DETERMINATION OF REVIEW PANEL	
	
CITATION:	Upcroft v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 344	
		
CLAIMANT:	Jacquelyn Upcroft	
		
INSURER:	Insurance Australia Limited t/as NRMA Insurance	
		
REVIEW Panel	 	
		
MEMBER:	Terence Stern OAM	
		
MEDICAL ASSESSOR:	Gerald Chew	
		
MEDICAL ASSESSOR:	Samuel Lim	
		
DATE OF DECISION:	16 May 2025	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; review of Medical Assessment Certificate (MAC); claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) determined the claimant’s whole person impairment (WPI) as a result of the accident was 19%; insurer sought a review under section 63; Review Panel revoked the MAC on 11 December 2023 and substituted the determination that the claimant had not reached maximum medical improvement and declined to make an assessment of WPI; on 27 August 2024 the claimant requested that the Commission refer her medical assessment for further assessment by a Review Panel to determine WPI; Held – Review Panel re-examined the claimant and found that WPI was 17%; MAC revoked; new certificate issued.
	
DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION
Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 
1.	The Review Panel revokes the Certificate of Medical Assessor Michael Hong of 
11 September 2022 whereby he certified as to Whole Person Impairment of 19%.
2.	The Review Panel certifies that as a result of the accident, the claimant sustained a Whole Person Impairment of 17%

	

 

STATEMENT OF REASONS
BACKGROUND
1.	The claimant, Jacquelyn Upcroft (Ms Upcroft), was injured in a motor vehicle accident (the accident) on 20 February 2017. 
2.	On 24 May 2017, Ms Upcroft lodged a motor accident personal injury claim form in respect of the accident. The relevant compulsory third-party insurer was Insurance Australia Limited trading as NRMA Insurance (the insurer). 
3.	Ms Upcroft claims that she suffered injuries, and in particular psychological injuries, caused by the accident. 
4.	The claim is governed by the provisions of the Motor Accidents Compensation Act 1999 (MAC Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of benefits and compensation by way of lump sum damages (under Chapter 5) for persons injured in motor accidents in New South Wales.
5.	A medical dispute about the degree of Ms Upcroft’s whole person impairment (WPI) in respect of her claimed psychological injuries has arisen in connection with her claim, namely, whether her WPI is greater than 10%. This constitutes a medical assessment matter under 
s 58(1)(d) of the MAC Act.
6.	A medical assessment matter is determined in accordance with Chapter 3, Part 3.4 of the MAC Act.
7.	The medical dispute was referred to the Personal Injury Commission (Commission), and the Commission assigned it to Medical Assessor Michael Li Ying Hong for an assessment of the degree of permanent impairment. 
8.	On 11 September 2022, Medical Assessor Hong determined that Ms Upcroft suffered from a persistent depressive disorder with panic attacks and secondary agoraphobia, which gave rise to a WPI greater than 10%, namely, 19% (the Medical Assessment).
9.	On 11 December 2023, the Medical Review Panel (the Panel), consisting of myself as Legal Member, Medical Assessor Samuel Lim and Medical Assessor Gerald Chew, revoked the Certificate of Medical Assessor Hong and substituted his determination with the finding that Ms Upcroft had not reached maximum medical improvement. The Panel declined to make an assessment of the claimant’s whole person impairment and provided that the parties could apply to the Panel for reassessment of the claimant’s whole person impairment after she reached maximum medical improvement. 
10.	On 27 August 2024, the claimant requested that the Commission refer her medical assessment for further assessment in order to determine her whole person impairment. 
11.	On 10 February 2025, the claimant was re-examined by the Panel. 

REVIEW PROCEDURE
12.	The insurer sought a review of the Medical Assessment in accordance with s 63 of the MAC Act (the Review).
13.	On 29 November 2022, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
14.	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.
15.	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 Commission: s 63(3) of the MAC Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
16.	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: s 41(2) of the PIC Act.
17.	The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 63(3A) of the MAC Act.
18.	On 2 November 2023, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle on which they relied in the Review.
19.	On 27 July 2023, the Panel informed the parties that it considered a re-examination of Ms Upcroft was required. Arrangements were made for Ms Upcroft to be re-examined after reaching maximum medical improvement by Medical Assessor Gerald Chew and Medical Assessor Samuel Lim by video link (MS Teams) on 10 February 2025.

LEGISLATIVE FRAMEWORK
General provisions
20.	Section 3 of the MAC Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
21.	Ms Upcroft’s claim and entitlements to compensation are governed by the provisions of the MAC Act. An injured person can make a claim for both economic losses and non-economic loss damages.
22.	However, s 131 of the MAC Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
Permanent impairment assessment
23.	Section 44(1)(c) of the MAC Act says Motor Accidents Medical Guidelines may be issued in respect of the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
24.	The current Motor Accident Permanent Impairment Guidelines are effective from 1 June 2018 (the Guidelines). The Guidelines were developed for the purpose of assessing the degree of permanent impairment arising from the injury caused by a motor accident, in accordance with s 133(2)(a) of the MAC Act: cl 1.1 of the Guidelines.
25.	The Guidelines adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address, but where they are silent on an issue, the AMA 4 Guides should be followed: cl 1.2 of the Guidelines. They apply under the MAC Act to the assessment of the degree of permanent impairment that has resulted from an injury caused by a motor accident occurring between 5 October 1999 and 30 November 2017 inclusive: cl 1.3 of the Guidelines.
26.	Causation of injury is addressed in cls 1.5, 1.6 and 1.7 of the Guidelines.
27.	Clause 1.6 of the Guidelines notes:
“1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biological 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.”
28.	Clause 1.7 of the Guidelines states:
“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.”
29.	Clause 1.203 of the Guidelines states:
“The assessment of mental and behavioural disorders must be undertaken in accordance with the psychiatric impairment rating scale (PIRS) as set out in these Guidelines. Chapter 14 of the AMA 4 Guides (pages 291-302) is to be used for background or reference only.”
30.	Clause 1.213 of the Guidelines states:
“The impairment must be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic & Statistical Manual of Mental Disorders (DSM) or the current edition of the International Statistical Classification of Diseases & Related Health Problems (ICD). The impairment evaluation report must specify the diagnostic criteria on which the diagnosis is based.”
31.	The current edition of the DSM is the fifth edition text revision (DSM-5-TR).
32.	In respect of the PIRS, cl 1.219 of the Guidelines states that the behavioural consequences of psychiatric disorders are assessed on the following six areas of function, each of which evaluates an area of functional impairment:
(a)	self-care and personal hygiene (Table 11 of the Guidelines);
(b)	social and recreational activities (Table 12 of the Guidelines);
(c)	travel (Table 13 of the Guidelines);
(d)	social functioning (relationships) (Table 14 of the Guidelines);
(e)	concentration, persistence and pace (Table 15 of the Guidelines), and
(f)	adaptation (Table 16 of the Guidelines).
33.	Tables 11 to 16 of the Guidelines identify the five classes of assessment within each of the six areas of function.
34.	Clauses 1.225 to 1.228 and Table 17 of the Guidelines address the three-step procedure involved in calculating psychiatric impairment.
35.	Clauses 1.222 to 1.224 of the Guidelines address the adjustment for the effects of prescribed treatment to the assessment of WPI.
36.	Clause 1.218 of the Guidelines states:
“In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”
37.	Pre-existing impairment is addressed in cls 1.31, 1.32 and 1.33 of the Guidelines.
38.	The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 1.31 of the Guidelines.
39.	Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 1.33 of the Guidelines.
40.	Subsequent injury is addressed in cl 1.34 of the Guidelines, which states:
“The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”

EVIDENCE BEFORE THE PANEL
41.	The evidence before the Panel consisted of the following:
(a)	The parties’ joint indexed and paginated bundle of documents lodged on the Commission’s portal on 9 November 2023;
(b)	The insurer’s submissions dated 28 September 2022;
(c)	The claimant’s reply submissions dated 10 November 2022, and
(d)	 The parties’ joint indexed and paginated bundle of documents lodged on the Commission’s portal on 16 January 2025.

ASSESSMENT UNDER REVIEW 
42.	Medical Assessor Hong examined Ms Upcroft on 6 September 2022 and on 
11 September 2022, issued a Certificate as to the extent of WPI.
43.	Medical Assessor Hong was asked to assess the dispute between the parties about the degree of permanent impairment under s 58(1)(d) of the MAC Act in respect of psychological injuries – persistent depressive disorder with panic attacks and secondary agoraphobia.
44.	Medical Assessor Hong took a pre-accident history, history of the motor accident, psychosocial history and history of symptoms and treatment following the motor accident that were generally consistent with that provided by Ms Upcroft at the Panel’s first re-examination on 23 November 2023. 
45.	Medical Assessor Hong noted that Ms Upcroft reported that prior to the accident in 2012, she was diagnosed as having an autoimmune disorder – ulcerative colitis – which flared up at times due to stress.
46.	Medical Assessor Hong noted that Ms Upcroft reported she was physically and psychologically well in 2015; however, in the same year, her husband was diagnosed with frontotemporal dementia with behavioural changes. She reported that this caused her some anxiety, but once her husband had retired, she felt improved and psychologically well. 
47.	Medical Assessor Hong noted that Ms Upcroft had not had further car accidents or sustained other psychological injuries since the accident. 
48.	In respect of Ms Upcroft’s reported current symptoms, Medical Assessor Hong noted the following:
(a)	Depressed variable mood;
(b)	Weight gain of 30kg after the subject accident;
(c)	Sleep problems, waking up in a panicky state and an inability to remember dreams;
(d)	Panic attacks;
(e)	Inability to enjoy things she would normally enjoy;
(f)	Poor concentration and ongoing difficulties with her memory;
(g)	Easily fatigued;
(h)	Fleeting suicidal thoughts;
(i)	Low tolerance for frustration;
(j)	Quiet and socially withdrawn.
49.	In respect of Ms Upcroft’s current treatment, Medical Assessor Hong noted that she was taking CBD oil (medicinal cannabis) since late 2021, NSAID and codeine rarely. He also noted that she had consulted a few psychologists briefly after the accident and previously took antidepressant medications. She had a psychiatric admission in 2018 to South Coast Private Hospital for one week for suicidal ideation management. 
50.	On mental state examination, Medical Assessor Hong observed that the claimant presented as anxious and seemed to stutter at times. She engaged well with the assessment process. She was distressed and tearful and had difficulties managing her emotions during the assessment. She was consistently restricted in her range and reactivity. She had a disorganised narrative. She spoke in a logical manner but was not particularly easy to follow.
51.	In respect of Ms Upcroft’s current functioning, Medical Assessor Hong noted that she does most of the cooking and household chores. She withdraws from everyone and has a limited relationship with her children. She looks after her husband, who has dementia. 
52.	Medical Assessor Hong noted that Ms Upcroft had previously worked in the public service since 2008, but after the accident, she had not returned to work at all and was certified unfit to return to work and retired on medical grounds. 
53.	Medical Assessor Hong reviewed and summarised the relevant documentation provided to him. 
54.	Medical Assessor Hong confirmed that Ms Upcroft developed persistent depressive disorder with anxiety symptoms, in which her depressive symptoms commenced shortly after the subject’s accident and had been present for over two years at the time of the examination. 
55.	Medical Assessor Hong concluded that Ms Upcroft’s onset of her current psychological symptoms was directly related to the accident. 
56.	Medical Assessor Hong opined that Ms Upcroft’s impairment was permanent and entrenched, and unlikely to change substantially and by more than 3% in the next year, with or without medical treatment. 
57.	Medical Assessor Hong calculated the degree of WPI of the injury caused by the motor accident with the PIRS as set out below and provided his reasons:
(a)	Self-care and personal hygiene: class 2;
(b)	Social and recreational activities: class 3;
(c)	Travel: class 2;
(d)	Social functioning: class 2;
(e)	Concentration, persistence and pace: class 3; and
(f)	Adaptation: class 5
58.	The above rating produced a median class value of 3 and an aggregate score of 17, resulting in a WPI of 19%. The claimant’s past psychiatric history was also considered with the PIRS but amounted to a median class value of 1 and aggregate score of 6, resulting in 0% WPI. There were no adjustments for the effects of treatment. 

SUBMISSIONS
Submissions of the Insurer 29 September 2022
59.	The Panel briefly summarises the submissions of the insurer by reference to paragraph numbers: 
[1] – [5] 	The insurer argued Medical Assessor Hong erred in a material manner as he failed to show how Ms Upcroft’s pre-accident functioning was assessed in light of her significant pre-accident history and failed to consider Ms Upcroft’s health issues and social situations leading up to the accident when determining her current whole person impairment under the PIRS.
[6] – [9] 	The insurer refers to clinical records from Kiama Downs Medical Centre, which reveal substantial stress, mental health struggles, headaches, and tingling, numbness and soreness in her shoulder in the three months before the accident, which the Insurer submits indicated past psychiatric history that affected her ability to work.
[10] – [14] 	The insurer refers to employment records from the Department of Human Services, which show Ms Upcroft was largely absent from work between 2012 and 2015. Ms Upcroft began a gradual return to work in 2016, still struggling to cope. The records from Kiama Downs Medical Centre state, “as at January 2017, she was not coping at work and was stressed out and not performing her duties.” The insurer submits that Medical Assessor Hong did not adequately consider these details.
[15] – [17] 	The insurer relies on records from Dapto Medical Centre in May 2016, which record that Ms Upcroft was suffering from ongoing depression, reduced work capacity, and multiple chronic conditions, which the insurer submits the Medical Assessor failed to take into account.
[18] – [24] 	The insurer relies on records from Illawarra Community Mental Health from shortly after the accident show multiple psychosocial stressors that indicate pre-existing psychiatric issues: 
(a)	Poor sleep. 
(b)	Financial stressors. 
(c)	Physical issues. 
(d)	Caring for demented husband. 
(e)	Carer of elderly parents. 
(f)	Employment issues. 
(g)	Minimal support. 
(h)	Legal issues relating to money owing. 
The Insurer submits that Assessor Hong failed to account for these.
[25] –[26] 	“The insurer submits that it is clear Assessor Hong has erred in failing to properly assess the claimant’s level of functioning in the 18 months leading up to this motor vehicle accident, as the pre-accident evidence suggests the claimant was suffering significant depression as a result of numerous stressors in her life and was having difficulty coping with her employment that she had recently returned to as a result of her pre-existing physical conditions.”
[27] – [28] 	Regarding current psychiatric impairment, the insurer submits that Assessor Hong failed to account for post-accident factors that influenced social and work functioning, leading to an incorrect PIRS categorisation.
[29] – [33] 	Considering Social and Recreational Activities, the insurer submits that Medical Assessor Hong wrongly found moderate impairment (class 3) despite pre-accident social isolation as she “had no support living in Dubbo”, caregiving duties due to her husband’s dementia diagnosis, and surveillance evidence which shows Ms Upcroft leaving her house on multiple occasions, accompanied by her husband or her son post-accident. The insurer submits that this evidence suggests there is no impairment and that a class 1 rating would be more appropriate.
[34] – [37] 	Considering Concentration, Persistence, and Pace, the insurer submits that Ms Upcroft’s active post-accident handling of legal and insurance matters contradicts her reported poor concentration. The insurer argues that this is suggestive of no impairment and suggests a class 1 rating.
[38] – [40] 	Considering Adaptation, the insurer submits that Medical Assessor Hong did not clarify if impairment was due to psychological factors alone and failed to account for her already limited work capacity pre-accident (employment records from the Department of Human Services). The insurer submits that a mild impairment (class 2) is more accurate.
[41] – [43] 	The insurer submits that Medical Assessor Hong erred in assessing both pre-existing and current impairment. The Insurer further submits that a correct assessment would yield a whole person impairment of less than 10%.
Reply Submissions of the Claimant 10 November 2022
60.	I briefly summarise the reply submissions of the claimant of 10 November 2022 as follows: 
[1] – [6] 	Ms Upcroft opposes the review of the Certificate of Medical Assessor Hong applied for by the Insurer.
[7] – [11] 	Ms Upcroft lays out the legal framework upon which she relies.
[12] – [14] 	Medical Assessor Hong’s Certificate recorded Ms Upcroft’s trauma history, prior diagnoses (autoimmune disorder, opioid dependence), stress-related flare-ups, fast heart rate, and psychological conditions.
[15] – [18] 	After the accident, Ms Upcroft experienced physical symptoms (pain and numbness in arms, hip and back pain, bursitis) and psychological distress (inability to leave home, panic, superficial relationships, social withdrawal).
[19] – [21] 	Ms Upcroft’s current reports symptoms included: 
(a)	Depressed variable mood. 
(b)	Weight gain. 
(c)	Sleep disturbance and panic on waking. 
(d)	Panic attacks. 
(e)	Loss of enjoyment. 
(f)	Poor concentration and memory. She was no longer able to enjoy books. 
(g)	Fatigue. 
(h)	Fleeting suicidal thoughts. 
(i)	Low tolerance for frustration.
(j)	Social withdrawal. 
Treatment history includes psychologists, antidepressants, and a psychiatric admission in 2018.
[22] – [24] 	The Medical Assessor reviewed documentation, including reports from Dr Parmegiani, Dr Jones, Dr Lal, and others. He found the surveillance evidence was consistent with Ms Upcroft’s description of functioning. The Medical Assessor disagreed with the report of Dr Jones.
[25] – [28] 	In his certificate, the Assessor diagnosed persistent depressive disorder with anxiety. The claimant submits that the Medical Assessor took into account the pre-accident history of depression and anxiety due to various factors. Further, the Medical Assessor states that the accident was a “major causal factor” in her current psychological injury.
[29] – [30] 	The Medical Assessor assessed WPI at 19%.
[31] – [33] 	The insurer argues the Medical Assessor failed to consider pre-accident functioning. Ms Upcroft submits that the Medical Assessor reviewed it extensively and is not required to cite every detail. 
[34] – [36] 	Ms Upcroft submits that the Insurer’s reliance on Kiama Downs Medical Centre records fails to demonstrate any error; the notes show “stress” but no clinical diagnosis or treatment. Ms Upcroft submits that there is no evidence that she did not maintain full-time employment. She had not returned to work since the accident.
[37] 	Referring to employment records, although Ms Upcroft had gaps due to physical illness (ulcerative colitis), she returned to full-time work pre-accident, which Ms Upcroft submits is relevant to psychological functioning.
 [38] – [39] 	Ms Upcroft submits that the Dapto Medical Centre notes are historical and don’t indicate her current state or ongoing depression. Ms Upcroft submits that this clinical note affects social functioning without clear evidence.
[40] – [42] 	Illawarra Community Mental Health records refer to post-accident psychosocial stressors. Ms Upcroft submits that the Medical Assessor acknowledged these and still concluded causation.
[43] – [44] 	Dr Lal supported causation and was satisfied with a Major Depressive Episode diagnosis. The insurer does not contest causation, only the extent of impairment.
[45] – [46] 	Ms Upcroft submits that the insurer’s expert, Dr Jones, agreed that causation was established and did not find a continuing pre-existing condition. His opinion changed only due to surveillance, which the Medical Assessor disagreed with.
[47] – [48] 	The Insurer submits that PIRS ratings should be reduced but Ms Upcroft submits that they suggested this without a clinical basis. Medical Assessor Hong and Dr Jones initially agreed, Ms Upcroft submits that the difference in interpretation of surveillance evidence does not show error.
[49] 	The insurer challenges the current functional assessment. Ms Upcroft submits, however, a difference in clinical opinion is not a basis for review. 
[50] 	Regarding the insurer’s submissions on Social and Recreational Activities:
(a)	Ms Upcroft had moved from Dubbo before the relevant period.
(b)	Ms Upcroft submits that the impact of her husband’s dementia diagnosis is speculative.
(c)	Surveillance was considered by the Medical Assessor, who found it consistent with the claimant’s reports.
(d)	The Medical Assessor acknowledged higher functioning than Dr Parmegiani reported.
[51] – [56] 	Regarding the insurer’s submissions on Concentration, Persistence and Pace:
•	The insurer cites involvement in legal matters as proof of concentration.
•	Medical Assessor Hong found these caused distress; involvement was out of necessity, not capability.
•	Records support the assessment; Ms Upcroft submits the insurer’s argument lacks merit.
[57] – [63] 	Regarding the Insurer’s submissions on Adaptation:
•	The insurer claims Assessor Hong factored in physical impairments, but the report focuses on psychological limitations.
•	Ms Upcroft submits that her pre-accident return to full-time work was pivotal in the Assessment of Medical Assessor Hong.
•	Post-accident, the claimant was unfit due to psychological reasons, supported by the employer and medical records.
•	Ms Upcroft submits that even a reduced adaptation rating would not lower her WPI below 10%.
[64] – [65] 	Ms Upcroft submits that the insurer’s challenge amounts to disagreement, not legal error. The Medical Assessor addressed relevant issues, and there was “no requirement for a line-by-line recitation of the evidence”.
[66] – [67] 	The Certificate is consistent with Dr Jones’ initial report before he changed his mind based on the surveillance evidence. The Medical Assessor did not consider the surveillance evidence to be significant. Ms Upcroft submits that the review application should be dismissed.

EXAMINATION BY THE REVIEW PANEL ON 10 FEBRUARY 2025
Summary of relevant documentation
61.	The Review Panel set out the summary of relevant documents which it considered in arriving at its determination.
62.	The Review Panel noted the treating doctor’s clinical notes of Dapto Medical Centre since November 2023, and in particular, the following notes: - 
•	Entry dated 20 November 2023 stated that the date for her shoulder surgery had been moved as the insurer had not made a decision. It indicated that she was still keen to proceed with the procedure. It noted that she was awaiting a mental health appointment. It was also noted that she needed treatment for her gastrointestinal symptoms (ulcerative colitis) and would require surgery if she were not taking medications. 
•	Entry dated 2 November 2024 stated that she suffered from anxiety regarding her second daughter’s wedding. She was noted to have similar difficulties affecting her during the time of her first daughter’s wedding. She was noted to be reluctant to have medication. Her husband’s dementing illness was described as “going okay”. Her mental health difficulties were attributed to the subject motor vehicle accident. 
•	Entry dated 21 November 2024 noted that she was issued a medical certificate for anxiety. 
63.	The Panel noted the Personal Injury Claim Form dated 24 May 2017. This document provided a description of the subject motor vehicle accident of 20 February 2017. Ms Upcroft was noted to have developed a whiplash injury affecting her cervical spine, as well as major depression. She was noted to have a reactive depression and opiate addiction previously, in 2012. The form stated that she had been working as a business analyst for the Department of Human Services at the time of the subject motor vehicle accident.
64.	The Panel noted the police report dated 12 May 2017 and the description of the subject motor vehicle accident in that document. 
65.	The Panel also noted the photographs of the claimant’s vehicle and took into account the damage that was depicted.
Progress since 23 November 2023
66.	The claimant advised that she had consulted with her treating doctor, Dr Mumford, shortly after the last assessment by the Panel in November 2023. She consulted with Dr Mumford regarding both her physical injuries, which she attributed to the subject motor vehicle accident, as well as her psychiatric injuries. 
67.	She informed the Panel that she continued to experience pain affecting her right shoulder as well as chronic pain and bursitis affecting her right hip and knee. She had also developed incompetent veins in her leg, causing her to experience swelling and pain. She stated that the insurer had not supported funding to treat these conditions and that her limited financial resources had also been a barrier to her receiving the treatment recommended by her treating health practitioners.
68.	She advised the Panel of her reluctance to take psychotropic medication. She informed the Panel that Dr Mumford had prescribed her medicinal cannabis. She had initially been prescribed a THC-dominant formulation, which she said had helped her with her anxiety and sleep difficulties. She added that she had taken this medication sporadically due to her awareness of potential physiological dependence. She stated, however, that she had not taken this medication for some time, over one year, due to being unable to afford the cost of this treatment. She advised the Panel that she had also been prescribed a compound containing pure CBD oil, which she has been taking for approximately one year. She stated that this medication has helped her to feel calmer. 
69.	She informed the Panel that she had experienced an exacerbation of her symptoms of ulcerative colitis and had been advised that she needed to start immunotherapy. She stated that she had not been able to proceed with this as the treatment would require her to travel to Wollongong regularly for infusions, and that she found this onerous as a result of her psychiatric injuries.
70.	She informed the Panel that her treating general practitioner had suggested that she see a psychologist. She declined to do so and said she was not interested in seeing a psychologist. She informed the Panel that becoming aware of information she considered incorrect in the notes of prior treatment providers had affected her confidence in pursuing psychological therapy.
Past psychiatric history
71.	Ms Upcroft reviewed matters pertaining to her past psychiatric history with the Panel. She advised the Panel that she had not required any active treatment for her mental health before the subject motor vehicle accident. She endorsed having seen a psychologist on previous occasions to assist her with coping with what she regarded to be “normal life stressors”. She also endorsed having been prescribed antidepressant medication on previous occasions but stated that this was some time before the subject motor vehicle accident and that she had not taken such medications for a long time, as she did not perceive any benefits with taking these medications. 
72.	She reported having been subject to difficult experiences in her developmental years, including being sexually assaulted as a child and the death of her brother, as well as her husband becoming unwell. She stated that she had been able to accommodate these challenges on her own merits, raised four children successfully, developed a career, and built up a business. She also emphasised her contributions to charity and indicated that she perceived these to be inconsistent with a person incapacitated by mental ill health. She emphasised that she had sold the business she had built with her husband in 2015 due to her husband’s diagnosis at the time and that whilst they had liquidated the business, the business continued to be viable and was still being operated by the new owner. The Panel addressed the issue of Ms Upcroft’s developmental disadvantage but noted that this had not resulted in a diagnosable psychiatric condition or any subsequent impact on her psychosocial function.
Mental state examination
73.	Ms Upcroft appeared reasonably groomed. She was reserved in her engagement and dysphoric for most of the assessment. On occasion, she paused for moments to regain her composure. She was tearful and crying at times, particularly when describing her circumstances following the subject motor vehicle accident. She provided broadly relevant answers to questions asked, but at times would lose her train of thought and required prompting to supply further detail or to reorient herself. She did not present with a formal thought disorder and did not display any aberrant thinking patterns. She was orientated to time, person and place, and her cognition appeared grossly intact.

Current functioning
74.	Self-care and personal hygiene. Ms Upcroft stated that she is responsible for the meal preparation and would tend to prepare one or two dishes a week in advance so that she can reheat for her and her husband during the week. She indicated that she experienced both a reduced level of motivation and reduced pleasure with meal preparation. She stated that she will, on occasion, neglect to shower due to a lack of motivation and is also less fastidious about applying makeup. The Panel formed the view that she displayed a mild level of impairment in this category. 
75.	Social and recreational activities. Ms Upcroft’s social activities are restricted to her immediate family and are initiated by them. She described being anxious and withdrawn on these occasions. The Panel formed the view that she displayed a moderate impairment.
76.	Travel. Ms Upcroft stated that she is able to drive but feels uncomfortable doing so as a result of her symptoms. She is able to drive on her own but does this infrequently and generally only to familiar places such as attending medical appointments. She indicated that her husband accompanies her when she has to travel further afield. The Panel formed the view that she displayed a mild impairment in this category.
77.	Social functioning. Ms Upcroft indicated that her relationship with her husband remains supportive. She also maintains relationships with her children. However, the nature of her psychiatric injuries would impact on her ability to initiate and sustain new friendships. The Panel formed the view that she displayed a mild impairment in this category.
78.	Concentration, persistence and pace. Ms Upcroft has struggled with sustained attention and concentration, which, in the Panel’s view, was not compatible with her successfully undertaking a basic re-training course. However, she demonstrated adequate concentration to participate in the assessment and, when she became distracted, could be re-orientated relatively easily with prompting. She also demonstrated a level of familiarity with the material relevant to her claim. The Panel formed the view that she presented with a moderate impairment affecting this category. 
79.	Employability. The Panel formed the view that the impact of Ms Upcroft’s psychiatric injuries on her motivation, energy levels and distress tolerance were likely to be compatible with employment of less than 20 hours per week, with erratic pace and attendance. She was felt to demonstrate a severe impairment in this category.
Diagnosis
80.	The Panel identified that Ms Upcroft continued to suffer from Persistent Depressive Disorder (Dysthymia). The Panel was of the view that the subject motor vehicle accident continued to be causally related to her current presentation. She suffered significant pain and dysfunction from the accident, which led to the development of her psychiatric injuries. 
Conclusions
81.	The Panel noted that Ms Upcroft had not demonstrated any significant or sustained improvement compared with her previous presentation in November 2023. The Panel also noted her limited participation in treatment specific to her psychiatric symptoms, as well as her reported disinclination to pursue such treatment for the reasons that she outlined. The Panel, noted the persistence of her physical injuries she attributes to the subject motor vehicle accident and that these, from her account, were not likely to be addressed. The Panel took the view that if even if Ms Upcroft were to engage in further treatment for her mental health, the perpetuating impact of her physical symptoms would likely diminish the effectiveness of such treatments. The Panel was not of the view that her condition would improve significantly within the next 12 months with or without further treatment and that she had reached maximum medical improvement.
82.	The Panel determined Ms Upcroft’s current whole person impairment (WPI) as per the table below. 
Psychiatric diagnoses	1. Persistent Depressive Disorder (Dysthymia) 	2.	
	3.	4.	
Psychiatric treatment description	None specific	
Category	Class	Reason for Decision	
1. 	Self-Care and Personal Hygiene	2	Ms Upcroft stated that she is responsible for the meal preparation and would tend to prepare one or two dishes a week in advance so that she can reheat for her and her husband during the week. She indicated that she experienced both a reduced level of motivation and reduced pleasure with meal preparation. She stated that she will, on occasion, neglect to shower due to a lack of motivation and is also less fastidious about applying makeup. The Panel formed the view that she displayed a mild level of impairment in this category. 	
2. 	Social and Recreational Activities	3	Ms Upcroft’s social activities are restricted to her immediate family and are initiated by them. She described being anxious and withdrawn on these occasions. The Panel formed the view that she displayed a moderate impairment.	
3. 	Travel
	2	Ms Upcroft stated that she is able to drive but feels uncomfortable doing so as a result of her symptoms. She is able to drive on her own but does this infrequently and generally only to familiar places such as attending medical appointments. She indicated that her husband accompanies her when she has to travel further afield. The Panel formed the view that she displayed a mild impairment in this category.	
4. 	Social Functioning
	2	Ms Upcroft indicated that her relationship with her husband remains supportive. She also maintains relationships with her children. However, the nature of her psychiatric injuries would impact on her ability to initiate and sustain new friendships. The Panel formed the view that she displayed a mild impairment in this category.
	
5.	Concentration, Persistence and Pace	3	Ms Upcroft has struggled with sustained attention and concentration, which, in the Panel’s view, was not compatible with her successfully undertaking a basic re-training course. However, she demonstrated adequate concentration to participate in the assessment and, when she became distracted, could be re-orientated relatively easily with prompting. She also demonstrated a level of familiarity with the material relevant to her claim. The Panel formed the view that she presented with a moderate impairment affecting this category. 	
6. Employability
	4	The Panel formed the view that the impact of Ms Upcroft’s psychiatric injuries on her motivation, energy levels and distress tolerance were likely to be compatible with employment of less than 20 hours per week, with erratic pace and attendance. She was felt to demonstrate a severe impairment in this category.	
List classes in ascending order:     2 2 2 3 3 4	
Median Class Value:	3	
Aggregate Score: 	16	
% Whole Person Impairment:                              17 %	
83.	The Panel noted that Ms Upcroft had reported previously receiving support for her mental health, including occasions of being prescribed antidepressant medication and seeing a psychologist or counsellor. However, the Panel took note of the information provided by Ms Upcroft, that these supports were for stressors that had since resolved or become less salient. In particular, the Panel did not identify the stressors reported as impacting on Ms Upcroft’s mental wellbeing in the months leading up to the subject motor vehicle accident, including matters pertaining to the liquidation of her business and her husband’s diagnosis as well as her physical health, to continue to exert a salient impact on her current presentation. An adjustment to her WPI was therefore not indicated. While it is difficult to provide details with precision about when the stressors had resolved, at the time of the Review Assessment, the Medical Panel did not identify them as exerting any relevant impact on her WPI. As per the Guidelines, the Panel assessed her WPI as it was at the time she was assessed.
84.	The Panel was of the view that Ms Upcroft’s treatment had not resulted in a significant impact on her psychiatric injuries and did not identify an adjustment for treatment to be indicated. 
PANEL’S CERTIFICATE OF 11 DECEMBER 2023
85.	At [31], the Panel noted the Patient Health Summary from the Kiama Downs Medical Practice, which stated 
“She was felt to have severe reactive depression with melancholic features. She had been unable to work since the motor vehicle accident due to a combination of neck pain and low mood. She was also noted to have housing issues and had to urgently move out of her house due to the presence of mould. She was going through legal issues with her former business. She had started on Pristiq two weeks prior.”
86.	The panel noted the admission of Mr Upcroft to the South Coast Private Psychiatric Hospital, and the rest of the information is noted at the third bullet point of [31].
87.	The panel noted the psychiatric history set out in the clinical records, which appears in multiple bullet points on page 9 of the summary.
88.	The Panel noted the history in 2012 when Ms Upcroft had presented with Major Depressive Disorder, Anxiety, Agoraphobia, and Post-Traumatic Stress Disorder.
89.	The Panel noted the history at [33], including the voluntary inpatient admission to the South Coast Private Psychiatric Hospital.
90.	The Panel noted the symptoms set out at [34] contained in the admission notes for the South Coast Private Psychiatric Hospital dated 8 June 2017.
91.	The Panel noted the report of Dr Sharat Lal dated 20 June 2017, when Ms Upcroft was noted as having had worsening major depression since February 2017. The Panel noted the medications on which Ms Upcroft was trialled, including Cymbalta, Avanza, Pristiq, and Seroquel. The Panel noted the comment in the Report of Dr Lal that Ms Upcroft had no history of mental health issues prior to the preceding two years.
92.	At [36], the Panel noted that the Allied Health Recovery Request dated 20 July 2017 stated that Ms Upcroft was to see a psychologist. Her diagnosis at the time was said to be clinical depression, anxiety, panic and agoraphobia, and symptoms of post-traumatic stress disorder.
93.	At [38], the Panel noted the Report of Dr Lal of 17 October 2017 that Ms Upcroft’s presentation remained unchanged and that her medication consisted of Prazosin and Valdoxan.
94.	At [39], the Panel noted the Report of Dr Lal of 11 May 2018 that her psychiatric condition remained unchanged.
95.	At [40], the Panel noted that Dr Lal, on 12 May 2018, was of the view that Ms Upcroft had a severe Major Depressive Disorder. Her treatment at the time consisted of Amitriptyline, Seroquel, and Prazosin. It was felt that she would benefit from a further admission to South Coast Private Hospital. She was noted also to present with significant Post-Traumatic Stress Disorder Symptoms. Her prognosis was felt to be guarded.
96.	At [41], the Panel noted that Dr Lal reported on 8 August 2018, the persistence of Ms Upcroft’s psychiatric symptoms. She was felt to suffer from Post-Traumatic Stress Disorder, was largely home-bound, and was felt to be totally and permanently incapacitated for employment.
97.	At [42], Dr Lal reported on 27 March 2020, describing the persistence of Ms Upcroft’s psychiatric symptoms.
98.	At [44], the Panel noted the report of Dr Matthew Jones of 18 December 2020. Dr Jones, an independent medical examiner, noted the prior mental health problems, but felt that her previous psychiatric conditions had essentially remitted before the accident. Her injuries were felt to have stabilised, and her Whole Person Impairment was assessed at 17%.
99.	At [45], the Panel referred to a subsequent report of Dr Jones of 8 March 2021. Dr Jones, who apparently had additional information, including medical reports and surveillance reports, was of the opinion that the additional information indicated that there had been a significant improvement in Ms Upcroft’s functioning since his previous assessment. He stated that the validity of that assessment had been undermined.
100.	At [50], the Panel set out the following diagnosis:
•	Persistent Depressive Disorder DSM-5.
101.	The Panel then went on to summarise the submissions of the Insurer of 21 September 2022 and the submissions of the claimant in reply of 10 November 2022.
102.	At [59] the Panel noted that Ms Upcroft had indicated that she would like to access psychiatric treatment and consider further biological treatments for her psychiatric condition.
103.	At [60], the Panel noted that Ms Upcroft had expressed an intention to pursue surgery, which could improve her physical condition, which would improve her mental state and function.
104.	The Panel at [61] concluded: 
“taking into account all the matters referred to in the examination of the claimant by the Panel, the diagnosis and reasons, and the conclusion on causation, that the claimant had not reached maximum medical improvement. There was a planned treatment that would likely improve her condition significantly within the next 12 months. In the circumstances, the Panel was not of the opinion that the claimant’s whole person impairment could be determined at this stage.”
PANEL’S CONSIDERATION OF THE INSURER’S SUBMISSIONS OF 29 SEPTEMBER 2022
105.	The Insurer’s fundamental position was that there had been a failure to show how Ms Upcroft’s pre-accident functioning was assessed in light of her significant pre-accident history and failed to consider her health issues and social situations leading up to the Accident when determining her current WPI under the PIRS.
106.	The Insurer referred to the clinical records from Kiama Downs Medical Centre, revealing substantial stress, mental health struggles, and other problems in the 3 months before the accident, which the Insurer submitted indicated past psychiatric history which affected her ability to work.
107.	The submissions which apply to the assessment of Medical Assessor Hong equally applied to the assessment by the Review Panel.
108.	The Panel could not find any new or recent submissions by the Insurer, but clearly they would have adopted the same position.
109.	The Review Panel noted the treating doctor’s medical notes of the Dapto Medical Centre since November 2023 and noted that an injury of 2 November 2024 attributed to her mental health difficulties to the accident.
110.	The Panel noted in respect of past medical history, at [71] above, that Ms Upcroft accepted that she had been prescribed antidepressant medication on previous occasions and before the accident, but she said that this was some time before the accident, and she had not taken such medication for a long time as she did not receive any benefits with taking those medications.
111.	The Panel at [83] noted that Ms Upcroft reported she had been receiving support for her mental health before the Accident. Ms Upcroft told the Panel and the Panel accepted that these supports were for stressors that had resolved or had become less salient. The Panel did not identify the stressors as impacting on her mental wellbeing in the months leading up to the accident.
112.	Generally, see [83]-[84].

DETERMINATION
113.	The Review Panel revokes the determination of Medical Assessor Hong as to Whole Person Impairment of 19% and substitutes the determination that as a result of the accident, the claimant sustained a Whole Person Impairment of 17%