AAI Limited t/as GIO v Amos
[2022] NSWPICMP 451
•10 October 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Amos [2022] NSWPICMP 451 |
| CLAIMANT: | Jesse Amos |
INSURER: | AAI Ltd t/as GIO |
| REVIEW Panel | |
MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Paul Friend |
| MEDICAL ASSESSOR: | Mathew Jones |
| DATE OF DECISION: | 10 October 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant sustained facial injuries in a motor vehicle accident on 26 July 2018; prior to the accident the claimant had reported dizziness and been prescribed Serc; on about 24 August 2018 the claimant went outside to feed the cat and fell; claimant remembers feeling dizzy; question of whether claimant sustained post-traumatic paroxysmal positional vertigo as a result of the motor vehicle accident leading to fall; as a result of fall the claimant sustained a fractured right orbit and injury to the right infraorbital nerve; Held – fall on or about 24 August 2018 was either accidental or related to the pre-accident non-specific dizziness; fall not caused or contributed to by the accident on 26 July 2018; the fractured right orbit was not caused by the accident and does not give rise to a permanent impairment under the Motor Accident Injuries Act, 2017. |
DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% Replacement Certificate issued under sub-section 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the Certificate of Medical Assessor Atsumi Fukui dated The Panel issues a new certificate determining that the following injury was not caused by the motor accident and do not give rise to a permanent impairment which is greater than 10%: · post-traumatic stress disorder. |
REASONS
Background
Jesse Amos (the Claimant) was injured in a motor vehicle accident on 26 July 2018.
Mr Amos reported that he was a front seat passenger in a car driven by a friend near the corner of Fenwick Ave and Hume Highway, Yagoona. A bus pulled out in front of their car. The driver attempted to overtake the bus and accelerated but the bus stopped suddenly. The driver braked but could not avoid or stop the car in time from colliding with the back of the bus.Mr Amos’ head hit the windscreen resulting in the windscreen being cracked.
An ambulance attended the accident scene and Mr Amos was taken to Bankstown-Lidcombe Hospital. His reported physical injuries included: fractured nose, fractures to the face and cheeks, lacerated gums, severe headache and chipped teeth.
AAI Ltd t/as GIO (the Insurer) is the relevant Insurer with liability to pay any damages to Mr Amos under the Motor Accident Injuries Act 2017 (the MAI Act).
In a certificate dated 21 June 2021, Medical Assessor Atsumi Fukui found that
Mr Amos had post-traumatic stress disorder (PTSD) which was caused by the accident and gave rise to a 17% whole person impairment.[1][1] Insurer’s bundle of documents AD 12 RP 15, pp 34- 42.
The Insurer lodged an application seeking review of Medical Assessor Fukui’s assessment.
On 17 September 2021, a delegate of the President decided that that she was satisfied that there is a reasonable cause to suspect that the medical assessment was incorrect in a material particular.[2] In her decision, the delegate referred to the Claimant’s ground for review in respect to failure to adequately consider relevant material, particularly relating to treatment being received at the time of the accident and the Claimant’s employment status.
[2] Insurer’s bundle of documents AD 12 RP 12, pp 11- 12.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Amos as a result of psychological injury was caused by the accident and whether this injury is greater than 10% whole person impairment (WPI). This constitutes a medical dispute within the meaning of the MAI Act.[3]
Review procedure
[3] See sections 7.17, 7.26 and Schedule 2 of the MAI Act.
The application for referral of the medical assessment of Medical Assessor Fukui to a Review Panel (Panel) was made by the Insurer, within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
On 17 September 2021[5], the delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
[5] Insurer’s bundle of documents AD 12 RP 12, pp 11- 12.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[6] that a Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
All Panel members have had no previous involvement with the Claimant or with this matter.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to sub-section 7.21 the MAI Act for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[10]
[10] Clause 1.2 of the Guidelines.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[11]
[11] Sub-section 7.26 (6) of the MAI Act.
The Panel is not required to choose between competing medical opinions but is required to form its own opinion. See the decisions in: Insurance Australia Group Ltd v Keen[12] and Insurance Australia Ltd v Marsh[13].
[12] [2021] NSWCA 287 at [40], [41] and [45].
[13] [2022] NSWCA 31 at [11], [21] and [64].
It is not incumbent upon Medical Assessors to address each and every piece of evidence, however, where more than one conclusion is open, it is necessary for an assessor to give some explanation for her/his preference of one conclusion over another. See the Court of Appeal in Campbell City Council v Vegan[14].
[14] (2006) NSWCA 284 at [29].
The Panel issued three procedural Directions to the parties dated 12 April, 8 June and 21 July 2022 relating to the supply of indexed and paginated bundles of documents and also the arrangements for the medical re-examination of Mr Amos.
On 21 September 2022 Mr Amos was examined by Medical Assessor Friend and Medical Assessor Jones by video conference on behalf of the Panel.
Relevant statutory provisions and Guidelines
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Guidelines.
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the AMA4 Guides. The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Norrington v QBE Insurance (Australia) Ltd[15] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[15] [2021] NSWSC 548, Norrington.
Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW)[16] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where:
“….busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga[2004] NSWCA 34 at [35]).”
[16] [2012] NSWSC 650, Owen.
Even more recently in Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[17] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
Assessment under review
[17] [2021] NSWSC 804, Kinchela.
In her certificate dated 2021 Medical Assessor Fukui provided an assessment of 17% WPI.[18] She diagnosed Mr Amos with PTSD caused by the subject motor accident. [19]
[18] Insurer’s bundle of documents AD 12 RP 15, pp 34- 42.
[19] Insurer’s bundle of documents AD 12 RP 15, p 42.
The certificate and reasons state that following the motor accident Mr Amos had surgery for a fractured orbit which required the insertion of a titanium plate. He was referred to a chiropractor and a psychologist.
His symptoms included sleep disturbance with nightmares about cars, a fear of being involved in another accident. He had nightmares several times each week. He had difficulty falling asleep. He avoided driving his vehicle for 18 months and stopped socialising, only going out for medical appointments and to the pharmacy. His weight had dropped from 120 to 88 kg. He had a loss of confidence because of his physical appearance and avoided seeing others.
Mr Amos stated currently he was depressed and irritable, having arguments with family members and others describing him as overreacting.
He had a lack of motivation and loss of interest.
Mr Amos had intrusive thoughts and flashbacks and gets angry for no reason. He has nightmares about cars a few times a week and experiences constant thoughts of self-harm and suicide.
He no longer watches rugby league games which he enjoyed previously.
He has lost his energy and has a low appetite and his parents force him to eat.
He only drives a car if it is the last resort and often needs to take Valium.
He is fearful of bigger vehicles coming past his vehicle.
He neglects his self-care and his parents push him to shower.
He is avoiding going out and seeing others. He spends most of his time in his room.
The medical assessment states his current functioning is that he stays at home most of the time avoiding contact with family and friends. He avoids contact with his sister with whom he previously had a poor relationship.
Mr Amos’ self-care is poor, he does not shower regularly and does not clean his room. His parents cook and clean for him.
He is hypervigilant and when he goes out, he fears that others are judging him and worries about his appearance.
Assessor Fukui assigns a WPI of 17% assigning class 2 to Self Care and Personal Hygiene; Travel; and Social Functioning, class 3 to Social and Recreational Activities and Concentration, Persistence and Pace and class 4 to Adaptation.
Medical Assessor Fukui provided the following assessment under the psychiatric impairment rating scale (the PIRS) [20]:
[20] Insurer’s bundle of documents AD 12 RP 15, p 40- 41.
Category
Class
Reason for Decision
1.
Self-care and Personal Hygiene
2
Needs prompting by family to eat and food is brought to him. Previously cooked for himself but no longer prepares food for himself.
Does not clean his room and leave it in a mess.
His parents push him to shower in contrast to regularly showering twice a day before the accident.
2.
Social and Recreational Activities
3
No longer goes out to socialise in contrast to being active socially before the accident. His friends visit to check on him and try to take him out of the house.
Stopped playing sport and no longer goes to the gym. No longer watches rugby league which was his favourite pass time.
3.
Travel
2
Has not driven a car for 18 months. Can drive a car if "last resort". Goes to medical appointments and to pharmacy to get medicines. Can be a passenger in a car but takes Valium for anxiety.
4.
Social Functioning
2
Frequent arguments with parents.
Previous long term relationship ended and described "a rocky relationship" with a recent girlfriend.
Has lost confidence in relating to people and has been avoiding seeing his sister who used to be close.
5.
Concentration, Persistence and Pace
3
Reports poor concentration and difficulty focussing. He reported difficulty reading. He described "can't even talk properly" and was vague in recounting his history. Has missed doctor appointments and made
6.
Adaptation
4
His symptoms have deteriorated and lacks confidence to the extent that he avoids interpersonal connections, suffers cognitive decline that it would be difficult for him to gain any form of employment, let alone return to his previous team leader role.
List classes in ascending order: 2, 2, 2, 3, 3, 4
Median Class Value: 3
Aggregate Score: 16
% Whole Person Impairment: 17 %
MATERIAL BEFORE THE REVIEW PANEL
Panel’s review of the evidence
The Panel notes that there are extensive and voluminous medical records, reports and clinical notes describing the Claimant’s psychological and physical injuries. The Panel has read and carefully considered all of these medical records reports and notes before it. The Panel has not referenced or summarised the records relating to Mr Amos’ physical injuries unless they are relevant or have some bearing on the consideration of his psychiatric injuries which are the subject matter of the Panel’s reassessment process. Nor has the Panel referenced or summarised all of the records relating to
Mr Amos’ psychiatric injuries. If some of those medical records and reports are not referred to in the Panel’s review, it should not be assumed that the Panel was unaware of that medical material or that the Panel failed to take the material into account. In its review the Panel is endeavouring to carry out its statutory function and promote the objects of the legislation it operates under including the legislator’s guiding principle that proceedings in the Commission be just, quick and cost effective resolution of the real issues in the proceedings.[21]
Pre-accident records
General practice notes of Dr Peter Voutos
[21] Sections 3 and 42 Personal Injury Commission Act 2020.
There are extensive general practice notes from Dr Peter Voutos for the period from
16 February 2012 to 25 August 2020.[22][22] Insurer’s bundle of documents AD 12 RP 168, pp 356- 619.See also Insurer’s bundle of documents AD 12 RP 14, pp 27- 30.
Significantly, the notes reveal that Mr Amos had long standing issues with anxiety and panic attacks and other psychological conditions. The notes show that these conditions pre-dated the accident on 26 July 2018. The notes also indicate that Mr Amos was being treated for these conditions with drugs and counselling prior to the accident.
Some of these notes include the following relevant entries:
(a) entry dated 6 June 2016 states Mr Amos has had anxiety on and off since 2014 when his ex-girlfriend called the police on him. He has since then had anxiety and panic attacks and cannot sleep when he hears cars coming down the street at night. He is prescribed Valium 5 mg three times daily;
(b) entry dated 21 July 2016 states he has remained anxious with poor sleep since 2014 when his house was raided after ex-girlfriend alleged he was a gangster;
(c) entry dated 25 July 2016 states he has ongoing anxiety and panic attacks and a mental health plan was created referring him to Pandelis Tsomis;
(d) entry dated 18 August 2016 states he was prescribed Valium 5 mg in the morning and Imovane 7.5 mg at night. There were also similar prescriptions on 14 September 2016;
(e) entry dated 17 January 2017 states he is anxious and was prescribed Valium 5 mg in the morning and Imovane 7.5 mg at night;
(f) entry dated 24 July 2017 states he was in a motor accident last Monday on 17 July 2017. His vehicle was rear-ended and the vehicle was written off. He has ongoing neck pain across the shoulders, lower back pain. He was also prescribed Valium and Imovane;
(g) entry dated 21 August 2017, it was noted the claimant was ‘counselled at length’. He was prescribed Endone and Valium again on this occasion;
(h) entry dated 20 December 2017, the claimant was again counselled at length for anxiety and prescribed Valium;
(i) entry dated 3 May 2018, it was noted the claimant was treated for ‘chronic anxiety counselled at length’. He was prescribed Valium and Imovane and a mental health care plan was created;
(j) entry dated16 May 2018, the claimant was reportedly treated at his house due to quite severe vertigo, and was prescribed Stemetil;
(k) entry dated 12 July 2018, the claimant was again prescribed Imovane and Valium;
(l) entry dated 23 July 2018, the claimant was again counselled for anxiety and prescribed Valium;
(m) entry dated 31 July 2018 states he was a front seat passenger in a motor accident on 26 July 2018. His head hit the windscreen and he fractured his nose and was in Bankstown-Lidcombe Hospital overnight. He has bruising across the abdomen, left upper arm, has pain in the entire spine, stiffness and spasm, aching in the shoulders with tender spinal muscles;
(n) entry dated 30 August 2018 states he fell last Friday in the backyard and hit the right side of his face on an object and now has periorbital bruising. He was advised to go to hospital because of an orbital fracture;
(o) entry dated 11 March 2019 states he has neck, shoulder and back pain since July 2018 when he was involved in a motor accident. He was a front passenger in a vehicle which rear-ended a bus and his face hit the windscreen. He had facial fractures of right zygomatic arch, concussion, fractured nose and soft tissue injuries. His main concern was lack of movement in his neck, back and shoulders. He has disturbed sleep. He has headaches;
(p) entry dated 3 April 2019, states he is stressed, has headaches and nightmares with poor sleep;
(q) entry dated 24 April 2019, states he has ongoing pain, headaches and nightmares;
(r) entry dated 27 May 2019 states he has ongoing headaches, neck aches, is stressed from poor sleep and has tender neck muscles. He was anxious;
(s) entry dated 6 April 2020 states he has headaches, nightmares, poor sleep and was counselled, and
(t) entry dated 14 May 2020 states has ongoing problems with headaches, pain and PTSD and is waiting for approval for further sessions with the chiropractor and the psychologist. It does not describe the symptoms of PTSD or any other anxiety symptoms.
Police and Court records
There are lengthy and extensive court attendance records, police records and criminal history records that have been produced by the Insurer.[23] The Panel has reviewed these records and, where relevant, has taken them into account when making its decision. Many of these records are irrelevant to the issues before the Panel. Where the Panel has thought the records not to be relevant the Panel has given them little weight. For example allegations of Mr Amos supplying drugs or not complying with bail conditions were not considered relevant by the Panel. The Panel notes and expresses its agreement with the submissions made by the Claimant’s solicitors that many of the allegations of criminal activity by Mr Amos should not be relied upon by the Panel as they are irrelevant to the matters the Panel are required to consider in this Review[24]. The Panel also notes that the Insurer, in its supplementary written submissions, refers in detail to Mr Amos’ criminal history from 2005 onwards[25]. In the Panel’s view any evidence concerning Mr Amos’ criminal history before the accident is an irrelevant consideration.
[23] Insurer’s bundle of documents AD 12 RP 177 to 181, pp 986- 1473.
[24] See Claimant’s submission summarised below. Specifically see Claimant’s bundle documents AD 9 Submissions, pp 9- 11.
[25] Insurer’s bundle documents AD 12 Submissions R 172, pp 940- 945.
There are however some records are relevant to an assessment of Mr Amos’ mental state or any psychological injury sustained by him. These records are relevant because they provide evidence of Mr Amos’ mental state or evidence about his relationships or his driving records. In such instances the records are relevant in helping to assess and determine Mr Amos’ mental health history and functioning. For example Mr Amos has reported to some doctors that he does not drive and is wary of driving since his accident, yet there is some evidence that he has been fined for driving offences after the accident. Another example is Mr Amos has reported to some doctors that he has not been in a relationship since the accident, yet there are police records showing that he was charged with domestic violence offences against his girlfriend or partner.
Some of the relevant police and court records are referred to below.
The driver’s licence application dated 11 April 2019 states he was previously charged with driving under the influence. He was disqualified from driving.
The driver’s licence application dated 13 October 2021 states that his driver’s licence is suspended.
There are various records produced by New South Wales Police which show that Mr Amos had apprehended violence orders taken out on 11 May 2021 and 26 March 2021.
There was an incident where he was listed as a missing person who was located and apparently placed under the Mental Health Act on 23 February 2021.
Mr Amos was charged with breach of an AVO on 25 October and 4 November 2020.
He was charged with assault on 13 October 2020.
The police records state that on 20 October 2021 the police observed Jesse Amos walking down Beaconsfield Street, Revesby at 5.45pm. He was searched regarding suspected possession of illegal substances.
On 23 February 2021 states that he reported to Bankstown Police Station as per his bail conditions and was spoken to regarding domestic violence report from Sutherland Police Station. He became increasingly anxious on the way home. At about 8.00 pm he told his next of kin he was tired and sick of life and was going to kill himself and walked out of the house. The next of kin did not contact the police.
On 24 February 2021 he was spoken to by the police. He denied making any threats of self-harm, stating that he had had enough and had gone for a walk. It was arranged for the Bankstown PACER team to attend the location and conduct an assessment of him. It was disclosed that he was already seeing a private psychologist and psychiatrist and he was referred to the mental health services available at Bankstown-Lidcombe Hospital.
An event dated 19 February 2021 states that there was an argument between Mr Amos and the person of interest. On 19 February 2021 he had a verbal argument at
Mr Amos’ address which is unknown about not taking him to report on bail and time. He became aggressive towards the victim, grabbed her I-phone and smashed it into his head. He stated to the victim that if he gets put back in gaol she had “better watch out, my friends will do for you”.The next morning, 20 February 2021 he dropped the victim off at her work in the Shire and took the vehicle, a Toyota Corolla. The victim allowed this to occur to prevent an argument. It states Mr Amos met the victim on Tindr three months ago.
The entry dated 5 November 2020 lists Mr Amos as being charged with common assault on 13 October 2020, intimidate, intend physical harm on 1 August 2020, and bullying, harassment and threaten to distribute image without consent on
13 October 2020.The entry dated 30 October 2020 states police attended Mr Amos’ location for the purpose of an ADVO/bail compliance check. His mother advised he was not at home and that he was reporting to Bankstown Police Station as per his bail conditions. He was arrested on that day and charged with seven domestic related violence offences.
Post-accident records
Both Mr Amos and his mother have given detailed statements about the effect of the accident on Mr Amos.
Statement of Jesse Amos dated 14 January 2022
Jesse Amos states[26] that prior to the motor accident he was very involved in fitness, did a lot of gym work six days each week using weights, played rugby and Oztag and indoor soccer. He was very active and went on picnics and camping and fishing trips with friends.
[26] Insurer’s bundle of documents AD 12 RP 173, pp 957- 965.
He worked in the landscaping industry in tree lopping, he was good at maintenance of gardens and able to perform the physical activities of tree lopping. He became a team leader of his team.
The motor accident occurred when he was a front seat passenger in a vehicle driven by a friend. A bus pulled out in front of the vehicle. The driver attempted to overtake the bus and accelerated but it stopped suddenly, and the driver braked but could not stop in time, colliding directly with the back of the bus.
Mr Amos’ head hit the windscreen with force and the windscreen cracked.
He believes he would have died if he had not been wearing a seatbelt. He hit his mouth, face and nose on the dashboard.
He was unconscious but woke up on the side of the road thinking he was dead. He saw that the vehicle had been completely destroyed and was afraid it was going to explode.
He was bleeding profusely from his face and nose.
He was taken to hospital where he blacked out and thought that he was going to die.
He broke his nose and was concussed and later suffered injuries to the eye socket. He could not move his neck the day after he left the hospital. He had soreness all over his body and could not properly turn around in bed.
The injuries changed his life. He has been unable to get out of bed, is distressed, anxious and unmotivated. He continues to suffer these symptoms and has problems with his neck, eyes, teeth and back and mouth.
He has a problem with his short-term memory and is constantly depressed.
He has vivid memories from the motor accident and is afraid to travel in vehicles and avoids driving.
He has been diagnosed with PTSD by his doctor, psychiatrist and psychologist because of the continuing nightmares and the inability to maintain focus and feeling depressed.
Since the motor accident he feels tired, weak, lethargic and depressed and cannot concentrate. He has constant pain in his upper body and is dependent on medication.
Since the motor accident he has had difficulties in relationship with his family and no longer sees his niece or nephew. He has bouts of anger. He has lost his girlfriend. His life is a mess.
The relationship with his girlfriend became quickly strained to the point that he would have serious problems including having allegations of him shouting and overreacting to small issues which led to an apprehended domestic violence order.
He cannot maintain an intimate relationship at the moment. He has lost a lot of weight and is embarrassed about his physical appearance and does not want to leave the house.
He is having treatment with a psychologist, Ms Pal and another psychologist,
Mr Andrew Ramsey and has been referred to a psychiatrist.He does not have the energy to clean his room or make his bed and only gets out of bed when he really needs to. His mother pushes him to get up and eat. He does not want to see the friends who visit him at home. He has vertigo which causes a loss of balance.
He feels really anxious when he hears cars, screeching noises or buses crossing his path.
He has depressed mood and does not eat.
He has constant flashbacks and regularly vivid memories of the noise he heard in the impact against the bus when his head hit the windscreen. He cannot sleep properly and has constant nightmares.
It states in regard to his previous criminal record, in paragraphs 42 and 43, that he has never been previously incarcerated and has never stopped going to work. He never stopped working because of police allegations or when attending court proceedings.
It states in paragraph 45 that the court proceedings in January, February and
March 2021 relate to the AVO in regard to difficulties with his girlfriend. It states that none of these applications would have prevented him from working in the future.It states in paragraph 48 that the matters of 2021 are ongoing and he will not discuss the details, but these are allegations of minor traffic offences which he is defending which also arose at the time of the AVO. He only drives as a last resort due to anxiety and PTSD. This does not relate to any circumstances for him to not be able to continue to work had it not been for the car accident.
Statement of Eleonora Amos dated 28 January 2022
Eleonora Amos states she is the mother of Jesse Amos[27].
[27] Insurer’s bundle of documents AD 12 RP 174, pp 966- 969.
He has lived with her and her husband all his life. He was looking forward to moving out before the car accident on 26 July 2018.
He was a very active person prior to the accident and worked 5-6 days each week.
She states in paragraph 7 that Mr Amos is mentally depressed, barely talking during the day, is touchy, gets angry easily. It states he is bedridden mostly staying in his room with his door closed not wanting to see each other.
He constantly complains about his headaches, dizziness and pain in his neck, not being able to sleep or breathe properly.
She states in paragraph 13 that he is not well, being depressed and anxious constantly and has tears when he recollects how his life has changed after the motor accident. She has driven him to doctors’ appointments and treatment. He only drives when it is absolutely necessary to do so. He cannot drive to doctors’ appointments. Otherwise, her husband drives him to doctors’ appointments.
She states in paragraph 14 he had problems in his relationships since the accident. He and his partner quarrelled after the accident, and he had problems with anger bouts after the motor accident, but it never stopped him from going to work.
Medico-Legal reports
Dr Doron Samuell, psychiatrist, dated 18 December 2019
The report of Dr Samuell states that Mr Amos’ current symptoms include not being able to get to sleep immediately and taking Valium and sleeping tablets. He has nightmares so he avoids trying to go to sleep. These are about being in the car accident and dying.
Mr Amos forgets to eat and has lost around 20 kg of weight and is not going to the gym or eating or going to work.
He is easily angered whereas previously he was like the social butterfly and the life of the party. He is embarrassed about his weight loss and wears long-sleeved shirts because he looks so skinny.
He has had thoughts about suicide but is not acutely suicidal.
It states that the subject motor accident was of sufficient severity to justify the first criterion of PTSD and the other symptoms reach criterion for PTSD of mild to moderate severity. In Dr Samuell’s opinion Mr Amos does suffer from PTSD. It is mild to moderate in severity.[28]
Dr Doron Samuell, psychiatrist, dated 14 March 2020
[28] Insurer’s bundle of documents AD 4 R 14 p294.
The report of Dr Doron Samuell states that he was not aware that Mr Amos had been taking diazepam for anxiety prior to the accident and also not aware of being diagnosed with bipolar affective disorder. It states that despite these inconsistencies and incomplete information the diagnosis of PTSD is materially different from the self-reported anxiety.
Mr Amos’ pre-existing history is likely to make him vulnerable to PTSD. It states that he would be able to resume pre-accident employment duties if his problems with commuting were addressed and he was initially partially supervised by a case worker.
He may be able to progress to normal working hours and duties, but it is not possible to say how long this will require.
Dr Jeffrey Baron-Levi, clinical neuropsychologist, dated 18 September 2020
The report of Dr Jeffrey Baron-Levi concludes that on the Test of Memory and Malingering (TOMM) there was evidence Mr Amos was deliberately exaggerating his symptoms and presentation. It also states in his opinion that Mr Amos had symptoms of anxiety and PTSD before the subject motor accident and these premorbid symptoms had not resolved at the time of the subject accident and that they were exacerbated by the subject motor accident.
There was evidence Mr Amos was a poor historian and evasive in his responses. The report states “I am of the view that he is capable of working”.
Mr Amos scored in the extremely severe range for depression, anxiety and stress on the depression, anxiety and stress scale 42 item.
He responded in the most severe category on every item on the Beck Depression Inventory.
Dr Jeffrey Baron-Levi, clinical neuropsychologist, dated 22 September 2020
The report of Dr Jeffrey Baron-Levi, assigns WPI of 7% from the motor accident.
Dr Baron-Levi has assessed the Claimant’s overall impairment at 7% WPI but noted the pre-existing impairment which he assessed at 3% WPI, finding 4% WPI overall.Dr Baron-Levi assigns a class 1 to Self Care and Personal Hygiene, class 2 to Travel; Social Functioning; Concentration, Persistence and Pace and class 3 to Social and Recreational Activities; and Adaptation. However, as noted in the Claimant’s submissions[29] Dr Baron-Levi is a psychologist and not a psychiatrist and any diagnosis that he makes is not relevant.
Information provided by Department of Health Services of the Australian Government
[29] Claimant’s bundle documents AD 9 Submissions, pp 4- 5.
Records from Department of Health Services show that Mr Amos had diazepam dispensed before the accident on 8 June 2016, 6 July 2016, 19 August 2016,
14 September 2016, 22 September 2016, 27 October 2016, 16 November 2016,
17 January 2017, 9 March 2017, 5 May 2017, 23 May 2017, 30 June 2017,
24 July 2017, 20 December 2017, 5 May 2018, 17 May 2018 and 12 July 2018.Further prescriptions for diazepam were dispensed on 9 August 2018, 28 August 2018, 11 September 2018, 25 September 2018, 10 October 2018, 24 October 2018,
9 November 2018, 23 November 2018, 8 January 2019, 31 January 2019,
11 February 2019, 6 March 2019, 20 March 2019, 3 April 2019, 18 April 2019,
1 May 2019, 30 May 2019, 18 June 2019, 2 August 2019, 12 August 2019,
3 September 2019, 20 September 2019, 30 September 2019, 16 October 2019,
29 October 2019, 14 November 2019, 26 November 2019, 11 December 2019,
18 December 2019, 17 January 2020, 13 February 2020, 16 March 2020,
13 April 2020, 9 May 2020, 22 May 2020, 27 May 2020 and 16 June 2020.
Hospital and general practice records
The discharge referral from Bankstown-Lidcombe Hospital for the admission on
26 July 2018 states he was the front seat passenger of a vehicle moving at 60 km an hour and was involved in a motor accident. He does not remember the event. The first thing he remembers is he arrived in hospital. His friend stated he self-extricated from the vehicle and he had pain everywhere. The Glasgow Coma Scale score was 15 according to ambulance report.The discharge referral for the admission 4 September to 5 September 2018 at Royal Prince Alfred Hospital states he was admitted for a right orbital floor reconstruction and medial fracture sustained following a fall. He was originally seen in the Emergency Department on 30 August 2018.
The Certificate of Capacity/Certificate of Fitness dated 19 September 2019 by Dr Peter Voutos states that in the motor accident on 26 July 2018 Mr Amos sustained soft tissue injuries, fractured nose, multiple contusions to the abdomen, arms and concussion, upper gum laceration, right zygomatic arch fracture, posttraumatic stress, pain and visual disturbances.
The Certificate of Capacity/Certificate of Fitness dated 22 November 2018 by Dr Peter Voutos states that in the motor accident on 26 July 2018 Mr Amos sustained spinal soft tissue injuries, fractured nose, multiple contusions of the abdomen, arms, concussion, upper gum laceration, headaches and a right zygomatic arch fracture.
Reports by Michelle Pal, psychologist
The report by Michelle Pal, psychologist, dated 1 August 2019 states Mr Amos was involved in a motor accident in July last year. He had a broken nose and eye socket which required surgery.
He stopped going to the gym and leaving the house and travelling in a vehicle. He is triggered by photographs of the accident, talking about the accident and seeing accidents on the news and avoids social situations. He has nightmares, is sensitive to loud noises, has flashbacks and insomnia. He is too embarrassed to see people because he has lost a lot of muscle and feels depressed.
He has breathlessness, heart racing, headache and panic attacks. He feels like he is dying and he has been irritable and argumentative with his parents and girlfriend.
The entry in the clinical notes by Michelle Pal dated 12 September 2019 states that he went to St Michael’s at Belfield three weeks ago to pray and found grounding. He had anxiety on the way there but felt good afterwards.
The entry 19 September 2019 states that Mr Amos saw a friend who came out of a coma and called the friend. He did not go back to the church but has been praying every day. This week he will try to go to the church again and do one lunch out with friends. It states he is happier spending less time isolating in his room and more time with his parents in the loungeroom and watching football. He scored 79 on the PTSD Check List – Civilian Version, but that is undated.
The Allied Health Recovery Request dated 13 June 2019 by Michelle Pal states that
Mr Amos has a diagnosis of PTSD following a motor accident in June 2018. He has anxiety when reminded of the accident, talking about the accident, being in a car and intrusive flashbacks and nightmares of the accident, insomnia, depression, social withdrawal and feeling disconnected from others. He has panic and anxiety attacks in response to the motor accident.
SUBMISSIONS
Insurer’s submissions
The Insurer has made several submissions dated: 8 April and 18 November 2020;
16 July 2021 and 9 May 2022.In its submissions dated 16 July 2021 the Insurer submits that Assessor Fukui failed to adequately consider material which is particularly relevant to a determination of causation of injury and an assessment of impairment.[30] The Assessor failed to properly consider and engage with the relevant material in particular the reports of Dr Baron-Levi dated 18 September 2020, 22 September 2020 and 29 October 2020, as well as the records produced by Dr Voutos and Medicare/PBS and Centrelink.
[30] Insurer’s bundle of documents AD 12 RP 11, pp 1-4.
The Insurer refers in particular to the records of Dr Voutos’ general practitioner which confirmed the Claimant’s longstanding and consistent complaints of psychological sequelae up until and including the time of the subject accident.[31]
[31] Insurer’s bundle of documents AD 12 RP 11, pp 4 - 5.
The Insurer points to the contradiction in the Centrelink records which show that the Claimant continues to receive a carer’s payment for care provided to his mother while simultaneously reporting that he is incapacitated from employment. [32]
[32] Insurer’s bundle of documents AD 12 RP 11, pp 4 - 5.
The Insurer submits that the Claimant’s psychological injuries cannot be found to exceed 10% WPI.[33]
[33] Insurer’s bundle of documents AD 12 Submissions dated 18 November 2020 RP 11, pp 32-33.
Further, the Insurer points to a number of causation issues pertaining to the Claimant’s pre-existing impairment as well as criminal matters unrelated to the accident are highlighted.
In its supplementary submission dated 9 May 2022 the Insurer submits that Mr Amos’ involvement in domestic violence offences, particularly where physical harm is perpetrated, is indicative of a psychological disturbance which existed in the pre-accident period.
The Insurer highlights the police records which reveal inconsistency in terms of the Claimant’s purported incapacity to drive.[34] The records show that in the post-accident period the Claimant has been charged with numerous driving offences including: driving under the influence of drugs, driving in a bus lane, not stopping at a red light and speeding. His driver’s licence has been suspended twice, each for a period of three months.
[34] Insurer’s bundle documents AD 12 Submissions R 172, pp 940- 945.
The Insurer’s submissions dated 9 May 2022 states that the criminal history records show that the Claimant has been involved in multiple criminal activities both in the pre-accident and post-accident periods. These crimes involved violence, domestic violence, drug use and possession of weapons.
The submissions state that these records also reveal inconsistency in terms of the Claimant’s purported incapacity to drive[35]. In contrast, in his statement dated
14 January 2022 the Claimant alleged that he would only drive as a last resort due to his anxiety and PTSD.[35] Insurer’s bundle documents AD 12 Submissions R 172, pp 940- 945.
The Claimant’s mother, in her statement dated 28 January 2022, reported the Claimant would only drive if there was an absolute necessity for him to do so.
The Insurer’s submissions state in paragraph 11 that the police records reveal that in the post-accident period the Claimant has been charged with driving under the influence of drugs, driving in a bus lane, not stopping at a red light and speeding. During this period his licence was suspended twice, each for a period of three months. He was observed by the New South Wales Police to be driving on 15 August 2021 and had taken his girlfriend’s car on 23 February 2021.
The Claimant has been on strict bail conditions since 13 October 2020 and is required to report to Bankstown Police Station. He remained on these conditions to
23 October 2021. This would require him to leave his home and travel frequently.The Insurer submits that the Claimant’s ability to form relationships with at least two women, despite the ultimate failure of these relationships, seen in the police records is inconsistent with the Claimant’s report to Dr Allnutt that he did not like going out and seeing people.
The Insurer made detailed submissions about which PIRS categories the Claimant should be placed into based on the objective evidence available, in contrast to the Claimant’s self-reports.
The Insurer concludes that the Claimant’s psychological injuries cannot be found to exceed 10% WPI.
Claimant’s submissions
The Claimant’s solicitors provided submissions dated 22 December 2020. These submissions engage in a detailed summary of the then psychological and psychiatric evidence. [36] The submissions conclude that the psychological impairment WPI is greater than 10%, and the four reports from Assessments of Dr Allnutt be given greater weight than that of Dr Baron-Levi advanced by the Insurer.
[36] Claimant’s bundle documents AD 10, R 11 Submissions, pp 128- 140.
The Claimant’s solicitors provided submissions dated 8 August 2021 in reply. The submissions give a detailed analysis of Assessor Fukui’s assessment and then the Claimant submits the review application should be dismissed.[37] The Assessor accurately set out the available evidence on causation and determined the relevant evidence for the respondent meeting the standards the Guidelines.
[37] Claimant’s bundle documents AD 10, R 1 Submissions, pp 10- 11.
The Claimant provided additional submissions dated 5 July 2022 in reply to the application for review and Insurer’s submissions[38] .
[38] Claimant’s bundle documents AD 9 Submissions, pp 1- 13.
The Claimant’s submissions states there are five errors of reasoning in the insurer’s submissions filed on 10 May 2022. The assessment of psychiatric injury and disabilities at exercise of personal judgment. In summary, these submissions refer to the following five alleged errors:
(a) the assessment of psychiatric injury and disability is an exercise in professional judgment;
(b) the diagnosis of PTSD is a specific psychiatric diagnosis;
(c) psychiatrist exercised their professional judgment based on experience and the capacity to identify symptomatology;
(d) this is the process which Assessor Fukui is undertaking when she recorded on page 4 of her report dated 20 June 2021;
(e) the WPI assessment is a threshold assessment, and
(f) the fact that Assessor Fukui did not have details of the Claimant’s involvement with the criminal justice system does not provide any evidentiary basis to establish the diagnosis was incorrect.
The Claimant submits that the criminal history is irrelevant
The Claimant’s inability to maintain a relationship with the then girlfriend is evidence of an impairment of social functioning not evidence of the opposite.
Dr Baron-Levi is a psychologist and not a psychiatrist. He did not express a view on the issue of “self-care and personal hygiene” nor would it have been relevant for him to do so since his function was to administer a battery of psychological tests. His opinion is not a psychiatric opinion but an opinion based upon his interpretation of tests that were administered.
The Claimant’s additional panel review submissions dated 5 July 2022 restates Assessor Fukui’s assessment of WPI and disputes the insurer’s submissions regarding each category. It states regarding adaptation, the insurer has been paying the plaintiff for four years as he is incapable of performing work as he previously did. It states that his requirement to report to a police officer and interact is an activity demonstrating his adaptation as bizarre. All that is required is to report to the police station and give their name, the officer at the front desk records the facts in the attendance book and demonstrates they have not absconded.
It states that it is irrelevant Dr Baron-Levi (psychologist) made findings about depression. That is not the “10% or more” in respect of which the WPI was made.
It states the alleged traffic offences in October 2020 were dismissed on 14 June 2022. It states that whether not someone has come under the notice of the police is irrelevant to whether a diagnosis of PTSD is correct.
The traffic offences or for drug possession or possession of a knife having nothing to say one way or the other whether a person has PTSD. In the pre-existing impairment he is convicted of one charge of assault which was issued in the circumstances of threatened domestic violence. It states the plaintiff has not been convicted of any other offence other than possession of drugs. It is the insurer’s submission that involvement in violent crimes could have a bearing on psychological wellbeing if the individual is an attempt to substitute a layman’s opinion for the professional opinion of a psychiatrist.
The existence of an apprehended violence order granted by police does not mean the police have a relevant finding.
The Claimant’s submissions conclude that it would constitute a legal error on any review of the assessment of Assessor Fukui that the Claimant had more than greater 10% WPI for PTSD to take into account the matters upon which the Insurer has relied in its submissions.
RE-EXAMINATION
Mr Amos was re-examined by Assessor Matthew Jones and Assessor Paul Friend on 21 September 2022 by video teleconference.
Assessor Friend asked most of the questions and Assessor Jones asked some questions.
Mr Amos confirmed that the accident occurred on 20 July 2018.
Mr Amos confirmed his date of birth.
History of the accident
Mr Amos states he was a front seat passenger wearing a seatbelt in a vehicle driven by a friend. They were traveling at 70-80 km an hour. A bus came out from a side street and stopped.
Mr Amos stated the driver tried to accelerate and get into the right-hand lane from the kerbside lane, but the vehicle collided with the rear of the stationary bus.
The vehicle was not fitted with airbags. Mr Amos remembers the collision and feeling hot, putting his hands on his face and seeing blood on them.
He hit his face on the windscreen and the dashboard and the windscreen broke.
He described being in and out of consciousness.
He remembers that he “woke up” on the side of the road. Passengers from the bus gave him tissues or napkins to wipe away the blood and one of them gave him his jacket.
He looked over at the bus and the vehicle in which he was travelling and felt that he could have died.
He was conveyed by ambulance to Bankstown-Lidcombe Hospital and had a neck brace around his neck, when he regained consciousness in Bankstown-Lidcombe Hospital.
He had many investigations including MRI and CT scans.
He sustained a fractured nose, laceration of the gums, chipped teeth, had pain in his back and neck and had suffered a whiplash injury and was generally bruised.
History of symptoms and treatment following the motor accident
Mr Amos has not any treatment for his fractured nose.
The psychiatric/psychological symptoms, arising from the motor accident have had a significant adverse effect on him and changed his life. He stated at 36 years old he should be married, have children and be running his own business. He stated “they have thrown everything at me”, referring to the insurance company. He has had “run-ins” with the police and he does not know what it is about.
He feels physically, mentally and psychologically drained. He does not shower, eat meals each day, have regular haircuts or leave his room.
He would not drive and get into a vehicle to visit his general practitioner, go to the pharmacy to collect medication and attend appointments, since the motor accident.
He stated that he had attended an assessment at Hornsby on the morning of this examination.
He had taken his headphones to listen to music to try to distract himself but had not done so because he was too scared there might be a motor accident. He described feeling the vehicle was travelling too fast, that he was scared if a large vehicle, such as a bus or a truck, passed the vehicle and he needed to be on guard to warn the driver to slow down or to avoid dangerous situations. This was the first time he had been in a vehicle for some time.
He would tell his mother when she drove him to various places, including to report to the local police station that she was driving too fast, should brake and to be careful even when a vehicle was 50 m away.
His life was ruined. He had no relationship with his sister or her children. He could not have a relationship with anyone. He was awake when his parents slept at night and he tried to sleep during the day when his parents were awake.
Mr Amos was asked about the treatment he had had for these symptoms.
He replied that his general practitioner had prescribed Endone, Valium, Serc, Somac, Maxolon, Imovane for sleep, Nurofen or Advil and an inhale puffer, possibly Bricanyl.
He took Valium most days.
He had been treated by two psychologists, firstly Ms Michelle Pal and more recently, Mr Andrew Ramsay.
He consulted a psychiatrist two months ago who prescribed mirtazapine. The psychiatrist was upset about how he had been treated by the insurance company.
He had eight sessions of chiropractic treatment after the motor accident, paid for by the insurance company, but subsequently had had to pay for further chiropractic treatment.
Mr Amos stated that he had no other treatment.
Previous history
Mr Amos was involved in a previous motor accident in 2017, had gone to hospital for a check up but did not suffer any injuries and went to work the next day.
He felt anxious from time to time.
He was scared of going into an elevator had claustrophobia since being stuck in an elevator as a child which he believed was under age 10 years.
He stated that he took a packet of Valium once every six months or once a year.
He was asked about the anxiety and stated there was a girl who was dating him had called the police to make a complaint about him apparently in 2014 and subsequently the police had come to his house. As a consequence, he was scared at certain times of the night if he heard a vehicle coming down the street that it was the police again coming to his house.
Personal history, psychosocial history
Mr Amos was born in Kogarah Hospital and lived in the Canterbury-
Bankstown area.He obtained the Year 10 certificate, at school.
He commenced Year 11 and was attending TAFE where he was studying electrical engineering one day each week but did not know whether he completed the electrical engineering course.
He had worked as a tree lopper for 10 years prior to the motor accident and had risen to the level of a team leader. He had started his own business, was doing some subcontracting and was planning to work full time or mostly in his own business.
He trained each day in a gym.
He played indoor soccer on Tuesdays and Oztag on Thursdays.
He stated that he weighed 120 kg and very muscular prior to the motor accident but now was about 90 kg and had lost a lot of muscle mass.
Subsequent medical history
Mr Amos was admitted to Royal Prince Alfred Hospital 4-5 September 2018 after the motor accident because he had fallen and fractured his right eye socket.
The discharge referral for the admission 4-5 September 2018 from Royal Prince Alfred Hospital states he was admitted for a right orbital floor and medial wall fractures sustained in a fall.
He had a right orbital floor reconstruction with reduction and fixation of the fractures.
Mr Amos stated that his general practitioner had told him that he had fallen because of the effects of the medication and due to a relapse of his concussion following the motor accident.
Daily activities
Mr Amos stated that he does not shower very often, that his room is a mess and everything in his life is a mess.
His parents knock on his door and he pretends that he is asleep. His parents will tell him that dinner is ready and that he should get up and eat. This causes him to be upset and angry. He does not eat every day. He does not have much appetite.
He stated that prior to the motor accident he would have a haircut and shave from the barber once or twice each week.
He got dressed each day, but would often wear the same clothes for at least several days.
Mr Amos did not attend any social activities or undertake any sporting or other physical activities. He wore multiple pieces of clothing to disguise how much weight he had lost from his arms and legs, if he left the house.
He had no difficulty undertaking social or sporting activities as previously described, prior to the motor accident.
Mr Amos stated that he only drove as a last resort to get somewhere, had to force himself to do so and needed to meditate and take medication before driving. He only left the house to consult his doctor, collect medication from the pharmacy and to attend medical and any other important appointments. He only drove, if there was no one else available to drive him.
He was asked if he left the house to go out for a walk. He replied that he had tried to do so but that ended after a short time, because he was too self-conscious, about the change in his appearance.
Mr Amos lives with his parents and no one else lives in the house. He stated that he loves his parents but he also ignores and argues with them. He was quite tearful at this point.
He did not return telephone calls or text messages from friends. He did not have any relationship with his sister. He stated that he was not in a relationship.
Mr Amos was asked about his ability to think and concentrate and replied that he did not know and it was not the best. He would forget what he wanted to do, if for example he went into the kitchen or opened the refrigerator.
His mother would ask him to come out of his room to do something. He would leave his room two hours later and was unable to remember that his mother had asked him.
He has the television turned on in his room, but does not pay attention to it, although sometimes listens to it.
He had no difficulties with his memory or concentration prior to the motor accident.
Mr Amos has not returned to work since the motor accident being too depressed and anxious to do so.
Review of supplied documents
Mr Amos was asked about various entries in the records supplied by New South Wales Police.
The entry dated 13 October 2020 states he was charged with assault, offence against other persons. Mr Amos could not recall what had occurred on that day. He stated it was so long ago that he could not remember.
Mr Amos was asked about the events of 13 December 2020 wherein the police report is that he was driving a vehicle with an illicit drug in his blood, left his vehicle unattended and unlocked with the engine running in an area with a no stopping sign.
Mr Amos stated that he had to report to the police station that day.
Mr Amos was asked about his driver’s licence being suspended from
20 December 2019 to 26 February 2020 because of accumulated demerit points. He admitted that his driver’s licence was suspended and that he made big mistakes in his life.Mr Amos was asked about being charged with breach of AVO on 25 October 2020 and 4 November 2020. He replied that this had occurred because his then girlfriend had used an email to send messages to herself and he had subsequently shown this to the police and they had released him.
Mr Amos was asked about the incident dated 20 February 2021. The police report stated that he had dropped off the victim at her work in the Shire (Cronulla-Sutherland) and then took her vehicle. He stated the victim allowed this to occur to prevent an argument. Mr Amos stated that his partner, who is his current partner, had driven him in her vehicle to where she worked and that he had subsequently driven home. He stated that she had subsequently contacted the police asking them to do a welfare check and wanting to know where her vehicle was located.
The police had subsequently taken out an apprehended violence order against him to not approach his partner.
Mr Amos subsequently stated that he had only driven a vehicle once since the motor accident and that he was charged.
He stated, at this point that he was a passenger in a vehicle that was pulled over and he was charged with various offences.
Mr Amos was asked about the entry in the police records dated 30 October 2020 when the police came to his home to do an ADVO and bail compliance check and his mother advised the police he was not at home and he was reporting at Bankstown Police Station. It states he was arrested on that day and charged with seven domestic related violence offences. Mr Amos replied that he was probably driven to the police station by his father.
Mr Amos was asked about the entry in the Michelle Pal’s notes dated
12 September 2019 stating that he had gone to St Michael’s at Belfield three weeks ago to pray and found that grounding. It states he had anxiety on the way but felt good afterwards. He was asked how he got there and replied that he had no idea but he might have been driven.Mr Amos was asked about the entry in Michelle Pal’s notes dated 19 September 2019 which states that he had seen a friend who had come out of a coma and that although he had not been back to the church but would try to go back to the church again. He had also agreed to have a lunch out with friends.
It also stated that he was happier spending less time isolating in his room and more time with his parents in the loungeroom and watching football.
Mr Amos replied that this account could be true.
Mr Amos was asked by Assessor Jones how much Valium he was currently taking. He replied 2-5 tablets each day for anxiety.
Mr Amos was asked about his intake of Valium prior to the motor accident. He stated it was not every day, he took it because of worry about the police.
Mr Amos was asked by Assessor Jones how long he had been worried about the police. Mr Amos was unable to say how long he had worried about the police.
Mr Amos was asked by Assessor Jones if he could not remember how many Valium tablets he took prior to the motor accident or how many packets he be prescribed each year. Mr Amos replied “5 – 10 – 15”.
He was further questioned about this answer and replied that he did not know how many scripts he would take in a year.
Assessor Friend then stated the Medicare records showed that he had been prescribed seven prescriptions for Valium in 2016, six prescriptions for Valium in 2017 and four prescriptions for Valium up until 12 July 2018.
Mr Amos replied that he did not know how many prescriptions he was prescribed, in a year, prior to the motor accident.
Mr Amos at this point stated that the assessors were “repeatedly jumping down my throat, as if I am an animal”. He stated that he did not have a life and “you’re expecting me to remember what occurred in the past”.
He stated that prior to the motor accident he was playing sport, had a life, worked 12 hours a day, 6-7 days each week.
He stated that he had committed suicide twice prior to the motor accident and his parents had found him unconscious and not breathing on the floor of his room. He had woken up on life support in Bankstown-Lidcombe Hospital on two occasions.
Mr Amos remained upset in a similar manner for the remainder of the examination. He asked why we were asking these questions and why we and others repeatedly brought up his police record. Both examiners separately explained that we had ask these questions to clarify certain points and events because of the content of supplied documents and insurers submissions. Assessor Jones stated what we were asking questions on aspects of his police record, because it documented him being away from home.
Mental state examination
Mr Amos was casually dressed in tracksuit pants, long sleeved top and a T-shirt. He was bearded and wore spectacles.
The purpose of the examination was explained to him and he confirmed his date of birth and the date of the motor accident.
He did not have any questions to ask prior to the examination when specifically asked.
Mr Amos described that following the motor accident he stayed at home, did not shower every day, wore the same clothes and struggled to leave his room. He did not eat regularly, not even one meal a day.
He only left the house to consult his doctor, collect medication from the pharmacy and to attend appointments. He no longer left home to go out for a walk.
He stated that he was scared travelling in a motor vehicle, would call out to the driver to slow down, be careful and to brake. He would be startled if a bus or large vehicle drove past the vehicle in which he was travelling.
He stated that his life was ruined, he had no relationships, not even with his sister and currently did not have a personal relationship.
Mr Amos was asked about the various events in the police records. He admitted that he could drive when required. He admitted that he had a current partner and had the same partner mentioned in the events on 20 February 2021, the Cronulla Sutherland area and that he had driven afterwards.
He described his intake of Valium following the motor accident without difficulty but struggled to do so prior to the motor accident, as described above.
He did admit to the events in Michelle Pal’s notes recorded on 12 September 2019 and 19 September 2019.
Mr Amos became increasingly distressed and sometimes hostile after being asked questions related to the supplied documents and as stated, continued to say that he felt that “you are jumping down my throat”. He stated that he did not have a life and that he had made two attempts at suicide, without providing any more details.
CONCLUSIONS AND FINDINGS
The Review Panel noted Mr Amos’ account of the motor accident and his subsequent symptoms, particularly his psychiatric symptoms.
The Review Panel noted that Mr Amos did not describe sleep disturbance with nightmares about cars and that nightmares occurred several times each week which is stated in the report by Assessor Fukui. He did not state that his sleep was disrupted and that he had difficulty falling asleep but rather that he was awake at night.
The Review Panel noted that he stated that he had not driven since the motor accident but later admitted that he had driven.
The Review Panel noted that he did not experience intrusive thoughts or flashbacks and having nightmares about cars several times each week which is described in the report of Assessor Fukui.
The Review Panel noted the inconsistencies between what Mr Amos had stated he could do or could not do and subsequent comparison with police events or police incidents including the incident in February 2021 when he had driven back from Cronulla-Sutherland to home and stated at that point that this incident had involved his current partner. He had previously stated several times that he had not been in a relationship following the motor accident.
The Review Panel noted that prior to the motor accident Mr Amos had been prescribed Valium seven times in 2016, six times in 2017 and four times in just over six months in 2018 and that subsequently he had been prescribed Valium more times and admitted to taking 2-5 tablets each day.
The Review Panel noted the inconsistency between his account of taking Valium prior to the motor accident and yet being able to work full time and go to the gym and play sport.
The Review Panel noted that there were many inconsistencies and there were symptoms described in the report of Assessor Fukui which Mr Amos did not describe, particularly the nightmares, the flashbacks and waking up from sleep when he stated that he was awake at night and tried to sleep during the day.
The Review Panel concluded that Mr Amos’ account and description of symptoms was inconsistent both during the examination and with the supplied documents. The Review Panel determined that they could not reliably make a psychiatric diagnosis arising from the injuries sustained in the motor accident The Claimant had pre-existing anxiety symptoms and panic attacks but reported that he was working up to six days each week and had no impairment of his functioning, but did take Valium. He may have had some symptoms of PTSD, but did not describe sufficient symptoms to reach criterion for this condition.
The Review Panel determined that Mr Amos was being treated for long standing anxiety symptoms including panic attacks, prior to the motor accident. The clinical notes from Dr Peter Voutos show that these conditions pre-dated the accident on
26 July 2018. The notes indicate that Mr Amos was being treated for these conditions with medication and counselling prior to the motor accident.The review panel considering the inconsistencies noted above determined that there was no recognised psychiatric condition arising from the injuries sustained in the motor accident and no evidence of an exacerbation of pre-existing psychiatric condition.
The Review Panel revokes the certificate of Assessor Fukui dated 20 June 2021 and issues a new certificate determining that there is no psychiatric diagnosis arising from the injuries sustained in the motor accident.
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