DETERMINATION OF REVIEW PANEL	
	
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Brewer [2024] NSWPICMP 317	
		
CLAIMANT:	Alexander Brewer	
		
INSURER:	Insurance Australia Limited trading as NRMA Insurance	
		
REVIEW Panel	 	
		
MEMBER:	Ray Plibersek	
		
MEDICAL ASSESSOR:	Gerald Chew	
		
MEDICAL ASSESSOR:	Tom Newlyn	
		
DATE OF DECISION:	20 May 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a driver in a utility that collided with a car in an intersection; insurer alleged pre-existing psychiatric conditions including depression; claimant denied pre-existing psychiatric injury; original assessment found the claimant sustained post-traumatic stress disorder/persistent depressive disorder; claimant assessed with a whole person impairment (WPI) of 22%, claimant’s pre-existing WPI for a previous motor accident in 2017 found to be 5% with 1% allowance for treatment giving a total WPI of 18%; insurer alleged pre-existing psychiatric conditions including depression attributed to previous motor accident; claimant denied pre-existing psychiatric injury; Panel determined that the claimant does not meet DSM-5 criteria for major depressive disorder or post-traumatic stress disorder; Panel’s diagnosis of the claimant’s symptomatology and presentation was unspecified trauma and stressor related disorder; DSM-5-TR F43.9; Panel found degree of permanent impairment caused by the motor accident is 5%; claimant may have had a depressive psychiatric impairment as a result of the 2017 motor accident but that he recovered from pre-existing impairment prior to the occurrence of the subject motor accident in 2020; Held – original medical certificate set aside. 
	
DETERMINATIONS MADE:  	Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017
1.	The Review Panel revokes the Certificate of Medical Assessor Yu Tang Shen dated 
29 March 2023 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-TR F43.9 Unspecified Trauma- and Stressor-Related Disorder.

	

REVIEW PANEL REASONS FOR DECISION
INTRODUCTION 
1.	On 7 December 2020 Alexander Gareth Brewer (the claimant) was involved in a motor vehicle accident at the intersection of Hoxton Park Road and Cowpasture Road, Hoxton Park NSW.
2.	Mr Brewer has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).  
3.	Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Ms Young under the MAI Act.
4.	Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
5.	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%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act. 
6.	A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
7.	The dispute as to permanent impairment in respect of the claimant’s psychological injury was referred to Medical Assessor Yu Tang Shen (psychiatrist) who assessed him on 
27 March 2023. Medical Assessor Shen issued a certificate dated 29 March 2023 which certified that as a result of the result of the subject accident the claimant sustained post-traumatic stress disorder/persistent depressive disorder and assessed his degree of whole person impairment (WPI) at 18%.
8.	The insurer has sought a review of Medical Assessor Shen certificate dated 29 March 2023.
RELEVANT LEGAL AUTHORITY
9.	Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines). 
10.	The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
11.	Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 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. 
6.7	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.”
12.	The Review 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.”
CERTIFICATE OF MEDICAL ASSESSOR SHEN
13.	The injury referred to Medical Assessor Shen for assessment was psychiatric injury –major depressive disorder/ post-traumatic stress.
14.	Medical Assessor Shen issued a certificate dated 29 March 2023 certifying that as a result of the result of the subject accident the claimant sustained post-traumatic stress disorder/persistent depressive disorder and assessed his degree of WPI at 18%.
15.	Medical Assessor Shen’s diagnoses was that the claimant had post- traumatic stress disorder (F43.10), given the incident of the subject accident is sufficient to meet Criterion A, and he meets the other symptom, impairment and duration criteria. He was also diagnosed with persistent depressive disorder (F34.1), given his persistent depressive symptoms.
16.	Medical Assessor Shen’s opinion on causation was the,
“….onset of PTSD symptoms appears to have commenced following the subject accident, and the PTSD symptoms are thematically linked by content of his re-experiencing symptoms and the triggers. Hence, the PTSD has been caused by the subject accident. He has had depressive symptoms related to his ongoing frustration dealing with the insurance claim, his ongoing pain and associated limitations, and sense of injustice and losses he has endured, which have arisen due to the subject accident. Hence, there is a causal link between the subject accident and his depressive symptoms.”
17.	Medical Assessor Shen assessed the claimant with a WPI of 22%. He then assessed the claimant’s pre-existing WPI and found that to be 5%. Medical Assessor Shen then assessed the effects of treatment to be 1%. He then appears to have deducted 5% for the pre-existing WPI and 1% for the effective treatment to give a total assessment of permanent impairment of 18%.

REVIEW PROCEDURE
18.	The insurer has sought a review of the medical assessment of Medical Assessor Shen.
19.	The application was lodged within 28 days of the date on which the Certificate of Medical Assessor Shen was made available to the parties.
20.	On 29 March 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).The insurer’s ground for review and particulars in respect to the Medical Assessor’s failure to bring inconsistencies identified to the claimant’s attention pursuant to cl 6.41 of the Guidelines, satisfies me of reasonable cause to suspect that the medical assessment was incorrect in a material respect. 
21.	Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply. 
22.	The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission). Accordingly, the President’s delegate referred the matter to this Panel to assess. 
23.	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 Medical Assessor.
24.	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.
25.	The review is by way of a new assessment of all matters with which the medical assessment is concerned. 
26.	On 6 November 2023 the Panel agreed an examination was necessary. All Panel members have had no previous involvement with the claimant or with this matter. 
EVIDENCE BEFORE THE REVIEW PANEL
27.	The Panel issued a Direction to the parties on 7 November 2023 requiring each party to file an indexed, paginated bundle of documents. These directions also requested the claimant to attend a medical re-examination with the Panel on 20 February 2024.
28.	In response to this Direction the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 3,781. The solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 188. There were also several other bundles of documents from earlier proceedings before the original Medical Assessor.
29.	The Panel notes that there are extensive and voluminous medical records, reports and clinical notes describing the claimant’s psychological and physical injuries. The Panel has read, discussed 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 Brewer’s physical injuries or symptoms unless they are relevant or have some bearing on the consideration of the psychological injuries which are the subject matter of this Panel’s reassessment process. 
30.	The Panel has not referenced or summarised all of the records relating to Ms Brewer’s symptoms or injuries. If some of those 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. 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 a just, quick and cost-effective resolution of the real issues in the proceedings. Consistent with this guiding principle, the Panel has not referred to every item of medical evidence but has done its best to refer to them sufficiently but briefly.
31.	In conducting this medical review the Panel has sought to follow and implement the words of Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance  who stated: 
“[63] The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. (Providing it to the court is also commonplace, though misconceived.) Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.” 
32.	The Panel was not assisted by the insurer’s solicitors inclusion of several thousand pages of clinical and medical records which refer exclusively to Mr Brewer’s physical injuries. These records had little relevance to his psychiatric condition or impairment and delayed the Panel in its  consideration of the matter of Mr Brewer’s psychiatric injury or impairment.
33.	In response to the Panel’s Direction for Mr Brewer to attend a re-examination his treating psychologist Ms Susie Endrey wrote a letter addressed to the Commission. She wrote that she was concerned with Mr Brewer's psychological well-being and requested that any further medical or psychological assessments should be either cancelled or postponed. She advised that he needed time over the next several months to prepare for his review with the Commission early next year. Ms Endrey also wrote that at the request of Mr Brewer she had permission to be present at the Panel's review in order to assist Mr Brewer better manage his emotional responses to what may be a challenging situation for him.
34.	On or about 6 February 2024 Ms Endrey wrote a letter addressed to Mr Brewer’s lawyers stating that she had discussed the upcoming review with the Commission which was due on 20 February 2024 with Mr Brewer on several occasions and that she now believed his medical condition is sufficient for him to participate in this review.
Pre-accident treating medical evidence
35.	There are a significant number of clinical notes of medical records available for Mr Brewer’s pre-accident physical and psychiatric condition.
36.	There are detailed records from his treating doctors at the Gladesville Medical Centre,
Dr Robert Kaplan, Dr Pham and numerous reports from Ms Diana Falk psychologist.
37.	In a report dated 10 October 2018 Ms Falk recorded that Alex reports no prior history of mental health problems, no substance use issues and has had a stable work history. Since the accident in 2017 he has experienced persistent and severe mental health difficulties these include: insomnia, anxiety, agitation, depression, panic attacks, suicidal ideation, difficulties managing frustration and irritability.
38.	Ms Falk diagnosed Mr Brewer anxiety disorder, depressive disorder and panic disorder. These are attributable not only to the motor vehicle accident itself and the pain and impairments caused by that, but also to the length of time it has taken for treatments to be actioned and matters finalised.
39.	There is an Allied Health Recovery Request (psychologist) dated 2 August 2018 it noted the claimant’s psychiatric symptoms as including: major anxiety/agitation, low mood, suicidal ideation, impaired sleep, paranoid ideation, ongoing physical pain, and limitations.
Post-accident treating medical evidence
Wei Ling Kristine Koh, psychologist
40.	There was an Allied Health Recovery Request dated 21 May 2021 from a psychologist named Wei Ling Kristine Koh.
41.	A comment in the report stated: 
“Alex has experienced a deterioration in his mood and anxiety, which negatively impacts on his pain experience. He is currently struggling with feelings of frustration, anger, anxiety and sadness (of loss of his hard work & future planned). He requires consistent therapy sessions for his recovery.” 
 Diana Falk, clinical psychologist
42.	In a report dated 6 October 2021 Ms Diana Falk wrote that Mr Brewer was a former patient who consulted Ms Falk from May to December 2018. Mr Brewer had a previous motor vehicle accident on 7 February 2017 and he re-presented to her again on 26 May 2021 following a second further motor vehicle accident on 7 December 2020. Ms Falk wrote that she saw Mr Brewer on 26 May and 8 July 2021.
43.	Ms Falk wrote that Mr Brewer presented in a highly escalated an agitated state. He was working hard towards resuming normal life activities was employed and in a new relationship. The second motor vehicle accident had caused injury to his thumb and elbow and aggravated his prior shoulder injury. Ms Falk wrote that Mr Brewer found the prospect of insecure work and dealing again with insurers infrequent medical appointments very distressing and there was a recurrence of his previous symptoms such as: insomnia, anxiety, agitation, depression, panic attacks, suicidal ideation, difficulties managing frustration and irritability. Ms Falk wrote that in a DASS21 Mr Brewer scores across all three domains were in the extremely severe range.
Mr Carl Nilsen, psychologist
44.	In a report dated 26 November 2021 Mr Carl Nilsen, psychologist, diagnosed Mr Brewer with post-traumatic stress disorder.
45.	Mr Nielsen described Mr Brewer’s symptoms as follows:
“Mr Brewer noted a deterioration in his mental state characterised by repeated disturbing and unwanted memories as well as flashbacks of the actual collision . He noted avoidance of social interactions as well as driving. Mr Brewer noted fluctuations in arousal ranging from irritability to fatigue secondary to sleep disturbance. Mr Brewer noted negative
thinking and mood characterized by anxious and depressive cognitions as well as low mood. As a result of his MVA, Mr Brewer has been rendered unable to work in martial arts. He is unable to do martial arts training as well as train in the gym. He has delays with domestic duties including clothes washing, cooking and cleaning. He noted intimacy issues subsequent to the MVA.”
Ms Susie Endrey, treating psychologist
46.	There are a number of letters from Mr Brewer’s treating psychologist Ms Susie Endrey.
47.	In a letter dated 15 May 2023 Ms Endrey writes that she has treated Mr Brewer since November 2022. She wrote that Mr Brewer cannot partake in any further reviews without catastrophic psychological damage. She further describes Mr Brewer as being suicidal with levels of distress there are extreme and he is overwhelmed by a sense of profound grief, anger and despair. He is in despair about insurance process which is unsupported and he feels victimised.
48.	Ms Endrey writes that Mr Brewer has overwhelming stress about the insurance process. 
Mr Brewer outlined his life pre-accident of December 2022 to Ms Endrey. He reports that he was living an energetic, constructive life where he was teaching and healing others while himself living a financially secure and emotionally and physically healthy life. Mr Brewer reported periods of financial insecurity and homelessness. The process of this insurance investigation is causing an extraordinary high and serious levels of despair and torment.
49.	The request for a further review will provoke extreme anxiety for Mr Brewer. He will have crippling panic attacks before any review and will suffer intense anxiety for two weeks after the review. He can be crying with frustration and contemplating suicide and then experience fear and anger. Ms Endrey believes a further review will tip Mr Brewer over the edge of the fragile equilibrium is currently maintaining.
50.	Ms Endrey recommends that if the review process does require Mr Brewer to be present in person Sydney that both his partner and herself as his psychologist should travel with him with the role of supporting him to minimise the psychological trauma of such an event.
51.	In another report dated 10 July 2023 Ms Endrey emphasises the damaging psychological effect the insurance review process is having upon Mr Brewer. She writes that Mr Brewer's current emotional state is very fragile and despite regular therapeutic consultations his levels of distress continue to intensify and are now frequently extreme. He reports suicidal ideation on several occasions. Mr Brewer expresses intense levels of despair about insurance process which is tortuous for him. He feels unsupported, disrespected, marginalised and feelings of an insignificant person.
52.	Ms Endrey writes that the process has been exceptionally challenging for Mr Brewer and his emotional health is very fragile and vulnerable. He presents as a person on the verge of a total breakdown. Mr Brewer's mental health is perilously close to collapsing.
Medico-legal evidence
Charmaine Skea, clinical psychologist
53.	There is a report dated 27 January 2022 from Ms Charmaine Skea, clinical psychologist.
54.	In her report Ms Skea wrote that the purpose of her report is that Mr Brewer is seeking a record outlining the impact the accident has had upon him. It is not a full psychological assessment. Ms Skea wrote that she was unable to make a formal diagnosis as she was not the treating psychologist following the accident nor did she assess him at the time.
55.	Mr Brewer reported that as a result of the 2020 motor accident he was unable to continue working as a martial arts instructor and to engage in his interests including producing in the music industry. Mr Brewer reported a low mood and a significant drop in his self-confidence and self-esteem forming a time in which you build himself up from his previous injuries. 
Mr Brewer reported feeling mentally destroyed as a result of the accident on 
7 December 2020. He further reported that he was feeling a lot better and was getting his life back.
56.	Ms Skea wrote that the accident described in the resulting injury would have had a significant psychological impact on Mr Brewer's life. Mr Brewer reported that he was doing a lot better and is feeling positive and has worked hard to overcome his challenges.
Dr Richa Rastogi, consultant psychiatrist
57.	There is a report dated 8 July 2022 from Dr Richa Rastogi, consultant psychiatrist.
58.	Dr Rastogi recounted a history given by Mr Brewer of a previous motor vehicle accident on 7 February 2017 which resulted in shoulder injury and surgery. He also suffered mild depression and anxiety and commenced seeing a psychologist Diana Falk.
59.	After the accident on 7 December 2020 Mr Brewer reported panic attacks, severe insomnia fatigue, anxiety and depressed about the uncertainty of his future and financial distress. He became homeless. He is also frustrated by the ongoing harassment from insurers. He feels depressed hopeless and worthless.
60.	Dr Rastogi reports that Mr Brewer says he was diagnosed with depression/anxiety from his previous accident in 2017 and he made recovery. Mr Brewer reported losing his confidence and having suicidal ideation. He has been prescribed Fluoxetine by his general practitioner (GP) Dr Lim and takes it as needed. He feels empty, numb, overwhelmed and frazzled. 
61.	Dr Rastogi diagnosed Mr Brewer with major depressive disorder with anxiety. Dr Rastogi wrote that:
“The subject accident and consequential physical injuries resulting in vocational losses, homelessness, financial stress and loss of his relationship has culminated into a major depressive disorder. He has struggled with adaptation and limitations on his functioning perpetuating major depressive disorder. 
He qualifies for Major depressive disorder with anxiety manifesting with depressed
mood, depressive cognitions, guilt, panic attacks, low self-esteem, loss of confidence and working memory deficits. The fear with chronic depressive cognitions and anxiety have impeded his functioning significantly.
He qualifies for DSM 5 diagnosis of Major depressive disorder.”
62.	Dr Rastogi was asked whether Mr Brewer had pre-existing injuries and whether those injuries have been aggravated as a result of the motor vehicle accident. He replied that: 
“There was a history of pre-existing depression and anxiety associated with physical injuries in 2017 but he made recovery and resumed working in 2021 and was stabilised.”
63.	In her WPI assessment Dr Rastogi noted there was a pre-existing condition which had stabilised. She assessed Mr Brewer with 17% WPI. Her assessment of his pre-existing impairment was none 0% and she found for the effects of treatment 0%.
SUBMISSIONS
Insurer’s submissions
64.	The insurer provided three undated sets of submissions. 
65.	The first set of undated submissions addressed whether the medical assessment of Medical Assessor Shen was incorrect in a material respect.
66.	The insurer submitted five grounds for why the medical assessment of  Medical Assessor Shen was incorrect in a material respect. The Medical Assessor: 
(a)	failed to identify inconsistencies between the history provided by the claimant and the documentary evidence;
(b)	failed to bring these inconsistencies to the claimant attention;
(c)	incorrectly assessed the claimant’s current impairment;
(d)	incorrectly assessed the claimant’s pre-existing impairment, and
(e)	failed to provide adequate reasons when assessing the effects of treatment in his final assessment of WPI.
67.	The insurer disputes the claimant’s evidence about the purchase of the three businesses and how well they were doing.
68.	The insurer disputes the claimant’s assertion that in 2019 he had no depression or anxiety. The insurer points to the records of the glaze for Medical Centre to show this was not the case. The insurer notes that contrary to the claimant’s denial there is evidence he was using marijuana for his psychological symptoms.
69.	The insurer disputed and submitted detailed submissions as to why the claimant’s psychiatric impairment rating scale (PIRS) impairment rating was incorrectly assessed by Medical Assessor Shen. 
70.	The insurer submits that Medical Assessor Shen did not elaborate on the benefit the claimant had received from his limited psychological treatment. In accordance with Dr Bisht’s opinion, which is in line with the claimant’s self-reports that his psychological symptoms are ongoing, the insurer submits that the claimant’s WPI percentage ought not be increased as there has been no or negligible treatment effects.
71.	The second set of undated submissions addressed were in reply to the Commission’s WPI dispute.
72.	Most of these submissions dealt with the claimant’s physical injuries and treating medical evidence. There were detailed submissions about the claimant’s relevant and significant pre-accident psychological impairment. The submissions detail the claimant’s self-care and personal hygiene; social and recreational activities; social functioning; concentration persistence and pace; adaption/employability.
73.	The insurer writes that its primary submissions are that the claimant’s alleged psychiatric/psychological injuries if any are not related to his motor vehicle accident. The insurer further submits that if it is found that the claimant does suffer an accident related psychiatric injury, which the insurer denies, the claimant’s degree of WPI will not exceed 10% WPI when his pre-existing impairment is deducted from his current impairment rating.
74.	The third set of undated submissions is described in the index as November 2023.
75.	The conclusion of the third set of undated submissions is that the claimant’s alleged psychiatric/psychological injuries (if any) are not related to the motor vehicle accident. If it is found that the claimant does suffer an accident-related psychiatric injury (which is denied), the insurer submits that his degree of WPI will not exceed the 10% threshold when his significant pre-existing impairment is deducted from his current impairment rating.
76.	The insurer submits that the claimant has a significant and relevant pre-accident psychiatric history that is set out in the previous submissions and the contemporaneous medical evidence.
77.	The insurer referred to a report of Dr Robert Kaplan psychiatrist dated 31 July 2018. The insurer submits that this report diagnosed Mr Brewer with Bipolar affective disorder in a manic state. 
78.	The insurer also referred to a supplementary report of Dr Yajuvendra Bisht dated 
3 February 2023. Dr Bisht noted that the claimant told him at the assessment he had fully recovered halfway through 2018 when his son came to Australia from Japan. The insurer submitted that this statement from Mr Brewer should not be accepted because the insurer referred to 23 examples of consultations Mr Brewer had with various doctors and psychiatrists showing that in the insurer’s opinion he had an ongoing psychiatric condition. The insurer also notes that Dr Bisht opinion is that the claimant had a substantial psychiatric condition at the time of the accident. He diagnosed the claimant as suffering a pre-existing major depressive disorder and assessed his pre-existing impairment at 13% WPI. Dr Bisht then reported that once the claimant’s pre-existing impairment was deducted from his current impairment, Dr Bisht’s final assessment was 0% WPI.
Claimant’s submissions
79.	The claimant provided submissions dated 17 May 2023 and 30 November 2022. 
80.	In the submissions dated 17 May 2023 the claimant’s solicitors respond to five arguments raised by the insurer and seeking a review of the original decision of Medical Assessor Shen.
81.	The insurer argues that the findings Medical Assessor Shen has made are all supported by the medical evidence before him.  
82.	The claimant submits he had no depression or anxiety prior to the subject accident apart from employment/career stress. The insurer provides 20 allegations of this alleged inconsistency from the records of Gladesville Medical Centre which the claimant responds to in detail.
83.	The claimant denies that there are any inconsistencies about the evidence of his relationship breakup. The ‘inconsistency’ merely arises from a multifaceted relationship breakdown for more than one reason as opposed to different/inconsistent reasons.
84.	The claimant submits that Medical Assessor Shen correctly assessed the claimant's current psychiatric impairment classes in accordance with the Motor Accident Guidelines and the PIRS scale.
85.	The claimant submits that Medical Assessor Shen correctly assessed the claimant's pre-existing psychiatric impairment classes and pre-accident functioning in accordance with the Motor Accident Guidelines and the PIRS scale.
86.	Medical Assessor Shen provided adequate reasons when assessing the effects of treatment on the claimant in his final assessment of the claimant's WPI.
87.	The claimant submits that the insurer's submissions failed to establish any material error is present within the certificate of Medical Assessor Shen. 
88.	The submissions dated 30 November 2022 allege the claimant suffered psychological injury major depressive disorder / post -traumatic stress disorder.
MEDICAL EXAMINATION 
89.	Mr Brewer was examined via video teleconference using the MS-Teams platform by  Medical Assessor Tom Newlyn and Medical Assessor Gerald Chew.  The claimant was located at their lawyer’s office and was accompanied by their partner of approximately 16 months, Siiri.
90.	His identity was confirmed by Queensland Drivers Licence.
HISTORY
Psychosocial history and pre-accident history
91.	The claimant is a 45 year old right handed man who currently lives in Yandina Queensland in a rental property with his partner Siiri.  He has lived there for nearly six months.  Prior to this he lived in Carters Ridge, Queensland for around 7-8 months.  He has one child, a son who lives with his mother in Kyoto, Japan.  He said that he has a good relationship with his son and mother and they communicate regularly via FaceTime.  
92.	From the outset the claimant presented as very aroused and animated.  He was difficult to interrupt and kept coming back to a number of themes in particular.  He spoke at length and kept coming back to the injustice that he feels by the system and insurance company who he believes are avoiding giving him his compensation entitlements and putting him through a stressful and difficult process with multiple medical and psychiatric examinations.  He spoke in legal terms about his claim, citing the differences between this claim and his previous motor accident claim under the old legislation.  He was aware of the submissions of the insurer and talked at length and circled back to his version of what he said was the “truth” about his pre-accident function being exemplary high and his post-accident function being very poor.  The claimant was hesitant to discuss his early life history and pre-accident matters other than reinforcing that he had no prior mental health issues and excellent pre-accident function.  He was extremely happy to talk at length in a difficult to interrupt manner about post-accident issues and problems with the insurance process.
93.	He had copious amount of notes and papers which he referred to during the interview and held up to the camera various letters eg from a GP that he wanted us to pay particular attention to.
94.	He was born in the UK to an Australian mother and British father.  He was adopted into what he described as a loving family from birth.  He said that this was because his biological mother was young age 17 when she had him.  He did not want to clarify his clarify his cultural background and said that he identified as “other”.  He did not want to give an opinion on his parent’s cultural background “you will have to ask them”.
95.	He minimised any pre-existing psychological or psychiatric issues.  He admitted that after the 2017 accident he had a few sessions of counselling.  He denied any other formal diagnosis or treatment prior to the subject motor accident.
96.	He reported that in 2016 he was assaulted while working in security and injured his left shoulder, face, right hip and knee.  He said that he “healed” after this assault.  There was an associated Workcover claim with this incident.
97.	He said that after the 7 February 2017 motor accident he re-injured his left shoulder in particular.  He said that despite this his function was good and he was earning good money and had been able to travel and live his life as usual.  He said that there was a compensation claim for this which was settled satisfactorily.
98.	He denied the use of alcohol, cannabis and recreational drugs.  When asked about reference in the material to cannabis he said that he was prescribed medicinal cannabis oil for a short period in the past.
History of the motor accident
99.	The claimant was asked about the subject motor accident.  He said “I would love to tell you”.  He said that it was 3:00pm and he was driving southbound in Hoxton Park.  He said that he stopped at the traffic lights.  He accelerated when the light turned green.  It was a 3-4 lane road with all lanes occupied.  He said that he was driving a Toyota Hilux at around 35-40 kmph.  He said that a Toyota Corolla driven by a woman failed to give way and hit his front passenger side.  He said that he immediately saw his thumb be forced backwards and touch his forearm.  He was in pain.  He noticed pain in his right elbow and left shoulder.  No emergency services attended the scene.  He drove to his friend's house which was closer than his home and his friend drove him home.
History of symptoms and treatment following the motor accident
100.	He reported that he had ongoing pain and saw his GP “within 24 hours”.
101.	When asked about psychological / psychiatric symptoms he said that he noticed them “straight away”.  He said that he was shaking and had problems driving through roundabouts.  He said that he contacted his counsellor Diana who he knew from the previous accident and had sessions with her.  He said that he felt “angry” and had poor sleep.  He said that he “lost everything”.  He reported that he had been suicidal because of the insurance process and had attended hospital at Nambour once with suicidal ideation “they saved me”.
102.	He said that he engaged with a psychologist Suzie, around November 2022.
103.	His current medication includes Panadeine Forte and ibuprofen.  He is not taking psychotropic medication.  He said that his GP prescribed him one however he took a few doses and did not tolerate the side effects.
104.	There are no relevant injuries or conditions sustained since the motor accident.
MENTAL STATE EXAMINATION
105.	He appeared his stated age and was well groomed in a style that included a crisp white Polo Ralph Lauren button shirt paired with long beads in a necklace.  He was extremely animated and reactive in his affect.  He described a depressed mood but his affect was not congruent with this.  He was able to laugh and make jokes.  He was tearful at other times.  He was oriented to time, place and person.  He concentrated intently for the duration of the 90 minute interview and was able during that time to also go through his paperwork and find relevant documentation that he wanted us to know about.  He was difficult to interrupt and often came back to the same themes and topics.  He did not report hallucinations.  He denied any suicidal ideation today.
CURRENT FUNCTIONING
106.	He is motivated to self-care and attend to ADLs however says he is limited by pain and requires assistance from his partner at times.
107.	He likes to go to the organic food markets.  He is able to drive independently at times.  He goes to picnics with his partner.  They occasionally go out to vegan restaurants together.
108.	He continues to try Buddhist practice and meditation.  He is unable to do martial arts practice for physical limitation but is motivated to do so.
109.	He enjoys music and plays saxophone, drums and piano.  He said that his playing was limited by physical disability.  He said that he was very upset as last year he sold his instruments as he was struggling financially.
110.	He denied he was in a relationship at the time of the accident but subsequently formed a relationship with a Korean woman for around eight months which ended in October 2022.  He has been in his current relationship for around 16 months and they are engaged to be married.
111.	He maintains good relationships with his family members in Australia and overseas and regularly communicates via FaceTime or similar.
112.	He reported that he communicated with a number of important people. For example he knew a Chief Justice who he has discussed his matter with.  He said that he knew a Shiek in the Middle East who had offered to pay for necessary surgery.
SUMMARY OF INJURIES 
113.	The following injuries were caused by the subject motor accident: 
•	DSM-5-TR F43.9 Unspecified Trauma- and Stressor-Related Disorder.
114.	The claimant presents with symptoms characteristic of a trauma- and stressor-related disorder that cause clinically significant distress and impairment in social, occupational and other important areas of functioning but do not meet the full diagnostic criteria for any of the disorders in the trauma- and stressor-related disorders diagnostic class.
115.	The claimant does NOT meet DSM-5 criteria for major depressive disorder.  He does not meet at least 5 criterion A symptoms for a period of at least two weeks. This precludes the diagnosis. 
116.	The claimant does NOT meet DSM-5 criteria for post-traumatic stress disorder.  He does not have significant intrusive or avoidance symptoms (Criterion B and C) which precludes the diagnosis.
117.	As such, the panel is of the view that the diagnosis unspecified trauma and stressor related disorder best encapsulate his symptomatology and presentation.
PERMANENCY OF IMPAIRMENT 
118.	Permanent impairment is defined in the AMA4 Guides as follows:
“i.	Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.  
ii.	A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.” 
119.	The determination as to permanent impairment is made in accordance with the AMA4 Guides and Part 6 of the Motor Accident Guidelines.
120.	His condition is now stabilised and unlikely to change by more than 3% in the next 12 months with or without medical treatment.
“Degree of permanent impairment Psychiatric Impairment Rating Scale
Psychiatric diagnoses	1. Unspecified Trauma- and Stressor-Related Disorder	2.	
Psychiatric treatment description	Psychological counselling
Failed trial of antidepressant medicine	

Category	Class	Reason for Decision	
1. 	Self Care and Personal Hygiene	1	While he describes some impairment, this is secondary to physical disability.  He is motivated for self-care and personal hygiene and there is no psychiatric contribution to impairment. 	
2. 	Social and Recreational Activities	3	Moderate impairment
He is not actively involved socially as he was previously.  He however is able to socialise with his fiancé and go for picnics and to restaurants.	
3. 	Travel
	2	Mild impairment.  
He has demonstrated ability to travel without a support person.  He reports that he does find driving more anxiety provoking than previously.	
4. 	Social Functioning
	1	He has good social functioning.
He maintains good relationships with his family.  He has formed 2 intimate relationships since the accident and is currently engaged to be married. 	
5.	Concentration, Persistence and Pace	2	Mild impairment
He subjectively reports some decrease in concentration with reduced pace.  Objectively he concentrated well for 90 minutes of interview.  He was able to direct portions of the interview and refer to appropriate paperwork.	
6.  Adaptation
	1	He is able to clearly comprehend and understand complex matters about his claim.  He was able to communicate well and direct and participate in a 90 minute interview.  He may have some limitations because of physical injury with respect to work and employment however from a psychiatric perspective there is minor deficit only.	
List classes in ascending order:    1 1 1 2 2 3                 	
Median Class Value:                                  2	
Aggregate Score:                                      10	
% Whole Person Impairment:                     5%	
*%WPI = Percentage Whole Person Impairment
Apportionment – pre-existing/subsequent impairment”
121.	Prior to the subject motor accident the claimant has a history of seeking counselling from psychologists. There is a dispute about whether he had psychiatric impairment of functioning prior to the motor accident.  
122.	The Panel notes that Medical Assessor Shen assessed the claimant with a WPI of 22%. He then assessed the claimant’s pre-existing WPI and found that to be 5%. The Panel also notes the very detailed submissions put by the insurer that the claimant had long-standing and pre-existing psychiatric impairment or conditions. The insurer points to the evidence of long-standing psychiatric counselling undertaken by the claimant. In their written submissions the claimant’s solicitors dispute that the claimant had any pre-existing psychiatric impairment. The Panel notes some treating reports including reports from Ms Falk, a treating clinical psychologist dated 6 October 2021, list a number of psychological symptoms. The Panel also notes the report from Dr Richa Rastogi dated 8 July 2022.
123.	This Panel has carefully examined and questioned the claimant and reviewed the large volume of psychiatric material concerning the claimant. The Panel has also reviewed the detailed submissions of the insurer which contends that the claimant was suffering from psychiatric impairment prior to the subject matter accident. The Panel also notes that at the re-examination of the claimant he was adamant that he had not suffered any psychiatric impairment prior to the subject motor accident.  Mr Brewer was aware of the submissions of the insurer and emphasised with the Panel that he had no prior mental health issues and had excellent pre-accident function.  
124.	Based upon the Panel’s analysis and its clinical judgement it disagrees with Medical Assessor Shen’s assessment that the claimant had a pre-existing psychiatric impairment. The Panel also disagrees with the insurer’s analysis that the claimant had a pre-existing psychiatric impairment. There is evidence that the claimant did receive counselling from clinical psychologists about personal stresses such as job and relationship problems. There is some evidence that he was diagnosed with pre-existing psychiatric symptoms or impairment. The evidence as to Mr Brewer’s treatment for a diagnosed psychiatric impairment before the subject motor accident on 7 December 2020 is less clear. Dr Rastogi, who had assessed Mr Brewer in July 2022, diagnosed him with a history of pre-existing depression and anxiety associated with physical injuries in 2017 but found he made recovery and resumed working and was stabilised. Dr Rastogi found that the claimant had recovered prior to the subject motor accident on 7 December 2020 and found 0% WPI for any pre-existing impairment. 
125.	The Panel is not satisfied from its re-examination of Mr Brewer that he had suffered or was suffering from any pre-existing psychiatric impairment prior to the subject motor accident. The Panel notes that the balance of the medical evidence favours the view that Mr Brewer may have had a diagnosed depressive psychiatric impairment as a result of the 2017 motor accident but that he appears to have successfully recovered from that pre-existing impairment prior to the occurrence of the subject motor accident on 7 December 2020. 
126.	There have been no significant injury or events after the motor accident.
127.	Accordingly, there is no need to do a pre or a post accident apportionment.
Effects of treatment
128.	There has been no significant treatment effect:
•	current WPI 		5%
•	apportionment 		0%
•	effect of treatment		0%
•	final WPI		 	5%
CONCLUSION – PERMANENT IMPAIRMENT
Degree of permanent impairment caused by the motor accident
129.	The degree of permanent impairment caused by the motor accident is 5%.
130.	Permanent impairment ratings take your symptoms into account, however the percentage permanent impairment is not a direct measure of disability.  A finding of 0% permanent impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides and Guidelines rate the associated impairment at 0%.
CONCLUSION AND CERTIFICATION
131.	The Review Panel revokes the Certificate of Medical Assessor Yu Tang Shen dated 
29 March 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI which is not greater than 10% and is 
5%:
•	DSM-5-TR F43.9 Unspecified Trauma- and Stressor-Related Disorder.