Yousif v QBE Insurance (Australia) Limited
[2024] NSWPICMP 563
•13 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Yousif v QBE Insurance (Australia) Limited [2024] NSWPICMP 563 |
CLAIMANT: | Rony Yousif |
INSURER: | QBE Insurance (Australia) Ltd |
REVIEW PANEL | |
PRINCIPAL MEMBER: | John Harris |
MEDICAL ASSESSOR: | Michael Hong |
MEDICAL ASSESSOR: | Christopher Canaris |
DATE OF DECISION: | 13 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; 2018 motor accident; examination by Medical Assessors (MA); finding that motor accident caused a post-traumatic stress disorder; claimant had significant ongoing pain; need to separate effects of pain from effects of psychological condition; exercise of assessment of permanent impairment dependent upon clinical judgment of MA’s; Held – claimant sustained permanent impairment assessed at 7%; no deduction made for prior symptoms as there was objective evidence of permanent impairment at the time of the motor accident; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment Certificate WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: The Panel revokes the medical assessment certificate dated 12 April 2023 and certifies that the following injuries caused by the motor accident give rise to a permanent impairment not greater than 10%:
|
REASONS
BACKGROUND
Mr Rony Yousif (the claimant) was injured in a motor accident on 10 September 2018. The claimant was a front seat passenger and was struck from behind on the back right hand side causing the car to spin around.[1] Airbags were deployed.
[1] Insurer’s bundle, p 14.
QBE Insurance (Australia) Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Yousif any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Mr Yousif’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Fukui (Medical Assessor) and dated 12 April 2023 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[9] In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[9] See s 3B(2) of the Civil Liability Act 2002.
[10] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The current functioning described by the Medical Assessor was:
“He stopped being his father’s carer due to physical limitations and not being patient enough to be able to provide care because of his low mood and anger. He lacks motivation to shower and is prompted by his sister and only showers every three to four days. He is eating fine with his sister cooking. He used to do his own breakfast and cook for his father prior to the accident. He does no housework. He neglects his hair and beard and does not feel like doing anything. He changes his clothes every two to three days. He is able to drive but only in the local area. Whilst he is anxious as a passenger, he is able to travel. He has never taken public transport. He can leave home by himself to attend appointments. He avoids people contact and goes to his room most of the time. He avoids going to social events. He lost his relationship of five years with his girlfriend due to his anger and irritability and lack of engagement. He has also lost friends. He described loss of focus and low mood interfering with his concentration and is easily distracted.”
The relevant clinical findings were:
“Mr Yousif has been suffering from Post-traumatic Stress Disorder. There is no evidence of a prior psychiatric history, and he reported functioning well prior to the subject motor accident.
He was involved in a significant motor accident when he thought that he was going to die and for a brief moment thought that he was dead (Criterion A). He also sustained significant physical injuries. He described intrusive thoughts of the accident and nightmares (Criterion B). He avoided driving for two months and whilst he has resumed driving, he limits his driving to the local area. He avoids driving on the Anzac Bridge where the accident occurred and experiences distress when there are reminders of the accident (Criterion C). He reported low mood and negative emotional state such as anger with loss of interest in engaging in activity and had become detached and disengaged from others (Criterion D). He reported irritability and anger, hypervigilance, problem with concentration and sleep disturbance (Criterion E). His symptoms have been present for more than a month (Criterion F). His condition causes clinically significant distress and impairment in his social, occupational and other important areas of functioning (Criterion G). His condition is not attributable to the physiological effects of a substance or another medical condition (Criterion H).”
The Medical Assessor concluded that the claimant had good physical and mental health prior to the subject matter accident and the timing nature and development of the psychological symptoms were consistent with the motor accident causing the claimant’s post-traumatic stress disorder.
The Medical Assessor assessed the level of whole person impairment at 7% and added 1% for the effects of treatment resulting in an overall impairment of 8%.
OTHER ASSESSMENT
Medical Assessor Reutens issued a medical assessment certificate dated 15 May 2019.[11] The Medical Assessor noted symptoms including weakness all over the body particularly in the neck, constant headache, low back pain radiating to both legs and an inability to raise both arms.
[11] Claimant’s bundle, p 20.
The Medical Assessor noted that there was no psychiatric history and concluded that the psychiatric symptoms were consistent with post-traumatic stress disorder.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
On 8 June 2017 Dr Ahmed noted that the claimant was “depressed … social stress” and had “developed low sex drive”.[12]
[12] Insurer’s bundle, p 229.
In November 2017, Dr Syeda, sleep physician, noted a history of loud snoring with fragmented sleep throughout the night.[13]
[13] Insurer’s bundle, p 328.
In December 2017, Dr Syeda reviewed the claimant for assessment of possible sleep disordered breathing.[14]
[14] Insurer’s bundle, p 327.
Pre-accident scans refer to multilevel disc pathology in the cervical spine with no significant focal disc herniation.[15]
[15] Insurer’s bundle, p 65.
On 30 January 2018 the general practitioner (GP) noted neck and back pain. On
31 May 2018 there was reference by the doctor to a history of cervical disc prolapse with pain localised and left side of the neck.[16][16] Insurer’s bundle, p 61.
Medical records post-accident
The ambulance report noted the motor accident when the claimant’s vehicle was hit at speed causing the car to rotate at 360 degrees with airbags deployed. The claimant reported left lateral neck pain and left-hand pain.[17]
[17] Insurer’s bundle, p 33.
The hospital notes refer to the motor vehicle accident with complaints of left hand, left shoulder, left side of neck and left thigh pain.[18]
[18] Insurer’s bundle, p 37.
On 10 September 2018 the GP provided an allied health recovery request for psychological treatment diagnosing the claimant with “PTSD with adjustment disorder”.[19]
[19] Insurer’s bundle, p 24.
The claimant provided a claim form dated 24 September 2018.[20] The claimant described the accident and stated that he had pain down his left arm, lower back and neck and has flashbacks and sleeping problems.
[20] Insurer’s bundle, p 13.
On 24 September 2018 the GP noted back, neck and left shoulder pain with poor sleep, depressed mood and anxious.[21]
[21] Insurer’s bundle, p 56.
On 10 October 2018 the GP noted neck and back pain shooting to the left thigh and poor sleep.[22]
[22] Insurer’s bundle, p 55.
On 21 October 2018 the GP noted poor sleep, early morning wakening, depressed mood and irritability with restricted range of movement of the left shoulder, cervical and lumbar spine.[23]
[23] Insurer’s bundle, p 54.
On 1 November 2018 the GP noted poor sleep, depressed mood and irritability.[24]
[24] Insurer’s bundle, p 51.
Dr Al Shamali, psychologist, provided a report dated 6 February 2019.[25] The psychologist diagnosed the claimant with post-traumatic stress disorder and generalised anxiety caused by the motor accident.
[25] Insurer’s bundle, p 18.
Qualified opinions
Dr Robert Gertler, psychiatrist, was qualified by the claimant and provided a report dated
1 July 2020.[26][26] Claimant’s bundle, p 28.
Dr Gertler noted ongoing complaints of pain in the neck, left arm, back of head, low back and weakness in both legs. The doctor diagnosed post-traumatic stress disorder caused by the motor accident and assessed impairment at 19%.
Dr McClure, psychiatrist, was qualified by the insurer and provided a report dated
18 November 2020.[27] The doctor opined that the history given by the claimant, corroborated in the reports of Dr Reutens and Dr Gertler and the records of the treating psychologist, were that the claimant met the DSM-5 diagnostic criteria for major depressive disorder and post-traumatic stress disorder. There was no evidence that the claimant had a pre-existing psychiatric disorder and the motor accident as described occurred without warning and was a frightening event over which the claimant had no control.[27] Claimant’s bundle, p 55.
Dr McClure opined that the claimant’s psychological symptoms did not preclude employment in some capacity including solitary work in security. He also outlined that if the claimant was physically fit, he could resume his role as his father’s carer. Dr McClure also felt that the ratings of social functioning was class 3 as he is close to family members and in touch with friends, albeit infrequently. Permanent impairment was assessed at 7%.
SUBMISSIONS
Claimant’s submissions dated 4 March 2021[28]
[28] Claimant’s bundle, p 10.
The claimant disputed the history obtained by Dr McClure that he has two close friends. Reference was made to the history obtained by Dr Gertler and Medical Assessor Reutens of loss of friendship and loss of relationship with his partner.
The claimant submitted that he had no work capacity and referred to the opinion of
Dr Gertler.
Claimant’s submissions dated 10 May 2023[29]
[29] Claimant’s bundle, p 1
These submissions were filed seeking leave to review the medical assessment.
The claimant submitted that the Medical Assessor erred with respect to the assessment of the categories of “self-care and personal hygiene”, “social functioning” and “adaptation”.
The claimant submitted that the claimant does not cook because he is not motivated and has no capacity to care for himself and his older sister is now his carer. Reference was made to the assessment of Medical Assessor Reutens.
The claimant submitted that on the facts found by the Medical Assessor, he should have been assessed as class 3 for social and recreational activities.
The claimant submitted that the Medical Assessor had an incorrect history in relation to the maintenance of friendship and submitted that the claimant has no contact with either friend. It was submitted that the impact of the claimant’s injuries on his relationship with friends and family members has been well documented including in the reports of Dr Gertler dated
1 July 2020 and Medical Assessor Reutens.The claimant submitted that the Medical Assessor has not taken an adequate history from the claimant regarding his employment qualifications at the time of the motor accident which ought to be considered when determining the current capacity for work. It was noted that at the time of the accident the claimant was a carer for his father and is not able to continue in that role in part due to his physical injuries and ongoing disabilities arising from the motor accident and the effects of his psychological injury.
The claimant had previously obtained a security license and taken courses including completing the RSA and RSG certificates.
The claimant noted the following errors in the medical assessment certificate:
(a) the person to the claimant was residing with;
(b) the claimant is the second youngest of eight siblings;
(c) the claimant is closest to his older sister is his carer;
(d) the claimant is usually accompanied to appointments by his sister and does not take public transport, and
(e) that the claimant has retained two close friends and maintains a good relationship with his family.
The claimant also submitted that he continued with medication and psychological treatment and the effects of treatment should be added to the assessment of whole person impairment.
Insurer’s submissions dated 23 May 2023[30]
[30] Insurer’s bundle, p 2.
These submissions were filed opposing leave to review the medical assessment and disputed that the medical assessment was not incorrect in a material respect.
The insurer submitted in respect of the finding of self-care and hygiene, the operative plan for class 3 impairment is that an individual “cannot live independently” as a result of the psychiatric impairment. The insurer submitted that the evidence before the Medical Assessor did not suggest an inability to live independently, but rather a lack of motivation to attend cooking and cleaning tasks. It was submitted that it was within the clinical judgement of the Medical Assessor to find that the claimant lacks motivation to attend the tasks and only suffers from a mild impairment.
The insurer submitted that a class 4 for social functioning was not satisfied and that required the claimant to be “unable to form or sustain long-term relationships”. It was noted that the claimant has a positive relationship with his parents and his siblings.
In respect of adaptation, the insurer submitted that the Medical Assessor was correct in forming the view that it was the claimant’s physical limitations that prevented ongoing employment rather than any psychiatric symptoms. This opinion is supported by Dr McClure.
The insurer submitted that the claimant simply disagreed with the clinical judgement exercised by the Medical Assessor.
Insurer’s submissions dated 27 May 2021[31]
[31] Insurer’s bundle, p 8.
The insurer noted that the claimant has not disclosed suffering from any prior psychological symptoms although the clinical notes show depressed mood due to social stress in June 2017 and a sleep disorder in November 2017.
The insurer noted that the claimant presented at Royal Prince Albert Hospital following the motor accident and the discharge summary does not refer to any psychological complaints. The first record of psychological symptoms was depressed mood and anxiety on
24 September 2018. The claimant was subsequently referred for CBT therapy in November 2018 with psychologist, Ms Al Shamali.The insurer noted the records of Ms Al Shamali and Medical Assessor Reutens both diagnose the claimant with post-traumatic stress disorder.
The insurer submitted that the findings of Dr McClure ought to be preferred given the detail in that report which was not primarily reliant on the claimant’s self-reporting.
RE-EXAMINATION
Mr Yousif was examined by both Medical Assessors on 30 July 2024. The examination report is as follows:
“Pre-Accident History
The claimant is a 37-year-old) single man who had been in a relationship at the time of the subject motor vehicle accident (10 September 2018).
He denied any history of psychiatric illness. The panel drew his attention to an entry in his medical records to being depressed and stressed in June 2017. He had ‘no idea’ why this entry might have appeared. He wondered whether this had been raised because of his neck pain.
He had ‘some neck pain but that’s it’.
He does not drink alcohol. He does not smoke or use drugs. He gambles ‘sometimes’ and might spend $50 and $200 dollars although he has not done so for a while – it seems that his sister might have taken him to a club.
He had no history of problems with the law. He had no other claims history.
He had been his father’s full-time carer and received a Carer’s payment from Centrelink but could not remember when this was. He could not recall details of what he did for his father, only that he would take him to doctors.
He hails from a city in North Iraq from a Chaldean Christian background. He has five sisters and two brothers. He is the second youngest of his siblings. He does not remember what they did in Iraq and ‘here I don’t remember – my dad he went on a pension’.
He may have attained year nine in Iraq – he was not sure but apparently was a student at the time he left the country and had never worked.
He was ‘not sure’ when he came to Australia but when pushed said he thoughts it might be 2008. He came here via Syria but could not remember how when he left Iraq. He thought he might have been in Syria ‘a couple of years’. He left because ‘they took my two brothers – they been killed – I don’t want to remember all that – I get upset’. He said he did not remember if he himself was threatened. He said of this, ‘all I remember is my mum and dad said we have to run away’.
He was ‘happy to start new life… until 10 September – Monday night – everything bad happened in my life – I lost my friends… everything…’.
He said he had obtained his security licence with a view to going back into the workforce ‘because the girl I was with – she told me to do something – you can’t just be a carer’. The Panel also noted references in the documentation to other certificates such as RSA and ICG. However, he had never worked and had been his father’s full-time carer. His other sister now looks after his father and mother. She had worked in childcare but now looks after his father.
His older sister is now his carer and may receive a carer payment.
His partner of five years had worked in retail. They did not live together but he would go out with her regularly to coffee shops, restaurants, or for drives.
History of the Accident
The accident occurred on 10 September 2018. He was a front seat passenger on his way home on the Anzac Bridge. In the ensuing collision, his car was sent spinning. Airbags were deployed. He recalled he went out on the roadway and was extremely angry.
The ambulance arrived. He ‘didn’t feel anything’ but his hands were swollen and bleeding. He was taken to The Royal Prince Alfred Hospital where he remained until the early hours of the morning.
He had pain in neck, his shoulders, and his lower back. He sees his biggest problem as being in his lower back. He can walk for up to half an hour. He says he had not done this for some time.
He felt angry, upset, and had fragmented sleep at night what with nightmares. He gets off to sleep with help of melatonin. His sleep is disrupted by “bad dreams” in which he sees himself falling off a bridge or an accident in an aeroplane. Family have told him that they could hear him shouting in his sleep. He finds it hard to get back to sleep saying, ‘I start thinking a lot and then I sometimes get a pain in my stomach…’.
He is depressed which he articulated as feeling angry, sad, and feeling that he has lost a lot including his relationship.
It seems they ‘gave me a tablet’. He is on a pain killer, melatonin, and Zoloft 50 mg daily as best as he can recall.
Pain is a continuing presence in his life.
He saw a psychologist though he has not seen her now for about two years – he had been seeing her via a mental health care plan.
Further Accidents
He had no further accidents.
Clinical Presentation
Mental State Examination
The claimant was interviewed by Microsoft Teams. A good audiovisual connection was established. His head and shoulders were visible. He proved a neatly presented man whose hair was brushed, and his long beard looked tidy. He provided the account documented above. His narrative was coherent, but the Panel noted significant gaps in pre-accident history and equivocal answers for example in relation to concentration and memory.
He showed reasonable warmth and reactivity of affect.
There was no evidence of psychosis or observable cognitive impairment.
Current Functioning
He lives with his parents and a younger sister. He would spend his day waking up, have something to eat, do a stretch, and sometimes his sister would take him for a walk. He spends time in his backyard but ‘sit there – looking – nothing else’.
He found himself getting in conflict with his partner of five years. She decided to leave him because they kept arguing and fighting. She left him some six months after the accident, and he is not currently in a relationship. He could not see himself in a relationship in his current condition saying, ‘I can’t get over what happened to me – I can’t go through that again’. In relation to family, he has an older sister who looks after him and another sister with whom the relationship is ‘not that great’. His relationship with his parents is strained and he does not see much of them. He added, ‘sometimes I feel like they feel sad for me’. He has lost contact with friends who he says have stopped calling him.
He said his sister looked after him. She would come and talk to him. She prepares food for him. He does not prepare his meals saying, ‘I don’t feel like eating – I didn’t feel like doing anything like that’. His sister would get him to eat. His weight, however, has been steady apparently ‘because I have the fluid in my body’. The Panel raised with him that he had told another assessor that he did not bend down to shower because he would get shooting pains in his back. He reiterated that he did not feel like showering.
He no longer goes out. He thought he may have been out ‘maybe twice’ with his sister to have a coffee in the last three months – she wanted to get him out. He felt very self-conscious and felt as though ‘people were looking at me weird’. He said he just did not feel like going out and seeing people.
He does make local journeys on his own. However, he is very anxious as a passenger and recalled a recent trip to the city for an appointment to which his sister had driven him. He could manage local journeys for example to see his doctors.
He does not read much or watch TV and gets upset if he sees an accident on TV. He would not be able to watch the whole episode of a series largely because he might see something that triggers or upsets him. He gave an equivocal answer whenever asked about memory and forgetfulness. When pressed further, he said he would always remember the loss of his relationship and the accident. He said he did not think he himself had a problem in this regard but that his doctors have told him he has a problem. He was asked about a comment by a doctor in 2020 that he was reading – he could not recall what he might have been doing around the time. His attention was drawn to comments that he watched TV all day. He again said he could not remember. He felt that his mental health had not changed.
He has never worked and has not worked since the accident. He receives a payment from Centrelink. He is exempted from looking for work. He sees his depression, anxiety, and PTSD as reasons for not working coupled with his pain in his neck, his shoulders, his knees, and lower back. He sees himself unable to work because of his poor sleep saying, ‘I can’t sleep – bad dreaming – memory – all those things happening’.
Comments on Consistency
The Panel noted the history he gave in relation to self-care and raised the observation with him that he had presented quite neatly, his hair was neatly combed and his long beard was tidy, with no evidence of any neglect. He said that her sister had blow-dried his hair for today’s meeting and brushed his beard. He said he did not comb his hair explaining, ‘I don’t go out – why do I need to do it’? He says he does not feel like showering, but his sister would tell him that he smells. If it was up to him, he would not do anything.
The Panel raised with him a number of other inconsistencies within his history. His responses are detailed both in the main body of the certificate and in its assessment of whole person impairment. The Panel formed the view that he was not an accurate historian.
Diagnosis
The claimant’s presentation is consistent with a diagnosis of posttraumatic stress disorder. In terms of DSM-5-TR criteria, the accident comprised exposure to the threat of serious injury (Criterion A), and he provides a history of intrusion symptoms including nightmares and anxiety when in a car (Criterion B). There is evidence of avoidance behaviour manifest in his difficulties driving (Criterion C) as well as of negative alterations and cognitions and mood in the form of low mood and significant disengagement from activities he once enjoyed (Criterion D). There is evidence of marked alterations and arousal and reactivity manifest in irritability, hypervigilance, problems with concentration, and sleep disturbance (Criterion E). His symptoms have been present for nearly six years (Criterion F) and cause him clinically significant distress and impairment (Criterion G). There is no evidence that his symptoms are attributable to the physiological effects of a substance or to another medical condition (Criterion H).
His ongoing pain warrants a diagnosis of somatic symptom disorder with predominant pain. The latter diagnosis does not imply that his symptoms are without pathophysiological basis but reflects rather the extent to which they dominate his life.
Impairment
Self-Care And Personal Hygiene
The Panel obtained the following history:
He said his older sister looked after him. She would come over and talk to him. She prepares food for him. He does not prepare his meals saying, ‘I don’t feel like eating – I didn’t feel like doing anything like that”. His sister would get him to eat. His weight, however, has been steady apparently “because I have the fluid in my body’. The Panel raised with him that he had told another assessor that he did not bend down to shower because he would get shooting pains in his back, as noted by Dr McClure in his 8 November 2020 report and in Dr Reuten’s certificate. He reiterated that he did not feel like showering. The Panel noted his general physical limitation affecting his capacity to prepare food, cook and do shopping, and noted other reports showed his difficulties with carrying groceries.
Dr McClure, Dr Fukui and Dr Gertler had seen him over the years at different times and they rated 1, 2 and 2. His psychological injury has not changed over the years, according to him. The Panel noted his capacity to manage himself during the assessment, and his neat presentation and the contribution of his physical symptoms to his functional changes. Using clinical judgement, it rated him as Class 2 in this category as from a psychological perspective, he does not need prompting and can live independently.
Social And Recreational Activities
The Panel obtained the following history:
He no longer goes out. He thought he may have been out “maybe twice” with his sister to have a coffee in the last three months – she wanted to get him out. He felt very self-conscious and felt as though ‘people were looking at me weird’. He said he just did not feel like going out and seeing people and does not engage in recreational activities.
The Panel rated him as Class 3 in this category.
Travel
The Panel obtained the following history:
He does make local journeys on his own. However, he is very anxious as a passenger and recalled a recent trip to the city for an appointment to which his sister had driven him. He could manage local journeys for example to see his doctors.
The Panel rated him as Class 2 in this category.
Social Functioning
The Panel obtained the following history:
He found himself getting in conflict with his partner of five years. She decided to leave him because they kept arguing and fighting. She left him some six months after the accident, and he is not currently in a relationship. He could not see himself in a relationship in his current condition saying, ‘I can’t get over what happened to me – I can’t go through that again’. In relation to family, he has an older sister who looks after him and another sister with whom the relationship is ‘not that great’. His relationship with his parents is strained and he does not see much of them. He added, ‘sometimes I feel like they feel sad for me’. He has lost contact with friends who he says have stopped calling him.
The Panel noted submissions on the claimant’s behalf that he warranted Class 4 impairment. While the Panel noted the irretrievable breakdown of his relationship with his partner and the loss of friendships, it also noted that his other relationships while strained were nevertheless intact. It also considered the cessation of his role as his parents’ carer but noted the contribution of physical problems to this development. Using clinical judgement, it allocated Class 3 in this category.
Concentration, Persistence, and Pace
The Panel obtained the following history:
He has limited education. He does not read much or watch TV and gets upset if he sees an accident on TV. He would not be able to watch the whole episode of a series largely because he might see something that triggers or upsets him. He gave an equivocal answer whenever asked about memory and forgetfulness. When pressed further, he said he would always remember the loss of his relationship and the accident. He said he did not think he himself had a problem in this regard but that his doctors have told him he has a problem. He was asked about a comment by a doctor in 2020 to the effect that he was reading – he could not recall what he might have been doing around the time. His attention was drawn to comments elsewhere in the documentation that he spent the day watching TV, when seen by Dr Reutens. He again said he could not remember. He felt that his mental health had not changed. The Panel also discussed, when seen by Medical Assessor Reutens who reported on 15 May 2019, she noted she could not observe any cognitive difficulties, and on reviewing his symptoms, he denied any subjective concentration or memory problems to her.
The appellant submitted Dr McClure and Dr Gertler rated 3 and only Dr Fukui rated 2. The Panel has access to their reports, and noted Dr McClure, Dr Gertler and Dr Fukui all rated 2 and Dr Reutens, did not identify any cognitive difficulties. The Panel noted his equivocal responses and inconsistencies in relation to his functioning. The Panel came away with the impression that he was an unreliable historian in this regard. It further considered that his stated inability to remember aspects of his past life as noted in his responses to other categories in the PIRS did not reflect impairment in memory or concentration noting his capacity to provide a coherent narrative in relation to his current symptoms and functioning over a period of one and a half hours. Using clinical judgement, it rated him as Class 2 in this category.
Adaptation
The Panel obtained the following history:
He has not worked since the accident. He receives a payment from Centrelink. He is exempted from looking for work. He sees his depression, anxiety, and PTSD as reasons for not working coupled with his pain in his neck, his shoulders, his knees, and lower back. He also sees himself as unable to work because of his poor sleep saying, ‘I can’t sleep – bad dreaming – memory – all those things happening’.
The Panel noted that he had not been in paid employment before the accident although he had obtained his security licence and other certificates as well as being his father’s carer. It noted that he had obtained these qualifications because his partner had pushed him to do so. It was troubled by his inability to describe his earlier care for his father (although this is described in submissions on his behalf) leaving it with the impression that he was not a reliable historian. The Panel noted Dr Reutens wrote that he could not continue as a carer for his father due to pain. The Panel also noted the significant contribution of physical symptoms to his functional limitations. Nevertheless, the Panel considered that there was evidence of some loss of capacity as a consequence of psychological problems, that is a mild impairment in his capacity to perform his pre-accident life roles to account for reduced productive hours as a result of his psychological symptoms.
Dr McClure and Dr Fukui rated 2.
The appellant noted Dr Gertler rated 5, however, his rating is solely based on his capacity for employment, and not on adaptation and does not account for limitations from ongoing physical symptoms. Using clinical judgement, the Panel rated him as Class 2 in this category.
Impairments in Ascending Order
2, 2, 2, 2, 2, 3
Median Score
2
Aggregate Score
13
Whole Person Impairment
7%
Pre-Existing Impairment
As best as the Panel could tell, there was no pre-existing impairment.
Treatment Effects
He is not having any treatment currently and so there is no evidence for treatment effect.
Final Whole Person Impairment
7%.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[32]
[32] Section 7.26(6) of the Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[33] and Insurance Australia Ltd v Marsh.[34]
[33] [2021] NSWCA 287 at [40], [41] and [45].
[34] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination report provided by the Medical Assessors supplemented by the following further reasons.
The Panel is particularly reliant on the clinical expertise of the Medical Assessors in the assessment of psychological injury. The claimant’s history, consistent with various medical records, is that he has significant ongoing pain. This pain is functionally affecting the claimant particularly in his ability to undertake employment. We have attempted to ignore the effects of this pain when assessing permanent impairment.
There are references in the records to pre-existing psychological symptoms. However, we are not satisfied, pursuant to cl 6.31 of the Guidelines, that there was any objective evidence of impairment at the time of the motor accident
CONCLUSION AND ORDERS
The Panel has concluded that the motor accident has caused a 7% permanent impairment. Whilst the assessment is almost identical to that reached by the Medical Assessor, the slight difference means that it is necessary to revoke the medical assessment certificate of Medical Assessor Fukui. A new certificate is attached at the commencement of these Reasons.
0
3
0