AAI Limited t/as AAMI v Hodges

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Hodges [2024] NSWPICMP 387
CLAIMANT:	Gregory Hodges
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Wayne Mason
MEDICAL ASSESSOR:	Melissa Barrett
DATE OF DECISION:	17 June 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26 of a threshold injury dispute; Medical Assessor (MA) Fukui had determined the claimant had non-threshold psychiatric injuries namely post-traumatic stress disorder and major depressive disorder; claimant was driving his car behind a car driven by his son when another car which was being chased by the police collided with the rear of the claimant’s vehicle became airborne and collided with the rear of the claimant’s son’s car; the claimant had some physical injuries assessed by MA Home as threshold injuries; claimant had not had any psychiatric treatment, had not reported symptoms to his GP after the first month; the claimant was re-examined via Microsoft Teams; Held – Panel found the circumstances of the accident could have caused a psychiatric injury and did cause the psychiatric injury; Panel accepted the claimant’s explanation as to why he did not report things to his GP or seek treatment (he was an intensely private and independent person who had an abusive childhood); Medical Assessment Certificate of MA Fukui confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate issued by Medical Assessor Fukui on 28 February 2023. 2. Finds that the claimant has a psychiatric injury that is not a threshold injury. A statement setting out the Review Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Gregory Hodges was involved in a motor accident on 5 December 2020. He says he was driving his vehicle at about 80kmph per hour along the M1 when a Landcruiser, being pursued by police, hit the back of his vehicle at significant speed.
Mr Hodges says he injured his neck, right shoulder and back in the accident and developed a psychological injury following the accident. Mr Hodges made a claim for statutory benefits against AAMI, the third-party insurer of the vehicle that hit his.
A medical dispute about the nature of Mr Hodges injuries has arisen in connection with that claim and Mr Hodges referred that dispute to the Personal Injury Commission (the Commission) for assessment[1].
[1] On 19 March 2021 the insurer denied liability for ongoing statutory benefits on the basis the claimant’s injuries sustained in the accident were minor injuries.
The Commission allocated the dispute to two medical assessors as follows:
(a) Medical Assessor Home who, on 10 March 2023 determined that all of Mr Hodges physical injuries were minor (now threshold) injuries, and
(b) Medical Assessor Fukui who, 28 February 2023, determined Mr Hodges sustained psychological injuries namely a major depressive disorder and a post-traumatic stress disorder as a result of the accident and that these injuries were not minor injuries.
The insurer has lodged an application with the Commission seeking a review of Medical Assessor Fukui’s decision. On 2 May, 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 January 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.
The Panel understands no application for review has been lodged in respect of Medical Assessor Home’s determination.

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Hodges’ claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “minor” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident and cannot recover damages.

Threshold injury

A minor injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury and s 1.6(3) provides that “a minor psychological or psychiatric injury is (subject to this section) a psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulation) says a minor injury include an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the method of assessment for minor, non-minor injuries. The Guidelines[2] provide:
“[5.10] In assessing whether an injury is a minor psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
[5.11]The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.”
[2] The current version of the Guidelines is version 9, effective January 2023.
In other words, the Guidelines provide the method of determining whether a psychiatric illness is a recognised psychiatric illness or not (thereby excluding unrecognised psychiatric illnesses from the recovery of certain benefits and damages under 1.6(3) of the MAI Act). This method would also include the means of determining whether an adjustment disorder or acute stress disorder was present (both of which are recognised psychiatric illnesses but which are minor injuries in accordance with cl 4(2) of the Regulation).

Non-threshold injury – at any time

In David v Allianz Australia Insurance Ltd 2021 NSWPICMP 227, at [84]-[105] the Panel considered the issue of “whether an injury is not a minor injury if radiculopathy is present at any time following injury.” At [98] the David Medical Review panel observed:
“Radiculopathy is an example where the symptoms fluctuate over time because the extent of the compression of the spinal nerve root may vary due to inflammation of the nerve root. Symptoms may subside if the inflammation reduces and returns because the injured disc is exacerbated by innocuous activities.”
The Panel found at [104] if it is established (by way of an assessment that complies with cl 5.5 of the Guidelines) that there are at least two clinical signs of radiculopathy (as set out in cl 5.6) present at any time, the injured person falls outside the definition of ‘minor injury’.
In Lynch v AAI Limited t/as AAMI 2022 NSWPICMP 6, the Medical Panel there considered the same issue in respect of a psychiatric injury. At [68]-[69] the Medical Panel concluded that Ms Lynch suffered from a Specific Phobia of Driving which is a non-minor injury. She was also found to suffer from a major depressive disorder which was in remission, but which was diagnosed in 2020. This was also non-minor. After citing David, and considering cls 5.10 - 5.11 of the Guidelines where the word “present” is required for a psychiatric injury, the panel said at [72]:
“That the psychiatric diagnosis may change over time is not only consistent with the provisions of DSM-5 but otherwise consistent with physical injuries. A simple fracture is a non-minor injury within the meaning of the MAI Act but will normally heal prior to any assessment. It would be an absurd interpretation to conclude that as the fracture has healed, there has been change in status from the injury being classified as non-minor, when the injury occurred, to one being classified as minor because the injury had healed.”
The two cases of David v Allianz Australia Insurance Ltd 2021 NSWPICMP 227 and Lynch v AAI Limited t/as AAMI 2022 NSWPICMP 6 establish that whether the claimant has a threshold or non-threshold injury on the day of any re-examination by a Panel is only one part of the assessment. The Panels found in those two cases that if, at any time after the accident, the claimant’s accident-related injury falls outside the definition of “threshold injury” contained within s 1.6 of the MAI Act, the claimant must be found to have non-threshold injuries regardless of the state of the injury (healed, recovered, in remission) at the time the Panel undertakes its assessment.

Dispute resolution

If there is a dispute about whether an injured person’s injuries are minor injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[3]
[3] Schedule2, cl 2(e) in the MAI Act.
Chapter 7, 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 Samuell’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Fukui examined the claimant on 2 December 2022 and issued her decision on 28 February 2023.
She diagnosed the claimant as experiencing a Major Depressive Disorder and a Post-Traumatic Stress disorder both of which were non-minor (now non-threshold) conditions.
The Medical Assessor noted the claimant was 65 years of age married with four adult children from his first marriage. He ran his own motor mechanic business and before the accident worked seven days a week.
Mr Hodges denied any previous psychiatric history and any significant physical injuries other than a knee injury and tennis elbow in his twenties.
Mr Hodges described the accident noting he and his son were driving to Sydney to purchase a new car when they were rear ended at high speed. He said ambulance, fire and rescue and police attended but he was not taken to hospital.
Mr Hodges gave a history of his treatment including attending hospital the day after the accident, follow up with a general practitioner (GP) and referral to a specialist.
The claimant said the accident ruined his life and he cries himself to sleep because of the pain and he has had suicidal thoughts. The claimant reported increasing his alcohol consumption and his weight had increased by 25kg.
He had stopped driving for eight weeks after the accident, and now he pulls over if someone is close and behind him. He reported flashbacks and thoughts about the accident. His marriage has been affected and he said he is irritable. He reported difficulties with activities of daily living.
The claimant said he had not told his GP about his psychological symptoms because “he knows”. The claimant said he was not interested in talking about his symptoms.
Mr Hodges had returned to work but at reduced hours and only in the office.
Medical Assessor Fukui notes there were no documents relevant to any psychological injury “this is because Mr Hodges has not fully disclosed his psychological distress to his general practitioner.” It has been suggested that he see a psychiatrist and a psychologist “but he is not interested and will not see them and therefore no formal referrals have been made.”
Based on the history, Medical Assessor Fukui says the claimant has a Major Depressive Disorder and Post Traumatic Stress disorder and that the timing of it relates it to the accident.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer argues that the Medical Assessor failed to adequately consider the relevant material. The insurer says at [11] that it appears the Medical Assessor dismissed all of the clinical evidence – that is the absence of a clinical record of psychological symptoms.
The insurer says at [14] that in determining causation the Medical Assessor has taken the claimant “at face value” and not further investigated the matter.
The insurer points at [15] to its submissions in support of the original referral that noted there was no reference to psychological symptoms in the GP records, that the claimant had not been referred for treatment and that there is no evidence in support of a diagnosis of depression, anxiety or post-traumatic stress disorder.
The insurer also argues at [23] that the Medical Assessor diagnosed a Major Depressive Disorder and Post-Traumatic Stress disorder on the basis of symptoms “despite the fact that those symptoms are not documented in the treating GP file.”
The insurer says at [25]:
“… that the Assessor has failed to provide a sufficient path of reasoning to explain why the above conclusion was reached, in the absence of any documented reports of any psychological symptoms. Notwithstanding the fact there is also a lack of documented symptoms that would give rise to an assessment of PTSD, as opposed to an adjustment disorder or other psychological condition.”
The insurer says there has been no investigation (by the Medical Assessor) of why the claimant’s allegedly severe clinical symptoms have not been recorded by the GP.

Claimant’s submissions

The claimant appears to acknowledge the absence of documents and medical treatment for any psychological injury but says that the Medical Assessor “is entitled to make that diagnosis in light of [her] area of expertise.”
The claimant says the Medical Assessor has provided sufficient reasons for the diagnosis of post-traumatic stress disorder.

Procedural matters

The Panel issued directions to the parties on 31 January 2024 seeking bundles of documents as the Panel had not been provided with all the relevant material from the original medical assessment file. The insurer’s bundle was due on 16 February 2024 and the claimant’s on 1 March 2024.
The insurer provided their bundle on 15 February and the claimant provided his bundle on 8 March 2024.
On 13 March 2024 the Panel met to discuss the matter.
The Panel observed that the insurer appears to challenge causation of the claimant’s current condition on the basis that he has had no treatment for the condition and there is no record of the condition in the more recent records.
The Panel noted:
(a)    the mechanism of the accident;
(b)    the insurer’s liability decision dated 19 March 2021;
(c)    the first Certificate of Fitness, and
(d)    the report of Dr Snow dated 15 December 2020 and the entries in his notes on 11 and 15 December 2020 and on 31 January and 1 February 2021.
The Panel noted that the insurer has not pointed to any intervening incident or accident between the current accident and the assessment by Medical Assessor Fukui.
The Panel referred to the two cases of David v Allianz Australia Insurance Ltd 2021 NSWPICMP 227 and Lynch v AAI Limited t/as AAMI 2022 NSWPICMP 6 which appear to establish that if, at any time after the accident, the claimant’s accident-related injury falls outside the definition of “threshold injury” contained within s 1.6 of the MAI Act, the claimant must be found to have non-threshold injuries regardless of the state of the injury (healed, recovered, in remission) at the time the Panel undertakes its assessment. The panel in Lynch gave the example of a simple fracture sustained in the accident that heals by the time of the assessment. The injury in those circumstances was a non-threshold injury even though the claimant may have recovered from it.
The Panel advised the parties that subject to submissions, the Panel will proceed on the basis that if at any time after the accident the claimant had an MDD or post-traumatic stress disorder then the claimant has had a non-threshold injury.
The Panel commented that any breach by the claimant of s 6.5 of the MAI Act or issue of mitigation under s 4.15 does not appear to be a matter for the Panel to determine in the course of the current Review.
The Panel advised the parties of the date for the re-examination and issued directions for additional documents (including updated notes from the GP) and submissions, the claimant by 12 April 2024 and the insurer by 26 April 2024.
The insurer responded on 23 April 2024 advising that:
(a) the insurer did not have any further psychological records or any treatment or recovery plans, and
(b) the insurer had denied liability for statutory benefits so had not sought updated treatment reports.
The Panel confirmed receipt of that response and noted that the insurer did not hold any further psychological records but that it has the means by which to obtain them (an authority that forms part of the claim form). The Panel reminded the insurer that it is the insurer's review application, and the Panel expected the insurer to co-operate with the Panel. In the light of the claimant's non-compliance with directions, the Panel asked the insurer to obtain the relevant documents from Dr Russo, Dr Snow and the claimant's psychologist to assist the Panel.
The claimant responded to the Panel’s directions on 1 May 2024 advising that “we have found it difficult to contact our client and on that basis we cannot confirm the nature of recent medical treatment”. The claimant also said that authorities had been sent to the client to enable the claimant’s solicitor to obtain records.
The insurer responded on 12 May 2024 to advise that Dr Russo advised while he had a referral from Dr Snow, the claimant has never attended the practice. An authority permitting the insurer to obtain documents from Dr Snow and the claimant’s psychologist had been sent to the claimant.
On 28 May 2024, the Panel received more than 500 pages of records from Dr Snow at the Seaham Surgery. Also on that day, the Panel received the following message from the claimant’s solicitor:
“I can confirm the claimant has not received treatment in respect of psychological or physical injuries since the previous assessment. I note that is consistent with the history previously provided in that the claimant is ‘old school’ and does not feel comfortable discussing his psychological issues with medical practitioners. Recently obtained clinical notes will however reveal treatment associated with an unrelated condition.”

REVIEW OF THE EVIDENCE

Leaving aside the updated records from Dr Snow, the claimant’s bundle of documents comprises 47 pages. The insurer’s bundle comprises 113 pages.

Claim form and claim documents

The police report confirms the high-speed nature of the accident, and that the offending vehicle was travelling at 140kmph in a 110kmph zone. That vehicle which was being chased by the police hit the claimant’s vehicle with such force that it was propelled into the air above the claimant’s vehicle and hit the back of the vehicle in front (the claimant’s son’s vehicle).
According to the police report drugs were found in the other vehicle including “47 kilos cannabis, 1 ounce of cocaine, large quantity MDMA.” These drugs, and cash were apparently thrown or ejected from the vehicle “littering all 3 lanes of the Pacific Highway.”
The claimant’s Application for personal injury benefits (claim form) is dated 15 December 2020. He says, “the force of the impact caused my vehicle to explode which activated all the airbags in my car and filled the car with smoke.”
Mr Hodges lists his injuries as:
(a)    lacerations to the face and right arm;
(b)    chipped collar bone;
(c)    bruised ribs;
(d)    internal bruising;
(e)    neck injuries;
(f)    lower back injuries, and
(g)    lower leg injuries.

A Certificate of Fitness was dated 13 January 2021 and completed by Dr Snow. Injuries were listed as “hyper extension and flexion injuries of C spine and lower lumbar spine, multiple contusions, minor facial injuries, immediate traumatic stress”. No pre-existing factors were identified, and the focus was on treatment of the claimant’s physical injuries. The claimant was certified fit for limited hours and days of work.
A further certificate was dated 2 March 2021 and completed by Dr Snow. The injuries remained the same.
The insurer’s liability decision dated 19 March 2021[5] informed the claimant that the information it had suggested the claimant sustained:
“…hyper extension and flexion injuries of C spine and lower lumbar spine, multiple contusion, minor facial injuries and immediate traumatic stress.”
[5] Page 2 of the claimant’s bundle.
The insurer said these injuries were “minor injuries.”
On 27 July 2022 the claimant’s solicitor wrote to the insurer[6] advising he had been retained by the claimant and that he was instructed to seek an internal review. The letter says:
“My client alleges that his condition has worsened significantly. He is now suffering from radiating symptoms into both legs. He is also finding his ongoing work as a self-employed mechanic particularly problematic.”
[6] Page 7 of the claimant’s bundle.
The insurer’s internal review decision under the heading “the facts of the matter” refers to:
(a)    the first certificate of fitness suggested “possible psychological treatment” [4];
(b)    a report from Dr Snow GP dated 15 December 2020 included amongst other things “significant acute post-traumatic stress syndrome” [5], and
(c)    Seaham Surgery clinical notes entry 15 December 2020 which states “very anxious survivor guilt, financial hardship significant post-traumatic stress syndrome” [8] and on 31 January 2021 “less affected by PTSD keen to return to work, limited by back pain”.
Under the heading “reasoning” on page 11 of the decision the insurer noted the diagnosis by the GP of post-traumatic stress disorder but did not accept it on the basis the claimant did not meet one of the diagnostic criteria noting that symptoms needed to be present for more than a month.
In a letter to Dr Russo of the Hunter Pain clinic, Dr Snow says, “He is largely managing through shear [sic] tenacity.”

Treating medical records and reports

There are very few documents and no medico-legal report provided by either party.
The discharge summary from Calvary Mater on 6 December 2020[7] notes the claimant attended the day after the accident having refused transfer to hospital at the time of the crash.
[7] Page 23 of the claimant’s bundle.
The claimant had a seat belt mark and was numb around the right trapezius but there was no neurological issue. It was noted that a CT scan of the cervical spine showed no fracture or swelling but multiple disc protrusions that were chronic. It also noted the patient refused all offers of analgesia during stay.
General practitioner records have been provided by both parties. The claimant’s past medical history included hypertension and right osteoarthritis of the knee (which appears to have stemmed from an injury in the claimant’s twenties or in the 2000s). Left knee pain symptoms are recorded in 2019. The claimant had a major trauma to his nose in 2017 when the fan blade of a car he was working on disintegrated while being inspected.
The claimant first spoke with Dr Snow after the accident on 11 December 2020 (telehealth consultation). Dr Snow has a history of the high-speed car accident and that the claimant had “no loss of consciousness, vivid recall, rattled, acute post-traumatic stress.” Mr Hodge’s various physical ailments were discussed, and investigations ordered.
The claimant attended again on 15 December 2020 complaining of neuropathic pain in the right side of his neck radiating into the shoulder. The claimant was also tender in the right acromioclavicular (AC) joint and other areas. Most of the bruising was said to have resolved. It is noted relevantly to the current dispute that he was “very anxious, survivor guilt, financial hardship given he brought a new car for his son and this car was also destroyed in accident significant post traumatic stress syndrome.” It was also noted “likely need for psychological counselling and possible neurosurgical opinion review in two weeks.”
On 13 January 2021 the claimant attended again with pain in the lower back with mild sciatic pain to the left buttock, persistent neck pain with paraesthesia and left knee pain. It was noted by Dr Snow “patient less affected by PTSD. He is keen to return to work. Limited by back pain.”
On 1 February 2021, Dr Snow records “patient coping with PTSD still hypervigilant when driving, back at work.”
The claimant was referred to Dr Ferch, neurosurgeon on 1 February 2021 for opinion as to management of his cervical and lumbar spine injury. The claimant was referred to Dr Kuru on 4 March 2022 for a second opinion regarding the back pain and to Dr Russo also on 4 March 2022 for pain management.
Updated records have been provided by Doctor Snow.[8] On 27 September 2022 the claimant had pain in his knees and the tops of his feet, and he was “crying with pain.” He had tried Mobic and Tramadol with little relief and was given Endone. He was given an intraarticular injection in his left knee in December 2022.
[8] The notes are in a bundle comprising over 580 pages.
Later in December 2022, Mr Hodges attended for what appeared to be pancreatitis. In January 2023 it was noted he had been taking Endone but had stepped down to Targin. In February and March 2023, the claimant’s pancreatitis was causing further problems and urinary stents were also causing pain. In late 2023 the pancreas was imaged revealing a mass at the head of the pancreas and further scans were sought. Cancer was suspected and in February 2024 Mr Hodges had investigative surgery.
There is a letter on file[9] which reports that, after endoscopic ultrasound it was confirmed there was “adenocarcinoma of the head of pancreas” and the claimant was to undergo “Whipple’s procedure” but mid-surgery a Roux-en-Y hepatic jejunostomy was created.
[9] Page 285 of the additional documents.
A letter from Dr Chen was sent on 10 April 2024 advising that the claimant was doing well, and it appeared the tumour had been biopsied and sent for testing. It appears it may not have been malignant but in a letter dated 24 April 2024 was described as “bulky” and there was concern it might obstruct the duodenum in future.

Other assessments

Medical Assessor Home assessed the claimant’s physical injury at an examination on 6 March 2023. He confirms at [2] he was asked to assess “disc bulging and associated radiculopathy in the cervical spine, disc bulging nerve root compression and associated radiculopathy in the lumbar spine” as well as a bone chip and fracture of the right shoulder and fracture of the sacrum and coccyx.
Mr Hodges described to Medical Assessor Home constant neck pain, constant pain in the right shoulder with pain radiating intermittently to the right arm and some paraesthesia in the fingers of his right hand. Mr Hodges also describes constant low back pain radiating into the groin but not to the legs.
The claimant was then 65 years of age.
On examination there were no neurological signs of radiculopathy in the upper or lower limbs. There was some restriction of motion in the right shoulder and normal range of motion in the left.
Medical Assessor Home summarised the medical imaging noting degenerative changes in the cervical and lumbar spines with an “annulus fissure” being reported in an MRI of 21 January 2021. He noted there was no confirmation of a shoulder fracture or of any fracture to the sacrum or coccyx. He found all injuries were “minor” injuries.

RE-EXAMINATION FINDINGS

Mr Hodges attended the re-examination with the two medical members of the Panel. He was located in the Newcastle office of his lawyers, Slater and Gordon. The interview commenced 15 minutes late because of initial connection difficulties. Mr Hodges was identified from his photograph on his NSW driver's licence. He was interviewed using the Microsoft Teams application with a good internet connection. The interview commenced at 9.15am and concluded at 10.35am.

Brief personal details

Mr Hodges is now 66 years of age living in his own home in the lower Hunter Valley. His partner is from Thailand and lives with him when her visa circumstances permit. Currently she is with him on a more permanent basis. He said he has not worked since February 2024 following surgery for a pancreatic condition. He is a motor mechanic and is the proprietor of two mechanical workshops which are currently being managed by his youngest son. Before the surgery he was working from 7.00am until 3.00pm in a largely managerial capacity.

Psychosocial history

Mr Hodges was born in Newcastle and described a normal birth and development. His father died in his late 50s in 1997 as a consequence of alcohol related conditions. His mother died in her mid-50s, one month after the death of her husband. Mr Hodges said the cause of her death was a broken heart. He has a 68-year-old sister and said she was favoured and spoiled by his father during childhood.
He described his father as a violent difficult man with alcohol and gambling problems who was physically abusive towards himself and his mother. He said his father paid other men to come and bash him. He said his mother tried to protect him but usually paid the price by being assaulted. He reported his father had tried to drown his mother in the bath. He said his father was cruel in other emotionally tormenting ways. He gave the example of his father taking the family out for a meal and making him and his mother sit in the car and watch while his father and sister went inside to eat. He denied sexual abuse.
Mr Hodges attended Glendale Primary School where he said he did okay. He went on to Glendale High School where he was not permitted by his father to play sport and was made to work instead at home, at a service station or on a bread run.
He described leaving school and home as soon as he possibly could. He completed a mechanical apprenticeship at Tighes Hill TAFE and then commenced work as a mechanic. He said he had been employed by many different workshops and always moved on to a better paying job. He commenced his own mechanical workshop 15 years ago and said the two businesses have gone well since.
He married Margaret in the early 1990s and they went on to have four children. His daughters are aged 30 and 29 years and his sons are aged 27 and 24 years. He and Margaret divorced in 2010 because “she was hanging out with the wrong crowd”. Subsequently he raised the children as a sole parent. Noting his difficult upbringing the Medical Assessors clarified that he was never aggressive towards any of his children. He said in fact he took particular pride in looking after them and making sure they had everything they needed. He said the divorce was initially difficult, but currently he and Margaret are civil towards each other. He noted she has gone on to have another child with her new partner.
Mr Hodges said his relationship with his partner is satisfactory. He said she has been very supportive towards him in terms of helping him following his pancreatic surgery. He is also well supported by his youngest son who phones twice daily to ensure he is okay.
In terms of premorbid personality, Mr Hodges described himself as an intensely private person who did not like anyone to know his personal business. He said he was highly distrustful of people, and he attributed these attitudes to the paternal violence he experienced in childhood. He said he always expected people to hurt him until proven otherwise. He said he did have a number of friendly acquaintances but only one close friend that he trusted.
Mr Hodges made it clear (in an aggressive manner) that he did not like to be questioned about the personal aspects of his life during the interview but was nonetheless cooperative.
Leisure activities before the motor accident consisted of racing high-speed motor boats. He also enjoyed driving speedway racers. He denied any past insurance claims. Problems with the law consisted of an assault charge 15 years ago for which he was required to perform 20 hours of community service. He said he attacked someone who had insulted his wife.
When asked about medical history he said there had been no medical problems before the motor accident. Past psychiatric history consisted of a couple of "meltdowns" 16 years ago during problems in his marriage and he had been sent to the Mater Hospital on one occasion for psychiatric assessment. He said he was sent home again and was never treated. He denied any family history of psychiatric illness apart from describing his father as a "lunatic".
Mr Hodges’ current medications consist of Micardis for blood pressure. He uses analgesics prescribed by his GP Dr Snow consisting of Panadol Extra, Targin, Nurofen and Panadol. He said he had been taking "heaps more medication" but had stopped all that since the pancreatic surgery.
With regard to substance use he does not use cigarettes or recreational drugs and does not gamble. He acknowledged some alcohol consumption before the motor accident but said this was not at problematic levels. He estimated 12 standard drinks of alcohol per week and this assertion is supported by his GP medical record which reveals only mild elevation of liver enzymes back in 2007-2009.

History of motor vehicle accident

Mr Hodges said he had travelled to Sydney with his son to purchase a car for his daughter at Strathfield. On the return journey his son was in the new car travelling slightly ahead of Mr Hodges. He said they had come down the hill on the Pacific Motorway at Ourimbah and he was travelling at 80kmph on cruise control in a Chevrolet Camaro. He was in the lane closest to the middle of the road and was wearing his seatbelt. He said suddenly the car “exploded” and he was hit by the airbags and flying glass and debris. As a consequence of the collision from behind he was pushed sideways under a semitrailer travelling on his left. He said the truck then "spat me back out" and his vehicle eventually came to a stop on the left-hand side 100m down the road. He said the seatbelt broke in the collision and he was stuck between the seat and the steering well. Bystanders opened the door and assisted in getting him out of the car. He said people were holding him up and an off-duty “medical lady” provided assistance. He did not know if she was a doctor or a paramedic. Police, Fire and Rescue and the NSW Ambulance Service attended.
Mr Hodges explained the vehicle that hit him had gone over the top of his car and then collided with the vehicle his son was driving. His son ran back and was told by police there had been a fatality. He was prevented from gaining access to his father’s car and thought he had been killed. Mr Hodges said he would never forget the look on his son's face when he thought he was dead, and he was being held back by police. He said later his son was relieved when he recognised from a distance the bright shirt Mr Hodges was wearing and realised he had survived.
Mr Hodges offered to show the Medical Assessors a video of the motor accident obtained from the dashcam of another vehicle. This offer was refused because the material had not been shared between the parties.
Mr Hodges explained the police had been pursuing an offender in a four-wheel drive vehicle travelling at speeds which he said had been estimated in excess of 200kmph. That vehicle had tried to go around Mr Hodges’ vehicle on the left between his car and the centre guardrail which caused the collision.

History of symptoms and treatment following the motor accident

Mr Hodges said he was “pretty sore and knocked around a bit”. He described his injuries as grazes on his arm and face and a sore leg. He was checked out by the paramedics at the scene, and they wanted to transport him to hospital. He refused this offer and when asked why he said he had, “a pretty tough violent upbringing in which he was not allowed to show pain”.
The following day he was experiencing neck, lower back and rib pain and attended the Waratah Mater Hospital emergency department to obtain analgesics for the pain. He said the doctor was mainly concerned with his neck and did an X-ray and told him the results “in fancy hospital words". He said he was happy to accept the pain killers and leave. He then attended his GP, Dr Snow a few days later. He said he tried to keep working but the pain persisted. He was referred by the insurer to Dr Ferch because of pins-and-needles in his neck and arms. X-rays were taken and he said he did not like Dr Ferch because he told him his back and neck were worn out prior to the motor accident. He said the insurer wanted him to attend physiotherapy, but he did not trust this and did his own physiotherapy, by which he explained, returning to work and trying to be as active as possible. He said the pain in his lower back and neck persists and is still with him.
Because of the pain following the motor accident he said he “hit” the analgesics and alcohol “pretty hard”. He described drinking up to 12 UDL cans (mixer drinks) and six beers up until 2022 when he suffered his first attack of pancreatitis and was admitted to Maitland Hospital for treatment. He has not used alcohol since then. Mr Hodges was clear he attributed the pancreatitis to a combination of the pain from the physical injury in the motor accident and the excessive use of alcohol since then. He went on to explain a tumour had been diagnosed in the throat of the pancreas, he had a Whipple’s procedure in February 2024, and there were plans for him to proceed to radiotherapy.
He was asked about psychological symptoms arising from the subject motor accident. He said he thinks about the accident every day. He said every day he can see the look on his son's face when he thought he was dead. He was asked if these were just thoughts or if they were actual images; he confirmed they were both images and thoughts. He went on to say he bought another Chevrolet Camaro but was unable to drive it due to fear and sold it. He said he cannot tolerate a driver tailgating him and went on to explain if someone is too close behind him on the road he will pull over. He said this has generalised to someone being behind him when he is walking, and he will step to the side and wait for them to go past him.
Mr Hodges said every night while he is trying to sleep thoughts and images of the motor accident are running around in his mind. He said he can still see it, smell it and hear it. He said it constantly comes into his mind. He said he still has images of the car that had been travelling alongside him driven by the “medical lady”. He said she had her young family in the car and he believed if she had been in his position on the road they would all be dead. He said he still sees their faces as he drove past them. At this point he added he was not a religious man. He said he does have trouble getting to sleep because of the images and memories but he does not dream about the motor accident.
When asked about his mood he described it as "filthy". He said he is extremely short tempered and depressed. He said he was suicidal for a long time, but the main problem was that he was "shitty". He said his mood has resulted in estrangement from his two daughters. He has had two grandchildren born and has not met them and he was not invited to the wedding of his other daughter. He said this was all due to the bad mood he has been in since the motor accident. He has found it extremely hurtful that he has done his best for them, and they have now cut him out of their lives. He referred to his recent surgery and said he had thought it would be better if he did not return from the operating theatre. He said he had thought about suicide often until his surgery a few months ago. He had spoken to his partner about the possibility of suicide and said she did not want him to do that but would be supportive of him. He said he also spoke to his friend Tony who is religious; he told him things happen for a reason which he found helpful. He said currently the pain associated with the pancreas is less severe since the surgery.

Mr Hodges was asked why he had not sought psychological assistance. He said Dr Snow had alluded to it but had not pushed it because he knows Mr Hodges is a very private person. The panel asked why he did not discuss his psychological symptoms following the accident with Dr Snow; he said he did not think he had to tell him because he believed Dr Snow knew him well enough to know what he was going through. Mr Hodges added he thought the insurer wanted him to have counselling so they could tick that box and get rid of him; he said he was disgusted by the insurer because when they called him to discuss it, they did not even have his correct name.
The panel pressed the matter further noting that Mr Hodges was aware of his psychological symptoms and asked why he did not want to help with them. He again repeated the fact that he had been fiercely independent since his physically abusive childhood, and he did not trust that anyone would respect his privacy or be able to help him. He said he does not want to talk to people about his personal business and added "I do not say anything to anybody about anything".

Injuries and conditions since the subject motor accident

Mr Hodges has had a number of physical problems following the subject motor accident. He was admitted to Maitland Hospital for treatment of a septic knee on 28 October 2021 and discharged on 2 November 2021.
There was a further admission from 14-23 December 2022 for chronic pancreatitis. Right ureteric obstruction developed on 27 January 2023 and he was treated for hydro-ureteronephrosis with cystoscopy at Belmont Hospital on 24 March 2023. Cystoscopy was repeated on 19 May 2023.
He developed pancreatitis in 2022 and pancreatic duodenectomy was performed at John Hunter Hospital with admission in February March 2024. There is an unconfirmed possibility he has a pancreatic tumour and there were plans to proceed to radiotherapy.
Before the pancreatic condition, Mr Hodges was experiencing passive suicidal thoughts, but in the context of abdominal pain prior to surgery, these thoughts intensified. With improvement of abdominal pain post-surgery, the suicidal thoughts resolved. Currently, he described an expected, normal and proportionate emotional reaction to the possible pancreatic tumour.

Current symptoms

Mr Hodges confirmed he continues to re-experience symptoms consisting of images, sounds and smells of the motor accident intruding into his consciousness during the day and when he is trying to sleep. He described ongoing flashbacks of his son's face and of the family of the "medical lady" in the car beside him just before he was hit. He describes anxiety while driving which he did not previously experience. He continues to experience some degree of depressed mood but is no longer suicidal. He stated he had made an attempt to return to Speedway racing but could not do so because of back pain. Both back and neck pain continue but not at the same level as immediately following the motor accident.

Current and proposed treatment

There is no current or proposed psychological or psychiatric treatment.

Mental state examination

Mr Hodges is a right-hand dominant man whose appearance was slightly older than his stated age of 66. He was neatly casually dressed and well presented.
Mr Hodges was mildly depressed in appearance and displayed a full range of appropriate affect. He was initially somewhat aggressive but was cooperative with the interview. His general demeanour could be described as grumpy. He displayed some pain behaviour throughout the interview consisting of needing to stand up from time to time. He made it abundantly clear that he was a very private person who did not enjoy discussing his personal life with people he did not know. However, he did provide the information required.
He was a very straightforward historian with no exaggeration of symptoms. He described intrusive recollections, flashbacks in various sensory modalities, anxiety while driving and walking and an exacerbation of his pre-existing tendency to react angrily. He also described suicidal ideation which had recently abated somewhat since his life-threatening surgery.
Mr Hodges was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.

Current functioning

In giving structure to how the claimant is currently functioning, the Medical Assessors adopted the headings used in the Psychiatric Impairment Rating Scale (PIRS) used in permanent impairment assessment.
Self-care and personal hygiene: Mr Hodges said he showers twice daily and ensures he wears clean clothing. Subsequent to his recent health problems, his appetite has been reduced and he has lost 35kg.
Social and recreational activities: Mr Hodges said he avoids socialising, but he does occasionally go out with his partner to a restaurant or to the club for a raffle. He has regular contact with his younger son. His older son is a fly-in-fly-out worker in Queensland and is not often available.
Travel: Mr Hodges said he is able to drive as far as he wishes to. He is also able to use public transport and air travel if necessary.
Social functioning: Mr Hodges gets along well with his partner and his sons. He is estranged from his two daughters which the claimant says is because of his deteriorating mental state since the motor accident. He said he was lost a number of friendships and now is close to only one mate.
Concentration, persistence and pace: Mr Hodges said his concentration is not good, but he is able to watch TV. He does not watch football. His son now manages the financial affairs of the businesses.
Adaptation: Mr Hodges was working eight hours a day in a managerial role in the businesses prior to his pancreatic problems. He currently relies on his son to manage the businesses. He is largely reliant on his partner to manage the household.

Consistency of presentation

Mr Hodges’ presentation was internally consistent, consistent with the documentation provided and consistent with the diagnosis.

CONSIDERATION OF THE ISSUES

Did the accident cause a psychiatric injury?

The insurer appears to challenge causation of the claimant’s current condition on the basis that he has had no treatment for the condition and there is no record of the condition in the more recent records.
The Panel notes the test of causation is whether the accident could have caused the condition and whether the accident did in fact cause the condition.
The documentation from the police in particular establishes Mr Hodges was involved in a motor accident in which he was rear ended at high-speed by a person who was being pursued by police.
Mr Hodges described to hospital staff, his GP and Medical Assessor Home physical injury consisting of aggravation of underlying degenerative change and soft tissue injuries to the cervical spine, lumbar spine and right shoulder.
With regard to psychiatric injuries he described recurrent flashbacks, intrusive recollections, negative alterations in cognition and mood, and alterations in arousal and reactivity consistent with post-traumatic stress disorder.
Mr Hodges was involved in a life-threatening motor accident. The medical members of the Panel are satisfied that this accident was capable of giving rise to psychiatric injury including both post-traumatic stress disorder and major depressive disorder.
The question remains whether it did cause a psychiatric injury.
The Panel notes the first Certificate of Fitness, the report of Dr Snow dated 15 December 2020 and the entries in his notes on 11 and 15 December 2020, 31 January and 1 February 2021 which indicate the emergence of some psychological symptoms.
Mr Hodges described actively avoiding psychological treatment because of his intense desire for privacy and independence arising from a physically abusive childhood. The Panel psychiatrists found him to be a genuine historian with genuine symptoms. His explanation for not seeking treatment was consistent with his life history and in no way supported a contention that he did not suffer a genuine psychological condition caused by the motor accident.
The medical members of the Panel noted a period of alcohol abuse until the development of pancreatitis in 2022.
The Panel notes there have been no intervening incidents or accidents which might have given rise to a psychiatric injury and the claimant denied psychological symptoms developing as a result of his subsequent pancreatic condition.
The Panel is satisfied that the accident did cause the claimant to develop a psychiatric injury.
Whether the claimant’s failure to pursue treatment for his psychiatric disorder prevents him from receiving weekly benefits in accordance with s 3.17 of the MAI Act or reduces any damages he may be awarded under s 4.15 of the MAI Act is not a matter for these proceedings or for the Review Panel to determine.

What psychiatric injury did the claimant sustain?

The Medical Assessors on the Panel consider that in their clinical judgment, Mr Hodges currently meets the criteria for post-traumatic stress disorder set out in the DSM-5-TR as follows:

(a) Criterion A - directly experiencing a traumatic event. He was involved in a high speed, very serious collision, in which the car’s airbags deployed, police, fire brigade and ambulance attended, and the car was written off. The Panel consider that the accident was of a nature that a person would reasonably fear serious injury or death.
(b) Criterion B - intrusion symptoms arising from the traumatic event. The claimant reports and the Panel accepts his reports of:
(i) intrusive distressing memories of the event;
(ii) flashbacks of the event;
(iii) intense distress at internal or external cues (such as when being tailgated), and
(iv) marked physiological reactions to cues or triggers, he describes anxiety when cars are travelling behind him.

(c) Criterion C - persistent avoidance of stimuli associated with the traumatic event:
(i) avoiding memories thoughts or feelings related to the trauma, using alcohol to suppress intrusive memories interfering with initiation of sleep, and
(ii) avoidance of external reminders of the trauma, having sold his replacement car of the same model.

(d) Criterion D - negative alterations in cognitions and mood:
(i) negative beliefs or expectation for about oneself, others or the world, he reports feeling unsafe driving, and
(ii) persistent negative emotional state, describing his mood as “filthy.”

(e) Criterion E - alterations in arousal and reactivity:
(i) irritability and angry outbursts – the claimant says he is irritable all the time which was consistent with the mental state examination findings;
(ii) problems with concentration – the claimant reports he has difficulty concentrating and his sons have taken over running his business, and
(iii) sleep disturbance – the claimant reports difficulty sleeping due to recurrent thoughts of the accident.

(f)    Criterion F – the duration of Mr Hodges’ symptoms is greater than one month. It is now over three years since the accident, and he still has symptoms.
(g)    Criterion G - significant distress or impairment in social or occupational functioning.
(h)    Criterion H - not attributable to a substance or another medical condition.

Mr Hodges also meets the stated DSM-5-TR criteria for Major Depressive Disorder as follows:
(a)    Criterion A - five or more of the following symptoms during the same two-week period: -
(i) depressed mood most of the day nearly every day
(ii) markedly diminished interest and pleasure in almost all activities – He has disengaged from previously enjoyed activities, racing boats and speedway
(iii) significant weight loss – he reported reduced appetite with weight loss before the development of pancreatitis;
(iv) insomnia – he has significant sleep disturbance, and
(v) recurrent thoughts of death, suicidal ideation, specific plan or suicide attempt – the claimant reported regular thoughts of suicide and in particular he hoped he might not survive his recent surgery.
(b)    Criterion B - clinically significant distress or impairment in social/occupational functioning.
(c)    Criterion C - condition is not attributable to a substance or another medical condition.
(d)    Criterion D - condition not better explained by another major psychiatric disorder. It was the panel’s clinical judgement that his mood symptoms were not entirely explained by the affective symptoms of PTSD, noting the nature of his symptoms and the clinical findings on mental state examination.
(e)    Criterion E - there has never been a manic or hypomanic episode.
The Panel has diagnosed that the claimant is currently suffering from a post-traumatic stress disorder and major depressive disorder. There was a period of alcohol use disorder which has resolved.

CONCLUSION

The medical members of the Panel have diagnosed a psychiatric injury that is a recognised psychiatric illness using the DSM-5 (text revision) in accordance with cl 5.11 of the Motor Accident Guidelines.
Mr Hodges has not been diagnosed with an acute stress disorder or adjustment disorder which, present, would be a threshold injury in accordance with cl 4 of the Motor Accident Injuries Regulation 2017.
The claimant has been diagnosed with a post-traumatic stress disorder and a major depressive disorder neither or which are a threshold injury within the meaning of s 1.6(1)(b) of the MAI Act.
It follows therefore that Medical Assessor Fukui’s certificate should be confirmed.

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Citations

AAI Limited t/as AAMI v Hodges [2024] NSWPICMP 387

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[2024] NSWPICMP 387

17 June 2024