used to see several friends regularly and they would get together and do things because they were all single. He reported his friends are all married, and they have no time because they have family commitments. He is the only one not in a relationship. Sometimes they would bump into each other on the street and chitchat. He said that if there are friends who have time, he would love to get together with them and do things together.
The claimant has had relationships previously and his last partnership was in 2016.
The claimant stated before the motor accident he had three main hobbies. He writes poetry and explained that he is creative, and used to write articles for a newspaper and he wrote poetry professionally for about a year. He is still writing poetry and said that he can fill two A4 pages with poems and that might take him 45 minutes. He also writes articles in prose but said that is not his preferred creative method, because to write articles he had to do research, and it might take him two or three hours to write an article. He estimated writing maybe three times a week recently.
The claimant’s second hobby was playing the guitar, and he continued this after the motor accident but in 2020, he stopped because he had a wrist and index finger problem. He said the index finger does not bend anymore so he cannot play guitar now.
The claimant also likes to play Chinese chess and used to go to a club in Cabramatta, but they do not have a Chinese chess club anymore. He has looked but has not been able to find another Chinese chess club. He said that he has tried playing with the landlord, but the landlord is not a very good player. He tried playing online but, because he does not have good internet, the experience has not been good and so he generally plays by himself. He would sometimes play both sides of the game.
Comments of consistency
There was no inconsistency identified.
Review of documentation
Professor Michael Shatwell, independent medical examiner (IME) orthopaedic surgeon reported on 30 May 2020 noted the claimant had been on Centrelink since 2014. He was working at the Australia Post Sorting Centre for about 12 years. He worked full time until 2010. After the motor accident, he suffered physical problems with the X-rays showing a metatarsal fracture. He enjoys playing guitar and writing. He drinks a small amount of alcohol on a social basis. He was on Endep 50mg at the time. His physical condition has stabilised, and he does not suffer a permanent impairment.
The claimant’s GP, Dr Nguyen’s records have been noted:
(a) Endep 50 mg has been the main psychiatric medication;
(b) on 15 April 2015, depression, not able to work. Needs counselling. Mental health care plan;
(c) on 5 September 2015 depressed mood, anxiety, no harm thoughts. Saw psychologist;
(d) on 21 September 2016, still insomnia on Endep;
(e) on 6 August 2018, insomnia, cannot concentrate;
(f) on 19 February 2019, tiredness, insomnia, not concentrating. 60kg;
(g) on 29 June 2019, stress and anxiety since the motor accident. Mental health care plan done;
(h) on 12 September 2019, insomnia was noted and on Endep;
(i) on 8 November 2019, stress since the motor accident, neck pain;
(j) on 5 December 2019, insomnia, social phobia, feels useless, anxiety, reduced memory, less interest, yelling for no reason, no psychotic symptoms. Mental health care plan and referral to a psychologist;
(k) on 8 May 2020, anxiety, insomnia. Awaiting psychiatrist;
(l) on 15 October 2020, anxiety, depressed mood;
(m) on 14 July 2021, the condition was unchanged. Pain, anxiety, depressed mood, and
(n) on 17 June 2021, Dr Nguyen wrote unchanged depression and pain.
Psychological service progress notes from Viet Tran: 21 May 2016 noted a K10 before and after was 37 and 40. There were some health anxiety and financial worries and stress from the job network. The psychologist noted the claimant’s treatment stopped after 11 June 2016 and then resumed on 8 August 2019, and discussed the motor accident and anxiety in crossing the road with a diagnosis of adjustment disorder.
Viet Tran, Psychologist report dated 18 April 2015 advised the claimant has mixed depression and anxiety coping with chronic medical condition and pain and having post-traumatic stress disorder symptoms and guarding himself when walking on the street; night terror, easily startled due to experience in Vietnam and also a motor vehicle accident 10 years ago.
Handwritten notes from Mr Tran, entry 5 May 2015 noted 1994 motor vehicle accident (comment: the Panel asked if he had motor vehicle accidents in 1994 and 2005, and he said he only had two car accidents ever, in 2005 and the motor accident), 1994 bankruptcy, feeling isolated, not belonging to the group of friends.
Dr Alice Chang, orthopaedic surgeon reported on 30 September 2019 noted the claimant’s metatarsal fracture with anxiety and worry about confidence in walking and worry about nerve pain. There is no suggestion of Complex Regional Pain Syndrome.
The Panel noted the MAC where he diagnosed an aggravation of a pre-existing persistent depressive disorder and post-traumatic stress disorder with a WPI of 4%, and he advised that the claimant was not consistent with reporting previous psychiatric history and also minimised the contribution from a subsequent head injury. The Medical Assessor was not satisfied that the claimant’s impairment was permanent but nevertheless did a PIRS assessment for his WPI.
The Panel noted the claimant’s submissions regarding the error in the MAC.
PANEL’S FINDINGS
The claimant has a longstanding psychiatric history caused by traumatic experiences in his early life with contributions from a previous car accident, and he has a well-documented history with treatment for depression and anxiety and post-traumatic stress disorder. His psychological symptoms have ebbed and flowed over the years, and he predominantly took Endep medication and had intermittent psychologist treatment. In the two years before the motor accident, there were anxiety and depressive symptoms and even three months before the motor accident, there was evidence of ongoing psychological instability related to the pre-existing psychological condition.
Following the motor accident in 2019, the claimant developed depressed mood, anxiety and worrying thoughts about crossing the road and about his physical health. These symptoms are unrelated to the pre-existing psychological condition. They are consistent with an adjustment disorder as the claimant’s described psychological and behavioural responses are not consistent with the post-traumatic stress disorder criterion A description, and he does therefore not have post-traumatic stress disorder. As there was a specific triggering event, being the motor accident and he became clinically distressed, it reached criteria for an Adjustment Disorder.
There is no evidence of aggravation in the pre-existing post-traumatic stress disorder or the trauma symptoms relating to his previous life experiences. The Panel is not satisfied that he had another psychiatric diagnosis before the motor accident.
He had some treatment for his conditions both related to and unrelated to the motor accident and eventually, he ceased all psychological/psychiatric treatment. He is not significantly different off Endep.
His condition has not changed for more than a year now, and therefore the Panel considered his psychological injury occasioned by the motor accident has stabilised.
Whilst the claimant still has some anxiety relating to crossing the road in that he is more cautious in crossing the road, there is no psychiatric impairment arising from the motor accident and the Panel concluded that the Adjustment Disorder has now resolved. The Panel noted that his current functioning is essentially the same as it was before the motor accident.
The Panel noted various major life events and life stressors, before and after the motor accident, and concluded he developed an Adjustment Disorder and this was caused by the motor accident, and there is more than a negligible contribution from the motor accident to the Adjustment disorder.
The Panel concluded his psychological injury from the motor accident has resolved and there is no ongoing impairment caused by the motor accident, which means that the injury now resolved is not amenable to a permanent impairment assessment.
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