AAI Limited t/as AAMI v BCT
[2023] NSWPICMP 12
•17 January 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as AAMI v BCT [2023] NSWPICMP 12 |
| CLAIMANT: | BCT by her appointed representative BDL |
INSURER: | AAI Limited t/as AAMI |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | Chris Rickard-Bell |
| MEDICAL ASSESSOR: | Gerard Chew |
| DATE OF DECISION: | 17 January 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical dispute about whole person impairment (WPI) and review under section 63 of the Medical Assessor’s decisions; claimant had a WPI greater than 10%; claimant child injured at age seven when a passenger in a vehicle driven by her father which collided with another vehicle entering a roundabout; significant collision; claimant was asleep and hit her head and nose on the window; developed symptoms of post-traumatic stress disorder and had limited treatment; Held – claimant’s condition had improved and impairment no longer greater than 10%; no issue of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 1. The Review Panel revokes the certificate of Medical Assessor Paul Friend dated 23 April 2022. 2. The Panel certifies that the injuries caused by the motor accident give rise to a permanent impairment which is not greater than 10%. |
STATEMENT OF REASONS
Introduction
BCT was involved in a motor accident on 15 September 2017. At the time BCT was seven years of age. She was a back seat passenger in a car driven by her father. There was a collision at a roundabout, her father lost control of the car and the family car collided with a pole.
BCT hit her head and had pain in her right thumb and developed psychological symptoms very soon after the accident.
She made a claim for damages against AAMI the third-party insurer of the car that caused the accident.
A medical dispute has arisen between the claimant and the insurer concerning the claimant’s entitlement to damages for non-economic loss. That medical dispute was referred to the Personal Injury Commission (the Commission) for determination and on 24 April 2022, Medical Assessor Friend found that the claimant had a whole person impairment (WPI) of 11% and thereby an entitlement to non-economic loss.
The insurer lodged an application for review of that decision and on 27 June 2022 a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment. On 11 August 2022, the President convened this Panel.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[1]
Legislative framework
[1] Section 63(3A) of the MAC Act.
General background
BCT ’s claim, and her entitlement to compensation, is governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are limited and restricted by the provisions in Part 5.3. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[2] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[2] The current maximum as of October 2022 is $605,000.
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[3].
[3] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment such as Medical Assessor Friend’s, further medical assessments and the Review of medical assessments by this Panel[4].
[4] Sections 61, 62 and 63 of the MAC Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[5] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[5] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
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) and states that the AMA4 Guides are to be used as “background or reference only”[6].
[6] Clause 1.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with 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)[7].
[7] Clause 1.213 of the Guidelines.
The PIRS provides in cl 1.219 for six areas of function:
1.219.1 self-care and personal hygiene;
1.219.2 social and recreational activities;
1.219.3 travel;
1.219.4 social functioning (relationships);
1.219.5 concentration persistence and pace, and
1.219.6 adaptation.
The PIRS then provides at cl 1.220 for five classes of impairment 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[8] such as medication being consumed to treat the psychiatric condition.
[8] See clauses 1.222 – 1.223 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 are converted to provide a WPI percentage[9].
[9] See clauses 1.225 – 1.228 and table 17.
Assessment under review
Medical Assessor Friend conducted an examination of the claimant on 7 April 2022 and issued his certificate on 23 April 2022. He was asked to assess the claimant’s psychiatric condition being a post-traumatic stress disorder. He also found she had developed a specific phobia of dogs since the accident, as a result of the accident.
The examination took place by video with the claimant, her mother (BEP) and an interpreter present to assist the claimant’s mother.
The claimant was born in [redacted] 2010 and she is therefore now 12 years of age. At the time of the examination, BCT was attending the local public school, living with her mother and younger sister. Her parents separated in 2015 and BCT had twice-weekly contact with her father.
The claimant gave a history of the roundabout collision which occurred at night and said she felt scared and shocked. Her nose was bleeding, and her forehead was red. The ambulance arrived but she was not taken to hospital and the family drove home.
The day after the accident BCT was scared, slept-in and did not attend school.
BEP reported her daughter was scared and crying and everything made her scared. If BEP went out, BCT would ring to ask if she had an accident. BCT began sleeping with her mother because she was too scared to sleep alone. If she heard a vehicle passing, she would vomit and she would jump if there was a loud noise. She became scared of dogs after the accident and was particularly scared if she heard a crash or loud bang particularly at night.
BCT had one or two days off school but remained scared of loud noises and her grades declined. She found it difficult to concentrate or cope with online schooling.
She had counselling with a psychologist but no medication.
Medical Assessor Friend recorded that the claimant’s symptoms have improved but:
(a) she is scared when travelling on busy streets or going to parks beside a busy street, she gets scared if a vehicle goes by;
(b) she gets scared at night because the family live on a busy street;
(c) she has nightmares three times a week (more frequently after the accident) about car accidents and being in a high place and about to fall or being in a lake and being about to drown;
(d) her school is on a busy road, and she gets scared if there is a loud noise or a revving engine – this disturbs her concentration and ability to learn;
(e) she is scared if she sees a dog and she runs away;
(f) she covers her ears at a café;
(g) she sleeps with her mother (and BEP says her daughter is “hanging on to me”);
(h) her mother rarely takes her out (for example to the supermarket), and
(i) she continues to have counselling but has no medication.
Medical Assessor Friend takes a detailed account of the claimant’s examination and says BCT was consistent during the examination. He noted few references to psychological issues in the general practitioner (GP) notes but that his examination was consistent with the report of Dr Bisht dated 9 February 2022 although not with Associate Professor Robinson dated 6 November 2019.
Medical Assessor Friend reviewed the available documentation.
Medical Assessor Friend was of the view the claimant satisfied the diagnosis of post-traumatic stress disorder with improvement noting:
(a) the accident was serious in that the car was struck, spun several times and hit a pole;
(b) recurrent involuntary memories and images of the accident with distressing dreams or nightmares;
(c) avoids the local park, shopping centres and avoids watching distressing content on TV;
(d) feels the world is a dangerous place;
(e) is hypervigilant;
(f) symptoms have been present for more than a month;
(g) symptoms cause clinically significant distress and impairment in school and social functioning, and
(h) the disturbance is not attributable to the physiological effects of a substance or other medical condition.
He also diagnosed a phobia of dogs which arose from the injuries sustained in the accident because she did not have this phobia before the accident.
He assessed the class of her functioning in the six listed areas from the PIRS as follows:
(a) self-care and personal hygiene – 3;
(b) social and recreational activities – 3;
(c) travel – 3;
(d) social functioning – 1;
(e) concentration, persistence and pace – 2, and
(f) adaptation – 1.
This produced a median of 2.5 (1, 1, 2, 3, 3, 3) which was rounded to 3 to provide an aggregate score of 13 which converts to a WPI of 11%.
Matter summary and submissions
Insurer’s submissions
The insurer challenges Medical Assessor Friend’s assessment of four areas of function as follows:
(a) self-care and personal hygiene – the Medica Assessor gave limited reasons and included irrelevant considerations (her preference to stay at home, avoid travelling and sleeping in her mother’s bed). The insurer copies table 11 and suggests that none of the descriptors in class three apply to the claimant. The insurer relies on the case of Ballas v Department of Education (State of NSW)[10], where the Court of Appeal observed as follows at [94]:
“Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, i.e., whether it goes to ‘self-care and personal hygiene,’ ‘social and recreational activities,’ ‘travel,’ ‘social functioning (relationships),’ ‘concentration, persistence and pace’ or ‘employability.’ This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation”;
(b) social and recreational activities – the Medical Assessor did not include a proper history of the claimant’s pre-accident situation and did not explain his finding “not as much as previously.” The insurer cites cl 1.220 of the Guidelines;
(c) travel – the Medical Assessor did not put to the claimant a history in the report of Dr Bisht that she was able to travel alone and suggests a class 2 rather than 3 rating should have been chose. The insurer cites cl 1.41 of the Guidelines, and
(d) concentration, persistence and pace – the Medical Assessor did not explain why he chose a class 2 impairment over a class 1, noting that the report of psychologist Ms Najdzion report suggesting there were no problems with the claimant’s memory or concentration and the claimant’s school records suggested her performance had improved since lockdown.
[10] [2020] NSWCA 86 (Ballas)
The insurer’s submissions in respect of the original medical assessment note:
(a) according to ambulance records the accident was a minor low speed collision and the claimant’s only injury was to the right side of her nose;
(b) the claimant attended her GP four days after the accident and the doctor recorded post-traumatic stress disorder, bruising and lacerations – an antibiotic was prescribed with eye ointment;
(c) Dr Kumar on 15 November 2017 noted “Psychological sx has resolved” that is the symptoms (sx) of the post-traumatic stress disorder had resolved”;
(d) on 26 May 2021, Professor Robertson said the adjustment disorder was resolving and the claimant was enjoying school and had no nightmares, and
(e) he assessed the claimant’s WPI at 4% having ascribed the following classes:
(i)self-care and personal hygiene – class 1;
(ii)social and recreational activities – class 1;
(iii)travel – class 2;
(iv)social functioning – class 1;
(v)concentration, persistence and pace – class 2, and
(vi)adaptation – class 2.
Claimant’s submissions
The claimant’s submissions[11] address those of the insurer in respect of the various functions as follows:
[11] Drafted by counsel and dated 15 June 2022.
(a)
self-care and personal hygiene – the insurer has ignored the extract in
Dr Bisht’s report that suggests the claimant needs constant prompting from her family to shower and eat;
(b) social and recreational activities – the insurer does not take into account the claimant’s preference to stay home and not go out and socialise since the accident and that the claimant was seven at the time of the accident and therefore there was limited pre-accident functioning in any event;
(c)
travel – the claimant says that the insurer is picking and choosing from
Dr Bisht’s report but in any event, he was undertaking his assessment of the claimant on the day, and
(d) concentration, persistence and pace – both the insurer’s experts (Professor Michael Robertson) and Dr Bisht recommended the claimant have further Maths and English tutoring and psychological treatments suggesting there is an ongoing significant impairment.
In addition, the claimant argues that Medical Assessor Friend:
(a) undertook a comprehensive assessment of the injuries and ongoing symptoms;
(b) considered all the material provided by both parties;
(c) followed the AMA4 Guides and the Guidelines;
(d) provided comprehensive reasoning and reasons;
(e) demonstrated his methodologies, reasons and the basis for his assessments;
(f) has not been inconsistent or made errors, and
(g) made consistent and accurate findings.
Review Panel’s directions
On 11 August 2022, the Commission issued directions to the parties seeking a bundle of documents. The claimant’s bundle was provided on 16 September 2022[12] the insurer did not provide a bundle.
[12] The index to the bundle is document AD4 in the Commission’s electronic file and the bundle itself is document AD5.
The Panel met on 31 October 2022, advised the parties of the date for the claimant’s re-examination and issued the following directions to the parties:
(a) the claimant was, by 18 November 2022, to upload to the portal a bundle of documents referred to in paragraph 8 above (updated school, Naplan and treatment records); respond to a query from the Panel concerning the severity of the accident and provide any final submissions dealing with any of the matters raised by the Panel in its report, and
(b) the insurer was by 25 November 2022, to upload to the portal its bundle of documents and include in that bundle any documents concerning damage to the vehicles involved in the accident and updated school, Naplan and treatment records. The insurer was also directed to provide any final submissions responding to any of the matters raised by the Panel in its report.
The insurer has not complied with the direction and no bundle of documents was provided by AAMI. Neither party has provided any documents concerning the damage done to the vehicles. The claimant did provide on 18 November 2021, a copy of her 2019 Naplan results and on 21 November 2021 updated school records.
Review of the evidence
Claim forms and related documents
The personal injury claim form was completed by the claimant’s father BDL identified as her “tutor” and dated 17 March 2018. The accident is described as a T-bone type collision with Mr Amin already in the roundabout when AAMI’s insured entered it.
The form suggests the police attended the scene of the accident and that the accident was reported to the police on 22 November 2017.
The injuries listed on the claim form include:
(a) head knock / bloody nose;
(b) concussion;
(c) anxiety over driving;
(d) dizziness;
(e) nightmares;
(f) trouble sleeping, and
(g) breathing troubles (there is a note that the claimant had pre-existing breathing issues “but was OK at the time of the accident”.
The ambulance report records the following:
“…on attendance patient standing and ambulating on scene. Alert, oriented and well perfused. Patient involved in slow speed minor MCA, car hit on right hand side, nil damage to car, nil airbags deployed, Patient hit nose on window. On examination … patient GCS 15, pearl, no c-spine tenderness, no head pain, no LOC, denies hitting head, bruise to left side of nose, drop of dry blood not actively bleeding. No abnormality detected on SS. No seat belt contusion. Parents deny transfer to hospital. State will take patient home and observe. If any changes will take patient to hospital. Parents advised to put ice to nose and paracetamol if required.”
A medical certificate completed by Dr Kumar on 15 November 2017 says he examined the claimant on 19 September and that his next planned review was
27 December 2017. He diagnosed a laceration and soft tissue injury to the claimant’s face (indicating on the body diagram the forehead and nose). He also diagnosed a “mental illness post-traumatic stress disorder”. He said no treatment, support or other services were recommended.
Treatment records and reports
Dr Kumar of the [Redacted] Family Medical Centre has produced records as of
14 March 2020 and a second set of records commences with an attendance on
2 April 2020 and concludes with an attendance on 7 December 2021[13].
[13] The first set of notes is found at page 101 of the claimant’s bundle and the second set at page 403.
The claimant has a history of nasal issues, adenoids, blocked nose and snoring. On
5 September 2017, she presented with acute sinusitis and was prescribed Augmentin Due suspension and nasal sprays.
On 19 September 2017, the claimant attended with her mother by train because she “was scared of the car and night-time” and reported she had hit her nose and forehead. There was ecchymosis seen on the forehead and a bruise on the bridge of her nose. The antibiotic prescribed previously was ceased.
On 15 November 2017, the claimant attended on Dr Kumar again who records:
“history MVA CTP insurance psychological SX has resolved. Post-traumatic stress disorder – RESOLVED [the doctor has highlighted in bold and capitals). Soft tissue injury resolving. The eye ointment was ceased.”
There were continued complaints of flu, sinusitis coughs and colds, enlarged adenoids and referral to an ear nose and throat surgeon was provided.
There is a report from Dr Piera Taylor to Dr Kumar dated 7 August 2019 which records the claimant’s father’s concern that his daughter’s nasal problems (described as long term) were worse after the accident. Dr Taylor was given a history of the claimant bumping her nose and head with some nosebleed but no marked swelling and no fracture. Dr Taylor diagnosed nasal obstruction secondary to allergic rhinitis and a deviated septum. She does not make any comment regarding any relationship of these symptoms to the accident.
After the first attendance on Dr Kumar (19 September 2017 – psychological symptoms present) and the second attendance (15 November 2017 – psychological symptoms resolved), there are eight further attendances on Dr Kumar where there is no mention of any physical or psychological accident-related symptoms.
The claimant’s psychological symptoms appear to re-emerge with a note from
Dr Kumar on 6 July 2020 “scared to go to another room mostly at night-time. Insomnia due [to] the house been dark at night. Happy most of the time. Seeing school psychologist”. A mental health care plan was developed.
The next relevant attendance appears to be 22 May 2021 when the mental health plan was reviewed and then on 21 April 2022 when the mental health plan was also reviewed.
Notes from the [Redacted] Family Medical Centre have also been provided[14]. There are a handful of attendances between April 2016 and May 2020 for colds, flu and vaccinations.
[14] Page 170 of the claimant’s bundle.
The claimant relies on a report of Ms Alexandra Geba psychologist dated
17 December 2020[15]. She notes a mental health care plan was developed by the claimant’s GP on 6 July 2020 and that the claimant and her mother first attended two months later on 18 September 2020.
[15] Page 73 of the claimant’s bundle.
BCT ’s mother reported her daughter was “always scared” clung to her when they were outside and was fearful of being in the car at night, loud noises and going somewhere on her own.
A session with the claimant on her own was conducted on 6 November 2020. The claimant reported anxiety in cars particularly at night and additional anxiety with trucks, loud noises from cars or walking next to busy roads. The claimant said she had nightmares.
Ms Geba reports that a treatment plan had been developed. Ms Geba’s notes include the following details:
(a) 20 November 2020 – not much to make her anxious since last session – still having nightmares. Teacher says she appears shy and withdrawn;
(b) 15 January 2021 – able to recall accident and how she felt. Still having nightmares “mostly from her uncle watching scary movies;”
(c) 19 February 2021 – work on anxiety and triggers, and
(d) 7 April 2021 – less anxiety than last session, has not been going out much. Difficulty going downstairs to a courtyard to play as worried about the road.
Ms Geba wrote a letter to Dr Kumar dated 14 April 2021[16] updating him on the claimant’s progress and requesting a further four sessions.
[16] Page 429 of the claimant’s bundle.
A further report from Ms Geba dated 26 May 2022[17] confirms the claimant re-engaged with counselling and attended with her parents on 31 January 2022 and 19 May 2022. Ms Geba was of the view the claimant still met the criteria for post-traumatic stress disorder due to significant anxiety when presented with trauma related triggers.
Ms Geba recommended more accessible services due to difficulties with travel and
Ms Geba’s limited availability.
[17] Page 426 of the claimant’s bundle.
There is a written account of the accident by the claimant which was developed during the sessions with Ms Geba[18]. The claimant reports the lights of the other car were not on and that all the family were scared. The claimant refers to her nose hitting the window and hurting and that she held a tissue to her nose. She was concerned her nose was broken. She was scared about what people would say about her nose “because it was all red”.
[18] Page 100 of the claimant’s bundle.
School records and reports
The claimant’s school reports have been provided which show:
(a) 2016 semester 2 - 5 justified and 16 unjustified absences;
(b) 2017 semester 1 (before accident) - 0 justified and 55 unjustified absences[19];
[19] The absences in this semester and the previous semester appear to be related to an overseas trip visiting family between November 206 and April 2017 – see page 214 of the claimant’s bundle.
(c) 2017 semester 2 (including accident) - 1 justified and 4 unjustified absences;
(d) 2018 semester 1 - 0 justified and 5 unjustified absences;
(e) 2018 semester 2 - 5 justified and 3 unjustified absences;
(f) 2019 semester 1 - 31 justified and 2 unjustified absences[20];
(g) 2019 semester 2 - 5 justified and 3 unjustified absences;
(h) 2020 semester 1 - 2 absences;
(i) 2021 semester 1 - 0 absences;
(j) 2021 semester 2 – 0 justified and 1 unjustified absences;
(k) 2022 semester 1 – no details of absences, and
(l) 2022 semester 2 - 0 justified and 5 unjustified absences.
[20] The absences in this semester and the previous semester appear to be related to another overseas trip visiting family between November 2018 and March 2019 – see page 216 of the claimant’s bundle.
Naplan results for 2019 (year 3) and 2021 (year 5) have been provided which can be summarised as follows:
(a) Reading:
(i)2019 – band 2 below national and school average, and
(ii)2021 – band 5 below national average, above school average.
(b) Writing:
(i)2019 - band 3 below national and school average, and
(ii)2021 – band 6 above national and school average.
(c) Language conventions
(i)2019 – spelling band 3 below national and school average, grammar and punctuation band 1 below national and school average, and
(ii)2021 – spelling band 6 above national and school average, grammar and punctuation band 5 below national average above school average.
(d) Numeracy:
(i)2019 – band 3 below national average but above school average, and
(ii)2021 – band 5 below national average but above school average.
Medico-legal reports
Dr Robertson for the insurer has provided a report dated 6 November 2019. He had the claim form, the ambulance notes, the clinical notes and the claimant’s court documents.
The claimant was then nine years of age in year three at [Redacted] Public school.
Dr Robertson has a history of the accident noting the at-fault vehicle hit the rear passenger side of BCT ’s father’s car and says the claimant was asleep at the time. The car did not have airbags and was not driveable after the accident and was a “write off”.
The claimant’s father attended Dr Robertson’s appointment with the claimant and was concerned about the claimant’s level of anxiety as a passenger. She was frightened to cross the road, slept with her father and sister because of “scary dreams”. She was occasionally tearful and occasionally wet the bed.
The claimant’s father was unaware of any decline in school performance. He reported “once or twice per month the claimant’ refuses to go to school when she is distressed”.
He said his daughter occasionally requires prompting to attend to self-care but has not had psychological treatment or medication.
There appeared to be interpretation issues with the claimant’s father but no problem in communicating with the claimant.
Dr Robinson was of the view BCT had an untreated adjustment disorder and did not think it was appropriate to assess WPI at that time. He thought she needed 6 to 12 sessions with a psychologist.
There is no mention of a phobia of dogs in this report and the doctor was reliant on the history from the claimant’s father.
Dr Bisht for the claimant has provided a report dated 9 February 2022. He had the treating records, school records and Dr Robertson’s reports.
Dr Bisht has a history from the claimant that she thought she was going to die in the accident. He noted her soft tissue injuries to the face resolved after a few weeks.
In terms of her psychological symptoms, he noted:
(a) decreased interest in pleasurable activities;
(b) distance from her family and friends;
(c) daily recollections of the accident;
(d) she became hypervigilant, and
(e) she began having sleep disturbances, and her concentration was affected.
While the claimant’s symptoms had improved, they were still present, and the claimant was experiencing nightmares and flashbacks when she hears a motor vehicle. Her classroom was near a road. She does not engage with her classmates and is sad. She has apparently progressed through school with her peers.
Dr Bisht said the claimant engaged well with him, was cooperative and showed no cognitive impairment.
He diagnosed a post-traumatic stress disorder. He recommended ongoing psychiatric therapy for the next two years. He thought she was fit for only four hours of school per day and would struggle as she got older.
He assessed her as having a 13% WPI.
BCT ’s claim has been exempt from assessment at the Commission and Court proceedings have been commenced. As part of those proceedings a conclave of the two experts Dr Bisht and Associate Professor Robertson appears to have been ordered by the court and a conclave report dated 26 May 2021 was prepared. No face to face, telephone or audio-visual conclave occurred it was conducted “on the papers”. This report includes the following:
(a) the experts agreed the claimant met the criteria of DSM5 and diagnosed a post-traumatic stress disorder;
(b) the experts indicated continuing symptoms of anxiety when crossing the road, distress by traffic noises, distraction and impairment of concentration and academic performance, the presence of nightmares, flashbacks and difficulty sleeping;
(c) the experts agreed there had been improvement in symptoms;
(d) there was no agreement as to the prognosis and limited scope for deterioration in the condition;
(e) the experts appear to agree that the treatment provided had been reasonable and that a degree of future treatment was required including tuition to assist the claimant in improving her English and Mathematics, and
(f) there was no agreement in terms of the impact on the claimant’s earning capacity.
RE-EXAMINATION
The Panel considered a re-examination of the claimant was required and Medical Assessors Rikard-Bell and Chew examined the claimant on 7 December 2021 on behalf of the Panel.
The Panel noted the claimant is under the age of 18 and has an appointed representative in these proceedings as well as a tutor in the Court proceedings. The claimant’s appointed representative and tutor was noted as her father Mr Alan Amin, however BCT ’s mother accompanied her at the assessment.
History provided by the claimant
BCT is a 12-year-old girl in Year 6 at [Redacted] Public School. [Redacted] BDL arrived in Australia in 1997 and BEP arrived in 2009. The couple married in 2005 and separated in 2015. BCT has regular contact with her father on weekends.
The history of the motor vehicle accident has been covered throughout the documents, however, in brief the accident occurred on 15 September 2017 when BCT was a rear seat passenger in a vehicle being driven by her father. Her mother and sister were also in the vehicle. BCT says she suffered injuries to her face with cuts and a bleeding nose. The claimant’s physical injuries have now healed; however, she has continued to experience anxiety and there has been a diagnosis by her treatment providers of post-traumatic stress disorder.
I asked BCT about the motor vehicle accident. She explained it was late at night and they were travelling through a roundabout when there was a collision. Her face hit the window and she was bleeding from her nose and face. The Panel notes that the claimant’s story of the accident given to her psychologist mentions only injuries and symptoms to her nose which is supported by the ambulance records. Due to the claimant’s age, the Panel did not put this inconsistency to the claimant.
BCT said her sister was scared and she was unaware of any major injuries to other family members, although her mother has had ongoing neck and back difficulties. An ambulance arrived and her mother did not want BCT to go to hospital. She was very frightened about going to hospital and it was decided that she should go home. Eventually she recovered and the physical injuries have improved.
Mental state examination
BCT was interviewed via a video conference call from her solicitor’s office and was accompanied by her mother. There was a Kurdish interpreter provided who facilitated the input from BEP.
BCT presented as a pleasant girl with long dark hair tied into a ponytail. She wore a white t-shirt and blue jeans. She was friendly and cooperative and managed the interview process well. Her speech was normal in tone and volume. There was no abnormality of perception. BCT ’s affect was reactive. Her cognitive function appeared normal, and her thoughts were logical. BCT reported she was quite anxious at times and liked to be close to her mother, however there was no obvious anxiety observed during the interview. BCT stated she could not think of anything bad that had happened in the motor vehicle accident, however she fears she may be involved in a further accident. She is fearful of cars and noises and she sometimes worries about dogs, although this does not prevent her from participating in most activities.
BEP stated the main concerns for her is a fear of how BCT will cope in high school. She may be bullied, as BCT does not like separating from her. BCT does not like to socialise and she is hypervigilant with noises and worried of a further accident. BEP stated she is concerned about how BCT ’s independence will progress.
Personal history
According to her parents, BCT was a normal healthy toddler and pre-schooler. She was developing well without any problems before the motor accident. BCT started kindergarten in 2016 and her grades were in the average to below average range. The motor accident occurred on 15 September 2017 and following the accident her parents said there was a high level of absenteeism in 2017 and 2018, however this has gradually reduced. The Panel notes that the claimant had over 60 days absent from school before the accident, due to an overseas visit to family and over 30 days absent from school after the accident, due to another overseas visit with a sick relative. The level of other justified and unjustified absence from school have remained low with only a few absences per year.
BCT ’s parents reported that her grades have continued in the average to below average range remaining consistent throughout primary school without any major change. The Panel notes the claimant’s Naplan results suggest an improvement in her performance with reference to the school and national average from 2019 to 2021.
Past medical history
There are no previous serious illnesses, injuries or conditions. There is no history of any previous accident or injury or legal issues.
There were some nasal issues with a snoring problem and sleep difficulties documented in the GP notes. There was concern about whether these had been aggravated or exacerbated by the accident but this is not the case.
There is no current medication apart from a nasal spray at night.
Past psychiatric history
There was no family history of psychiatric illness reported.
There is no record of the claimant experiencing any previous anxiety, depression or need for treatment from mental health care professionals. Since the accident, the claimant’s parents suggest BCT has had approximately 12 sessions with the psychologist, Alexander Geba, which has been reasonably helpful to a degree, however she was unable to fully recover and the psychologist recommended further treatment.
BEP stated there have been further appointments made, although she is uncertain as to which professional will be consulted.
The Panel notes that the records of Ms Geba suggest there have been eight sessions with her recommending any further treatment be explored closer to the claimant’s home.
Current symptoms
Currently BCT is sleeping well, however for the past two years she has been sleeping with her mother as she is anxious and wakes up a lot talking in her sleep. She cannot really remember what it is she is dreaming about however she likes to be close to her mother. BCT was sleepwalking and she was fearful, therefore BEP decided BCT should sleep with her.
She is fearful of loud noises and she is hypervigilant. Her appetite is poor; however, she is growing normally and her weight is stable.
BCT worries a lot and is concerned about being injured, separating from her mother, worried about loud noises and is frightened in the car, particularly on motorways and at roundabouts.
BCT stated she likes spending time with her sister when they will play games or watch television together. She likes to cook with her mother and she goes out with her father. BCT is happy at school and she likes geography and English, however she does not like history which she finds boring. She is looking forward to starting at a new school in Year 7 in 2023. BCT is happy with her friends and she has one particularly good friend but does not have a lot of friends outside of school.
Current routine
BCT wakes up at 8:30 am and will get ready for school which starts at 9 am. She has something to eat then gets ready. Sometimes she will cook pancakes by heating them, or she will have cereal or toast.
The journey to school is a five minute drive and in the afternoon, she tries to do her homework or “I do projects”.
She does borrow books to read and likes stories. She has read half of a Harry Potter book and she is currently reading a mystery drama.
There is religious tutoring on the weekend for four hours on Saturday morning and possibly on Wednesday afternoon. In the evenings, BCT watches television, has dinner and gets ready for bed at 9:30 pm. On the weekend after tutoring BCT finishes homework and will see her father.
Current functioning
Currently BCT is able to dress, feed and manage her own self-care adequately for her age. She does sleep with her mother and sleep hygiene is therefore impaired. She requires occasional help with food and cleanliness. Therefore, there is mild impairment of self-care and personal hygiene as she is generally self-sufficient.
In terms of social functioning, BCT is close to both parents. She has a friendship circle and she is close to her sister. The relationship with her mother is perhaps too close and there may be a degree of enmeshment suggesting some difficulties with social functioning. Therefore, there is mild impairment of social functioning.
In terms of concentration, BCT is able to focus well. She can concentrate on homework, and she can read novels. There are four hours of tutoring on weekends and she often likes to have her assignments finished early. There are no complaints from the teachers in relation to focus, therefore there is no impairment of concentration, persistence and pace.
In terms of social and recreational activities, BCT is reluctant to go out and she stays close to her mother needing a lot of encouragement to play with others or leave the house. She is very withdrawn and avoidant, therefore there is moderate impairment of social and recreational activities as she requires as support person to attend social events.
In terms of adaptation, BCT ’s grades and attendance at school have been consistent and possibly improving. She attends school regularly with a diminishing level of absenteeism. She participates at school, and her latest Naplan results suggest she continues to achieve at the expected level. Therefore, there is no impairment of adaptation.
In terms of travel, BCT does have anxiety in the car. She dislikes roundabouts and motorways and is scared near trucks. She feels some anxiety when travelling in the car and there is mild impairment.
Diagnosis and causation
BCT is a 12-year-old girl who is in Year 6. Before the motor vehicle accident, she was developing well and she was a happy, healthy girl who was attending primary school without any behavioural difficulties.
On 15 September 2017, BCT and her family were involved in a motor vehicle accident whilst travelling through a roundabout. She sustained physical injury to her nose and possibly her face and these injuries have recovered.
Since the accident, various clinicians have noted post-traumatic stress disorder, such as Alexandra Geba psychologist on 9 December 2020 and Dr Bisht, psychiatrist on
9 February 2022. On 26 May 2021 Professor Robertson, psychiatrist, noted an adjustment disorder with regression of anxiety however he later was prepared to accept (in the conclave report) that a diagnosis of post-traumatic stress disorder was appropriate.
The Panel agreed the history provided most likely supported a diagnosis of post-traumatic stress disorder with sleep disturbance, flashbacks, disturbed dreams, avoidance of separating from the mother and negative concerns about being harmed and hypervigilance with loud noises, as well as hypervigilance in dangerous situations. The treatment with Alexandra Geba has been mildly beneficial.
The Panel notes the records of the treating GP recorded symptoms of post-traumatic stress disorder the day after the accident and none within two months of the accident. There is then a two and a half year gap before further psychological symptoms are recorded. This raises in the Panel’s view, an issue of causation however, in the light of the impairment assessment, the Panel does not intend to engage further with the issue of causation.
The Panel therefore accepts the claimant does have a post-traumatic stress disorder with continuing symptoms.
The Panel notes that Medical Assessor Friend also diagnosed a phobia of dogs. During the course of the re-examination, the claimant’s mother says the claimant is sometimes worried about dogs however the claimant herself did not mention it. The Panel has considered all of the treating material and cannot find any reference to any symptoms relating to dogs within that material. The claimant may have a phobia of dogs however as these symptoms appear to have arisen more than three years after the accident, it is the clinical judgment of the medical members of the Panel that any such phobia is unrelated to the accident.
Impairment Assessment
Statement about permanent impairment
Permanent impairment is defined in the AMA4 Guides[21] as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
[21] Page 315.
The Panel is satisfied that the claimant’s post-traumatic stress disorder has stabilised. She has had eight sessions (possibly more) with Ms Geba which has provided some improvement.
Degree of permanent impairment psychiatric impairment rating scale
The Panel has undertaken its assessment in accordance with the AMA4 Guides and the Guidelines adopting the recommended form for the assessment in the Guidelines[22].
[22] Figure 2 page 52.
Psychiatric diagnoses
Post-traumatic stress disorder
Psychiatric treatment
Psychological counselling
Category
Class
Reason for Decision
Self-Care & Personal Hygiene
2
Currently BCT is able to dress, feed and manage her own self-care adequately for her age. She does sleep with her mother and sleep hygiene is impaired. She requires occasional help with food and cleanliness. Therefore, there is mild impairment of self-care and personal hygiene as she is generally and self-sufficient.
Social & Recreational Activities
3
In terms of social and recreational activities, BCT is reluctant to go out and she stays close to her mother needing a lot of encouragement to play with others or leave the house. She is very withdrawn and avoidant, therefore there is moderate impairment of social and recreational activities as she requires as support person to attend social events.
Travel
2
In terms of travel, BCT does have anxiety in the car. She dislikes roundabouts and motorways and is scared near trucks. She feels some anxiety when travelling in the car and there is mild impairment.
Adaptation
1
In terms of adaptation, BCT ’s grades and attendance at school have been consistent and this appears to be unchanged. She attends school regularly. She participates at school, and she continues to achieve at the expected level. Therefore, there is no impairment of adaptation.
Concentration, Persistence & Pace
1
In terms of concentration, BCT is able to focus well. She can concentrate on homework, and she can read novels. There are four additional hours of school or tutoring on weekends and she often likes to have her assignments finished early. There are no complaints from the teachers in relation to focus, therefore there is no impairment of concentration, persistence and pace.
Social Functioning
2
In terms of social functioning, BCT is close to both parents. She has friends and a particularly good friend and she is close to her sister. The relationship with her mother is perhaps too close and there may be a degree of enmeshment suggesting some difficulties with social functioning. Therefore, there is mild impairment of social functioning.
In accordance with cls 1.225 and 1.226 the above classes are listed in ascending order, which is 1, 1, 2, 2, 2, 3. The median class value is 2.
In accordance with cls 1.227 and 1.228 the aggregate score of 11 is then converted using table 17 to provide a percentage impairment of 5% WPI. The Panel notes this is a lower percentage than that assessed by Medical Assessor Friend. This is, in the Panel’s view, a result of the claimant’s continued improvement, which is to be expected with the passage of time since the accident and since the assessment.
As there have been no previous or subsequent psychiatric conditions, there is no need to make any adjustment of the above percentage for apportionment purposes.
Clauses 1.222 and 1.223 of the Guidelines permit the adjustment of the WPI percentage for the effects of “prescribed treatment” if that treatment is appropriate, clinical evidence that it has been effective and that if the treatment were ceased symptoms would deteriorate or worsen. The adjustment that can be made is from 0% to 3%.
The Panel notes the claimant is too young to have been prescribed medication but that she has had counselling as follows:
(a) September 2017 – September 2020 nil session;
(b) September – November 2020 3 sessions;
(c) January – April 2021 3 sessions, and
(d) January and May 2022 2 sessions.
As the claimant is not currently having any treatment the Panel is of the view all the criteria required in cl 1.222 have not been met and therefore there is to be no adjustment of the impairment percentage for treatment.
Conclusion
The Panel is therefore satisfied that the claimant’s WPI is 5%.
As the Panel has come to a different view to Medical Assessor Friend, it follows that his certificate must be revoked.
0
1
2