Webster v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Webster v Allianz Australia Insurance Limited [2024] NSWPICMP 638
CLAIMANT:	Andrew Webster
INSURER:	Allianz Australia Insurance Ltd
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Gerald Chew
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	11 September 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical dispute as to permanent impairment; claimant was a driver of a car that was stopped waiting to turn right and was hit by another car from behind; Medical Assessment Certificate (MAC) found the claimant’s psychological injuries were not caused by the motor accident and assessment of the degree of permanent impairment of these injuries was not required; AAI Limited trading as GIO v Amos, AAI Limited t/as AAMI Limited v Jacobs, Briggs v IAG Limited Trading as NRMA Insurance, Insurance Australia Group Ltd v Keen, Insurance Australia Ltd v Marsh, and Raina v CIC Allianz Insurance Ltd considered and applied; Held – MAC revoked; Medical Review Panel’s opinion was that the claimant suffers from persistent depressive disorder caused by the subject accident giving rise to 5% whole person impairment; Medical Review Panel noted differing conclusions on causation and diagnoses made by numerous other psychiatrists and psychologists; Medical Review Panel had regard to all the evidence and the range of differing opinions but formed its own opinion on the medical question referred to it by applying its own medical experience and expertise.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Certificate issued under s 63 of the Motor Accidents Compensation Act 1999 1. The Review Panel revokes the Certificate of Medical Assessor Alexey Sidorov dated 30 May 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment which is not greater than 10% and is 5%: · DSM-5- persistent depressive disorder.

STATEMENT OF REASONS

BACKGROUND

On 28 January 2017 Andrew Webster (the claimant) was involved in a motor vehicle accident on the Northern Road, Luddenham NSW. Mr Webster reported that his car was stopped waiting to turn right and was hit by another car from behind. He reported injuries to his chest, hip, back, right shoulder and right arm.
Mr Webster has brought a claim for common law damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
Allianz Australia Insurance Ltd (the insurer) is the relevant insurer with liability to pay any damages to Mr Webster under the MAC Act.
This dispute is in relation to whether the degree of permanent impairment sustained by
the claimant as a result of the injury caused by the accident is greater than 10%.
The dispute as to permanent impairment of the claimant’s psychological injury was referred to Medical Assessor Alexey Sidorov (psychiatrist) who assessed him on 20 May 2022. Medical Assessor Sidorov issued a certificate dated 30 May 2022 which certified that all of the injuries referred to him for assessment have been assessed and determined not to be caused by the motor accident. He certified that an assessment of the degree of permanent impairment of these injuries is therefore not required.
Medical Assessor Sidorov assessed the following injuries:
· chronic adjustment disorder with mixed anxious and depressed mood.
The claimant has sought a review of Medical Assessor Sidorov’s certificate dated
30 May 2022.
This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Sections 57 and 58 of the MAC Act.

CERTIFICATE OF MEDICAL ASSESSOR SIDOROV

Medical Assessor Sidorov issued a certificate dated 30 May 2022 certifying that all of the injuries referred to him for assessment have been assessed and determined not to have been caused by the motor accident.
Medical Assessor Sidorov provided a history of the claimant's psychosocial background and pre-accident functioning. Mr Webster said the motor accident occurred on 28 January 2017. He said he was the driver of a car that was stationary and was waiting to turn right into a petrol station. He stated that suddenly he heard a “massive bang” from behind. He stated that he thinks he lost consciousness. He felt that his right shoulder was “ripped out”.
Mr Webster reported that he experienced right arm, leg and shoulder pain. He was wearing a seat belt. His car was subsequently written off. He said the ambulance was called and he was taken to Nepean Hospital for further treatment.
In his reasons Medical Assessor Sidorov notes that here are references in the general practitioner’s (GP) records regarding the claimant’s previous history of anxiety and depression. Mr Webster told Medical Assessor Sidorov that he did not recall this instance. When he asked the claimant regarding depressive symptoms in 2015, he stated “that was made up”. Medical Assessor Sidorov wrote that Mr Webster also appeared to present himself in an overdramatic nongenuine manner.
Medical Assessor Sidorov diagnoses was as follows:
“Based on Mr Webster’s account, presentation, and review of provided documentation, he meets the diagnostic criteria for Persistent Depressive Disorder with Anxious Distress as per DSM-5. This is based on a history of Mr Webster experiencing depressed mood for most of the day for more days than not for at least the past two years. His depressed mood has been associated with poor appetite, sleep disturbance, low energy and feeling fatigued, low self-esteem, poor concentration and difficulty making decisions and feelings of hopelessness. Mr Webster has also experienced significant symptoms of anxiety associated with his depressive symptoms including feeling keyed-up and tense, feeling very restless, finding it hard to concentrate because of his worries and fearing that something awful might happen.”
Medical Assessor Sidorov conclusion about causation was as follows:
“Mr Webster’s Persistent Depressive Disorder appears to be multifactorial in nature and relates to his pre-existing vulnerabilities to developing mood and anxiety symptoms at times of stress as evidenced by the history of such symptoms developing when Mr Webster was stressed or unwell. There appears to be significant disagreement between medical specialists regarding the degree of exacerbation of Mr Webster’s pre-existing conditions such as lumbar arthropathy and supraspinatus muscle tear. It is apparent that Mr Webster has experienced some exacerbation of pre-existing degenerative changes in his spine and sustained soft tissue injuries in his cervical spine and right shoulder however due to the multiple inconsistencies in Mr Webster’s presentation, the manner in which he provided his account, including failure to provide important details of past history and preoccupation with the insurance and legal process as well as his overdramatic presentation during the assessment cause significant concern regarding the veracity of his account. He reports symptoms of depression associated with anxiety however the nexus of these is unclear and it is not temporally related to the subject accident but rather appear to be related to the protracted complicated course of treatment and the stressors associated with the insurance process on the background of pre-existing vulnerabilities to developing psychiatric symptoms.”
Medical Assessor Sidorov then concluded that there was no psychiatric permanent impairment resulting from the subject accident as Mr Webster’s persistent depressive disorder with anxious distress has been assessed and determined not to be caused by the subject motor accident.

REVIEW PROCEDURE

The claimant has sought a review of the medical assessment of Medical Assessor Sidorov.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The relevant medical assessment was conducted by Medical Assessor Sidorov who issued a certificate dated 30 May 2022.
In an application dated 16 September 2022 the claimant’s solicitor sought a review of Medical Assessor Sidorov’s assessment certificate.
On 21 October 2022, a delegate of the President decided that he was satisfied that there was a reasonable cause to suspect that the medical assessment of Medical Assessor Sidorov was incorrect in a material particular. The delegate was satisfied that the assessment was incorrect because of the applicant’s ground for review that the Medical Assessor failed to adequately consider/address submissions and evidence relevant to the determination of causation of the injury.[2]
[2] Claimant’s bundle pp 9-10.
The delegate noted that the claimant challenged the Medical Assessor’s causation finding that the diagnosed psychiatric condition “Persistent Depressive Disorder with Anxious Distress” is not causally related to the motor accident.
The delegate accepted the claimant’s submissions that “if the motor accident did not occur, the Applicant Claimant would not have been involved in a protracted and complicated course of diagnosis and treatment, including the surgeries he has undertaken…” The delegate wrote that he was persuaded by the claimant’s submission. The Medical Assessor appears to have listed and accepted numerous psychological symptoms that would later support the Medical Assessor’s diagnosis of “Persistent Depressive Disorder with Anxious Distress”. In the Medical Assessor’s reasons, he states that the psychiatric condition “appears to be multifactorial” and, as the applicant submits, found to be contributed to by the protracted complicated course of treatment and the stressors associated with the insurance process.
The delegate has referred the medical assessment to the Review Panel (the Panel).[3]
[3] Section 63(2B) of the MAC Act. Decision of the Presidents delegate. Claimant’s bundle pp 9-10.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Clause 14F of Schedule 1 of 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 not made on or after 1 March 2021, the new review provisions do not apply in this review.
The application for assessment of permanent impairment was made by the claimant on
[4] See Insurers’ submissions 7 October 2023 AD 1. The Guidelines come into effect on 12 February 2021 and apply to motor accidents occurring on or after 5 October 1999 and before 1 December 2017.
1 March 2020, prior to the commencement of the PIC Act. The medical assessment process is conducted under the Medical Assessment Guidelines (MA Guidelines).[4]
The Motor Accident Permanent Impairment Guidelines (Guidelines) apply to motor accidents occurring between 5 October 1999 and 30 November 2017 (inclusive) and are Motor Accidents Medical Guidelines issued under s 44(1)(c) of the MAC Act. These Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (third printing, 1995) (AMA4 Guides).
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[5]
[5] Section 63(3A) of the MAC Act.
The Panel is not required to choose between competing medical opinions but is required to form its own opinion. See the decisions in: Insurance Australia Group Ltd v Keen[6] and Insurance Australia Ltd v Marsh.[7]
[6] [2021] NSWCA 287 at [40], [41] and [45].
[7] [2022] NSWCA 31 at [11], [21] and [64].
The Review Panel notes the recent Court of Appeal decision in AAI Limited trading as GIO v Amos [2024] NSWCA 65 which considered the content of procedural fairness obligations owed by a medical review panel as compared to a court or tribunal. In Amosthe court held that procedural fairness requires that the critical issue or factor on which the decision will turn be brought to the parties’ attention in order that they can provide material and make submissions about it. [8] The Review Panel was not obliged to put to the claimant its thought processes or to alert the claimant to the consequences of describing his symptoms in a particular way. [9]
[8] See Adamson JA at [55], Kirk JA at [1], Basten AJA at [74] and [91]-[92].
[9] See Adamson JA at [63] and [67], Kirk JA at [1], Basten AJA at [74].
In Amos her Honour described the requirements of procedural fairness for a medical review panel as follows:
“53. Procedural fairness depends, in part, on context. For example, in a judicial or arbitral setting, procedural fairness generally requires a hearing, whereby parties have an opportunity to put their cases to relevant witnesses in cross-examination and in submissions to an independent arbiter or judge. However, in the context of a Review Panel, the requirements of procedural fairness are different from those in a contested hearing.
54.   The High Court considered what procedural fairness requires in the context of a body such as the Review Panel in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) and said, at [47]:
‘The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’[10]
55.   Having regard to Wingfoot, it can be seen that the legislative choice to have the assessment of %WPI performed by a medical assessor or a review panel (constituted by three members, two of whom are medical assessors) rather than in court proceedings, had significant ramifications for the nature and extent of procedural fairness which was required. In the context of a medical assessment conducted by a medical assessor or a review panel, procedural fairness requires that the critical issue or factor on which the decision will turn be brought to the parties’ attention in order that they can provide material and make submissions about it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [32] and [35] (Leeming JA, Beazley P and Basten JA agreeing), citing Kioa v West (1985) 159 CLR 550 at 587; [1985] HCA 81.
56.   In the present case, the critical issue was whether the fall was caused by an injury sustained in the accident. Rules that apply in court proceedings, such as the rule in Browne v Dunn,usually have no analogue in a medical assessment under the Act…
61.    In these circumstances, it is difficult to accept that the claimant was taken by surprise by the Review Panel’s adverse conclusion, since this was the conclusion for which the insurer contended, as supported by its submissions and documents, and in particular, the clinical notes which recorded the claimant’s presenting histories and contemporaneous symptoms. The Review Panel was not obliged to provide a running commentary of its thought processes or of the effect of particular answers given by the claimant in the course of its examination and questioning of him: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); see also Minister for Immigration v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] (French CJ and Kiefel J). Further, the Review Panel was entitled to apply its medical expertise to make findings on the basis of answers given by the claimant to its questions and to explain, as it did in its reasons, that the presence or absence of some PPV symptoms was neither the only, nor a critical, factor in its decision…
67.    The Review Panel was not obliged to put to the claimant the various versions he had given about his symptoms over time, with a view to ascertaining which version was the correct, or most accurate, one. … The Review Panel was entitled to accept the description of the claimant’s symptoms which the claimant gave in the course of the examination it conducted. The Review Panel was not obliged to spell out its thought processes or inform the claimant of the consequences of giving one answer rather than another, or of describing dizziness or vertigo in one way rather than another.”
[10]Emphasis added and footnotes omitted.

30. His Honour Basten AJA then stated that it is not necessary for a Medical Review Panel to provide sufficient information and/or questioning to the claimant so that the claimant is on notice of the precise issue with which the claimant must deal with or respond to. [11] What the claimant sought to do, and the primary judge accepted, was to expand that obligation to impose on the panel a requirement to provide information to the claimant as to the nature of the medical evidence which the panel thought might be dispositive, so that the plaintiff or his legal representatives could deal with it. That is not the way a medical examination is conducted. The proposed expanded obligation is inconsistent with the function of the Medical Assessors identified in Wingfoot and with the statutory scheme under the New South Wales legislation noted above.[12]

[11] At [91].

[12] At [92].

In Amos the Panel was held to have complied with procedural fairness by questioning the claimant about the precise symptoms at the time of the fall. The Panel’s obligations of fairness did not extend to providing an indication to the claimant of what information might be determinative of the medical dispute.
In this matter, the Panel considered it appropriate for the Panel to assess the claimant and for it to review the range of matters with which the assessment of Medical Assessor Sidorov was concerned. Consistent with the decision in Amos the Panel focused its attention on the matters raised by the parties in their: application and reply; medical evidence and written submissions. The Panel also closely enquired of the claimant the circumstances of his injuries and of the subject motor accident.

RELEVANT STATUTORY PROVISIONS AND GUIDELINES

A brief summary of the legislation and Guidelines relevant in this case can be stated as follows.[13]
[13] For a detailed explanation of how the legislation and Guidelines work together please refer to the decision of Walton J in: Insurance Australia Group Limited t/as NRMA Insurance v Saraceni [2020] NSWSC 1045.
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “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%”.

Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5-1.7 of the Guidelines relate to assessing permanent impairment and causation. The Guidelines provide in part:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The Panel notes that when considering the issue of causation of injury it had regard to the recent decision in: AAI Limited t/as AAMI Limited v Jacobs [2024] NSWSC 371. In Jacobs the insurer argued that the Medical Assessor had disregarded all of the contrary views so that the causation issues had not been properly dealt with. In response the claimant submitted that the Medical Assessor found there had been physical injuries which in turn caused psychiatric injuries. The court then held that the Medical Assessor had considered the whole of the material before him and had subsequently reached a conclusion that was available to him. His Honour stated that:
“In other words, it is obviously not enough to simply consider one side’s material, but that does not mean that every dispute in the material needs to be described and particularly resolved. This, albeit imperfect, assessment did look at both sides and did reach a conclusion, including specifically on causation.”[14]
[14] Per Elkaim AJ at [45]-[46]. Refer also to Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 and Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41]-[44].
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act.[15] In Raina v CIC Allianz Insurance Ltd Campbell J stated:[16]
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[15] Sub-section 3B(2) of the CL Act.
[16] [2021] NSWSC 13 (Raina) at [65].
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
All Panel members have had no previous involvement with the claimant or with this matter.

MATERIAL BEFORE THE REVIEW PANEL

The Panel issued Directions to the parties dated 12 March 2024 which required each party to file an indexed, paginated bundle of documents and requested Mr Webster to attend a medical examination on 19 June 2024.
In response to these directions the solicitors for the insurer and claimant each filed bundles of documents. The insurer also made application to admit late documents dated
12 October 2023 which included submissions and a photo of the claimant’s damage car. The Panel has decided to admit all late documents in the interests of justice under rule 67 (3) of the Personal Injury Commission Rules 2021 and Procedural Direction PIC3.
The Panel notes that the parties have provided extensive medical records, reports and clinical notes relating to the claimant’s psychological and physical injuries. The Panel has read and carefully considered all of these medical records reports and notes before it. The Panel has not referenced or summarised the records relating to Mr Webster’s physical injuries unless they are relevant or have some bearing on the consideration of Mr Webster’s psychological injuries which are the focus of this Panel’s reassessment process.
The Panel notes that the claimant raised no objection to several paragraphs of Medical Assessor Sidorov Assessment Report that considered evidence of impairment to the claimant’s lumbar spine, right shoulder and discussing the surgery undertaken as a result of each injury. Those reports relate only to physical impairments which is the subject of a separate assessment, pursuant to s 6.36 of the Motor Accident Guidelines.[17]
[17] Claimant’s bundle p4.
If some of medical records and reports are not referred to in the Panel’s review, it should not be assumed that the Panel was unaware of that medical material or that the Panel failed to take the material into account. See Roger v De Gelder [2015] NSWCA 211 and Dunbar v Allianz Australia Insurance Limited [2015] NSWSC 119 which decided that there is no requirement for a Medical Assessor to address each and every report which offers a different opinion and explain how and why his/her own opinion differed.
In its review the Panel is endeavouring to carry out its statutory function and promote the objects of the legislation it operates under including the legislator’s guiding principle that proceedings in the Commission be just, quick and cost-effective resolution of the real issues in the proceedings.[18]

Pre-accident records
[18] Sections 3 and 42 Personal Injury Commission Act 2020.

There are medical and clinical records relating to Mr Webster’s pre-accident medical history.
According to Medical Assessor Sidorov and the insurer’s submissions there are a few pre-accident records which show a brief mention of the claimant and receiving treatment and counselling for anxiety and depression. This is disputed by the claimant’s solicitors. The great majority of the treating clinical records concern Mr Webster's history of obesity, spinal, shoulder and knee problems.
The pre-accident medical records from Dr Marguerite Cole. These records include numerous reports and clinical notes from Dr Cole. [19] in a report from Dr Cole dated 4 April 2017 she notes that the claimant has been a patient of her practise since 1994.
[19] Claimant’s bundle pp 168, 169, 217, 219, 346-390

Post-accident records

NSW Ambulance Service, NSW Police and hospital records

NSW Ambulance Service report dated 28 January 2017 notes that the;
“driver states that the vehicle was travelling at a speed 60 but swerved and just clipped left hand side of vehicle. No injuries to other driver. Minimal damage with a glancing blow to left hand side of patient’s vehicle.”[20]
[20] Claimant’s bundle p 46.
NSW Police records note details of the report of the accident.[21]
[21] Claimant’s bundle pp 51 – 57.
Nepean Hospital ED discharge summary dated 28 January 2017 indicated the claimant came in complaining of neck pain. Initially had tingling in the right arm which settled. Clinically normal observation, no neurological deficit some tenderness on the right side of the neck.

Accident Notification form and Motor Accident Personal Injury Claim form

In his Accident Notification form dated 10 February 2017 the claimant’s doctor, Dr Cole certified that the claimant had a right shoulder injury - torn supraspinatus muscle and neck injury- disc protrusion.
In his Motor Accident Personal Injury Claim Form dated 10 April 2017 [22] Mr Webster reported that his car was hit from behind by another while he was stopped and his car was turning into a petrol station. He reported injuries to his right shoulder, right arm, lower back L5 nerve root compression, left leg sciatic pain, neck C7/T 1 disc bulge and supraspinatus tear.

Treating medical practitioner and treating psychologist records
[22] Claimant’s bundle A 2 pp 434-438.

There are over 1,000 pages of treating GP and psychologist records that have been supplied to the Panel by both the claimant and insurer.[23]
[23] Claimant’s bundle pp 166- 1,035.
The claimant solicitors have assembled and reproduced a large number of treating GP and other clinical records relating to Mr Webster's history of spinal conditions, knee conditions and injuries associated with his early football injuries. The Panel have considered these records but have not summarised the records relating to the claimant’s physical injuries.
There are extensive and detailed records from a treating psychologist Ms Christine Webster from June 2017 until about November 2020. The file of about 170 pages including clinical and hand-written notes was available.[24]
[24] Claimant’s documents A2.
There are a number of Allied health recovery request (AHRR) completed by Ms Webster available in the clinical notes.
In an AHRR dated 18 July 2017 form number 1 Ms Webster diagnosis is major depressive disorder and acute stress reaction. She notes that the claimant reported flashbacks, nightmares, and increased anxiety with low mood. This is made worse by his current increased pain levels and frustration by his perceived lack of support by the insurance company. He reports this has had a negative impact on his functioning in regards to work and social life where he is becoming more socially isolated. He reports increased helplessness and hopelessness. He denied any current self-harm or suicidal ideation however he did report experiencing vague suicidal thoughts after the accident first happened. DASS and K 10 scores: D = 26 severe, A = 8 mild, S = 30 severe and K10 = 31 severe.
In an AHRR dated 14 November 2017 form 2, Ms Webster notes major depressive disorder, acute stress reaction, PCL-5 score 43, improved mood.
Ms Webster reported on 14 November 2017. She tried activities scheduling and mindfulness techniques. The claimant reported improved mood and functioning at home, with limitation due to pain, withdrawing less, ongoing anxiety, panic, and trauma symptoms.
In a letter dated 21 December 2018 Ms Webster diagnosed the claimant with post-traumatic stress disorder and major depressive disorder from the subject accident.[25] She noted that this is worsening after operation and ongoing difficulties with functioning due to pain.
[25] Claimant’s bundle p 175.
The clinical treatment notes from Ms Webster include the following notes:
“●      9 th appointment 2017. Operation went well.
·        23/11/17, PCL-5 score =45, exposure therapy hierarchy.
·        11th appointment, PCL-5 score =34.
·        24/4/18, increased PCL score, gave up club, more involved with family.
·        26 th appointment 15 January 2019. Back at work, 4 out of 7 days. Feeling better, less irritable and decrease in negative thoughts. Enjoyed one week holiday in QLD
·        30/7/19, 34th appointment, more irritable.
·        16/12/20, angry, anxiety and depression, holiday in December, looking forwards to it. Increase serotoninergic attacks.
·        14/1/20, 40th appointment and saw psychiatrist had 17 % WPI.”
In a report dated 18 August 2020, Ms Webster reported that the claimant struggles with low moods and anxiety, in the context of pain.
There are a number of reports from a treating pain specialist A/Prof Tillman Wolf Boesel.[26] In a report dated 23 June 2021 A/Prof Boesel writes in part that the claimant:
“… continues to have difficulties following his admission at Westmead Private, where his postop complications caused significant psychological trauma (which is ongoing). Andrew has had complex difficulties after prior operations, which were again a factor on this occasion. After prolonged discussion, it is clear to me that the major breakdown in care revolves around a lack of consultation by the hospital staff with the senior clinicians (the surgeon and anaesthetist). It appears as a consequence his problems were not addressed in a timely and appropriate fashion. I personally would also have been happy to give advice, and supplied a letter of preop recommendations regarding analgesics, but was not contacted either once difficulties occurred. Current Therapeutic Recommendation • Andrew needs ongoing psychological support for his trauma and nightmares that have now arisen • Pleasingly his surgical outcome is good, with a marked reduction in spinal pain - I have suggested he wean the Targin by 5mg every 4 weeks.”

Medico-legal reports
[26] Claimant’s bundle p 177.

There are numerous reports from various specialists including from psychiatrists and a treating clinical psychologist.

Reports of Dr Ben Teoh, psychiatrist

There is report from Dr Ben Teoh dated 25 November 2019. Dr Teoh wrote that Mr Webster has “convulsions” for eight hours and serotoninergic syndrome. This was due to taking tramadol for his pain. He could no longer engage in physical activities such jogging and coaching rugby. The claimant reported reducing his work hours since the accident. Dr Teoh found no past psychiatric history. Dr Teoh diagnosed chronic adjustment disorder with mixed anxious and depressed mood. Dr Teoh provided a psychiatric impairment rating scale (PIRS) with ratings 2,3,2,3,3,3, which results in a final total whole person impairment (WPI) of 17%.

Certificate of Medical Assessor Nigel Menogue

There is a certificate dated 14 January 2021 from Medical Assessor Nigel Menogue.
In his certificate Medical Assessor Menogue found the physical injuries caused by the motor accident give rise to a permanent impairment which is not greater than 10%:
a.     cervical spine – soft tissue injury;
b.     right shoulder – soft tissue injury and subsequent arthroscopy, and
c.     lumbar spine – aggravation of pre-existing lumbar arthropathy.
In his reasons Medical Assessor Menogue referred to the claimant’s cervical and lumbar spine level injuries and right shoulder injuries. The claimant reported driving apparently without difficulties. Hobbies including rugby and was the president of the local club and trainer with a Maltese group but not participated since the accident.
Medical Assessor Menogue noted that the claimant has an extensive past medical history with multiple physical injuries and surgeries. He was 135kg in 2015 then after bariatric surgery, he lost 45kg and was 85kg. After the subject accident, he lost another 15kg, but then regained some weight.
Medical Assessor Menogue’s conclusion was that in the motor vehicle accident of
28 January 2017, Mr Webster sustained a soft tissue injury to the cervical spine and right shoulder, and an aggravation to the pre-existing bilateral facet arthropathy in the lower lumbar region. There was no evidence of a primary or isolated injury to the left shoulder, right or left knees.
He also wrote that the following injuries WERE NOT caused by the motor accident:
a.     cervicothoracic spine – radiculopathy;
b.     lumbosacral spine – spinal fusion at L4 to S1, decreased sensation of peripheral nerves;
c.     Right shoulder – referred pain;
d.     left shoulder – restricted range of movement, pain – referred or otherwise;
e.     left knee – restricted range of movement, muscle wasting and thigh girth, retropatellar tenderness, ligamentous injury;
f.     right knee – restricted range of movement, retropatellar tenderness, pain, and
g.     scarring - back – L4 to S1 fusion.
Medical Assessor Nigel Menogue concluded that Mr Webster has a total 6% WPI from the lumbar spine and right shoulder.

Other reports

There are numerous reports from various specialists including from neurosurgeons, spinal surgeons, orthopaedic surgeons including from Dr Neil Cochrane, Dr Yuk Kai Lee, Dr Mark Perko, Dr Brett Courtenay and Dr Noel Dan. These reports contained detailed histories, investigations and opinions about Mr Webster's spine, shoulders, knees and various surgeries. Many of these reports found that Mister Webster had a high degree of WPI. For example, Dr Lee found that the claimant combined impairments using the Combined Values Chart (page 322-324, AMA4) of 32% WPI AMA4. Dr Dan found a total WPI of 28%. All of these reports produced by the claimant’s solicitors in their bundle of materials have been considered by the Panel but are not summarised in these reasons.

SUBMISSIONS

Claimant’s submissions

The claimant’s solicitors provided written submissions dated 16 September 2022 about Medical Assessor Sidorov’s assessment.[27]
[27] Claimant’s bundle pp 1 -8.
The claimant submits that Medical Assessor Sidorov has unfortunately taken a negative and partial attitude towards the claimant.
The claimant argues that there was no PIRS Table included in the Assessment Report.
The claimant submits that in reaching the decision that the claimant does in fact suffer from persistent depressive disorder with anxious distress per DSM-5, he has not referred at all to the Motor Accident Guidelines, Part 6, and in particular 6.35 and 6.201 and the PIRS Table at 6.11. Medical Assessor Sidorov has not explained his diagnosis.
The claimant also submits that the Medical Assessor has failed to consider properly that the claimant had no past history of psychiatric illness. There is no family history of psychiatric illness. There was no history of trauma or abuse in the claimant’s childhood.
The claimant notes that Medical Assessor Sidorov has considered the medicolegal report of Dr Ben Teoh, consultant psychiatrist, in one short sentence and has not demonstrated a path of reasoning as to why he has departed from Dr Teoh’s WPI score of 17% as a result of the motor accident.
The claimant submits that the clinical notes of Christine Webster over the last two years of treatment demonstrate that the claimant showed significant post-traumatic stress disorder behaviours, such as avoidance of driving and leaving the house. The claimant submits that the Medical Assessor has not appropriately analysed these reports and notes, if at all. The Medical Assessor has again provided no path of reasoning to explain why he has departed from the opinion of Christine Webster.
The claimant also submits that there is no medicolegal report by an appropriately qualified psychiatrist commissioned by the insurer. There is therefore no medical evidence from the insurer to support the conclusions made by Medical Assessor Sidorov. The claimant emphasised that there is no psychiatric evidence of diagnosis or ongoing treatment prior to the motor accident.
The claimant’s submissions note the limited number of brief records of mental health complaints in the GP clinical notes. The temporary mental health complaints prior to the motor accident cannot displace the diagnosis since the motor accident, and should be given little weight. Most people experience temporary mental health symptoms at stages in their lives, without the need for diagnosis and treatment. If not for the motor accident, the claimant says there would not be severe, persistent symptoms, diagnosis and long-term medication.

The claimant refers to the Assessment Report of Medical Assessor Sidorov which record a long list of reported symptoms of the claimant since the subject accident. The claimant argues that these symptoms are consistent with the reports of Dr Ben Teoh, consultant psychiatrist, Dr Margarite Cole, GP and the lengthy reports and clinical records of Christine Webster, clinical psychologist. Dr Teoh has assessed a 17% WPI as a result of the psychiatric diagnosis caused by the motor accident.
The claimant’s submissions note the that the Medical Assessor’s conclusion appears to be that the claimant had a pre-existing psychiatric condition but that the Medical Assessor has significant concern “regarding the veracity of his account”. Because the Medical Assessor believed that the claimant’s evidence was inconsistent and untruthful, he should have asked the claimant to explain any inconsistencies as required by the Motor Accident Guidelines (version 8.2) at Paragraph 6.1. Thus, the claimant was not afforded the opportunity to respond to these allegations and to confirm his history.
If the motor accident did not occur the claimant would not have been involved in a protracted and complicated course of diagnosis and treatment, including the surgeries he has undertaken.
Finally, the claimant submits that the Medical Assessor appears to have taken a negative attitude towards the claimant and assumed that he is malingering, rather than relying on the objective evidence.

Insurer’s submissions

The insurer provided submissions dated 7 October 2022 and 12 October 2023. [28]
[28] Insurer submissions R 1 and AD 1 pp 1-8.
In the submissions dated 7 October 2022 the insurer’s solicitors note that the claimant seems to suggest that assessment via audio-visual link was an error on the part of the Medical Assessor, and that it poisoned his clinical judgment. The claimant notes that the assessment took place via audio-visual link at the request of the claimant. The claimant seems to be mistaking the Medical Assessor’s use of his clinical judgment and expertise with “blame” or a “negative attitude”.
Regarding Medical Assessor Sidorov’s decision not to complete any PIRS table the insurer submits that the Medical Assessor found that there was no injury caused by the accident and, therefore, there was no requirement for him to assessment impairment pursuant to the PIRS.
Responding to the claimant’s argument that the Medical Assessor had failed to consider properly that the claimant had no past history of psychiatric illness the Medical Assessor has in fact addressed the claimant’s pre-accident mental health history. The insurer points to Medical Assessor Sidorov’s referring to the GP’s records regarding the claimant’s previous history of anxiety and depression.
The insurer notes that the claimant submits that the Medical Assessor should have declined to consider all evidence, including that which was relied on by the claimant himself. The insurer submits that it would have been erroneous for the Medical Assessor to do so. It was entirely appropriate for the Medical Assessor to refer to evidence regarding the claimant’s physical injuries in circumstances in which so much of the claimant’s complaints are referrable to his pain.
The claimant alleges that the Medical Assessor failed to bring inconsistencies in his account to the claimant’s attention, as required by cl 1.41 of the Guidelines (the claimant erroneously refers to cl 6.41 of the Motor Accident Guidelines. The insurer responds that in the Medical Assessor’s reasons he demonstrates that he in fact did so. Medical Assessor Sidorov writes that when he asked the claimant about his reported depressive symptoms in 2015, the claimant stated, “that was made up”.
The claimant submitted that the Medical Assessor has also stated that the psychological impairment appears to be related to the “protracted complicated course of treatment and the stressors associated with the insurance process on the background of pre-existing vulnerabilities to developing psychiatric symptoms”. The insurer’s response is the definition of motor accident in section 3 of the MAC Act definition does not include the subsequent insurance process, nor issues in accessing treatment. As such, Medical Assessor Sidorov has correctly concluded that injuries caused by those factors are not injuries caused by the motor accident.
In the submissions dated 12 October 2023 the insurer’s solicitors provided additional submissions and a photo of the claimant’s vehicle after the accident.
The insurer notes that the claimant underwent lumbar spinal fusion surgeries in September 2018 and May 2021.The Review Panel should accept Medical Assessor Menogue’s conclusion and certification that the subject accident did not cause a disc injury, radiculopathy or a need for lumbar fusion surgery. Medical Assessor Menogue concluded and certified that the spinal condition that yielded surgery was not accident related. Accordingly, the insurer argues that any psychiatric impairment secondary to the lumbar spine surgery and/or the injury that gave rise to that surgery should not be attributed to the accident. A review panel comprised of psychiatrists ought not make its own findings as to causation of physical injuries and impairment. The psychiatric review panel should adopt the findings certified by Medical Assessor Menogue, which remain both unchallenged and binding.
The insurer further submits that the claimant’s post-operative medication usage caused the serotonin syndrome. The medication treated the consequences of the surgery, and the injuries that yielded the surgery. The disc injury, radiculopathy and spinal surgeries resulted in the claimant’s inability to continue work. The inability to work was not a consequence of the accident.
The insurer contends that when assessing the degree of permanent impairment for psychiatric injuries, the Review Panel should consider the extent to which the psychiatric illnesses (if any) are secondary to lumbar spine pain and surgeries, and their effects on domestic and work capacities. To the extent that psychiatric injuries are attributable to lumbar injury, lumbar surgery and inability to work, they should not be considered to be caused by the accident. To the extent that psychiatric injuries are attributable to inability to work or constraints on lifestyle due to spinal injuries, those psychiatric injuries should not be considered to be caused by the accident.
The insurer asks that the Review Panel should consider the extent to which the claimant’s history of symptoms (such as agitation, panic) is attributable to the serotonin syndrome. To the extent that it is so attributable, it should not be considered to be caused by the accident.

RE-EXAMINATION AND MEDICAL ASSESSMENT

On 18 October 2023 Mr Webster was interviewed via telehealth by psychiatrists Medical Assessor Gerald Chew and Medical Assessor Michael Hong who were in their offices.

History

Psychosocial history and pre-accident history

Mr Webster was born in Australia and grew up with his parents, being the younger of two siblings. There was no disruption in his childhood and he had a normal developmental history. He was married for three months. But unfortunately, his first wife then passed away from a car accident. He said he became interested in car safety after that, and eventually worked in car safety inspection.
He does not have drug or alcohol problems. He said he had stopped drinking alcohol since the accident.
He is not aware of a family history of mental illness.
Mr Webster does not have a past psychiatric history.
In terms of employment history, after year 10, he started doing a car apprenticeship immediately. He has worked as a car mechanic for more than 20 years and did inspection and safety checks for Car City, a car dealership. He was working full-time before the accident in his business.

History of the motor accident

The subject accident happened on 28 January 2017. Mr Webster said he remembered it very well, like it happened yesterday. He was going to a football game as he was the first aid officer for the trainers. Mr Webster was early and decided to stop by the garage to pick up coffee, and before he turned into the garage, he was rear-ended. He reported he lost consciousness and a witness came to help him, and tapped his window and asked him whether he was okay. He recalled he had severe right shoulder and right body pain, and remembered he couldn't get out. He recalled a woman came to help as well and she called an ambulance.
Mr Webster went to Nepean Hospital and was discharged that afternoon. He said the doctor in the hospital didn't write a report, which was very strange. Over the weekend, he was still having severe pain and on Monday, he saw the GP, who organised an urgent MRI scan and ultrasound. He also told the Panel that during the accident, he had a foot on the clutch and an arm on the steering wheel, which is why he suffered an injury to his hip, back, and arm. He said the police told him later that the other car was driving around 60kmph and the other car went under his car. His airbags did not deploy and he thinks it was not installed properly. His car was written-off by the insurer.
He had surgery on his right shoulder, then two operations on his hips, then a back fusion, and then had to go back for another back surgery. The last surgery was the back surgery in September 2019 – he said it was successful and he doesn't suffer leg pain anymore, however, physically, he remains very weak and disabled. He said he lost 20% use of his arm. He found it difficult to lift his right arm above the horizontal. He has chronic back pain, particularly in the middle of the back.
Mr Webster said he tried to continue working with help from his sons. But after the last surgery, he couldn't do any more. He couldn't sit down for a long time, use his arm, or sleep as he was in pain. He could not run. Mr Webster has fallen a few times while walking. He said that sometimes he would have to stop after walking 3 minutes due to pain. The most he could walk for is 20 minutes. He can sit down for about 20 minutes now before his back pain becomes severe. He still has leg numbness.
Mr Webster said during the first operation, he had a prolonged admission and he was seen by Dr Perrier, a psychiatrist in Westmead Private Hospital, who diagnosed serotonergic syndrome from excessive tramadol use. He said because of that, he has not taken any antidepressants since.

History of symptoms and treatment following the motor accident

In terms of Mr Webster's mental health difficulties, he said initially, it all started with his physical problems. He said he had gastric sleeve weight loss surgery about a year before the accident. It was very successful, and he lost weight, he then went on a cruise with his wife in December 2016 and life was perfect. He had signed a new lease on his workshop and his wife started a new business. But then suddenly, due to the subject accident, he could not work properly and he could not get out of the lease. He wasn't making enough money, even with his son helping. Initially, his psychological health was okay, but increasingly, depression became a problem. Towards the latter part of 2017, he started consulting Christine Webster, a psychologist. He recalled she told him to be careful, otherwise, his family would become sick of his constant complaints.

Details of any relevant injuries or conditions sustained since the motor accident

Mr Webster has not had further car accidents or sustained other psychological injuries.

Current symptoms

Mr Webster reported after bariatric surgery, he lost weight from 85 to 69kg, but since the accident, he gained 10kg. He has been stabilized at 95kg since his last operation.
He has had suicidal ideation and at one time, he said that he had taken an overdose.
He reported having chronic sleep difficulties and nightmares. He usually only has 2-3 hours sleep.
He feels like he is in limbo and has no control. He said that when his grandson visits, he tends to feel a lot better. He has reduced enjoyment and motivation, and feels anxious.
He described having reduced concentration and memory overall.
He said he feels useless and a burden to his family.
He has been irritable and would speak with a loud voice when angry and find it difficult to calm himself.

Current and proposed treatment

Mr Webster is currently taking:
·        Targin 10/5, morning and night;
·        Lorazepam 1 mg daily, around three years, and
·        Sifrol.
He consulted Christine Webster, psychologist around three years until 2020. He saw a psychiatrist for treatment in the hospital and not outside.
He has not taken other psychotropic medications.
He consults Professor Boesel, pain specialist. There are no proposed treatments.

Mental state examination

Mr Webster was assessed for 90 minutes. He had a full beard and short combed hair. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He maintained certain positions and shifted his posture to accommodate his pain during the assessment. He was restricted in his affect range and reactivity. He spoke spontaneously and fluently. He was attentive and gave a clear history and was easy to interrupt. He remained focused throughout the assessment, although twice, he forgot what he wanted to say.

Current functioning

Mr Webster is 56 and living with his wife, who works in real estate. They have two adult sons, both moved out a couple of years ago and live locally. He also has a grandson.
Mr Webster has been married for more than 20 years now. However, they could not be intimate since the accident because he is always in pain, and he said they have grown apart. He felt it had been unfair on her, that he could not do anything to help around the house. He feels upset he knows how to service his car, but he has to pay people to do it.
He reported that he is sleeping in a different room from his wife now. He feels like he has lost his marriage, but they have not separated. And they only do things together when there is a family activity, for example, when the grandson comes over.
Mr Webster said that he was a car inspector and has done similar work for 20 years. After the accident, he could not get under the car to do an inspection. His two sons helped, but they could only do it for two days a week. They would hoist the car up so he can look under to ensure the safety inspection is all done and then he would write it up.
In terms of driving, Mr Webster did not stop driving. He said that he would drive for less than half an hour usually. He said he had driven longer distances. For example, they had a weekend trip away a couple of years ago to the Blue Mountains and it was easier to drive on the highway, and the drive took an hour and 15 minutes. He also said that his son does not want him to drive too much now and does not want him to drive the grandson, because he seems to be drowsy from his medication.
He said the last time he had a holiday was probably 2019-2020 in Katoomba for two days.
Normally, Mr Webster enjoys rugby. He was the president of the football club for five years but he had to give it up in 2018. He explained that he could not handle it anymore. Normally, he would manage the club's finance the alcohol license and everything. After the subject accident, he could not tolerate the pressure anymore. He also said he was a coach for the Maltese International Rugby Club, but physically, he could not even run, so he had to give it up. He reported that he has been playing since he was eight and coaching from a young age.
Mr Webster said sometimes he would take his grandson for walks on the acreage that he lives on.
He said that he did some gardening, but then he ended up in bed for the next few days with severe pain.
Mr Webster's wife wants him to go to social functions, but he does not go. So she has been going to cruises with her sisters.
His parents are in their eighties and live about 35 minutes away. He said that he wants to go to see them, but he does not.
On a typical day, he said he would walk inside the house, and spend a lot of time in bed or online. He would scroll on the phone. Sometimes he would put the dishes away.
There was a local shop, 500m away but it was demolished and now they mostly buy things online. He orders Lite and Easy premade meals. Even though he used to cook, he does not want to cook anymore.
He has a ride-on mower, but he does not use it as the vibration causes severe back pain.
Mr Webster reported that he is lucky his sons are quite tolerant and the relationship is reasonable. His daughters-in-law are okay and tolerate him but the relationship has not been good because he gets irritated and raises his voice with them.
He stopped watching football games for a while and now he is watching again. He said that he does not watch the full game and he would watch half an hour. He only watches games where he does not care who wins.
He does not read books or magazines. He uses Facebook and social media. He also spoke about how his eyesight has deteriorated. He watches YouTube.
When he was growing up, he enjoyed sporting activities. When he was 17, he needed knee surgery and he could not continue his football career.
He reported that about a year before the accident, he had a fallout with his sister. He told her that she was using their parents. And she said that “mind your own business” and have not really spoken since.

Comments of consistency

There was no inconsistency identified.

Summary of relevant documentation

The claimant’s submission noted problems with the Medical Assessor’s assessment and his listed psychological symptoms. There are more significant symptoms in Christine Webster’s psychologist records not considered. Dr Ben Teoh’s report and GP, Dr Cole’s reports also noted his psychological symptoms. Dr Teoh rated 17% WPI. The claimant was not afforded procedural fairness as inconsistencies was not identify to him. The Medical Assessor took the wrong history and he had psychologist treatment until early 2022.
Accident notification form with diagram, noted he was rear-ended when stationary with three vehicles (with trailer) in the subject accident. He developed shoulder and arm problems in his right arm.
SIRA Personal injury claim form, noted the subject accident, he developed right shoulder, arm, upper extremity, lower back, neck injuries and supraspinatus tear, shoulder rotator cuff, nerve compression, sciatic pain in his left leg.
Ambulance record with the witness noted the subject accident occurred at 60kmph. With minor damage to vehicle.
Police report noted there were two vehicles involved in the accident. The police assessed the subject accident as a major traffic crash, on The Northern Road, Luddenham at 60kmph.
Medical Assessment Service (Motor Accidents) certificate by Medical Assessor Nigel Menogue, 14 January 2021.
Dr Ben Teoh IME psychiatrist’s report dated 25 November 2019, noted the subject accident. The Panel consider Dr Teoh’s report and its comments are as follows. In terms of travel,
Dr Teoh rated 2 but did not identify an impairment and the Panel concluded from a psychological perspective, he has no impairment. In terms of social functioning, Dr Teoh rated 3 and the provided explanation is also consistent with 2 according to the Guides, which is the Panel’s rating. In terms of concentration, persistence and pace, Dr Teoh rated 3 and the provided explanation is also consistent with 2 according to the Guides. In terms of adaptation, Dr Ben Teoh did not identify an impairment in making his assessment.
In terms of prescription history the Panel noted the Inner West Pain centre, 1 May 2019, Associate Professor Tillman Boesel, pain specialist prescribed Targin. From 2001 to
24 May 2018 the Panel noted Temazepam was also prescribed for insomnia.

Diagnosis and reasons

Mr Webster developed symptoms consistent with persistent depressive disorder and he does not have post-traumatic stress disorder. The nature of the accident and his described response are not consistent with the post-traumatic stress disorder criterion A description.

He fulfils the DSM-5-TR criteria for a persistent depressive disorder:
(a)    He has depressed mood for most of the day, for more days than not, for at least two years.
(b)    He described being depressed and also having the following symptoms:
(i)over-eating;
(ii)insomnia;
(iii)concentration difficulties, and
(iv)feelings of hopelessness.
(c)    During the two year period, he has never been without the depressive symptoms above for more than two months at a time.
(d)    He does not have major depressive disorder currently as his depressive symptoms are not pervasive.
(e)    There has never been a manic episode or a hypomanic episode, and criteria have never been met for cyclothymic disorder.
(f)    His psychological symptoms are not better explained by Schizophrenia or a related psychotic disorder.
(g)    His symptoms are not attributable to the physiological effects of a substance (e.g., a drug of abuse, a medication) or another medical condition
(h)    His symptoms cause impairment in social and occupational functioning.
Mr Webster's impairment is permanent and entrenched, and unlikely to change substantially and by more than 3% in the next year, with or without medical treatment.

Causation and reasons

The Panel finds that Mr Webster has no significant past psychiatric history. Mr Webster reported after the subject accident that he developed chronic physical injuries and pain. He became increasingly anxious and as repeated surgeries did not substantially improve his physical capacity, he became severely depressed and started treatment with his psychologist. There are no other stressors or major personal changes contributing and the Panel concluded there is more than a negligible contribution from the subject accident to
Mr Webster's current psychological injury.

Psychiatric Impairment Rating Scale

Current PIRS

Psychiatric diagnoses

1. Persistent depressive disorder

Psychiatric treatment description

Lorazepam

Psychologist

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	2	Mr Webster said he skips meals and has a stable weight. He orders online and buys premade meals. He showers daily without prompting.
2. Social and Recreational Activities	3	He rarely attends recreational activities and he needs a support person and has not had a trip away or holiday, for a couple of years now. His wife would go to recreational activities on her own as he refused to go.
3. Travel	1	Mr Webster is anxious on the road and does not have impairment in travel, as he can drive long distances within his physical capacity.
4. Social Functioning	2	Mr Webster's relationship with his wife has deteriorated and remains intact. He said his friends were people in the clubs and he stopped going there. He said he has one main friend but the friend has major medical conditions; they talk regularly but only see each other occasionally. He has a reasonable relationship with his sons. The relationship with his daughters-in-law is not great. He talks to his parents but does not see them much anymore. He enjoys having his grandson over and takes him out for walks on the property.
5. Concentration, Persistence and Pace	2	Mr Webster reported having reduced concentration. He watches videos and football games, for 30 minutes. His mental state examination is consistent with 2.
6. Adaptation	1	Mr Webster continued the same work after the subject accident but needed physical assistance. He did all pre-injury duties from a psychological perspective. From a psychological perspective, There is no deficit or minor deficit, attributable to the normal variation in the general population.
List classes in ascending order: 112 223
Median Class Value: 2
Aggregate Score: 11
% Whole Person Impairment: 5 %

*%WPI ^{= Percentage Whole Person Impairment}

Psychiatric Impairment Rating Scale

Pre-existing/subsequent impairment

Mr Webster has not sustained a subsequent injury. He has no past psychiatric history.

Apportionment

Nil.

Effects of treatment

Zero per cent. He has not felt improved with treatment.

Conclusion on degree of permanent impairment

The Panel finds the degree of permanent impairment caused by the motor accident a total WPI of 5 %.

CONCLUSION AND CERTIFICATION

In the Panel’s opinion Mr Webster’s injury of persistent depressive disorder was caused by the subject motor accident and gave rise to a WPI of 5%.
The Panel notes the differing conclusions on causation and diagnoses made by numerous other psychiatrists and psychologists including Dr Ben Teoh and Ms Christine Webster. The Panel noted that Dr Teoh diagnosed Mr Webster with chronic adjustment disorder with mixed anxious and depressed mood. Dr Teoh provided a PIRS assessment total WPI of 17%. The diagnoses of Dr Teoh and Ms Webster differ from the diagnoses made by the Panel for the reasons explained earlier in these reasons.
In reaching its conclusions on causation and the diagnosis of the injuries sustained by
Mr Webster, the Panel has had regard to the Guidelines and decisions referred to above about causation and the role of a review panel. The Panel has had regard to all the evidence and the range of differing opinions but has formed its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
The Panel’s certificate is attached at the commencement of these reasons.

[2024] NSWPICMP 638

11 September 2024