AAI Limited t/as AAMI v Balloul

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Balloul [2024] NSWPICMP 823
CLAIMANT:	Ali Mahmoud Balloul
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Gerald Chew
DATE OF DECISION:	4 December 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for medical assessment and insurer’s application for review under section 7.26; Medical Assessor (MA) Canaris determined whole person impairment (WPI) at 13%; issue of causation as insurer submitted no complaints for four years after the accident, and challenge to three of the six areas of functioning; Panel advised its review of records indicated first complaints made two years after the accident; re-examination occurred by Microsoft Teams; Panel diagnosed adjustment disorder with depressed mood and found it was caused by the accident; WPI assessed at 6%; Held – MA’s certificate revoked; no issue of principle.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Canaris dated 27 June 2023. 2. Certifies that the degree of the claimant’s permanent impairment arising out of the motor accident on 3 April 2018 is 6% which is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Ali Balloul was involved in a motor accident on 3 April 2018. He was driving his car when his vehicle was hit from behind.
Mr Balloul says he injured his neck and right thumb in the accident and developed restricted shoulder motion and later a psychological injury. Mr Balloul made a claim for statutory benefits with AAMI and later a claim for damages. AAMI is the third-party insurer of the vehicle that Mr Balloul says caused his accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and Mr Balloul referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 27 June 2023 Medical Assessor Canaris determined the claimant had a WPI of 13%. The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 27 September 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on

9 July 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.

LEGISLATIVE FRAMEWORK

Mr Balloul’s claim and his entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2024 is $654,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.

Dispute Resolution

Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Canaris, further medical assessments and the review of medical assessments by this Panel[3].
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.263A).
Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings, and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, chapter 13, the mental and behavioural chapter of the AMA 4 Guides is relevant as well as the Psychological Impairment Rating Scale (PIRS) provided for in the Guidelines.
The Guidelines include a chapter entitled “Mental and behavioural disorders” and require the assessment to be undertaking in accordance with the psychiatric impairment rating scale (PIRS). The Guidelines also say that the mental and behavioural chapter of the AMA4 Guides are to be used as “background or reference only”[5].
[5] Clause 6.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with whatever the current edition of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD)[6]. The current version of the DSM is the 5th edition, text revision (DSM-5-TR)
[6] Clause 6.213 of the Guidelines.

ASSESSMENT UNDER REVIEW

Medical Assessor Canaris examined the claimant on 23 June and issued his certificate on

27 June 2023.
At [3] and [4] he noted the parties’ submissions in particular the insurer’s issue of causation noting that the claimant did not report symptoms until 2021 and has not had any treatment.
Medical Assessor Canaris records a history at [8] as follows:
(a)    Mr Balloul had no previous psychiatric illness;
(b)    he had a few medical issues and took medication;
(c)    he had no previous claims;
(d)    he worked as a panel beater;
(e)    he is married with four children, one of whom lives at home, and
(f)    he came to Australia because of the war as a migrant not as a refugee. He recounted an explosion near his home which injured his father and siblings.
The claimant’s history was that he was hit from behind in the accident and pushed into the car in front. His airbags deployed. Police and ambulance attended, and he was taken to hospital for surgery to this thumb.
The claimant reported constant pain in his right hand, difficulty working, and low mood. He says he fights with his wife. The claimant reported financial difficulties, frustration and sadness, feelings of helplessness and worthlessness. He also reported poor sleep, poor concentration and low energy. He said he was eating more but showers and changes every day. He does not socialise as much, and he has limited himself to driving on local journeys. He thinks about the accident, dreams about the accident and is stressed. He cannot bear loud noises.
The claimant said he took medication namely sleeping tablets and tablets for his moods, but he did not know the names of them. He saw a psychologist at first, but not since the insurer stopped paying for it.
There was no evidence of psychosis or cognitive impairment, and the claimant’s life was said to be restricted by his complaint of pain and physical limitations and mental state.
He found the claimant consistent with no signs of excessive complaints.
Medical Assessor Canaris diagnoses persistent depressive disorder and somatic symptoms disorder. On the issue of causation, he said:
“While it is true that he did not complain of psychological symptoms in the immediate aftermath of the accident, the emergence of depression and anxiety in the setting of perceived disability is not unusual.”
Impairment was assessed at 13% on the basis of:
(a)    Self care and hygiene  class 1
(b)    Social and recreational activities               class 3
(c)    Travel  class 3
(d)    Social functioning  class 2
(e)    Concentration persistence and pace        class 3
(f)    Adaptation  class 3

ISSUES FOR DETERMINATION

Insurer’s submissions

Review submissions

The insurer takes issue with three of the areas of functioning namely (b), (e) and (f) above.
In relation to social and recreational activities the insurer notes the Medical Assessor attributed a class 3 finding on the basis the claimant did not go out socially and does not visit anyone. While his children visit, he sits with them for a while but then feels anxiety and leaves. The insurer says the distinction between class 2 and 3 rests on the need for a support person and that the Medical Assessor did not record the claimant’s pre-accident functioning in this area. The insurer says there is a history that when the claimant came to Australia he only socialised with family and that has continued with the only change that he does not actively engage. The insurer says the claimant should be assessed as class 2.
In terms of concentration, persistence and pace the insurer draws the distinction between class 2 and 3 and notes that class 2 includes “can undertake a basic retraining course” and notes that the claimant is attending English lessons. The insurer says the claimant should be assessed as class 2.
For the area of adaptation, the insurer notes Medical Assessor Canaris citied the claimant’s physical injuries as the reason for not working and allocated a class 3 impairment on the basis of the claimant’s difficulty concentrating.

Original submissions

The insurer’s submissions dated 1 March 2022 filed in the original proceedings state:
(a)    the claimant did not complain of psychological symptoms in the immediate post-accident period;
(b)    the first record of psychological symptoms is in early 2021 four years after the accident;
(c)    the claimant has had no treatment for psychological symptoms to date;
(d)    Dr John MacMahon, psychologist says the claimant is feigning symptoms, and
(e)    Dr Vickery, psychiatrist says there is no recognisable psychiatric illness.

Claimant’s submissions

The claimant says in relation to the assessment of social and recreational activities that the insurer has selectively extracted only one history which supports its submission and has not considered for example Dr Hong’s history of difficulties going out.
In terms of the insurer’s submissions regarding the assessment of concentration, persistence and pace the claimant says attending an English course is not a “basic retraining course.” The claimant also says the insurer has not ascertained how the claimant did in his English course noting that he has required an interpreter at all examinations which suggests he has no grasp of the English language.
In respect of adaptation the claimant points to the Medical Assessor’s determination that the claimant’s poor concentration was a significant barrier. The claimant points to Dr Vickery’s opinion that Mr Balloul was “psychologically unable to undertake pre-accident employment.”

Procedural matters

On 31 July 2024 the Panel issued directions to the parties seeking bundles of all relevant documents.
The insurer’s bundle was due on 16 August 2024 and was provided on 9 August 2024 consisting of 772 pages.
The claimant’s bundle was due on 30 August 2024 and was received on 23 August 2024 comprising 53 pages.
The Panel met on 18 September 2024 and reported to the parties the same day. The Panel said as follows:
“[4] The Panel notes that the Medical Assessors on the Panel are required, in accordance with the Guidelines, to determine if the claimant has a psychological or psychiatric injury caused by the accident and then make a diagnosis of that injury. The Medical Assessors may, in their clinical judgment, diagnose a condition that is the same as or different to the diagnoses of the treating doctors or medico-legal experts. The Panel will then proceed to undertake an assessment of the WPI resulting from that injury.
[5] The Panel notes the insurer’s bundle of documents includes, from page 350, handwritten notes from 1998 from Dr Tadros. As they are handwritten, they are difficult to read but it is the Panel’s preliminary view that there is no pre-accident reporting of psychological or psychiatric symptoms. The parties are encouraged to read the notes themselves and advised if the Panel’s preliminary view is incorrect.
[6] The Panel also notes that the insurer’s original submissions suggest, the first record of psychological symptoms was in early 2021, four years after the accident. The Panel notes that on 19 February 2020, it would appear Dr Tadros records that the claimant was depressed and edgy, looks depressed had monotonous speech. On 15 April 2020 Dr Tadros reports that the claimant was getting increasingly anxious and depressed, and his sleep was poor and there is a suggestion of a referral to a psychiatrist or psychologist. This treatment recommended by Dr Tadros was denied by AAMI on 28 April 2020 and on internal review on 8 May 2020. Dr Vickery then saw the claimant on 15 June 2020. Does the insurer agree that symptoms of depression and anxiety first emerged less than two years after the accident?”
The Panel advised the parties of the re-examination date and invited responses to the above observations.

Responses from the parties

The insurer responded on 14 October 2024.
The insurer refers the Panel to three entries which the insurer submits “are persuasive and demonstrate the Claimant had a history of psychological and / or psychiatric symptoms”:
(a)    19 January 2001 the claimant was “getting very anxious”;
(b)    14 August 2008 the claimant was “distressed”, and
(c)    13 August 2013 the claimant was “unduly tired, teary in bed, nervous and distressed.
The insurer agreed with the Panel’s summary of the records and accepts that the claimant first reported symptoms of depression and anxiety in early 2020 less than two years after the accident and not in early 2021 as previously submitted.

REVIEW OF THE EVIDENCE

Of the insurer’s documents, the vast majority of them relate to the claimant’s physical conditions, both before and after the accident.
The claimant has a longstanding history of cardiac issues (dating back to the early 2000s and includes stents and atrial fibrillation) which have been monitored and treated. He had sleep apnoea treated both before and after the accident. The claimant’s lower back problems were also pre-existing (dating back to 2003 and diagnosed as radiculopathy) and worsened in 2014 (when Dr Maniam advised him to obtain less physical work lest he further aggravate a posterior annular tear at L4/5 and disc bulge at L5/S1).
The claimant was in receipt of Centrelink benefits for some time before the accident.

Claim form and claim documents

The claim form was completed by the claimant on 10 April 2018. Mr Balloul provides a history of the accident saying he was stationary when another car ran into the rear of his car. He identifies injuries to his right hand and says he felt pain in his neck.
He discloses that he was in employment as a panel beater and was also in receipt of Centrelink Newstart benefits at the time of the accident.
The claimant relies on a certificate of capacity completed by Dr Massoud on 14 June 2024[7] which diagnosed the right thumb fracture, moderate whiplash and secondary depression. He says he first saw the claimant on 19 September 2022 (four plus years after the accident).
[7] Page 48 of the claimant’s bundle.

Treating medical records and reports

The ambulance report confirms the mechanism of the accident (rear end collision) and the claimant’s initial injuries (pain at the crown of the head, neck discomfort and a 6 – 7 cm laceration to right hand).
Hospital records deal with the injuries and note the surgery required to the hand. There was some suggestion of a head injury, but the claimant recalled the impact and had no retrograde amnesia. The claimant said he was a panel beater and was right-handed. The wires in the claimant’s thumb were removed in a second operation on 2 May 2018.
Clinical notes have been provided by Sahar Hazim, psychologist, at Panania[8]. Four appointments are recorded: 31 August and 23 September 2021, 10 March and

7 April 2022.
[8] Page 35 of the claimant’s bundle.
The notes are handwritten and record the claimant’s sadness, frustration, low and depressed mood and tearfulness.
Mr Hazim wrote to Dr Tadros on 10 September 2021 after the initial session on

31 August 2021. A previous psychological counselling session was reported but no details as to when and with whom. Mr Hazim has a history of the accident and the claimant’s physical symptoms and that Mr Balloul has had symptoms of depression and anxiety since the accident with difficulty coping.
Mr Hazim wrote again to Dr Tadros on 21 September 2022 in similar terms but noting, “at the conclusion of his fourth session … Ali did not attend or schedule any further session.”
Dr Massoud from the Edge Medical Centre in Prospect has provided a report dated

19 January 2023.[9] The report concerns the claimant’s physical injuries, and the claimant was said to have chronic pain in the right thumb and neck and was struggling with domestic duties. Dr Massoud says the claimant was unfit for work as a panel beater. He disputed the claimant was malingering and said he had a poor prognosis.
[9] Page 31 of the claimant’s bundle.
Dr Massoud also says he has diagnosed depression, and the claimant was to be reviewed by a psychiatrist.
The claimant relies on a certificate of capacity from Dr Massoud dated 14 June 2024. He diagnoses a right proximal thumb fracture requiring open reduction and internal fixation with moderate whiplash and secondary depression. He says the claimant first attended on

19 September 2022 and he required psychological and psychiatric review and Mirtazapine for insomnia and depression.

Medico-legal reports

Psychiatric injuries

Dr Vickery provided a report to the insurer dated 15 June 2020. The claimant reported low energy, headaches, depression concern over finances. He also reported poor sleep and feeling tired and increased irritability.
Dr Vickery thought the “current condition appears excessive” but diagnosed a persistent depressive disorder due to being unemployed with physical restrictions and worry. He notes “no attempt to mitigate the injury [due] to a lack of treatment.” He considered the claimant psychologically unable to work or perform home duties. He declined to assess WPI due to a lack of treatment.
Dr McMahon, psychologist, provided a report to the insurer dated 29 December 2020. He reports:
(a)    the claimant had seven years of school in Lebanon;
(b)    he worked as a panel beater there and in Australia;
(c)    he came to Australia in 1997 or 1998 and became a permanent resident;
(d)    he was not a social child, did not make friends after he left school and went to work and did little socialising outside of work and family. When he came to Australia he socialised only with family;
(e)    after coming to Australia, he stayed at home when he was not working. He liked to tinker in his garage;
(f)    he had heart surgery in 2012;
(g)    a life stressor test was administered which revealed the claimant was fearful before his heart surgery and that he had lived in Lebanon during the war and sometimes had memories about it, and
(h)    he denied previous mental health issues.

Mr Balloul gave a history of the accident as involving a “big hit” and he was propelled “into the vehicle in front of him.” He gave details of his treatment and that he had not returned to work.
Mr Balloul reported pain in his neck radiating to the shoulders, continuous pain in his thumb, nervousness and fearfulness. He felt angry at times, very sad often and had little sleep. He confirmed use of a CPAP machine. He reported over-eating and gaining 25 kgs in weight.
The claimant reported poor concentration and memory.
Mr Balloul said that since the accident he goes to the park and walks and will try and tinker in his garage but has trouble holding things. He said he did some gardening and was attending English Lessons. He said he drove. He had no friends and did not like to socialise other than with his family. He could not concentrate to watch television or read magazines.
Dr McMahon administered a Test of Memory Malingering and considered the claimant had a Feigning Spectrum Behaviour and was appearing to be overly symptomatic.
Dr Vickery provided a further report on 19 April 2021 after being provided with Dr Smith’s and Dr McMahon’s report. He was of the view “there is no medical basis for Mr Balloul’s incapacitating pain and functional impairment being due to the motor vehicle accident.” He felt that the claimant’s persistent depressive disorder was due to personal stressors and not the accident. He considered there was no psychological impairment.
Dr Hong provided a report dated 3 March 2023. He takes a history from the claimant about his family. The claimant could not remember the ages of his four children or how long he had been married. Dr Hong notes the claimant was “difficult to interview” could not remember details and was very imprecise. The claimant reported reading difficulties in Arabic before the accident and that he had poor literacy and numeracy.
The claimant reported three impacts but few other details. He could remember having surgery to his hand but could not remember how many or when. Mr Balloul complained of neck, shoulder and arm pain.
The claimant was reported by Dr Hong to have “difficulty understanding mental illness and psychological concepts.” Dr Hong noted a long delay between the accident and seeking help and suggested “he did not understand that he could get help” and only obtained help because he was upset about being unable to work.
He could not remember his medications and could not remember how long he had been treated but recalled consultation with a psychologist “Sahar” and a psychiatrist Dr Younan.
Dr Hong diagnosed a persistent depressive disorder and assessed WPI at 18%.

Physical injuries

Dr Smith provided a report to the insurer dated 11 June 2020. He provides a summary of the hospital report and details of the fractured thumb and the injured metacarpal joint (MCP joint). The claimant had brought with him an X-ray from 27 February 2019 showing osteoarthritic change in the right MCP joint. He also reviewed an MRI from 20 July 2018 which “demonstrated disc space narrowing at every level, signal loss at every level” and disc bulging at C5-6 and C6-7. He also noted the details of an MRI and a bone scan.
Dr Smith noted treatment by Dr Tadros and Dr Paoloni. Apparently, a fusion had been suggested and injections had been given, but the claimant had continued symptoms. There was global loss of power in the right limb and all shoulder movements.
He says there is nothing “objectively wrong” with the right thumb other than the scar. He said the weakness is manufactured and no organic illness that could produce the pattern of weakness. He provides reasons for this related to shoulder movement.
On examination Dr Smith notes a normal range of movement of both MCP joints and no sensory abnormality in either upper limb. There was “worked hardening changes on both his hands.”
Dr Bodel saw the claimant at the request of his solicitors and issued a report dated

3 March 2023. The claimant attended and was assisted by an Arabic interpreter.
The claimant alleged injuries his neck, right shoulder and arm and a laceration and injury to his right thumb.
The claimant did not have a good memory of the car but was able to recount the rear end collision and two impacts. He says the car he was driving was towed and repaired.
The claimant said his “hand is now severely compromised, and he cannot do any heavy work such as panel beating because of the lack of control of that thumb.”
The claimant gave a history of coronary artery disease, bypass surgery and other health issues.
Dr Bodel documents restricted right shoulder and right wrist movement but normal left shoulder and wrist movement. There was reduced neck motion.
Impairment was assessed at 5% for the neck, 12% for the upper extremity and 5% for the right wrist.
Dr Keller, occupational physician provided a report to the insurer on 22 May 2023. He has a history of the claimant working 15 hours a week, five hours a day, three days a week at the time of the accident. The claimant said he had been on Centrelink benefits for three to five years with medical restrictions due to low back pain and heart disease.
Dr Keller takes a history of the claimant being hit from behind and being pushed into the car in front and that his airbags deployed. He says his car was written off.
The claimant provided details of his treatment and reported seeing a psychologist and a psychiatrist.
The claimant reported a work-related lower back injury more than 10 years ago but continued to work at reduced hours. He has a history of the claimant’s cardiac problems and diabetes diagnosis in 2018.
The claimant reported constant neck pain at 10 out of 10 and constant t thumb pain at 10 out of 10 and constant lower back pain at 8 out of 10. He reported two eye operations for what appeared to be glaucoma. He reported being independent in self-care, doing no yard work and that he goes for walks for 5 – 10 minutes with occasional shopping but never goes out to socialise and has no sports or hobbies.
The claimant had “callus stained fingertips … consistent with someone doing regular work with grease or engines.” The claimant said it was from peeling pomegranates which Dr Keller did not accept.
Dr Keller considered there was inconsistency as when formally examined the claimant demonstrated no movement of his thumb whereas when informally observed he had much greater movement. There was a similar inconsistency with neck motion.
Dr Keller considered that, due to the claimant’s back injury he had a lifting limit and should avoid repetitive bending and twisting. He thought the claimant had recovered from his injuries on the basis of the informal range of movement observed.

Other assessments

Medical Assessor Home examined the claimant on 26 April and issued his reasons on

1 May 2023. Medical Assessor Home has a history of the accident, recording only one collision and no secondary forward collision. He had the claimant confirm various dated and treatment and notes there has been “no significant treatment over the past 12 months beyond the use of Advil analgesia.” The claimant complains of constant neck pain radiating to the shoulders and as far as the elbow and pain in the right thumb with pinching and lifting.
On examination of the neck there was dysmetria and muscle guarding but no neurological signs. There was reduced sensation but in a “non-anatomical and non-dermatomal pattern.”
The right shoulder had a small reduction in flexion and abduction, but all other measurements were normal. Wrist movements were the same. There was mild stiffness of the right thumb.
He diagnosed a soft tissue injury to the cervical spine and a fracture of the right proximal phalanx. There was restricted motion in the right thumb and right shoulder secondary to neck complaints.
Impairment was assessed at 5% for the cervical spine due to the presence of dysmetria and guarding, 1% for the right shoulder and 3% for the right thumb.

RE-EXAMINATION FINDINGS

General observations

Mr Balloul attended re-examination with Medical Assessors Baker and Chew by videoconference on 20 November 2024 using the MS Teams platform. The claimant was supported by his daughter Ms Abir Balloul. The re-examination was conducted with the aid of an Arabic interpreter appointed by the Commission. The interpreter assisted throughout the re-examination. The claimant said he could easily understand the Arabic interpreter. He was asked to speak only in his first language, Arabic for the entire re-examination.
The claimant confirmed he was born in Tripoli, Northen Lebanon. Arabic was identified by the claimant as being his first language. He stated that his father was a public servant for the Lebanese Government. His mother died when the claimant was aged about 11 years. He said he was the fourth child of five children to his father’s first union. He reported that his father remarried and had a further three children to the second union. The claimant reported that he was educated to Year Six at school.

Personal and developmental history

The claimant said as a child he did not experience any childhood trauma, neglect or abuse. He said his father remarried after the family had completed a normal bereavement for the death of his mother. He said he was too young to know why she died.
The claimant’s said his father remarried, and he lived with his father, his father’s second wife and their children until he married.
The claimant reported that on leaving school he found work in a panel beating and mechanic shop, repairing and servicing small motor vehicles. He reported he learnt in the model of a master and an apprentice. He said that after many years he received a certificate to confirm his skills as a panel beater and welder.
The claimant said he had his own business as a panel beater in Lebanon. He said that his business was profitable until the onset of war in the region. He said he could hear explosions but was never directly involved in the conflict. The claimant said that he would listen to radio news and close his business along with the other local businesses if they heard news that their workplaces might be attacked.
The claimant said one day he was working in his business. He said he heard an explosion. He said he was told by a business neighbour that a car had exploded outside of his father’s house. The claimant closed his business and immediately drove to his father’s house. His father was in the house with a small child aged two years and his second wife. The glass from a window had shattered due to the explosion. He said that his father had small pieces of glass sticking in his skin and hair. His father had lacerations over his face. The younger stepbrother was also mildly injured by the shattered glass from the window. His father’s second wife was not injured as she had been in the rear of the property and not near the street when the car had been parked prior to the explosion.
The claimant said he transported his father and younger stepbrother to hospital where they were treated for lacerations. He said his father and younger brother made a full recovery. His said his emotional response to the explosion was immediate sadness, but later he quickly settled when he learnt that his father and little brother were not permanently injured.
Due to the war causing hardship to his business, the claimant immigrated to Australia with his wife and family. The claimant was aged 35 years when he first entered Australia.
After his arrival in Australia, he found work as a panel beater. He worked in this role performing fulltime hours, whilst supporting and raising his family. At the time of this re-examination, he said he remained married to his wife, and they had four adult children. Two sons and two daughters.
The claimant said he did not suffer from any prior psychiatric or psychological injury or condition prior to entering Australia. The claimant did not exhibit any distress when recounting this history.

General medical history

The claimant said that since about 2003 he had lower back pain from his work as a panel beater.
The claimant said that in 2013 he had a heart attack. He was taken to Concord Hospital by ambulance and then transferred to Royal Prince Alfred Hospital. He said he was admitted for cardiac surgery to treat his ischaemic heart disease. He said he returned to part time work as a panel beater. He performed light duties working about 15 hours per week before the motor accident because of his cardiac condition. He said that the hours were spread over three to four days.
The claimant said that at the time of this re-examination he was in receipt of a disability support payment from the Australian Government because of his heart disease.
The claimant was asked about whether he had experienced anything in Australia that might have made he anxious or distressed. He said that in August 2013 about the time of his heart attack he had energy, tiredness, fatigue, increased anxiety, depressed mood and tearful ness. He said he was also “nervous” as to what would come of his health. He said he could not remember any other episodes of anxiety. He was prompted as to the general medical record showing a prior record of anxiety in 2008 and 2001. He said he could not remember if he was or was not emotionally distressed at these other times.
The claimant said that he did not smoke tobacco, he rarely drank alcohol, and he did not gamble or suffer from any allergic conditions.
The claimant said he had not had any previous motor accidents.

Marital and family relationships

The claimant was asked about his marital relationship before the motor accident on

3 April 2018. He said he had a good marriage, and his children were kind and supportive of him and his wife now that they are getting older. He said he was closest to Abir, his daughter who supported him at the time of this re-examination. He remained in regular contact with all his adult children.
The claimant said he enjoyed attending the panel beating shop as he could enjoy working and contributing to the conversation with other men in Arabic. After his heart operation he attended the panel beating shop less often. He said his main interest in attending the panel beating shop was to socialise and talk with the other men. If he had any tips for the younger workers, he would share his knowledge with them. He also had a shed at home. He said he preferred to collect items of interest to him he would enjoy organising his shed and listening to his music.
The claimant said that after the motor accident he would attend the panel beating shop less often, about two to three days per week. His role at the panel beating shop had decreased due to pain in his right hand. His interest in spending time in his shed had decreased to almost nil as the pain he has in his had caused him to not be able to make the necessary repairs and lift heavier items due to pain in his right hand.

The motor accident

The claimant was asked about the motor accident and the events associated with the motor accident. He said that he was alone in his car driving. He had stopped his car as there were other cars in front of him. He said unexpectantly a car crashed into the rear of his vehicle. He said the crash was like three crashes in one event. He said his airbags deployed. He said he cut his right hand. He was later to discover that he had fractured his right thumb. He worried for his future as a panel beater and helping at the business.
The claimant was attended by ambulance officers who came to the accident scene. He also reported that police attended. He said he was initially taken to St George Hospital emergency department for assessment of his injuries. He was then transferred to the Sydney Hand Hospital.
The claimant said he was worried about his right-hand injury as his right hand was his dominant hand. He said that he relied on his right hand to perform all his panel beating skills as well as to lift heavy objects. He reported that at the Sydney Hand Hospital he had an open reduction, and the fracture required fixtures to be inserted. The claimant said he was in pain from the surgery. He said that pain had remained and was the main problem since the surgery, and he could not work or lift heavy objects due to pain.

Symptoms after the accident.

The claimant was asked to describe his memory of the motor accident and the symptoms he experienced after the motor accident. He said: “Imagine it’s you in the car, another car crashes into you, your airbags explode and then like the whole world blacked out!”
The claimant was asked could he describe what emotions he was feeling. He initially said, “It’s bad, I’m scared…Terrified.” “I don’t know what to tell you.” The claimant then said, “Bad feelings come over me for five minutes or more…I try to get over it.”
The claimant said that at times he has memories of the crash. He said he goes walking to settle his distress. He said at night he ruminates about the motor accident and how it has affected him and these thoughts keep him awake such that he cannot initiate sleep.
He said he would keep himself busy as he feels calmer if he kept himself active and was not idle.

Treatment

The claimant reported he attended hospital and had surgery to his right thumb he said that he was in hospital for a few days. He said he had an open reduction to fix that fracture affecting his right thumb. The claimant said his thumb’s fracture healed however he was left with persistent pain in his right hand. He reported having treatment for the pain in his right hand, but his pain has never fully remitted. He said that he does as much as he can and on bad days, he does very little because of his painful right hand. He stated he was unable to use his dominant right hand and that he relied on this hand to perform all his physical activities such as panel beating, welding and lifting as well as his activities in his shed.
The claimant said he was referred to his local medical practitioner to attend a “lady mental health person.” He said he attended for about one month. He attended the psychological treatment for about one month. He found relaxation techniques were helpful. He found diversional techniques such as walking when distressed helpful. He did not find other more complex skills or cognitive behavioural strategies beneficial. He ceased psychological treatment after one month.
The claimant said he was prescribed medication from his local medical practitioner which he was told would help with his sleep. He said he use the medication for about three to six months. He decided to stop using the medication. The claimant was asked why he had stopped treatment without medical advice. He replied, “You reach a point when the person is over it, and does not want to continue…” He was asked to explain his meaning as to “…does not want to continue…” The claimant replied that he ceased treatment as it was no longer beneficial to him. He wanted to normalise his life as much as possible and get back to how he had lived prior to the motor accident.
The claimant reported that he had not experienced side-effects from the medication. He said he had not attended a psychiatrist in relation to this psychological injury. He said he had not been admitted to psychiatric hospital because of this psychological injury.

MENTAL STATE EXAMINATION

The claimant attended the re-examination wearing clean clothes. The claimant’s speech was normal in rate and rhythm. He did not raise his voice when he spoke about the motor accident and the injuries he had suffered. The claimant reported sometimes having a sad depressed mood with feeling hopeless as his right-hand pain has never remitted. The claimant’s affect was consistent with his reported mood. His affect was reactive and appropriate with the content of his speech.
The claimant was orientated in time, place and person. He was able to communicate with the interpreter and to the Medical Assessors throughout the 90 minute re-examination.
The claimant did not describe any dissociative symptoms that might be part of posttraumatic stress disorder. He did not report any delusional ideas or psychotic symptoms. He did not report suicidal thoughts or plans. He did not report feeling low in his energy, or worthlessness.

The claimant reported his primary concern was his pain. He was preoccupied with his dominant right-hand pain. He said he was still motivated to do activities during the day however his pain in his right hand prevented him from helping as much as he wanted.
The claimant reported that he was motivated to keep working even though he experienced pain. He said he had continued to attend the panel beating shop however he was less interested than before as his pain prevented him from contributing as much as he would have prior to the motor accident.

CONSIDERATION OF THE ISSUES

What is the claimant’s current diagnosis?

It is the clinical judgment of the medical assessors that Mr Balloul, as he presented at the re-examination, satisfies the criteria set out in DSM-5-TR (at F43.21) for an adjustment disorder with depressed mood.
The criteria are met for the following reasons:
(a)    criterion A - the development of emotional or behavioural symptoms in response to an identifiable stressor(s) occur within three months of onset of the stressor(s). This criterion is met by the identifiable stressor being the subject motor accident with the emotional and behavioural response being the claimant’s predominantly depressed mood arising as the pain from his injuries did not subside. The claimant’s reported having periods of depressed mood, with changes in his sleep due to pain in his right hand.
(b)    criterion B - these symptoms or behaviours are clinically significant, as evidenced by both of the following:
(i)marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation;
(ii)this criterion is met by the nature of the motor accident, the claimant’s depressed mood and feelings of hopelessness are predominant in his clinical presentation at the re-examination;
(iii)there is significant impairment in social, occupational, or other important areas of functioning, and
(iv)this criterion is also met by the claimant’s changes include not assisting his wife in the garden, not participating in his “tinkering activities” in his shed and not attending the panel beating shop as much as he had prior to the motor accident.
(c)    criterion C - the stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder. This criterion is met as the claimant does not meet criteria for other conditions such as post-traumatic stress disorder, major depressive disorder or other conditions. There is no pre-existing condition;
(d)    criterion D - the symptoms do not represent normal bereavement. This criterion is met as the claimant is not grieving for any losses at the re-examination, and
(e)    criterion E - once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional six months. This criterion is met as the consequences of pain caused by the subject motor accident has not resolved. The symptoms of depressed mood continue to affect the claimant’s emotional state as evident at the re-examination.
The claimant had been diagnosed with different psychiatric conditions by his treating health practitioners and independent medical examiners and Medical Assessors. These conditions include persistent depressive disorder and somatic symptom disorder with predominant pain.
The Panel considered it appropriate to explain why the claimant does not have posttraumatic stress disorder.
It is the clinical judgment of Medical Assessors Baker and Chew that the claimant does not meet the criteria for post-traumatic stress disorder as per DSM-5-TR (at F43.10) for the following reasons:
(a)    the claimant was not persistently avoidant of, or made persistent efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event. His main complaint is a reaction to persistent pain;
(b)    the claimant was not persistently avoidant of, or made persistent efforts to avoid reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event;
(c)    the claimant’s return to the panel beating shop and he continued his attendance at the shop to be with his main group of like-minded people active in his trade;
(d)    the claimant was not avoidant of travel or motor vehicles. He said he had recently had his driver’s licence cancelled as he had a left eye disorder that precludes him from driving. He was able to use public transport in his local area and was able to   travel as a passenger with other people since the motor accident. He said that at all times he could drive his own car regardless of his emotional state until he lost his license for other reasons.
Medical Assessors Baker and Chew do not find that the claimant meets the criteria set out in DSM-5-TR (at F45.1) for Somatic Symptom Disorder with persistent pain. Whilst the claimant did report ongoing pain related to his right dominant hand, he was still motivated to use his hand where he was capable. He was restricted in lifting heavy objects but would lift lighter objects which did not provoke excessive pain. He remained interested in attending and helping giving verbal assistance at the panel beating shop. The claimant clearly explained he wanted to live a pain free life which has not happened since the subject motor accident. He clearly stated that he wanted to be able to increase his right-hand usage and that his adaptation to this impairment was his main problem. For these reason the claimant does not meet the essential criteria for this diagnosis of criterion B: excessive thoughts, feelings or behaviours related to the somatic symptoms or associated health concerns as manifested by at least one of the following:
(a)    disproportionate and persistent thoughts about the seriousness of one’s symptoms.
(b)    persistent high level of anxiety about health or symptoms.
(c)    excessive time and energy devoted to these symptoms or health concerns.
In the Medical Assessors’ clinical judgment, the activity of the claimant attending the panel beating workshop, the lack of report of high levels of anxiety is evidence against the claimant meeting these criteria required for this diagnosis.
The medical members of the panel are of the view that the claimant does not meet the criteria for Persistent Depressive Disorder as he does not report the minimum necessary symptoms to meet criterion B for this disorder as specified in DSM-5-TR (at F34.1). Whilst Medical Assessor Canaris had listed the requirement for this diagnosis he did not indicate which of the criterion B symptoms he was reliant on in making this diagnosis.
The Panel also notes the following reports of pre-accident psychological symptoms Dr McMahon, psychologist, provided a report to the insurer dated 29 December 2020.
(a)    the claimant was not a social child, did not make friends after he left school and went to work and did little socialising outside of work and family. When he came to Australia he socialised only with family;
(b)    after coming to Australia, he stayed at home when he was not working. He liked to tinker in his garage or shed;
(c)    he had heart surgery in 2012, and
(d)    a life stressor test was administered which revealed the claimant was fearful before his heart surgery and that he had lived in Lebanon during the war and sometimes had memories about it.
The Panel notes that whilst the claimant may have had the above symptoms as documented by Dr McMahon, some of the documented behaviours of concern are best understood as reasonable and understandable adaptation to living in Tripoli. The claimant was not impaired in his capacity to marry, raise a family and make reasoned business decisions to immigrate out of a high-risk area affected by war to a lower risk area such that he could continue his career in a city that was not affected by war, Sydney, Australia. The fear identified by the claimant living in Lebanon resulted in a healthy adaptation for both the claimant and his family.
The cultural heritage of the claimant is one where socialising with family is prioritised. Importantly the claimant enjoyed socialising in his workplace where he could demonstrate his trade skills to younger co-workers and customers. As Dr McMahon does not report what the claimant tinkers with in his shed nor did the claimant offer any further explanation other than the objects are too heavy for him to lift, and this activity had ceased prior to his attendance at the re-examination.
The Panel noted that the claimant did not have fear on returning to the panel beating shop after his heart surgery. He returned to work and worked two to three days per week in lighter duties. He was an aging panel beater and the reasonable adjustments to his workload was due to physical incapacity and not psychological impairment.

Is the diagnosed psychiatric injury caused by the accident?

The circumstances of the accident and the prolonged pain experienced by the claimant in his surgically repaired fractured hand could have caused the development of an adjustment disorder with depressed mood.
The remaining question of causation is whether the motor accident did in fact cause or materially contribute to the development of the adjustment disorder.
The claimant had no previous rear end collision before the subject motor accident.
Symptoms of anxiety, depressed mood and fear were reported in the records and have been present before the subject motor accident, however the onset of depressed mood with the depressive cognition that any future recovery was “hopelessness and the pain affecting his dominant right hand would never remit” appears as a new symptom which was not present before the subject motor accident. The capacity for the claimant to adjust to his new living circumstances have been clinically affected and remain as the consequences of the psychological injury sustained in the subject motor accident remains.
The Panel therefore finds that the subject motor accident did cause an adjustment disorder with depressed mood with the significant impairment in social functioning as well as occupational function as evidenced by the reduction in days attended at the panel beating shop and the reduced assistance to his wife when she engages in gardening for pleasure.

ASSESSMENT OF WHOLE PERSON IMPAIRMENT

Provisions in the Guidelines

The PIRS provides in clause 6.219 for six areas of function:
6.219.1     self-care and personal hygiene;
6.219.2     social and recreational activities;
6.219.3     travel;
6.219.4     social functioning (relationships);
6.219.5     concentration persistence and pace, and
6.219.6     adaptation.
The PIRS then provides at 6.220 for five classes with a descriptor for each which is “illustrative rather than literal criteria” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury”.
The impairment may be adjusted for treatment[10] that is treatment such as medication being consumed to treat the psychiatric condition.
[10] See clauses 6.222 – 6.223 of the guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage[11].
[11] See clauses 6.225 – 6.228 and table 17.

Application of the PIRS

The claimant returned to work as a panel beater for less days per week than prior to the motor accident. The claimant sustained a physical injury to his dominant right hand. The surgical repair of his right had resulted in healing of the fractured bone but has resulted in pain on use of his dominant hand. The claimant has stopped all psychiatric and psychological treatment for his depressed mood that was caused by his feelings of hopelessness and fear of never fully recovering.
The Panel is satisfied that there is a continuing impairment as a result of the claimant’s psychological injury in the context of his continued physical symptoms. The Panel is satisfied that this impairment is well stabilised and that it is appropriate to assess it at this time.
Mr Balloul is assessed as having the following WPI for the psychological injury caused by the subject motor accident.

Self-care and personal hygiene

The claimant reported that he was capable of showering without prompting from his wife. He reported that he was able to maintain his independence in self-care and personal hygiene. He reported he is reliant on his wife to cook food and perform the daily house-hold chores more than before the accident. He would assist her with handling lighter items in the kitchen and he can drink and eat without impairment. The claimant was assessed as having a mild, Class 2 impairment.
The claimant said he was unable to perform heavy cleaning or household maintenance due to pain in his right hand and not because of his psychological injury.

Recreational and Social Activities

The claimant said that he walked less and was less able to enjoy walking as he had prior to the subject motor accident. He said he still watched NRL and A-League football. He said he did not enjoy these activities as much as he had prior to the motor accident. He said he was still able to participate in festivals and religious celebrations however he was less active and attended for less time.
He would watch his wife garden for pleasure, and he would talk with her as she gardened, whilst he had coffee. The claimant was assessed as having a mild Class 2 impairment.
The claimant was unable to assist his wife gardening as he said this would exacerbate the pain in his dominant right hand and not because of his mental health state.

Travel

The claimant reported that he would travel less as he attended the panel beating workshop less. He said he had lost hope that his hand would ever be free of pain. He said he could travel on public transport however he would only travel alone to local or familiar locations. The claimant was assessed as having a mild class 2 impairment.
The claimant reported that he had been medically disqualified from driving due to his left eye condition. This new physical condition and the subsequent restrictions were excluded from the assessment of whole person impairment pursuant to cls 6.214 and 6.215 of the Guidelines.

Social functioning

The claimant reported that he had been married for many years and his wife remained supportive of him. He said there was tension in the marriage after the accident due to his feelings and his difficulty coming to terms with his physical impairment. He was however not expecting separation, divorce or estrangement from his wife or his adult children. The claimant was assessed as having a mild class 2 impairment.

Concentration, persistence and pace

The claimant reported that he had reduced concentration, and his pace of completion of any complex task was reduced. He said he read less since the motor accident as he was not expected to remain up to date due to the reduction in his activities in the panel beating shop. He was able to concentrate and co-operate throughout the re-examination. The claimant was assessed as having a mild class 2 impairment.

Adaptation

The claimant reported he attended the panel beating workshop less since the motor accident. He said before the accident he would attend three to four days per week. He said he had less to offer the co-workers. He said he was disheartened that he could not return to his prior level of activity with him now working two to three days per week.
The claimant reported that his pain prevented him from lifting heavy objects or using his mallet in his right dominant hand. The claimant’s physical condition is what is preventing him from returning to his previous higher level of attendance at the panel beating shop rather than his mental health state.
Using the Medical Assessor clinical judgment the claimant was assessed as having a mild impairment, class 2 for the psychological component of his poor adaptation since the subject motor accident.

Adjustments

The claimant had no pre-existing condition present at the time of the accident. He might have had psychological symptoms before the accident however he was not impaired by these symptoms and for these reasons does not meet the essential requirement for a psychiatric diagnosis before the accident.
From these reasons the pre-existing condition whole person impairment was assessed as zero (0%) WPI.
The claimant reports no subsequent injury, and although his physical conditions (heart, eyes and so on) have continued to deteriorate with age, this does not create any additional impairment in the view of the Medical Assessors.
The claimant reported having ceased all treatment prior to this re-examination. He reported no change in his condition with or without medical treatment and for these reasons treatment effect was assessed in accordance with cls 6.222 and 6.2223 as zero (0%) WPI.

Calculation of impairment

The individual class scores are 2, 2, 2, 2, 2, 2. The aggregate score is 12 and the Median score is 2. In accordance with the Conversion Table 6.17 in the Guidelines, this provides a WPI of 6%.
As there is no adjustment for treatment effects, pre-existing or subsequent conditions, the final WPI found by the Panel is 6%.
As the Panel has arrived at a different outcome to Medical Assessor Canaris, it follows that his certificate must be revoked, and a fresh certificate issued.

[2024] NSWPICMP 823

4 December 2024