WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

The assessment made by the review panel under s 63(4) of the Motor Accidents Compensation Act 1999 is as follows:

1. The Review Panel revokes the certificate of Medical Assessor Canaris dated 29 May 2024

and issues a new certificate that the following injury caused by the motor accident give rise to a whole person impairment which is NOT GREATER THAN 10%: * Persistent Depressive Disorder (Dysthymia) with Anxious Distress

1. Ms Kumari (the claimant) was injured in a motor accident on 27 March 2014. The claimant was a rear seat passenger in the insured vehicle making a right hand turn which was

T-boned by another vehicle.[1] 2. AAI Ltd trading as AAMI (the insurer) is liable to pay Ms Zilic any damages under the Motor Accidents Compensation Act 1999 (the MAC Act). 3. The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2] 4. Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident. 5. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3] 6. The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Mason on 29 May 2024 (the medical assessment). Medical Assessor Canaris assessed the permanent impairment caused by the motor accident at 19%. 7. The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4] 8. The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5] 9. Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).

1. This review is from the medical assessment certificate issued by Medical Assessor Canaris when it was determined that the motor accident caused a distant depressive disorder with persisting major depressive episode and anxious distress in the symptom disorder with predominant pain and assessed the claimant at 26% whole person impairment.[6]
2. The claimant referred to her daughter which was then seven and half months years of age who was looked after mainly by her husband and his parents. There were arguments concerning the claimant's husband requesting her to have a shower and go out with him. She avoided these arguments by going out for a walk with him.
3. The claimant stated that she might shower every three or four days when reminded by a husband did not change close because she did not have the motivation. The claimant stated that she did not go out socially at all and at most, went for a walk with her husband.
4. The Medical Assessor opined that there had been a significant deterioration in function since the assessment of Medical Assessor Suman in June 2022. In respect of causation, the Medical Assessor stated:

"The accident as described was distressing and traumatic and accidents of this nature can precipitate mood disorders. Moreover, there was no evidence of any psychological illness before the accident. Both her persistent depressive disorder and his somatic symptom disorder on this basis arise as a consequence of the subject accident."

1. The Medical Assessor assessed moderately impairment for self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration and total impairment for adaptation. There were assessments of mild impairments for the other PIRS categories.

1. Medical Assessor Suman issued a medical assessment certificate dated 8 June 2022 and claimant provided a history concluded that the motor accident caused a major depressive disorder with social anxiety disorder and assessed the claimant at 19% whole person impairment.[7]
2. The claimant provided a history that her injuries were more severe than a husband's and she was "dependent on my husband for almost everything"
3. The claimant advised she struggled with physical injuries and mental health stressors and there was a gradual worsening in terms of the mental health stressors and that she needed increasing help from her husband over time. Her husband was described as the "primary carer" and that she "tends to spend most of her time at home".
4. Presentation over the previous six months included avoidance of social interaction, struggling to sleep and poor appetite and low energy levels. The claimant's husband prompted her to attend to activities of daily living and go out of the house once-a-day. The claimant stated that she recently travelled to India and had a good time with her family and friends for four weeks as she felt more relaxed over there but that when she returned to Australia, she felt worse regarding her mental health and general well-being.
5. The Medical Assessor assessed moderately impairment for self-care and personal hygiene, social and recreational activities and total impairment for adaptation. There were assessments of mild impairments for the other PIRS categories.

1. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[8]
2. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[9]
3. The review is by way of new assessment of all matters with which the medical assessment is concerned.[10]

1. The provisions of the Civil Liability Act 2002 (the CL Act) apply to the Motor Accident Injuries Act 2017 in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[11] In Raina v CIC Allianz Insurance Ltd[12] Campbell J stated:

"One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely."

"There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible."

1. The insurer relied on the opinion of Dr Vickery who diagnosed a somatic form chronic pain disorder. It also noted that the last treatment paid by the insurer for psychological counselling was on 4 May 2016, almost four years from the date of the submissions

Insurer's submissions dated 12 September 2023[14]

1. These submissions sought leave to apply for a further medical assessment certificate.
2. The insurer referred to the following further information in support of the application for a further medical assessment:
   • statement of Mr Goyal dated 26 April 2021 prepared for his own claim;
   • various reports and clinical records; and
   • the records of the Department of Home Affairs.
3. The insurer referred to the medical assessment certificate of Medical Assessor Suman with ratings of class III for self-care and personal hygiene and social and act recreational activities in class for adaptation.
4. In relation to the assessment of self-care and personal hygiene the insurer referred to the following further information:
   • clinical record of MyPhysio Health Clinic dated 20 October 2019 which noted the claimant was getting an aching left top of the shoulder due to cooking;
   • statement by Mr Goyal dated 26 April 2021 submitted in his own claim when he stated:

"I can't do things I enjoyed before the accident and can't look after my home ... We require considerable assistance from friends", and

• the claimant's appearance as recorded by Mr Ray (the vocational capacity centre), Ms Piebenga (occupational therapist) and Joanne Heathcote (occupational expert) suggested that the claimant was neatly groomed for each of these assessments.

1. In relation to social and recreational activities the insurer referred to the following evidence:
   • Ms Zhang at MyPhysio Health Clinic recorded on 3 November 2020 that the claimant's neck was sore after watching the cricket game for 10 hours;
   • Dr Prabhala on 26 May 2021 exercise with dumbbells four times each week;
   • Extensive overseas travel contradicting the one trip recorded by Medical Assessor Suman, and
   • Advising Ms Starr on 3 February 2023 that she recently went out with a friend.
2. The insurer submitted that the new evidence indicates that the claimant does not remain at home all day and has an ability to repeatedly travel overseas which indicates a greater capacity to engage in recreational activities and that previously disclosed.
3. In respect of the assessment of social functioning the insurer referred to:
   • Report by Dr Prabhala, obstetrician, on 26 May 2021 that the claimant was attempting to naturally conceived for up to 10 months from late 2020;
   • referral by the claimant's GP for fertility treatment in January 2022;
   • signed a consent form for IVF treatment on 28 January 2022, and
   • IVF admission on 25 July 2022 with Dr Fong at Westmead Hospital.
4. The insurer asserted that issues with falling pregnant may place marital strain and was unrelated to the motor accident.
5. The insurer also noted that the applicant had fallen pregnant in February 2023 and reported to Royal North Shore Hospital on 28 April 2023 that she was "happily married ... both very happy about the baby".
6. In respect of concentration, persistence and pace the insurer referred to:
   • the claimant watching the cricket game for a 10 hours, and
   • attendance with Mr Hart (Vocational Capacity Centre) over two hours for assessment with no breaks.
7. The insurer questioned the claimant's reliability as an historian noting that the pregnancy was confirmed by the GP on 20 February 2023. However, subsequent appointments did not reveal the pregnancy and suggested otherwise:
   • Ms Heathcote on 8 March 2023 noted that the claimant could not cope with children in a current condition;
   • Ms Piebenga noted a home assessment on 13 June 2023 that they do not have children, and
   • the vocational capacity centre report on 22 June 2023 noted the claimant's report that they do not have any children.
8. The insurer submitted that the claimant knowingly concealed her pregnancy to these experts.
9. The insurer referred to the opinion of Joe Hart who opined that the symptom validity test revealed a hilar likelihood that the claimant exaggerated her psychiatric and cognitive dysfunction, and this raises serious questions of the claimant's credibility.
10. The insurer referred to records from Ms Starr on 3 February 2023 reporting a motor accident which was confirmed in a report from Ms Starr dated 14 August 2023. The claimant then immediately attended Ms Starr, who she hadn't seen since 3 February 2023 and denied that there was a second motor vehicle accident.
11. The insurer addressed the materiality of this information which is not relevant to our assessment

Insurer's submissions dated 27 May 2024[15]

1. These submissions related to the "Learning history" from Woolworths which shows 47 modules completed by the claimant between June 2016 and May 20 May 2022. It submitted that this evidence demonstrates a capacity to study and concentrate

Insurer's submissions dated 28 June 2024[16]

1. These submissions sought leave to review the medical assessment certificate.
2. The insurer referred to errors by the Medical Assessor in failing to provide reasons why he accepted the claimant's self-reporting, which was inconsistent with material evidence, did not adequately engage with the material evidence and did not address issues raised by the insurer.
3. The insurer referred to evidence which we have summarised in previous submissions. It also noted a history at Royal North Shore Hospital for an antenatal consultation on 28 April 2023 when the claimant stated she previously suffered from anxiety, but it had "mostly resolved" doesn't feel the impact on her life.
4. The insurer noted the history provided to medical assessor of the extent of overseas travel was inconsistent with the Department of Home Affairs records.

Claimant's submissions dated 3 October 2023[17]

1. These submissions opposed leave for a further assessment. The claimant submitted that the further information was not capable of materially ordering the claimant's assessment of whole person impairment.
2. The claimant submitted that the reference in the clinical records on 20 October 2019 that the claimant was had an aching left shoulder due to cooking did not contradict the evidence provided to Medical Assessor Suman.
3. The claimant submitted that the observation by Ms Piebenga that the claimant was "neatly" groomed or dressed was vague in her appearance was the opposite as recorded by Medical Assessor Suman.
4. The claimant submitted that the statement provided by Mr Goyal in April 2021 does not contradict the claimant's evidence to Medical Assessor Suman. This is because the husband's injuries were less severe than hers and most of the care described by the claimant provided by the husband concerned "motivation and prompting".
5. It was submitted that Mr Goyal's injuries had largely resolved by early 2022 and he states he is the primary carer for the claimant.
6. It was submitted that the claimant watching the cricket game for 10 hours do not involve continuous concentration or focus, was not personally interested in watching the game and was not inconsistent with the presentation to Medical Assessor Suman.
7. The claimant submitted that the use of dumbbells four times a week was not a recreant recreational activity but performed on medical advice.
8. The claimant submitted that the international movements were not inconsistent with the history provided to Medical Assessor Suman as that questioning related to presentation over the previous six months and was a direct response to the question asked and not a false history.
9. The claimant advised that the international trip in February 2018 involved travel to New York and onto India transiting through the Philippines.
10. The claimant submitted the trip in April 2018 and September 2018 to India evolve transiting through China. Further, the trip to India in 2022 also involve transiting through Thailand. These all were not for the purposes of social and recreational activities but at her husband's behest.
11. The claimant referred to the records of Ms Starr which noted the claimant when out with a friend and was involved in a collision. It was submitted that the claimant went out with Mr Coyle and a friend and states that she goes out with friends or Mr Goyal's friends when prompted by Mr Goyal. This history is consistent with that recorded by medical assessor Suman and noted the claimant goes out of the house once-a-day at the prompting of Mr Goyal.
12. The claimant submitted that the decision to have a child was the claimant's contribution to the marriage, noting that her husband would look after the child with the assistance of the parents. The decision to have a child was indicative of a strained relationship.
13. The claimant submitted that the clinical note from Royal North Shore Hospital dated 28 April 2023 about the claimant and her husband being happily married and happy about the baby must be read in context and the marriage continued to be strained.
14. The claimant submitted that the history is provided to Ms Heathcote, Ms Pienbenga and the Vocational Capacity Cantre were accurate and did not involve nondisclosure of the pregnancy as the first childbirth was due in mid-October 2023.
15. The claimant submitted that the examination with Mr Hart went for a maximum of 90 minutes and she did ask for a break during the appointment.

Claimant's submissions dated 28 May 2024[18]

1. These submissions were in response to light service of documents called "Learning history" obtain from Woolworths.
2. The claimant noted the insufficient time to address these records but otherwise referred to the statement of Mr Coyle dated 28 May 2024 which provides an explanation for the documents.

Claimant's submissions dated 17 July 2024[19]

1. These submissions opposed leave to review the medical assessment.
2. The claimant submitted that the application was without merit was an attempt to further delay the matter noting that there was no previous review of the certificate provided by Medical Assessor Suman.
3. The claimant noted that the insurer's late application seeking to omit the learning history from the Woolworths group was not sent to Medical Assessor Canaris.
4. The claimant referred to the detailed history recorded by the Medical Assessor noting that there were aspects of chronic pain which may warrant a separate diagnosis of somatic symptoms disorder with predominant pain.
5. The claimant referred to cl 1.217 of the Guidelines in respect of the use of clinical judgement by the Medical Assessor,
6. The claimant submitted that the Medical Assessor addressed the insurer's concerns, and any divergence only amounted to a difference not an inconsistency.

1. The parties filed bundles of documents for the Panel's consideration.

1. There are no records showing a pre-existing condition.

1. The hospital discharge summary noted admission to hospital following a motor accident on 27 March 2014 for management of a right clavicle fracture with pain over the right shoulder.[20]
2. A medical certificate dated 14 April 2014 showed a comminuted minimal displaced fracture of the middle third of the right clavicle with pain and limitation of movement of the right shoulder.[21]
3. In September 2014 the GP referred the claimant for psychological treatment relating to developing fear of travelling by car and leading to fights with husband and lifestyle.[22]
4. An MRI scan of the cervical spine dated 16 April 2021 showed minimal bugling of the cervical spine and normal appearance of the cervical cord. The scan did not provide a medical basis for the complaints of radiating pain into the right arm from the neck.[23]
5. In September 2021 Dr Prabhala, obstetrician, noted the claimant and her husband had been planning a pregnancy and had been unsuccessful for around 12 months.[24]
6. Various GP records noted ongoing right sided neck pain and a frozen shoulder including in 2022.[25]
7. An ultrasound dated 27 February 2023 showed single live intrauterine gestation of seven weeks.[26] The pregnancy followed a third frozen embryo transfer attempt in late January 2023.[27]
8. A report from Ms Starr dated 14 August 2023 noted the claimant was involved in a second motor vehicle accident when she "went out with her friend" and was the passenger in the vehicle.[28] A further report dated 18 August 2023 by Ms Starr states that the claimant stated there was no second accident. Ms Starr said that the claimant was a soft-spoken woman and information may have been misconstrued. She also stated that the claimant presented with severe stress levels and this may also lead to the confusion.
9. The GP provided a report dated 19 September 2023 noting that the claimant was then 36 weeks pregnant.[29] Dr Sakla described the claimant as a "severely depressed woman" and further delay of the matter would have a detrimental effect upon her health.
10. Records from Royal North Shore Hospital dated 16 October 2023 note that the claimant was "happily married" and her and her husband were "both very happy about baby".[30] There was reference to the motor accident causing anxiety which had "mostly resolved" with "some anxiety when other people driving but doesn't feel this impacts her life".[31]

1. The claimant provided a statement dated 2 February 2021.[32] The claimant is 40 years of age, came to Australia in 2008, and completed a Masters degree in information technology in 2010. The claimant was married in 2013 and then ceased working full-time at Woolworths and was actively looking for work in the IT field.
2. The claimant said that the motor accident caused depression, pain and discomfort in her neck and stiffness in the right shoulder and referred pain down the right arm. She also suffered from frequent headaches as a result the motor vehicle accident.
3. The claimant stated that she has difficulty vacuuming mopping, heavy lifting bridge incumbents, rolling onto a shoulder at night and her sex life has been greatly reduced as a result of the pain and discomfort.
4. The claimant stated that since the motor accident she has suffered from major depression and has no joint life, feeling tired depressed and crying. She said she was left with very debilitating injuries part cannot work in the deli department at Woolworths as she cannot lift heavy meats will place limits on scales. She stated that she has no energy since the accident, filled mentally drained, difficulty concentrating and unmotivated to do anything.
5. The claimant stated that her relationship with her husband had changed significantly. He also suffered injuries although his was not as severe as hers. The claimant stated that she is unable to perform the normal domestic household chores which it is performed prior to the accident.
6. The claimant stated that because of her depression she has been unable to socialise and that lost friendships.
7. The claimant stated that she cannot live without a husband's assistance and most days cannot get out of bed and just wishes to stay in her pyjamas.
8. The claimant stated that she had difficulty getting into a car due to anxiety and now even walking causes her anxiety. The claimant cannot read for any length of time as her mind becomes disengaged with what is being read. The claimant stated that she only showers when prompted, no longer was able to cook she does not have the energy or motivation to do so.
9. The claimant provided a further statement dated 31 August 2023.[33] The claimant referred to her ongoing pain and discomfort in the neck, shoulder and right arm and her high levels of anxiety and power take panic attacks every day with depression and nightmares about the accident.
10. This statement detailed the many tasks the husband performed for the claimant.
11. The claimant stated that her husband wanted a family that he insisted he will be looking after the child and would arrange for their respective parents to come and stay after the child was born. The claimant fell pregnant through IVF in January 2023 following two failed attempts since September 2022.
12. The claimant said that the falling pregnant ought of been a joyous occasion, but it did not. The claimant asserted that the Medical Assessor asked only about travel in the last six months, she answered that question provided the following clarification change her depressive condition.
13. The claimant said she attended Ms Starr psychologist in February 2023. The claimant stated that the reference by the psychologist to a recent motor accident was incorrect and that she had only the one motor accident.
14. The claimant provided a further statement having read the insurer's submissions dated 12 September 2023.[34] The claimant rejected the assertion that she had misled the previous Medical Assessor and provided the following clarification in respect of travel.
15. In respect of previous travel, the applicant says that in 2018 she travelled to New York with a stopover in the Philippines. She travelled alone on that location and was supported by her family.
16. In April and September 2018, the claimant travelled to India through China. In 2022 the claimant again travelled to India with her husband the connecting stopover flight in Thailand.
17. The claimant stated that a husband wanted a family that he agreed to care for and be responsible, but she cannot look after itself let alone a baby. The claimant agreed that she had told doctors and other people that she was excited and happy about the baby coming but says she was only happy in as far as her husband was finally getting the child he always wanted.
18. The claimant stated that the examination with Mr Hart lasted for approximately 90 minutes, and she asked him for a break which he allowed.
19. The stated that she was not interested in watching the cricket and only watched the game intermittently and took breaks whilst her husband was watching it. She said she didn't like it but will follow cricket and she would never watch it for 10 hours. She stated that she normally watched mind numbing shows on TV as she cannot concentrate to follow the plotline of a movie.
20. The claimant admitted she exercised with dumbbells proximally four times a week as advised by a physiotherapist and to assist in managing her pain.
21. The claimant stated that the motor accident was 9 ½ years ago and she has high days and low days, and it was considered inappropriate in her culture to complain about it all the time.

1. The claimant's husband provided an initial undated statement describing his background and the circumstances in which he met the claimant.[35] Mr Goyal stated that he is the main carer for his wife's needs and does all shopping, cooking, vacuuming, food preparation, making beds and washing. He stated that his wife stay in her pyjamas all day and he tries to get around the house to go for a walk although this is a mammoth effort.
2. Mr Goyal stated that they eventually conceived through IVF and he and his parents agreed to look after the child. He said that his wife is very withdrawn and appears depressed every day.
3. In a further statement responding to the insurer's submissions dated 12 September 2023[36], Mr Goyal noted the claimant's severe depression since the accident. He noted that the claimant travelled to New York to see a brother and 2018 and was assisted by her family. He described ongoing strain within the marriage and his observations concerning his wife's depression and the effect that it has on her lifestyle.
4. Mr Goyal provided a further statement in response to the insurer's submissions dated

27 May 2024.[37] He stated that up until December 2022 he was employed by Woolworths both in a position of manager and later as a casual employee. He trained his staff to complete the training modules which are "very simple" and "some were just ticking a box that you had read the information". 5. Mr Goyal stated that he assisted his wife to complete many of these training modules, some of which only required 10 to 15 minutes of the time and work completed online at his wife's convenience. One example of a module was regarding the slicer which might have a photograph of the slicer and a glove it was designed for the employee to acknowledge the need to wear a glove, how to turn off the slicer and how to clean the slicer. He said that the claimant was resistant to completing the modules but that he insisted that she try and do them and the quiz modules were extremely easy and basic. 6. Mr Goyal provided a statement dated 26 April 2021 which related to his claim for damages arising from the motor accident.[38] 7. Mr Goyal stated:[39]

"I can't enjoy my pre-injury recreation activities. I used to enjoy walking, playing tennis and jogging. I can't do that anymore. I wake up in pain each night and that has also made me suffer from depression. I can't do the things I enjoyed before the accident and can't look after my home or enjoy intimacy with my wife. My wife was also injured in the accident and is worse than I am and we require considerable assistance from friends."

1. Mr Goyal stated that he still suffered from neck and back pain and depression and low mood since the accident.

1. Dr Rose, psychiatrist, was qualified by the claimant's lawyers and provided a report dated

8 March 2016.[40] The doctor noted the claimant often woke with pain but had no abnormal preoccupations together awake and did not suffer nightmares or flashbacks. The claimant reported adequate levels of energy but stated that but for the presence of pain she could start and finish things she did before the accident. The claimant reported no problems with study or memory and wanted to return to work in IT. 2. The claimant being reported being totally independent in self-care and hygiene and said that camping activities were restricted because of the husband's long hours of work and the lack of money. 3. The doctor opined that the claimant is able to study IT and there appears to be no psychiatrically related difficulties with concentration, persistence and pace. Any difficulties in this area are due to the presence of pain. 4. The doctor noted that the claimant was a pleasant young lady who was well groomed and dressed and spoke fluently. There was no evidence of clinical exam anxiety or depression. 5. Dr Rose opined that the claimant had developed a mild anxiety about travelling in cars and become withdrawn and opined that the claimant suffered from adjustment disorder with mixed anxiety and depressed mood. The doctor assessed whole person impairment at 4%.

1. Dr Parmegiani was qualified by the claimant's lawyers and provided a report dated

11 September 2018.[41] The report of Dr Rose was not forwarded to Dr Parmegiani. 2. Dr Parmegiani reported that the motor accident caused a fracture of the right clavicle, which was treated conservatively, and the claimant developed a right frozen shoulder with neck and right shoulder pain. 3. The doctor recorded a history that the claimant could not return to work for Woolworths because it was physically demanding and worked at the call centre for one month in 2017 but could not continue because of the physical symptoms. Prolonged sitting and using the keyboard exacerbated pain. The claimant now spent most the day in her pyjamas doing little. 4. Dr Parmegiani opined that the claimant developed a major depressive disorder with symptoms including consistently depressed mood, insomnia and poor appetite, lacked energy, motivation and concentration. The applicant was said to have no contact with friends and spent a day at home doing little, not changing out of her pyjamas. 5. In respect of the assessment of permanent impairment, Dr Parmegiani noted that the claimant was able to travel alone to unfamiliar areas including travelling to Sydney CBD by public transport on the day of the examination. The doctor noted that the claimant had a class 4 social and recreational activities as she avoided friends when they visited and retreated to her bedroom. The claimant was assessed as class 3 for concentration, persistence and pace as she could not concentrate as she read the same page over and over. It was noted that she maintained concentration during the interview. The doctor assessed class 5 for adaptation noting the claimant was severely depressed, unmotivated and unable to concentrate. 6. Dr Parmegiani provided a further report dated 19 January 2021.[42] The doctor noted that the claimant did not identify significant life events since he last assessed her in September 2018. 7. Dr Parmegiani noted that the claimant continued to experience a combination of physical and psychiatric symptoms. The claimant had pain in both shoulders and headaches every second day. The claimant managed pain with Voltaren and Nurofen and headaches interfered with her sleep patterns, and she was unable to perform a range of domestic tasks because of physical limitations. 8. Dr Parmegiani noted ongoing psychiatric symptoms of lacking energy, concentration and motivation with anxiety interfering with her sleep. The claimant did not feel capable of starting a family because of the physical and emotional demands of looking after a child and she felt mostly more tired and depressed in the morning. The claimant commented that the family doctor focused on treating physical symptoms and had not prescribed psychotropic medication. 9. Dr Parmegiani noted that the claimant spent her days in pyjamas doing little with encouragement from a husband to shower and look after appearance. She did not engage in social or recreational activities and friends visited only every few months. The claimant stated she rarely left the security of the home and the further she would achieve was walking across the street accompanied by a husband to the local shops. The claimant prepared meals every two weeks and did not visit recreational venues. 10. Dr Parmegiani noted that the claimant had developed chronic pain and associated limitations and deferred comment about the physical injuries to other specialists. He opined that the depressed mood magnified pain perception which in turn exacerbated the depression. 11. Dr Parmegiani assessed class 3 for various PIRS categories including travel noting the claimant "did not leave the security of her home because of excessive anxiety".[43] 12. Dr Parmegiani assess class 3 for concentration, persistence and pace commenting that the claimant was only able to read for a few minutes before losing focus. 13. Dr Parmegiani noted the opinion of Dr Assem dated 9 November 2020 which assessed impairment for the physical injuries. He opined that this gave rise to chronic pain associated limitations. He opined that a diagnosis of somatoform chronic pain disorder can still be made when there is an exaggerated emotional response to a physical injury but should not be made in the presence of a major depressive disorder. This is because depressed and individuals often present with pain. 14. In a separate report Dr Vickery diagnosed mild impairments across all PIRS categories save as to social functioning where the doctor described a supportive marital relationship.[44]

1. Dr Vickery, psychologist, was qualified by the insurer and provided a report dated 19 August 2019.[45] The doctor noted a history of shoulder blade and neck pain while sitting for more than two hours and with cooking and doing the laundry. Sleep was disturbed because of the pain.
2. Dr Vickery recorded reduced concentration, forgetfulness with reduced short-term memory and reduced motivation in general. The doctor noted that the claimant was casually dressed and groomed with eye contact which was spontaneous and cooperative.
3. Dr Vickery opined that there was no apparent medical basis for the claimant's continuing incapacity pain perception and disability due to the motor accident. The doctor diagnosed somatoform chronic pain disorder as pain was the predominant focus of the clinical presentation and is the reported cause significant psychological distress and functional incapacity.

1. Dr Giblin was qualified by the claimant's lawyers and provided a report in October 2014.[46] The chief complaint at that time was ageing and stiffness in the right shoulder and loss of function in the right arm. The doctor diagnosed soft tissue injury to the right shoulder, bone injury to the right clavicle and a soft tissue injury to the neck caused by the motor accident.

1. Dr Assem was qualified by the claimant's lawyers and provided a report dated 9 November 2020.[47]
2. Dr Assem noted that the claimant demonstrated a normal range of cervical movement but there were some guarding over the right scalenus and right upper trapezius which satisfied description of DRE cervical spine category II. Dr Assem noted a minor restriction in shoulder motion that gave rise to minor upper extremity impairment. Dr Assem assessed whole person impairment of 8%.

1. An extensive report dated 29 March 2023 was prepared by Joanne Heathcote, occupational therapist.[48] Ms Heathcote noted that the claimant continued to complain of intermittent pain in the neck in the back of the shoulders and to debilitating headaches which occurred at least three times a week. It was noted that the claimant was mainly restricted to her home because of a low mood and general anxiety about the risk of re-injury should she access the community. She reported not returning to participating in domestic tasks, work or recreational and social activities. The claimant reported she ingested Nurofen and Panadol for pain. Pain was rated as fluctuating between one out of ten up to nine out of ten.
2. Ms Heathcote noted the claimant presented neatly dressed in cotton pants and cotton shirt with her hair loosely tied behind her head. The claimant presented as fatigued particularly by the end of the assessment.
3. Ms Heathcote noted that the claimant's pain affected her ability to lift groceries, vacuum, sweep or rake, using appliances, sleeping and opening a jar, participating in usual hobbies, sporting and recreational activities and preparing food. The claimant had moderate difficulty participating in usual housework, a little bit of difficulty in grooming her hair and no difficulty in reaching at the end of range dressing, doing up buttons and opening doors.
4. Ms Heathcote noted the claimant presented with a flat and depressed affect no interest in the ability to concentrate and continued anxiety with leaving the house. It was noted that the claimant, on her husband's suggestion, went to India to visit her parents last year.
5. The claimant displayed or reported physical restrictions including walking, running, reaching the end of range and lifting. Cognitive restrictions included physically feeding herself, showering, personal hygiene, looping, sexual intimacy and managing medication.
6. The claimant reported that her anxiety and mood prevented her from travelling alone, even very locally. She reported almost completely social isolated and mainly confined to home where she remains on the lounge or in bed having withdrawn from all community contact.

1. A functional and vocational assessment report dated 2 March 2023 prepared by Horace Ting, occupational therapist.[49] Mr Ting opined that the claimant did not demonstrate a real only potential at the time.

1. Dawn Pienbenga, occupational therapist, was qualified by the insurer and provided a report dated 6 July 2023.[50] It was noted that the claimant was groomed appropriately for the assessment and wore a matching tracksuit with socks and thongs.[51] It was noted that the claimant continued to experience a range of physical symptoms including occasional headaches and generally light pain in the back of the neck and into the shoulders.

1. A vocational capacity centre report dated 22 June 2023 was authored by Mr Ray, physiotherapist and Mr Hart, psychologist.[52]
2. The functional assessment concluded that there was overt physical function restriction and self-limitation which indicated a high likelihood of feigning and that these results did not reflect on current capacity.
3. The cognitive testing place the claimant in the low average range which was described as surprisingly low given the claimant's educational history. The performance on the SIMS assessment was significantly elevated indicating a high likelihood that there may be feigning or exaggerating of psychiatric symptoms or cognitive impairment. Performance on the

M-Fast testing did not exceed the cut-off scores used to identify the likelihood of feigning psychiatric symptoms but did endorse some items atypical amongst the general population of psychiatric patients. The authors stated:[53]

"Taken together, Ms Kumari's results suggest that she may be exaggerating her cognitive impairment and psychiatric symptoms in an attempt to reduce the options for her to return to work. This is not to say that Ms Kumari is not experiencing symptoms consistent with depression and anxiety, but further consideration should be given to the extent of her symptoms and how this might affect her ability to return to work through additional objective assessment."

1. Records produced show the following overseas travel:[54]

1. Records produced by the Woolworths Group indicate that the claimant completed approximately 68 learning modules between 28 July 2016 and 8 July 2022.[55]

1. The claimant was medically examined by both Medical Assessors on 10 July 2025. The examination report is as follows.

Background and History of the Presenting Complaint

Ms Parveen Kumari is a 40-year-old woman who lives in Sydney, NSW with her husband and their daughter who is 20 months old. She is not employed currently and has not been working since the accident. She is not in receipt of financial assistance and is dependent on his husband. She did not report monetary issues.

Ms Kumari worked part-time in retail at Woolworths (in the delicatessen section) and had previously worked at Subway. She was working at Woolworths for two to three years. She said that she was offered to do twice manager role but was not keen to take this offer as was keen to explore IT jobs.

Ms Parveen Kumari was involved in a motor vehicle accident on 27 March 2014. She was a rear-seat passenger in a car driven by her friend. The accident occurred when the driver of her vehicle attempted to turn right at an intersection and was struck by an oncoming vehicle, directly hitting the passenger side door where Ms Kumari was seated.

The collision was severe enough that the vehicle required cutting open to extricate Ms Kumari, who immediately reported experiencing intense pain in her right shoulder and back.

Emergency services attended promptly, and Ms Kumari had to be extricated from the vehicle by cutting open the car door.

She was then transported by ambulance to a nearby hospital, where she was admitted overnight due to her injuries.

Medical evaluation confirmed physical injuries, including a right sided fractured clavicle, she had bruises on her face and legs. She had neck pain as well.

Following her overnight hospital stay, Ms Kumari was discharged home and was followed by the general practitioner. Her right arm was in sling and had a right frozen shoulder. She was referred for physiotherapy session.

She as attending two to three session per week and found it helpful. She reported substantial physical limitations and psychological distress almost immediately following the accident.

She said that her movement improved, however, said there were limitations. She said that this has had a lasting impact on her.

She spoke about the psychological impact. She said that she felt dependent on her husband. She said that she was dependent on him financially, was preparing meals, showering, taking to appointments.

She saw a psychologist and had a few sessions and said that it was hard for her to open to people as she had to re-live the accident.

She continues to feel scared to leave the house. She does not want to leave the house. She needs the husband to be with her. she said that he has been with her husband the max for an hour for grocery and appointment.

She avoids social crowds and gatherings. When she is amongst people, she feels that people are judging her and reported interpersonal perception sensitivity.

The last time she socialised was with her parents and met relatives. She said that she was happy to go out with them.

We brought to her attention the attendance to the cricket matches, this was indoor and with the husband.

She said that she never attended the gym for dumbbell activities and said that she had never attended gyms.

We brought to her attention the international travels, she had three trips overseas in total and was not sure. She went to USA and India. She was overseas for two weeks, three weeks, and a month respectively. She said that she was "okay at home with parents and was better than in USA and was looked after".

She spoke about her loss of functioning and said that IT was her dream job. She said that she cannot return to IT industry. She said that she feels like it is out of her league.

She attempted to return to Woolworth for a day and struggled because of frozen right shoulder and has not returned to work since then. She must participate in online training before and after the accident to try to keep the job.

She said that she tried to return to work in a call centre for ATO in 2016. She worked there for four to five weeks. The first four weeks was training, and in the fifth week she struggles on phones and left the job.

Since then, she has not engaged in any form of vocational training. She said that she wants to work but finds it hard to face the world.

She had been on IVF treatment and said that her relationship was strained and wanted to salvage the relationship and started IVF treatment more than two years ago. She was vague and confused with the dates.

She said that she attended hospital once for IVF treatment and then rest of the appointments were online.

She is feeling worthless and feels like that she is not doing much for her husband and her daughter. She does not feel good about the situation. She reported that she can enjoyment and a bit of happiness when she sees her daughter. She reported guilty thoughts and feels responsible for the situation.

The daughter's primary attachment is with her father, however, spends time with her.

She has always been an emotionally sensitive person. Is easily moved to tears. She tends to catastrophise and tends to procrastinate. She said that she prefers routine and structure. She said that there is no change in life. She feels that she has no control over her situation.

She alluded to pervasive anxiety. The said that the stress is felt in shoulders and the body gets stiff. the pain symptoms are described as manageable. The stress is said to have no impact on her pain's perceptions.

She has infrequent flashbacks with associated memories and said she has smells and feels like it is fresh.

Ms Kumari has no history of psychosis, mania, or hypomania.

It is to be noted that Ms Kumari denied a second motor vehicle accident in February 2023, when explicitly asked.

Ms Kumari has passive suicidal thoughts and are infrequent. She has never attempted suicide.

There is no family history of suicide. She reported that her relationship with her husband is a protective factor for her.

She has not engaged in self-harm or risk-taking behaviours.

She is irritable with poor frustration tolerance levels. She is not impulsive.

Ms Kumari's sleep is described as poor. She sleeps intermittently for 5-6 hours at a time, with early and middle insomnia. She has nightmares and night terrors related to motor vehicle accidents occasionally. She feels tired because of the poor quality of sleep.

Her memory is described as suboptimal. She struggles with organising herself and depends on her husband for appointment. Her concentration and attention are described as fluctuating.

Her motivation and energy levels are reduced. She said that she couldn't be bothered to do things. She said that she is not engaging in any day-to-day chores.

Her self-care and hygiene are said to be poor, relying heavily on prompting by her husband. She said that she showers every three days. She said that she changes clothes every three days. She brushes her teeth every two to three days.

She takes care about her presentation and grooming in front of people.

She cannot drive and said that she travels with her husband. She does not take public transport. She said that she feels that people will be judged. She does not have a driving licence.

She said the appetite is poor and has maintained her weight.

Ms Kumari has been diagnosed with Major Depressive Disorder, Social Anxiety Disorder, and Persistent Depressive Disorder (Dysthymia) with Major Depressive Episode and Anxious Distress.

There is no pre-injury mental health history. She is not engaged with a psychiatrist currently or previously.

She has engaged briefly with psychological treatment post-accident but ceased due to distress. She had seen psychologists intermittently, Ms Debra Starr. She is currently not engaged with a psychologist. She is not open to the idea of seeing a psychologist s feels "she wont be able to".

There is no history of hospital admissions for psychiatric reasons.

Ms Kumari's medical history includes physical injuries from the accident, notably a fractured clavicle and subsequent "frozen shoulder" with ongoing pain.

She had subclinical hypothyroidism due to pregnancy. She has no history of head trauma or seizures. She has no known allergies.

Ms Kumari is not currently taking psychiatric medications. She takes pain killers as needed. Historically, she was prescribed escitalopram, which she discontinued due to side effects and fear of dependency. When I brought this to her attention, she said that she could not recall.

Ms Kumari does not consume alcohol. She does not use tobacco products. She denied illicit substance use. There is no history of excessive caffeine intake. There is no history of gambling-related issues.

Salient Features of Psychosocial and Developmental History

Ms Kumari's primary emotional support comes from her husband, and they have a daughter.

She has two siblings, in USA and Canada. The relationship with the sister is distant, her brother keeps a check on her.

Her parents are in India and have a good relationship with them.

She was born in Jalandhar, Punjab, India. She grew up locally. There is no history of developmental trauma.

She finished year 12 at school in India. She completed a Bachelor's Degree in Computer Applications in India and a Master's Degree in Information Technology in Australia.

Shas previously worked in retail in Subway and briefly in a call centre for the ATO.

Premorbid, she described herself as strong and independent person,

On mental state examination, Ms Parveen Kumari is a female of the stated age. She was appropriately dressed and groomed. She was easy to engage, and I was able to form a good rapport with her. There was no psychomotor agitation or retardation. Her body demeanour was anxious. Her speech had a staccato quality. The thought-form was goal-directed and was reserved in her answers. The thought content revolved around the accident and the impact on her psychosocial functioning. She spoke about the psychological impact and her loss of functioning and increased dependency. There was no evidence of any psychosis or perceptual disturbances. Her affect was anxious and depressed. Her mood was anxious and depressed. She was oriented to person, place, and time. The insight is best described as fair. Her judgement at the time of this review was reasonable.

Ms Kumari is able to adequately perform basic personal care tasks, including showering, changing clothes, and brushing teeth, although she does so irregularly (approximately every two to three days). She is capable of maintaining a presentable appearance, particularly when anticipating social interactions, but relies significantly on prompting and support from her husband to achieve this. There is no indication of a requirement for regular external or professional intervention, supervision, or community care to manage basic self-care, thus meeting criteria for mild impairment.

Ms Kumari demonstrates notably reduced interest, motivation, and engagement in social and recreational activities. However, she retains some capacity to occasionally participate in limited social activities, such as attending indoor cricket matches, provided her husband accompanies her. Although she experiences anxiety and is reluctant to engage socially, her ability to occasionally partake in such activities, particularly within familiar family contexts, demonstrates mild impairment rather than a more severe withdrawal or permanent isolation.

Ms Kumari experiences significant anxiety and discomfort related to travel, even for short distances and routine tasks such as grocery shopping or medical appointments. She is consistently unable to travel independently and requires her husband's presence for even brief and familiar outings. There are also clear limitations in her capacity to tolerate travel to unfamiliar environments or to manage routine journeys independently. These limitations and dependence clearly align with moderate impairment criteria per the guidelines.

While Ms Kumari maintains existing relationships, notably her marriage and family ties, these relationships are clearly strained. The marital relationship is characterized by a carer-dependent dynamic rather than a traditional spousal partnership, reflecting ongoing stress, emotional strain, and reduced intimacy. However, there is no evidence indicating severe disruptions such as prolonged separation, complete breakdown, or the loss of essential relationships, thereby reflecting mild impairment consistent with guideline criteria.

Concentration, Persistence, and Pace (Class 2):

Ms Kumari displays suboptimal cognitive functioning, particularly in terms of memory, attention, and organizational skills. She has demonstrated noticeable difficulty sustaining employment or engaging in tasks requiring higher-level cognitive effort or sustained attention. Despite these challenges, she remains able to manage basic daily cognitive tasks with appropriate prompting and external support.

She was able to complete 63 vocational module as well as a month data call centre training preparation for work course although she was not able to manage her anxiety to start the work. There is no indication that her cognitive deficits severely restrict all routine tasks or preclude basic intellectual activities entirely, thereby meeting criteria for mild impairment.

Ms Kumari has made multiple, well-documented unsuccessful attempts at returning to employment, including roles in retail and call centre environments. Her consistent inability to sustain employment or effectively engage in vocational activities, even in low-demand or modified roles, reflects significant psychological and functional barriers. Her work capacity is markedly reduced to potentially working only one or two days at a time, with significant impairment in consistency of attendance, work pace, and reliability. This profile clearly aligns with severe impairment according to the guideline criteria.

1. The review is a new assessment of all matters with which the medical assessment is concerned.
2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[56] and Insurance Australia Ltd v Marsh.[57]
3. The Panel adopts the extensive reasons provided by the Medical Assessors and adds the further reasons.
4. Ms Kumari presents with Persistent Depressive Disorder (Dysthymia) with Anxious Distress, with prominent anxiety social anxiety. There is an element of abnormal illness behaviours and symptom amplification (perhaps strong somatic focus), which was noted during the interview.
5. The accident and the sequalae of the events following the accident are the primary predominant factors which have precipitated the above stated psychiatric symptoms. This is further compounded by the chronic pain syndrome.
6. The symptoms have led to a self-perpetuating cycle of increased dependency on her family. The need for her care needs being met are being reinforced by the continuation of her symptoms. The symptoms do not appear to be driven intentionally.
7. The claimant presents with an underlying anxious temperament, which was impacted by the relational dynamics between her husband and herself. Her decision to have a child was verbalised by her as a way to ensure continuation of the relationship with her husband, when she said, "I gave him a child at least".
8. Ms Kumari presents with strong familial supports, absence of using substances to cope with psychological distress, and high pre-accident vocational functioning are favourable signs. However, her lack of engagement with psychological and psychiatric treatment, the entrenched nature of her symptoms and chronicity of the presentation with associated perceived functional impairments with symptom amplification are negative prognostic factors.
9. The claimant's current capacity to engage in vocational or employment capacity is limited, primarily driven by the above stated factors. Her psychological state currently limits realistic employment prospects.
10. Ms Kumari's condition is stabilised and has attained Maximum Medical Improvement (MMI), given the chronicity and stability of her symptoms over the past several years. There is not realistic probability for the symptoms to change in intensity by 3% in the next 12 months. Consequently, the current psychiatric impairment should be regarded as permanent and stable. Using Psychiatric Impairment Rating Scale, the whole person impairment is determined to be 8%. There is no indication for appropriation or deduction as per SIRA guidelines.
11. Clause 1.215 of the Guidelines appears under the heading for the assessment of "mental and behavioural disorders and provides:

"The PIRS is not to be used to measure impairment due to somatoform disorders or pain."

1. Ms Kumari presents with significant ongoing pain. The impact of the pain on functioning in assessing the respective categories has been excluded. This, in part, explains a significant difference between our assessment and that made by the original Medical Assessor.
2. The previous Assessors/qualified opinion doctors rated Ms Kumari's impairment at significantly higher levels (19-26% WPI). The discrepancy between the rating of 8% WPI and these earlier ratings arises due to careful consideration and application of objective functional criteria, the clinical assessment of the Medical Assessors on the recent examination, an analysis where relevant of the evidenced based on the submissions and application of the Guidelines.
3. The Table for the assessment of the PIRS is attached at the end of these Reasons.

1. The certificate issued by Medical Assessor Canaris is revoked. A replacement certificate is attached at the commencement of these Reasons.

1. Persistent Depressive Disorder (Dysthymia) with Anxious Distress.

Previous short-term psychiatric and psychological counselling without any benefit.

Ms Kumari is able to adequately perform basic personal care tasks, including showering, changing clothes, and brushing teeth, although she does so irregularly (approximately every two to three days). She is capable of maintaining a presentable appearance, particularly when anticipating social interactions, but relies significantly on prompting and support from her husband to achieve this. There is no indication of a requirement for regular external or professional intervention, supervision, or community care to manage basic self-care, thus meeting criteria for mild impairment.

Ms Kumari demonstrates notably reduced interest, motivation, and engagement in social and recreational activities. However, she retains some capacity to occasionally participate in limited social activities, such as attending indoor cricket matches, provided her husband accompanies her. Although she experiences anxiety and is reluctant to engage socially, her ability to occasionally partake in such activities, particularly within familiar family contexts, demonstrates mild impairment rather than a more severe withdrawal or permanent isolation.

Ms Kumari experiences significant anxiety and discomfort related to travel, even for short distances and routine tasks such as grocery shopping or medical appointments. She is consistently unable to travel independently and requires her husband's presence for even brief and familiar outings. There are also clear limitations in her capacity to tolerate travel to unfamiliar environments or to manage routine journeys independently. These limitations and dependence clearly align with moderate impairment criteria per the guidelines.

We note that the claimant has travelled overseas since the motor accident. However, this class 3 assessment is reflective of the claimant's reported current level of impairment based on entrenched levels of anxiety and the need for her husband/support person to be present.

While Ms Kumari maintains existing relationships, notably her marriage and family ties, these relationships are clearly strained. The marital relationship is characterized by a carer-dependent dynamic rather than a traditional spousal partnership, reflecting ongoing stress, emotional strain, and reduced intimacy. However, there is no evidence indicating severe disruptions such as prolonged separation, complete breakdown, or the loss of essential relationships, thereby reflecting mild impairment consistent with guideline criteria.

Ms Kumari displays suboptimal cognitive functioning, particularly in terms of memory, attention, and organizational skills. She has demonstrated noticeable difficulty sustaining employment or engaging in tasks requiring higher-level cognitive effort or sustained attention. Despite these challenges, she remains able to manage basic daily cognitive tasks with appropriate prompting and external support.

She was able to complete 63 vocational module as well as a month data call centre training preparation for work course although she was not able to manage her anxiety to start the work. There is no indication that her cognitive deficits severely restrict all routine tasks or preclude basic intellectual activities entirely, thereby meeting criteria for mild impairment.

Ms Kumari has made multiple, well-documented unsuccessful attempts at returning to employment, including roles in retail and call centre environments. Her consistent inability to sustain employment or effectively engage in vocational activities, even in low-demand or modified roles, reflects significant psychological and functional barriers. Her work capacity is markedly reduced to potentially working only one or two days at a time, with significant impairment in consistency of attendance, work pace, and reliability. This profile clearly aligns with severe impairment according to the guideline criteria.

List classes in ascending order: 2, 2, 2, 2, 3 and 4

With respect to current whole person impairment, the Panel's opinion is as follows:

There was no subsequent injury and therefore no adjustment.

There was no effective ongoing psychological or psychiatric treatment. Past treatment has been limited and not effective. Therefore, there is no allowance for the treatment effect.

[11] See s 3B(2) of the Civil Liability Act 2002.

[12] [2021] NSWSC 13 (Raina) at [65].

[56] [2021] NSWCA 287 at [40], [41] and [45].

[57] [2022] NSWCA 31 at [11], [21] and [64].

[58] The Tables are in the Guidelines, pp 46-49.