REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 63 of the Motor Accidents Compensation Act 1999 (the Act)

1. The Review Panel revokes the certificate of Medical Assessor Abhishek Nagesh dated

21 August 2023 and issues a new certificate determining that:

(a) the following injuries caused by the motor accident give rise to a permanent impairment of 0% and IS NOT GREATER THAN 10%:

• Somatic Symptom Disorder

1. On 15 May 2017, Sasa Popovic (the claimant) was involved in a motor accident at approximately 7.20am. He was the seat-belted driver of a Mitsubishi truck delivering construction materials. He was driving along Barrenjoey Road in Balgowlah in wet conditions at a speed of about 50 to 60 kilometres per hour. The insured Holden Commodore, travelling in the opposite direction, crossed onto the incorrect side of the road and slid towards the claimant's truck. The claimant braked but the insured vehicle struck the right front side of the truck. The claimant's airbags did not deploy. The claimant could not recall how much damage the other car or his truck sustained. He remained in the truck as he was in shock. He self-extricated from the truck after approximately 10 minutes. He has a poor recollection of events thereafter. Police Officers attended and blocked off the traffic. The claimant called his boss who came to the scene and conveyed him to Mona Vale Hospital.
2. The claimant reports that he was initially in shock after the accident and had difficulty breathing. At Mona Vale Hospital, he complained of pain in his neck, chest and upper back. Plain X-rays of his cervical spine, thoracic spine and chest revealed no fractures. He was discharged from hospital on the same day. He reports that the following day, he awoke with increased pain in his neck and pain in his mid-back going into his low back. He reports that the pain in his neck radiated into both shoulders. He consulted a Serbian-speaking General Practitioner who referred him for ultrasounds of both shoulders and MRI scans of the cervical and lumbar spines.
3. The claimant was not referred for specialist treatment. He has had some psychological treatment. He has been seen by numerous qualified medical assessors. He reported significant symptoms of post-traumatic stress disorder, in November 2020, and neck pain, stiffness, occipital headaches, shoulder pain, weakness, and worsening back issues, with more frequent episodes of severe pain and stiffness.
4. The insurer indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages under the Motor Accidents Compensation Act 1999 (the Act). The insurer refused to concede that the claimant exceeded the 10% whole person impairment threshold for an award of non-economic loss. That decision was confirmed upon internal review.

1. The parties have each presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration, in much the same manner as parties not referring to, or not specifically relying upon, a document in their own bundle and submissions.
2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned.[1] The Panel is not required to "analyse every piece of information from every opinion contained in a document with which it was provided".[2] The Panel has come to its own conclusions and has taken its own history.

1. As there is a dispute between the parties about the degree of permanent impairment under

s 58(1)(d) of the Act, the following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Abhishek Nagesh for assessment: * post-traumatic stress disorder * persistent depressive disorder

Medical Assessor Nagesh certified on 21 August 2023 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 13% and IS GREATER THAN 10%:

Medical Assessor Nagesh utilised the Psychiatric Impairment Rating Scale (PIRS) in making his assessment. He made no adjustment for any pre-existing or subsequent impairments nor for treatment effects.

1. Medical Assessor Nagesh found that the claimant's persistent depressive disorder was caused by the subject accident as there was no previous history of mental illness. Medical Assessor Nagesh found that the claimant's persistent depressive disorder is in the context of his chronic pain, his inability to work, his loss of income, and also the physical limitations of the pain and the physical injury.
2. Medical Assessor Nagesh also found (but did not certify) that the claimant did not suffer a post-traumatic stress disorder caused by the motor accident.

1. Medical Assessor Burns certified on 29 January 2019 that the claimant had 11% whole person impairment (WPI) arising from soft tissue injuries to the cervical spine, lumbar spine and bursitis in the shoulders.
2. Following an application for further assessment, Medical Assessor McGrath certified on

7 August 2022 that the claimant had 2% WPI from injuries to both shoulders. He assessed 0% whole person impairment for the cervical and lumbar spines. Medical Assessor McGrath found a normal range of neck movements with normal upper limb neurological examination. In the lumbar spine, there were no non-verifiable radicular complaints, although some paraesthesia into the fourth and fifth toes. Neurological examination was normal. Shoulder movements were less restricted than at previous examinations. Medical Assessor McGrath noted there were no inconsistencies in the examination. 3. On 20 November 2023, Medical Assessor Shahzad certified that the claimant injured his neck, lower back and both shoulders in the subject accident. He assessed 0% WPI the cervical and lumbar spine. He assessed 7% WPI for each shoulder which he rounded down to a total of 6% WPI after allowing for degenerative unrelated pathology significantly contributing to his current presentation. 4. Subsequently, on 8 April 2024, a Medical Review Panel (consisting of Member Cassidy, Medical Assessor Oates and Medical Assessor Moloney) revoked Medical Assessor Shahzad's certificate and certified that the claimant had 4% WPI arising from soft tissue injuries to both shoulders, with no significant ligament or tendon damage. 5. Medical Assessor Alexey Sidorov certified on 25 August 2021 that the following treatment and care: * Psychological treatment * Domestic assistance * Medical prescription

does not relate to the injury caused by the motor accident and is not reasonable and necessary. Medical Assessor Sidorov found no clear evidence that the claimant developed a psychological disorder as a result of the subject accident.

1. The insurer made an application under s 63 of the Act for referral of the assessment by Medical Assessor Nagesh's assessment to a Review Panel on the grounds that the medical assessment was incorrect in a material respect. The insurer relied on the particulars set out in the application and supporting documentation.
2. The insurer submitted there is reasonable cause for suspicion that Medical Assessor Nagesh's assessment is incorrect in a material respect based on the following:

(a) Failure to provide a sufficient path of reasoning in relation to the correlation between objective evidence and subjective presentation.

(b) Inconsistent reasoning was reflected in the PIRS assessment.

(c) Denial of procedural fairness.

The insurer took issue with the findings made by Medical Assessor Nagesh under various categories of the PIRS which, in the insurer's submissions, should have been assessed as being no more than minor deficits.

1. The insurer also submitted that it had been denied procedural fairness as it appeared (to the insurer) that Medical Assessor Nagesh had not properly considered all evidence put before him by the insurer, including the opinions expressed by other medical practitioners, and earlier certificates.
2. The insurer's review application was opposed by the claimant who addressed each of the grounds for review advanced by the insurer. It is not necessary to summarise those submissions in reply as they were not accepted by the President's delegate.
3. President's delegate Tami O'Carroll issued a Determination of an Application for Review of a Medical Assessment on 15 January 2024 which stated the satisfaction of the President's delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The President's delegate accepted the insurer's submission that the Medical Assessor failed to provide a sufficient path of reasoning in relation to his findings for various PIRS categories. Accordingly, the review application was accepted and was referred to the Panel, which is to re-assess the injuries referred to Medical Assessor Nagesh.

1. A medical assessment matter is determined in accordance with s 63 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
2. Part 5 of the Personal Injury Commission Act 2020 (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.[3]
3. 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.[4]
4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[5]
5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

1. Causation of injury is addressed in the Guidelines as follows:

"6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

6.6 Causation is defined in the Glossary at page 316 of the AMA 4 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 contributed to the worsening of the impairment, which is a non-medical determination.

This, therefore, involves a medical decision and non-medical informed judgment.

6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."

1. In Briggs v IAG Limited t/as NRMA Limited.[6] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[7] his Honour Justice Wright stated at (35):

"The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries."

1. Wright J then described the Panel's role in a medical review which is to:

"Consider whether the motor accident did cause or contribute to (the claimant's condition). This requires, not a consideration of material derived as a result of an internet search... but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:

(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;

(2) a review of all relevant records available at the assessment;

(3) a comprehensive description of the injured person's current symptoms;

(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."

1. The claimant relied upon the following material which the Review Panel has considered:

Application for assessment - psychiatric injury with the annexed documents that I have summarised above.

• Report by Dr Blagoje Kuljic, treating consultant psychiatrist

Dr Kuljic diagnosed a persistent depressive disorder with intermittent major depressive episodes, and post-traumatic stress disorder as per the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5) by the American Psychiatric Association. Dr Kuljic assessed 19% WPI utilising the PIRS as follow:

It is apparent that Dr Kuljic's WPI assessment was weighted heavily by his class 5 rating for Employability/Adaptation on the basis that the claimant was totally impaired and unable to engage in any employment at the time of assessment.

• Cervical spine
• Both shoulders
• Lumbar spine
• Psychological injury

Dr Tomka assessed 5% WPI for Psychological Injury - Affected ADL

Claimant's submissions in reply to insurer's review application

1. Medical Assessor Nagesh disclosed his path of reasoning;
2. his reasoning was consistent, and
3. there was no procedural unfairness to the insurer.

The claimant gave detailed particulars in support of each of those submissions. In relation to the Medical Assessor's path of reasoning, the claimant says that the Medical Assessor explained at length his reasoning for his diagnosis of persistent depressive disorder (intermittent major depressive episode type) and also why he did not diagnose post-traumatic stress disorder, specifically citing the surveillance material. The claimant observes that the Medical Assessor did not notice "any inconsistencies" in his clinical examination. In relation to causation and reasons, the claimant quotes the Medical Assessor's finding as follows:

"His persistent depressive disorder is in the context of his chronic pain, his inability to work, his loss of income and also the physical limitations of the pain and the physical injury."

The claimant then deals at length with the findings of the Medical Assessor under some of the categories of the PIRS.

In relation to procedural fairness, the claimant submitted that the Medical Assessor properly considered and evaluated all of the evidence, including the surveillance footage, the Procare reports and the prior certificate of Medical Assessor Sidorov. The claimant correctly observes that the Motor Accident Guidelines (Guidelines) do not create a duty for a Medical Assessor to fully summarise each piece of evidence or explain how or why their opinion differs in each respect from previous expert medical opinions.

While the Review Panel has considered this document, it is not necessary to summarise it, as it deals with matters that are not before the Review Panel for determination.

This document makes further submissions in relation to the claimant's psychiatric evidence. The Review Panel has considered those submissions but does not propose to summarise them.

Report by Dr Medhat Guirgis, consultant orthopaedic surgeon, to the claimant's lawyers

Dr Guirgis opines that the accident caused the following injuries:

1. symptoms of post-traumatic stress disorder;
2. post-traumatic mechanical derangement of the cervical spine with musculo-ligamentous strain with C3/C4 intervertebral disc involvement;
3. post-traumatic symptoms in both shoulders, and
4. post-traumatic mechanical derangement of the lumbar spine due to musculo-ligamentous sprain/strain with L3/L4, L4/L5 and L5/S1 intervertebral disc involvement.

Dr Guirgis assesses a combined 17% WPI. Reports of diagnostic scans accompany his report.

This report essentially repeats the previous report by Dr Guirgis but updates his estimate of treatment costs and increases his permanent impairment assessment to 18% WPI.

Report by Dr Thomas Sheehan, OH&S Rehabilitation Consultation, to the claimant's lawyers

Dr Sheehan opines that the claimant's accident-related injuries are as follows:

(a) significant musculo-ligamentous strain/tears involving cervical spine and lumbosacral spine;

(b) aggravation of pre-existing but previously asymptomatic degenerative changes involving his lumbar spine, leaving him with three mild disc herniations between L3/S1, and

(c) bilateral shoulder joint subacromial bursitis associated clinically with bilateral supraspinatus tendinosis.

Dr Sheehan says that the claimant's probable L1 compression fracture described in his radiology report of 20 July 2017 is not considered to bear any relationship to the accident but rather is an old injury. Dr Sheehan assesses 19% WPI.

Care and Domestic Assessment by Christian Bymes, occupational therapist, for the claimant's lawyers

This report is not summarised as its contents do not relate to any issue referred to the Review Panel for determination.

The preceding seven reports by Dr Guirgis are not summarised as they essentially restate the contents of his earlier summarised reports.

Report by Dr Kuljic, consultant psychiatric, to the claimant's lawyers

Dr Kuljic records that the claimant denied any previous psychiatric history or treatments. At the time of the accident, the claimant was working approximately 60 hours a week as an employed truck driver. He reported no pre-accident impairments regarding self-care and personal hygiene, social and recreational activities, travel, social functioning/relationships, concentration/persistence/phase and employability adaptation.

Dr Kuljic records the history of symptoms and treatment following the accident. He reviews the medical documentation relating to the claimant's physical injuries. He notes that he treated the claimant's psychiatric symptoms following the accident from 13 July 2019 until

16 May 2020. Dr Kuljic records that, on 20 November 2019, the claimant scored 49 on Peck's Depression Inventory and 65 on the Impact of Event Scale-Revised, suggesting major depressive disorder and post-traumatic stress disorder.

Dr Kuljic describes the claimant's psychiatric treatment following the accident and his then current psychiatric symptoms. He notes the opinion expressed by Medical Assessor Alexey Sidorov in his certificate dated 25 August 2021 that "there is no clear evidence that Mr Popovic developed a psychiatric disorder as a result of the subject accident."

Dr Kuljic describes the claimant's Mental State Examination and repeats his previous diagnosis of persistent depressive disorder with intermittent major depressive episodes, and post-traumatic stress disorder. He repeats his previous opinion that the claimant "is currently incapacitated for pre-injury employment due to the psychological injury acquired in the car accident.". He considered the claimant's condition to have stabilised and repeats his previous assessment of 19% WPI.

Report by Kim Patrick, Human Resources Consultant and Registered Psychologist, to the claimant's lawyers

The author says the aim of the report is to review the claimant's past medical results together with the future employment prospects that the author believes are available to the claimant. The author's Conclusion is stated as follows:

"Mr Popovic suffered injuries in a MVA in 2017 when he was 42 years old. He reports continued physical and mental suffering from his injuries. His medical prognosis is permanent impairments resulting in work restrictions due to the pain and mental problems that he suffers. The impairments from the MVA have precluded him from his chosen work as a full-time heavy vehicle driver.

Apart from the medical impairments that Mr Popovic suffers as a result of the MVA, he suffers mentally and financially from not being able to work and enjoy the domestic and social life activities that he had before the MVA.

Mr Popovic is willing to try appropriate light delivery vehicle driving with medical approved manual handling activities on restricted hours, casual or part-time near to his residence. The author proposed Blue Mountains and Penrith areas which were acceptable for him to try with a flexible potential employer who will provide for his work restrictions.

There are negative employability factors or hurdles that Mr Popovic will likely encounter that are related to his impairments from the MVA. Mr Popovic probability or likelihood of finding gainful employment even though he has willingness and motivation to work within his restrictions has been diminished because of the MVA and the impairments that he suffers."

Report by Gregory Baldwin, osteopath and chiropractor, to the claimant's lawyers

This report is not relevant for the Review Panel's consideration.

1. C3/C4: Mild broad-base disc protrusion, slightly larger in the right paracentral region with superior and inferior extension. The protrusion lies in close proximity to the anterior surface of the cord, does not cause mass effect on the cord;
2. C4/C5: Mild central to right posterolateral disc bulge, and
3. C6/C7 and C7/T1: Moderate right and mild left facet joint arthropathy.

Report of Associate Professor Dennis Cordato - Southern Neurology

1. a right C6/C7 radiculopathy, and
2. mild bilateral median nerve dysfunction at the wrist, consistent with carpal tunnel syndrome.

Report of Grant Johnston, consulting engineer, to the claimant's lawyer

This report is prepared in response to a request by the claimant's lawyers to investigate the circumstances of the subject accident. Mr Johnston concludes that the physical evidence available in this case was limited. He opines that the claimant's injuries were as a result of the combination of both loading profiles which occurred in quick succession but were probably out of phase meaning that the residual effects of one may still have been present when the other commenced. He says that Dr McIntosh (the insurer's qualified biomechanical engineer) does not appear to have considered the occurrence or effects of the secondary impact at all in his report.

This supplementary report adds little to Mr Johnston's previous report.

1. No discrete rotator cuff tendon tear.
2. Mild subacromial bursitis.

1. No MR evidence of definite nerve root compression or impingement
2. Mild wedging of the L1 vertebral body with at least 20% loss of vertebral body height. Likely chronic or long-standing in nature.
3. No MR features of sacroiliitis.

1. No MR features of definite nerve root compression or impingement.
2. No significant wedging or loss of cervical vertebral body height.
3. Not spondylolisthesis of the visualised cervical vertebrae.
4. No abnormal cord signal to suggest cord oedema or cervical myelomalacia.

1. There have been progressive changes at C3/C4 in the cervical spine between the two examinations dated 20 July 2017 and 20 November 2022. It is possible that the pre-existing changes at this level were aggravated by the MVA.
2. On the MRI of the lumbar spine dated 20 July 2017, there is no radiological evidence of acute injury.
3. Both shoulders demonstrate rotator cuff tendinopathy and subacromial bursitis. It is possible that these were caused by or aggravated by the MVA but difficult to ascertain without there being any pre-MVA imaging.

Report by Dr Kuljic, consultant psychiatrist, to the claimant's lawyers

Dr Kuljic repeats the contents of his previous reports and describes the symptoms reported by the claimant on the date of examination. These are similar to his previously reported symptoms. As to the claimant's progress regarding his psychiatric symptoms, Dr Kuljic reports as follows:

"There is no significant improvement regarding the symptoms of depression. Still, it appears the trauma-related symptoms that satisfied DSM 5 criteria for post-traumatic stress disorder improved and they can be classified as Unspecified Trauma and Stress Related Disorder."

Dr Kuljic's ratings on the PIRS remain unchanged to his previous assessment. He again finds 19% WPI with no adjustment for pre-existing psychiatric impairment or treatment effects.

It is not necessary to summarise the foregoing submissions as they do not go to any matter in issue before the Panel for determination.

1. The insurer relied upon the following material which the Panel has considered:

Insurer's Reply Submissions - Permanent Impairment Dispute - psychiatric injuries

(a) The insurer notes that the claimant was assessed by Dr Adam Martin, consultant psychiatrist, on behalf of the Workers Compensation Insurer (Allianz). Dr Martin expressed the opinion that the claimant was deliberately exaggerating deficits in the contexts of it being a compensation issue. Dr Martin did not believe that the motor accident caused the claimant to have a psychiatric disorder.

(b) The insurer refers to surveillance footage of the claimant taken in January and February 2021 which, the insurer submits, shows the claimant in no distress and conducting daily chores.... and other general activities of daily living.

(c) The insurer submits that the claimant's alleged experiencing fear and anxiety is inconsistent with his travel history which includes several overseas trips after the subject accident.

(d) The insurer refers to the certificate dated 25 August 2021 by Medical Assessor Sidorov who opined that:

"There is no clear evidence that Mr Popovic developed a psychiatric disorder as a result of the subject accident. He described several mood symptoms and anxiety symptoms relating to the accident. However, it is unclear that they amount to a psychiatric diagnosis."

(e) The insurer submits that the claimant's alleged psychiatric injury is not causally related to the accident. In the alternative, that any psychiatric injury is not greater than 10% WPI.

Report by Associate Professor Paul Miniter, orthopaedic surgeon, to the Workers Compensation Insurer

Report by Dr Ian Barrett, orthopaedic surgeon, to the insurer

The foregoing reports by Dr Barrett are not relevant to any issue before the Review Panel for determination.

In her Executive Summary, Ms Katzakis states her Occupational Therapy Recommendations as follows:

• Demonstrates functional ability to participate in domestic tasks in and about the home.
• Observed restrictions not considered consistent.
• No recommendations for occupational therapy treatment, equipment, or home modifications as in relation to MVA injuries.
• No past or future care is allocated or recommended as appropriate in regard to MVA injuries.

Injury management consultation report by Dr Alan Skapinker, occupational physician, to the Workers Compensation Insurer

The foregoing reports of Dr Skapinker are not relevant to any issue before the Review Panel for determination.

Report of Dr Adam Martin to the Workers Compensation Insurer

See previously. Dr Martin says he is not convinced the claimant has developed a genuine psychiatric disorder or illness as a result of the accident. He believes there probably is evidence of abnormal illness behaviour and possible deliberate exaggeration of symptoms, and a focus on pain, which appears extreme given the nature of the reported physical injuries. He notes that the claimant's response during rehabilitation (arranged by the workers compensation insurer) was also reported as being abnormal, consistent with pain-focussed behaviour and abnormal illness behaviour.

Upper Mountains Medical Centre records as at 9 February 2021

The contents of this investigation report are not summarised for privacy reasons.

Report by Dr Andrew McIntosh, biomechanical engineer, to the insurer

Dr McIntosh concludes it is unlikely that the collision materially contributed to the physical injuries in total alleged by the claimant. He does not mention the claimant's alleged psychiatric injuries.

Dr McIntosh considers further photographs of the accident scene which do not cause him to alter the conclusions expressed in his previous report.

Dr McIntosh comments in relation to the contents of Grant Johnston's report (see previously) which does not cause Dr McIntosh to alter his conclusions.

Earning Capacity Assessment Report prepared by Dr Robin Mitchell, occupational physician, Ms Alicia Tyler, psychological consultant, and Mr Andrew Hook, vocational consultant, for the insurer's lawyers

In the Executive Summary, the authors expressed the view that the claimant's assessed psychological capacity for work is 38 hours per week, in occupations such as truck driver, spare parts delivery driver and assembly worker.

Report by Dr Graham Vickery, psychiatrist, to the insurer's lawyers

Under the heading OPINION, Dr Vickery repeats the findings of Dr Adam Martin (in his report dated 15 November 2017, almost verbatim). Dr Vickery expresses the view that the claimant's symptoms satisfied the diagnostic criteria of Somatoform Chronic Pain Disorder (DSMIV) or he is malingering. Dr Vickery discusses at length the clinical features of DSMIV and its likely aetiology. He goes on to say as follows:

"There is no scientific literature which validates the reasoning that a temporal association of an injury is causative of somatoform chronic pain disorder as the onset is multifactorial in relation to its causation and somatoform chronic pain disorder is an entirely separate psychopathological entity.

There is often a mis-diagnosis of an Adjustment Disorder or Persistent Depressive Disorder or Major Depressive Disorder by psychiatric assessors in the context of chronic incapacitating pain perception.

In relation to psychiatric assessors making a diagnosis of Adjustment Disorder in the context of chronic incapacitating pain perception, the DSM criteria for this diagnosis states quite clearly that "the stress related disturbance does not meet the criteria for another mental disorder" which excludes making a diagnosis of Adjustment Disorder when the criteria are met for somatoform chronic pain disorder.

In relation to making a diagnosis of Persistent Depressive Disorder or Major Depressive Disorder in the context of chronic incapacitating pain perception, the DSM criteria clearly states "the episode is not due to the physiological effect of another medical condition" which would preclude making this diagnosis when the symptoms meet the criteria for somatoform chronic pain disorder.

It has been shown that intensive medical intervention in somatoform chronic pain disorder can exacerbate the level of incapacity with the avoidance of physical activities which can culminate in adopting the "invalid" role which is unresponsive to medical intervention."

Dr Vickery expresses the opinion there are no psychological injuries directly due to the subject accident. He notes that somatoform chronic pain disorder is not utilised in the assessment of WPI. He says there is no WPI due to the subject accident.

Report by Dr John Korber, radiologist, to the insurer's lawyers

Dr Korber reviewed the radiology, imaging and medical documentation and file.

"Everything in this patient's records suggests that the claimant did not have a significant anatomical injury. At least three clinicians examined the claimant early on and found no correlation with any injury...... There are no post-traumatic findings on the imaging in the cervical spine or lumbar spine, even 5-1/2 years after the injury. Imaging of the shoulder in my opinion has not added anything to causation as the particular findings are reasonably found in any claimant of his age. It would be regarded as irrelevant to the accident as there was no complaint of shoulder symptoms. Any acute shoulder injury would result in immediate symptom."

Dr Korber says that any changes seen in the radiology reports since the accident are degenerative in nature.

1. The report of Medical Assessor Sharon Reutens and Medical Assessor Melissa Barrett is as follows:

"The interpreter engaged by MAS, Patrick Matijevic National Accreditation Authority for Translators and Interpreters CPN3ZKGGF was present during the assessment.

Mr Popovic is a 50 year old man who lives with his wife, their two children aged seven and five, and Mr Popovic's 21 year old son from his first relationship.

Mr Popovic said that his mental health was good and he had never been recommended to seek mental health treatment.

Mr Popovic drank approximately 1 beer a week. He was a non smoker and denied the use of illicit drugs.

Mr Popovic said that there was no history of psychiatric conditions in his family.

Mr Popovic said that he developed a "bad back" at work in 2014 that resolved after a couple of days of rest. The company submitted a workers compensation claim without his knowledge.

Born in the former Yugoslavia, Mr Popovic said that to the best of his knowledge there were no complications of his birth and he achieved his developmental milestones within the normal age ranges. He had a good relationship with his older brother and with his parents. Mr Popovic said that he did not experience any traumatic or abusive events in his early developmental years.

He completed twelve years of schooling. Mr Popovic said that he was a sociable child and was academically competent. He was a "happy" child who got in trouble for being "too happy" in class. When asked to elaborate, he indicated that he talked during lessons. Mr. Popovic said that he could not recall If he was hyperactive, found it difficult to sit still, or had difficulties with concentration.

War broke out in 1990, when Mr Popovic was age 16, preventing him from undertaking further education. Mr Popovic said that he did not experience any emotional effects stemming from the war because "I was young". The family fled to Serbia when he was aged around twenty or twenty one; Mr Popovic explained, "if you stay, you'll be killed". They lived with relatives and then moved to Montenegro in 1995 because they were not safe in Serbia. Mr Popovic's family remained in Montenegro while he moved to Slovakia in 1997, staying for one year. He then lived in England for a further year before emigrating to Australia in 1999. He said he did not have any difficulties adjusting to the culture, referring to Australia as "Nice". Mr Popovic lived in Wollongong, and at one stage in Perth, WA.

Mr Popovic married his first wife before immigrating to Australia. He stated that the marriage lasted 13 or 14 years, ending because they had "moved in different directions". Mr Popovic had two daughters and a son from this relationship.

Mr Popovic had formed a relationship with his current wife, who lived in Belgrade, about four to six months before the accident. They were originally from the same town. He reported a happy relationship and regularly travelled to visit her. He had a good relationship with his children from his first marriage, whom he saw every second week, and they would also visit him during the week.

He lived alone and did all of the housework cooking, shopping and laundry, working independently. Mr Popovic attended to his self-care independently. He saw friends. Mr Popovic was working as a truck driver.

Mr Popovic indicated that the history of the accident was contained in the documents and that he had recounted the details on many occasions. The purpose of the assessment and the need to take a fresh history was explained to him. After a while, Mr Popovic stated that he was driving his work truck and a man driving in the other direction lost control and hit the right corner of his truck.

His boss came and took him to hospital. He did not feel any pain until he was at the hospital. Mr Popovic said that he was discharged after about one to two hours. He explained that the accident occurred at 7:30 in the morning and he was discharged from the hospital at about 2:00 PM.

History Of Symptoms Following the Motor Accident.

Mr Popovic returned to work approximately one week to 10 days after the accident, ceasing work after one or two days because of pain and because he felt "scared and afraid". He had not worked in any role since then. Mr Popovic said that pain and fear stopped him from working. When asked to elaborate, he said that he did not feel safe when he saw a truck and did not feel safe at crossings. He did not feel capable of making a safe decision if traffic lights were not present and worried that he would put himself or someone else in danger.

When asked if he had tried working in other roles, he said he was unable to because his back hurt and he could not envisage any job that he would be able to undertake. He consulted rehabilitation providers who had "tried to see what they could do". They had not attempted job placements, nor had he undertaken further education or retraining. Mr Popovic underwent physiotherapy, which resulted in temporary relief lasting a couple of hours after the treatment, but he had not noticed any long term improvement. He no longer attended physiotherapy because the insurance company had stopped paying.

Mr Popovic travelled overseas to get married in September 2017, several months after the motor accident. He stated that he was not happy after the accident and his mood was not improved by the marriage or the birth of his two youngest children. The panel referred Mr Popovic to his wife's visa application. Mr Popovic said that he was aware of the contents of the visa application and that it had referred them socialising on weekends, stating that these activities were "not happening". He stated that he had signed the form but had not written the statement, which was written by his wife. He did not reply, staring ahead, when asked to reconfirm that the references to the family social activities were incorrect.

Over the years, the relationship had deteriorated. Mr Popovic said this occurred because he was unable to make his wife happy and because he was unhappy. In addition, sexual intimacy was infrequent because of his back pain. His wife had left him on two occasions, returning overseas with their two children and staying for six months at a time.

Mr Popovic reported pain in the low back, both shoulders, and his neck, and said that he had "big headaches". He was he was able to bend, but could not guarantee that he would be able to get back up. Mr Popovic said that pain restricted sitting to about 10 to 15 minutes and he was able to walk for 20 to 30 minutes. Pain woke him from sleep and when he was turning during sleep. He found it difficult to fall asleep because of pain and the lack of sleep made him irritable and unhappy. The pain had become more severe over the years, Mr Popovic was at a loss as to why this might be the case.

With respect to his emotional symptoms, Mr Popovic stated, "I don't hope for anything anymore". He initially did not want to provide his personal history, saying that he did not know why he was being asked to provide this again. He stated that it had been seven years since the accident, adding, "My life is shit", and told the Panel that "surveillance followed me. It's not my fault. Someone smacked into me". The accident had led to "Issues with my wife and kids" and he added, "my life is going down". He said that there was "no light in the tunnel", describing hopelessness for an improvement in the chronic pain. Mr Public said that he did not enjoy his meals and sometimes skipped meals. His weight fluctuated. He did not enjoy any activities, and stated, "Show me someone in pain who is laughing". Mr Popovic denied having thoughts or considerations of death. He did not describe features of emotional trauma, such as re-living symptoms.

Mr Popovic said that if he did not experience pain, he "100% would do things". He said that if he did not have pain, his mood would improve. He could not remember the last time he had a good day from a pain perspective. Mr Popovic told the Panel that he had not been referred to a pain specialist.

He reported finding the legal process frustrating; it had affected his mood. Mr Popovic said that he was "tired of it" and repeated this statement on several occasions when attempts were made to elicit a history. Mr Popovic told the Panel that he once attended an assessment where the doctor "measured me with a tape measure". This had affected him "negatively" because he received a "bad report" after that assessment.

Details of any relevant injuries or conditions suffered after the May 2017 motor accident.

Mr Popovic had developed diabetes that was initially treated with oral medication and currently with subcutaneous insulin.

Mr Popovic consulted a psychiatrist, Dr Kuljic, every few months. He consulted a psychologist, Goran Josifoski monthly. He experienced some relief when speaking to the psychologist, but it was temporary.

• Insulin.
• Duloxetine 60mg, which Mr Popovic took as required for pain.
• Mersyndol forte as required for pain.

Mr Popovic had not noticed a significant improvement with duloxetine and said that he was unable to drive when he took the opiate medication.

Mr Popovic presented early for the appointment and was unaccompanied in the interview. He sometimes stood, walked, and stretched with a grimace. Mr Popovic was adequately groomed but drew the Panel's attention to his T shirt and apologised for wearing it. He did not display any psychomotor agitation nor retardation, and there was no evidence of any obvious neurological deficit. His affect was morose and minimally reactive to social cues.

Mr Popovic was wary, asking at the outset if the Panel and the interpreter were being paid for the interview and pointed out that he was not being paid. He was reluctant to answer questions, stating that such questions had been asked previously and should be in the documents. He frequently referred to the duration of time that had lapsed since the accident and appeared frustrated. Over time, he appeared less wary and was more willing to participate in the interview, and at the end of the interview thanked the Panel and said that he did not have any further points to add.

There was no evidence of psychotic phenomena in the form of formal thought disorder, delusional thought content, or attendance to hallucinations. Mr Popovic denied thoughts of harm to himself and did not describe thoughts of harm to others. He predominantly spoke about the effect that pain had on his life and was not hopeful of an improvement in the pain. Black and white thinking predominated and affected his appraisal of his situation.

Pain sometimes prevented Mr Popovic from dressing and showering independently. Mr Popovic said that he could do minimal housework because of pain, and pain prevented him from cooking more than a light meal. When his wife was overseas, his 21 year old son did the housework.

During the day he tried to walk and said that he attempted to push himself but was limited by pain. He sometimes took his younger children to school. Mr Popovic initially did not want to provide any further history of his functioning, stating that he only wanted to discuss the pain in his neck, back, and shoulders. Later in the interview, he agreed to resume discussion of his daily functioning. He said he did not have any friends and did not undertake activities. He did not take the children to any extracurricular activities or take them out. He occasionally went out - it depended on the pain. When he went out and ran into people, he tried to converse with them, even if briefly. He and his wife visited friends approximately once or twice a month, but there were months when he did not go anywhere because of severe, pain.

He last travelled overseas to see his family in December 2024, returning in January 2025. Mr Popovic was accompanied by his son and` daughter. He reported experiencing pain on the flight and spent most of it walking in the aisle, sleeping for only about one hour. He tried to go out when he was overseas but was limited by pain. He stated that he felt better when he was overseas.

Mr Popovic was able to drive independently but was limited by pain to a duration of between 15 to 30 minutes and had to stretch when he exited the vehicle. He independently caught the train from his home in the Blue Mountains to the Sydney CBD for this appointment and did not describe anxiety.

He said that he did not sleep in the same bed as his wife, referring to difficulties in their relationship. Mr Popovic spoke to his family overseas regularly, but it was a short call because he was "cranky". He said that he wanted to spend more time with his children but pain and lack of sleep due to from pain prevented him. Mr Popovic said that he had not seen his oldest daughter for four years and, until recently, had not seen his younger daughter from his first relationship for three years. They told him that he had changed, referring to frequent arguments, which Mr Popovic acknowledged, "I know it's me".

The surveillance footage was discussed with Mr Popovic. He stated that he had seen it. He did not have any comment to add.

Mr Popovic reported that he had travelled overseas since the accident. He married in Belgrade in September 2017 and attended the birth of the first child from his second marriage in late 2017 or early 2018. Mr Popovic said that during this time, he lived independently, but his older children from his first marriage visited regularly and did his housework.

The Facebook entries were discussed with Mr Popovic. He said that he went on a ski trip with his wife, then-baby and son in 2018 or 2019. Mr Popovic said that he did not ski during that trip and the man in the photograph who was wearing ski gear was his son. Mr Popovic was also shown a photograph of him attending a wedding. He stated that the photograph was taken before the accident.

The visa documents were discussed with Mr Popovic as noted above. The apparent inconsistency in his social activities was attributed to his wife, whom he said had written the document. Mr Popovic acknowledged signing the document.

In considering the symptoms, the Review Panel agreed that following the 15 May 2017 motor vehicle accident the Claimant experienced pain that has significantly affected his functioning. He is concerned about the pain and is distressed at the impact it has had. He stated that if he did not have the pain his mood would be improved, he would be able to undertake activities, and reported that pain impacted his ability to work in roles other than driving. His symptoms are consistent with a DSM 5-TR diagnosis of Somatic Symptom Disorder with Predominant Pain.

The DSM 5-TR criteria are reached as Mr Popovic describes somatic symptoms, pain, which is distressing and significantly disrupts his life (criterion A), and he has excessive thoughts, feelings and behaviours related to his pain, resulting in high levels of anxiety about his pain, (criterion B). He fulfills duration criteria (criterion C), noting his pain has been present for more than 6 months.

The Panel note the opinion of PIC assessor, Dr Nagesh, who wrote, "Mr. Popovic's described symptoms are consistent with one of persistent depressive disorder. My rationale is Mr. Popovic has met with a motor vehicle accident where he has sustained soft tissue injuries to the neck, shoulder, and back. In the context of his soft tissue injuries and his chronic pain and his also inability to be active as before and also hold on to employment and loss of income, he has developed the following symptoms which include depressed mood, anxiety, insomnia, fluctuating appetite, has gained weight, lack of energy and motivation, diminished ability to concentrate, feelings of worthlessness". It is clear from Dr Nagesh's analysis that he considered that Mr Popovic's psychiatric symptoms arose in response to his experience of pain, which is more appropriately diagnosed as Somatic Symptom Disorder, with predominant pain, as this diagnosis acknowledges that pain is the primary issue, and that his depressed and anxious feelings, thoughts and behaviours are in response to his pain.

While Mr Popovic described some anxiety around trucks and when driving, he was mainly limited by pain when driving and was able to drive independently. The anxiety did not impact his daily functioning and was currently at a sub-clinical level.

The Panel notes 6.214 of the Motor Accident Guidelines version 9.3, which states that the PIRS must not be used to measure impairment due to somatoform disorders or pain."

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[8] The Panel adopts the examination findings and reasons of Medical Assessor Reutens and Medical Assessor Barrett.
2. The Panel is not required to choose between competing medical opinions and is required to form its own opinion.[9]
3. The Medical Assessors have explained the bases and the rationale for their assessments which are similar to those of Dr Vickery and Medical Assessor Sidorov but different to those of Dr Kuljic. The medical assessment of permanent impairment is made at the time of the examination. In that respect, the previous assessments made by Dr Kuljic are outdated, and do not reflect current symptomatology. The Panel notes that Dr Kuljic did not discuss, and may not have considered, somatoform disorder as the most appropriate diagnosis, in the circumstances of this case.

1. For the above reasons, the Panel concludes the certificate issued by Medical Assessor Nagesh on 21 August 2023 should be revoked. The new certificate appears at the commencement of these reasons.

[1] _WAEE v Minister for Immigration and Citizenship [_2003] 75 ALO 630 at (46)

[2] Farr v Insurance Australia Limited t/as NRMA Insurance Limited [2014] NSWSC 1435 at (46)

[6] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.

[7] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.

[9] Allianz Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31