AAI Limited t/as GIO v BQR

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v BQR [2024] NSWPICMP 362
CLAIMANT:	BQR
INSURER:	AAI Limited trading as GIO
REVIEW PANEL
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Glen Smith
DATE OF DECISION:	6 June 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury; pre-existing post-traumatic stress disorder; alcohol use disorder; depressive symptoms; adjustment disorder with mixed anxiety and depressed mood; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 29 January 2020; Medical Assessor (MA) Roberts found claimant sustained exacerbation of persistent depressive disorder with anxious distress which was not a threshold injury; insurer sought review; Held – claimant had pre-existing post-traumatic stress disorder and alcohol use disorder; claimant satisfied DSM-5 criteria for adjustment disorder with mixed anxiety and depressed mood caused by the accident; in accordance with Motor Accident Regulation 2017 an adjustment disorder is a threshold injury; certificate of MA Roberts revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Assessment of threshold injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Samson Roberts dated 13 December 2022 and issues a new certificate determining that the following injury caused by the motor accident is a threshold injury: · adjustment disorder with mixed anxiety and depressed mood.

STATEMENT OF REASONS

INTRODUCTION

On 29 January 2020 BQR (the claimant) was driving his vehicle when he slowed as he approached a roundabout. He observed a vehicle in his rear view mirror approaching fast before colliding with the rear of his vehicle (the accident). BQR asserts he sustained the following injuries in the accident:
·        injury to the cervical spine;
·        injury to the lumbar spine;
·        injury to the chest, and
·        psychological injury.
AAI Limited trading as GIO (the insurer) is the relevant insurer under the Motor Accident Injuries Act 2017 (the MAI Act).
BQR lodged an Application for personal injury benefits dated 10 February 2020.
BQR’s claim is governed by the provisions of the MAI Act. At the time of the accident statutory benefits for treatment and care under the MAI Act ceased after 26 weeks if the person’s only injuries resulting from the motor accident were threshold injuries.
On 24 April 2020 the insurer issued a liability notice declining liability for benefits beyond 26 weeks on the basis the physical injuries sustained by the claimant were minor (threshold) injuries for the purposes of the MAI Act.
On 21 May 2020 the claimant requested an internal review pertaining to the threshold injury decision. In that application for review the claimant also alleged he had sustained psychological injuries caused by the accident.
The insurer issued a Certificate of Determination dated 16 June 2020 affirming the original decision. In respect of the psychological injury the insurer stated there was no evidence available to suggest the claimant’s general practitioner (GP) assessed or diagnosed a psychological injury and nor was there any evidence of investigation or treatment pertaining to a psychological injury.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the minor (threshold) injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
Medical Assessor Roberts issued a certificate dated 13 December 2022 in which he certified that the psychological injury sustained by BQR caused by the accident was not a minor (threshold) injury.
The insurer has sought a review of the certificate of Medical Assessor Roberts.

DOCUMENTS BEFORE THE REVIEW PANEL

The Panel issued a Direction to the parties on 12 October 2023 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the insurer uploaded to the portal documents paginated from pages 1 to 626 (insurer’s documents). The solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 58 (claimant’s documents).

THRESHOLD INJURY- STATUTORY PROVISIONS

The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act. Section 1.6(1)(a) of the MAI Act defines a “threshold psychological injury” as:
“A psychological or psychiatric injury that is not a recognised psychiatric illness.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold psychological or psychiatric injury.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides the following:
“Each of the following injuries is included as a threshold injury for the purposes of the Act:
(a)acute stress disorder,
(b)adjustment disorder.”
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3   The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6     The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of threshold psychological or psychiatric injury the Guidelines also provide:
“5.10 In assessing whether an injury is a threshold 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.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[2] his Honour Justice Wright stated at [35]:
[2] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation 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.
6.7There 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.”

ASSESSMENT UNDER REVIEW

Medical Assessor Roberts issued a certificate dated 13 December 2022 in which he certified the following injury caused by the accident was not a minor (threshold) injury for the purposes of the MAI Act:
· exacerbation of persistent depressive disorder with anxious distress.[3]
[3] Insurer’s bundle p 14.
The injury referred for assessment was:
· psychiatric condition – alcohol use disorder, exacerbation of major depressive disorder.
Medical Assessor Roberts reported BQR was in an institution from age 2 to 5 years where he was subjected to abuse. He was fostered with his twin brother until he was 17 years of age. He enjoyed sport and attained an average academic standard at school. After completing Year 10 he completed Diplomas in Management and Transport.
BQR had an aortic valve replacement in 2016 and he suffered a heart attack in 2019 or 2020. He suffered whiplash following a motor vehicle accident in 1986 from which he recovered.
Other than guardedness regarding the abuse to which he was subject as a child Medical Assessor Roberts found the claimant presented a logical and coherent account. He reported he exhibited a restricted range of emotional expression and his account reflected a depressed mood state and anhedonia.
Medical Assessor Roberts reviewed relevant documentation in relation to the claimant’s pre-accident history. He reported BQR provided a statement detailing the abuse he experienced at the age of 3 or 4, he noted the history of extreme anxiety lasting 15 minutes or days, the presence of an “explosive temper” associated with destructive behaviour, and alcohol abuse. He noted the pre-accident treatment of Kate Glancey. She documented adverse work circumstances and abusive behaviour. In July 2018 an increase in the dose of Lovan was recommended, excessive drinking was documented and BQR was considering legal action in relation to his experience in the care facility.
Medical Assessor Roberts noted the records of the Tharawal Aboriginal Corporation referred to depression/anxiety on 15 January 2020 and the prescription of Lovan at a dose of 40 mg on 20 January 2020. He noted following the accident depressive symptomatology was documented on 8 July 2020 and anxiety and panic attacks documented in the entry of
17 November 2020.
Medical Assessor Roberts concluded BQR had a pre-existing alcohol use disorder and a pre-existing depressive condition associated with anxiety. He noted BQR had been in long-term treatment for this condition. He concluded the accident caused an exacerbation of the persistent depressive disorder with anxious distress on the basis it was a greater than negligible contributor to the causation of the exacerbation.

REVIEW PROCEDURE

The insurer lodged an application for review of the medical assessment of Medical Assessor Roberts within 28 days of the date on which his certificate was made available to the parties.
On 27 February 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (the PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.

OTHER MEDICAL ASSESSMENT CERTIFICATES
Certificate of Medical Assessor Jonathan Herald

Medical Assessor Herald issued a certificate dated 10 December 2020. He certified the following injuries caused by the accident were minor (threshold) injuries for the purposes of the MAI Act:
· cervical spine – soft tissue injury, and
· lumbar spine – soft tissue injury.
Medical Assessor Herald stated:
“Lumbar and cervical spines have been diagnosed as being essentially soft tissue injuries. The findings on the scans for the MRI and the CT scans of the cervical spine and lumbar spine as well as the CT scans of the thoracic spine show essentially diffuse spinal degenerative changes.
Although there was some reference by Dr Mastroianni of these being non-minor injuries due to disc prolapse on viewing the films and actually on reading the reports you will see that the neural impingement and the protrusions that he is experiencing are not due to disc prolapses but rather osteophytes from the facet joints and degenerative disc or endplate facet joint arthritis that is causing impingement on nerves and causing some canal stenosis thus his injuries can really be considered an aggravation of his underlying spondylosis…”
He certified the following injuries referred to him for assessment were not caused by the accident:
·        cervical spine – radiculopathy, disc protrusion;
·        lumbar spine – radiculopathy;
·        left shoulder – tear, and
·        right shoulder – tear.
Medical Assessor Herald also certified the following treatment and care does not relate to the injury caused by the accident, was not reasonable and necessary in the circumstances and will not improve the recovery of the claimant;
· L4/5 and L5/S1 anterior lumbar fusion, and
· C4/5, C5/6 and C6/7 anterior cervical discectomy and fusion.
The certificate of Medical Assessor Herald is the subject of a review application which is yet to be determined.

Certificate of Medical Assessor Geoffrey (Paul) Curtin

Medical Assessor Curtin issued a certificate dated 5 September 2023.[5] He was asked to assess the degree of permanent impairment arising out of surgical scarring. Medical Assessor Curtin assessed a 2% whole person impairment (WPI) as a result of the surgical scarring on the basis the accident resulted in injuries which required surgical treatment.
[5] Claimant’s bundle p 3.

Certificate of Medical Assessor Farhan Shahzad

Medical Assessor Shahzad issued a certificate dated 12 September 2023.[6]
[6] Claimant’s bundle p 28.
He certified the following injuries caused by the accident gave rise to a WPI of 25%:
·        lumbar spine- soft tissue/radiculopathy/disc injury/lumbar fusion;
·        right shoulder – soft tissue/secondary (Nguyen principle);
·        left shoulder – soft tissue/secondary (Nguyen principle), and
·        cervical spine – soft tissue/radiculopathy/disc injury/discectomy and fusion.

Certificate of Medical Assessor Wayne Mason

Medical Assessor Mason issued a certificate dated 11 November 2023.[7] He was asked to assess the degree of permanent impairment in relation to psychological injury/alcohol use disorder/exacerbation of major depressive disorder.
[7] Claimant’s bundle p 3.
Medical Assessor Mason concluded the accident was the cause of somatic symptom disorder with predominant persistent pain and an adjustment disorder with anxious mood.
Medical Assessor Mason concluded wrongly that adjustment disorder is a threshold injury and does not require assessment of WPI. He also concluded that somatic symptom disorder with predominant persistent pain is a condition that is not assessable using the psychiatric impairment rating scale. Therefore, Medical Assessor Mason did not provide an assessment of WPI.

TREATING MEDICAL EVIDENCE
Kate Glancey, psychologist

The clinical records of Ms Glancey relating to treatment of BQR between
13 June 2017 and 2022 are addressed in the relevant documentation summarised in the context of the medical examination.

Tharawal Aboriginal Corporation, clinical notes

BQR underwent a health check on 30 July 2018. Anxiety/Depression was reported as subject to current stressors but generally stable. He also had chronic back pain, mild asthma, and type 2 diabetes. He reported he was in a stressful situation, as he was going through an abuse claim.
On 15 January 2020 Dr Dargan, GP reported BQR was concerned about pain in his back and left hip. He also reported depression/anxiety.[8]
[8] Insurer’s bundle p 310.
On 29 January 2020 Dr Dargan reported the claimant’s involvement in the accident 10 minutes prior to his appointment there at 2:00pm. He reported neck and upper thoracic back pain.[9]

[9] Insurer’s bundle p 307.

Hyde Parade Family Practice, clinical notes

The records of Dr Abo-Elhoda are outlined in the relevant documentation summarised in the context of the medical examination.

Medico-legal reports
Dr Richa Rastogi, psychiatrist

Dr Rastogi assessed the claimant and provided a report dated 2 September 2021.[10]
[10] Claimant’s bundle p 48.
She reported following the accident BQR developed debilitating pain which impacted his functioning and precluded him from doing his premorbid duties. The lower back pain become excruciating to the stage he could not stand to sit and mobilised with a walking stick. He also described neck pain and restricted movement associated with migraines.

Dr Rastogi reported he experienced the current symptomatology:
·        loss of interest in activities;
·        feels overwhelmed;
·        high avoidance and struggles with anxiety;
·        nightmares and flashbacks occasionally;
·        sleep disturbances with initial insomnia and interrupted with pain;
·        pain in left shoulder and arm;
·        concentration limited and short span;
·        emotional detachment and sense of despair;
·        loss of desire, questioning existence, and
·        hopelessness and worthlessness.
Dr Rastogi reported a history of ongoing depression over years, chronic and associated with childhood sexual and physical trauma, compounded by a relationship break up and separation from his daughter. He coped by drinking copious alcohol and his depression impacted his social functioning, being reclusive and missing out of vocational promotions. She reported he had an earlier accident in 1987 with whiplash injuries from which he made a full recovery. She also reported an aortic valve replacement and type 2 diabetes with a history of seizures under control.
Dr Rastogi diagnosed the following:
· alcohol use disorder, and
· exacerbation of major depressive disorder.
She concluded BQR had sustained cervical and lumbar injuries with radiculopathy that has required surgery and his pain was contributing to his depressive symptomatology aggravation, noting he was deconditioned by pain and his functional limitations.

Dr Graham Vickery psychiatrist

Dr Vickery assessed the claimant and provided a report dated 6 January 2023.[11] This report will be discussed further in the context of the medical examination.
[11] Insurer’s bundle p 65.

Dr Robin Mitchell, occupational physician

Dr Mitchell assessed the claimant and provided a report dated 5 December 2022.[12]
[12] Insurer’s bundle p 76.
Dr Mitchell diagnosed aggravation of the long-standing widespread and well-developed degenerative changes in the cervical and lumbar spine following the accident. He stated:
“BQR continued to report ongoing pain in the neck and lower lumbar spinal regions following the subject MVA of 29 January 2020 which followed an apparent aggravation of long-standing widespread and well-developed degenerative changes in each region as described in the radiological investigations undertaken.
On 13 May 2021, he underwent L4/5 and L5/S1 anterior lumbar interbody fusion surgery, and on 9 September 2021, a C3/4, C4/5, C5/6 and C6/7 anterior cervical discectomy and fusion procedure.”
After reviewing the certificate of Medical Assessor Herald Dr Mitchell provided a supplementary report dated 30 January 2023.[13] He did not resile from his earlier opinion. He assessed a 25% WPI with respect to the cervical spine and 20% due to the lumbar spine but assessed a final WPI of 36% after deducting 10% due to the long-standing degenerative changes.
[13] Insurer’s bundle p 90.

Insurer’s submissions

The insurer provided submissions dated 1 November 2023 in support of the application for review.[14]
[14] Insurer’s bundle p 3.
The insurer submits Medical Assessor Roberts failed to explain his preference for the conclusion that the claimant suffered from an exacerbation of a persistent depressive disorder with anxious distress as a result of the accident where the claimant had a significant pre-accident history of psychological conditions unrelated to the accident.
The insurer notes the following pre-accident history:
(a)   On 13 June 2017, the claimant reported that he was employed by Cleanaway and they had three major accidents in a year involving staff, including a woman who was run over at a pedestrian crossing and lost her leg, and an accident where the driver suffered ‘horrific injuries’ and the passenger’s legs were crushed. He recently had a heart attack five weeks earlier and two years ago his daughter stopped visiting him.
(b)   On 25 July 2018, the claimant advised he was finding it difficult to complete a statement regarding his childhood abuse. His drinking was bad, and his anxiety was terrible with disrupted sleep.
(c)   On 15 July 2019, the claimant told Dr Abo-Elhoda he had experienced chest pain and been seen at hospital. He reported increasing pressure at work and that he was stressed by his manager every day. He also reported increasing anxiety and depression and he was unable to make a decision or cope. He was diagnosed with depressive anxiety disorder.
(d)   On 17 July 2019, the claimant reported that he was abused every day by his boss, and it got to the point where he could not do anything at work.
(e)   On 1 August 2019, the claimant told Ms Glancey, psychologist, that he had to leave work the previous day early and did not go into work that day.
(f)    On 22 November 2019, the claimant reported experiencing anxiety with his boss.
(g)   On 15 January 2020, two weeks prior to the accident, it was noted that the claimant suffered from depression/anxiety.
(h)   On 11 September 2020, the claimant advised he was required to do an impact statement to be presented at a mediation in relation to his abuse claim. He had to include a photograph of the orphanage, and this caused him angst.
(i)    On 11 March 2021, the claimant reported suffering from ongoing pain. He also stated that he was being blamed for an incident that happened at work and he had considered resigning. He was given a written warning and did not get along with some of his co-workers.

Claimant’s submissions

The claimant provided submissions dated 27 January 2023 in response to the insurer’s application for review arguing that Medical Assessor Roberts did engage with the pre-accident history and submitting the application for review ought to be dismissed.

THE MEDICAL EXAMINATION

The medical assessment occurred on 23 May 2024 via MS Teams.
Medical Assessor Hong and Medical Assessor Smith were in their Sydney offices and
BQR was at his home alone.

History
Psychosocial history and pre-accident history

BQR is a 56-year-old man living with his partner of 16 years in his own four-bedroom house on a normal sized block in Mount Annan. He has a 24-year-old daughter living with her mother. He stated that he currently works in ‘background acting’ on a casual basis. His partner, BMS, works as a sales representative for a pharmaceutical company.

Personal history

BQR reported that he was born at the St George Hospital, and he has an identical twin. He stated that he was admitted to an institution from age 2 to 6 years. He was then fostered until the age of 17. He has an older sister and a younger sister who passed away from cancer. BQR reported a history of abuse between the ages of 2 and 6 years whilst at the institution. He stated that he had experienced intrusive distressing memories of the abuse throughout his life but he first sought treatment for these symptoms around seven years ago. He stated that he was impacted by anxiety and depressive symptoms, “I needed to get my head straight, it kept coming up, my mind was not shutting down”. He felt hypervigilant and if somebody walked into the room whilst he was sleeping, “I would wake up” feeling anxious and distressed. He would wake up yelling out “who’s there?”
BQR stated that he attended Strathfield South, Bankstown North and Lakemba Primary Schools. He attended Narwee Boys’ High School in Years seven and eight. He then attended Sarah Redfern High School and he completed Year 10. He stated that he subsequently completed various diplomas through Tafe.
BQR reported that he was in a previous relationship with the mother of his daughter for four years. He has been in his current relationship for 16 years and they are currently planning their wedding which is scheduled to take place in a couple of weeks.

Occupational history

Regarding occupational history, BQR stated that he worked in waste management for around eight years. He previously worked as a contracts manager for a logistics company for four years. He drove a truck from age 30 and he owned his business for two years. He worked as a lifeguard at a pool for seven years. He worked as a triathlon coach for eight or nine years. He worked installing ‘AutoGlass’ and he owned a business in ‘AutoGlass’ for three years.

Previous psychiatric history

In terms of previous psychiatric history, BQR reported that over the past seven years, he has seen a psychologist, Ms Kate Glancey in Camden, regarding the impact of the childhood abuse. He was prescribed Escitalopram (selective serotonin reuptake inhibitor antidepressant/antianxiety medication, SSRI) 20mg daily, by GP around seven years ago. He stated that he has not seen a psychiatrist for treatment.

General medical history

In terms of general medical history, BQR reported that he had an aortic valve replacement at age 46. He has also been diagnosed with diabetes mellitus. He stated that he has been “in and out of hospital” for treatment of ischaemic heart disease. He was most recently in hospital around five years ago. He had a seizure around eight years ago and he has received treatment with anticonvulsant medication, from a neurologist at Liverpool Hospital. He described experiencing grand mal seizures but he also suffered from partial complex seizures at night.
He stated that he was involved in a motor accident in 1986 in which he suffered whiplash. He denied feeling psychologically affected after that accident.

Drug and alcohol history

In terms of drug and alcohol history, BQR stated that he consumes a six pack of full-strength beer one or two days per week. Previously he was consuming higher amounts of alcohol and he could consume a carton of beer (24 cans) from Friday to Sunday and a couple of bottles of wine with his partner. He stated that his alcohol consumption escalated “when I was feeling shitty” for two years around the time of his treatment related to the childhood abuse from seven years ago.
He stated he reduced his consumption of alcohol after the motor accident in 2020, “I was in so much pain that I couldn’t get up to get it”. His psychologist advised him to reduce his alcohol use and he was able to achieve this without any specific treatment such as detoxification or rehabilitation or any medications to assist with reduction of alcohol consumption. He stated that he consumed alcohol heavily during his teenage years but he denied a history of legal or medical complications associated with alcohol use.
He denied problematic benzodiazepine and opioid medication use. He denied current illicit substance use. He stated that he previously took MDMA (‘Ecstasy’) on a couple of occasions. He denied cannabis use. He is a non-smoker. He denied excessive caffeine consumption and problematic gambling.

Family history

Regarding family history, BQR reported that his daughter has “high anxiety”. He does not know the mental health history of his biological parents.

Forensic history

In terms of forensic history, BQR reported a previous compensation claim after the motor accident in 1986.
He has a previous compensation claim regarding the history of childhood sexual abuse but this matter has been finalised.
He stated that on a Sunday night in 2023, he was involved in an altercation with a “young kid riding a motorcycle, he came at me with his helmet, I pushed him to the ground, him and his girlfriend were having a crack at me”. BQR stated that he was charged with assault but the matter was “thrown out” of Court.

Pre-accident functioning

BQR stated prior to the accident in January 2020, he was working full-time in a management role for ‘Cleanaway’. He had worked in that role for eight years. He reported that his mood was stable and he enjoyed his work. He noted, “I loved the company and the team”. He stated that he was taking escitalopram and seeing his psychologist on a monthly basis. He could not be certain regarding the dose of escitalopram that he was taking prior to the accident.

History of the accident

BQR reported that on 29 January 2020, he was driving “a company ute” at around 2:00pm on a clear sunny day pulling up to a roundabout on a long straight road, Junction Road, Ruse, when an unlicensed driver ran into the back of his vehicle. He stated that he looked in the mirror and the other vehicle was “a fair way away”. He stated that he “didn’t hear any screeching of tyres” but then he felt the impact and he “had a bit of a blackout, for not too long”. The car was shunted forward but he did not collide with any other vehicle in front. He stated that the tow ball of his vehicle went through the other vehicle’s radiator and the other vehicle’s front airbags were deployed. BQR stated he was thrown forward and then back and he “sat there” for one or two minutes.
There was a service station nearby and he moved his car there where he exchanged details with the other driver. He stated that he had been on his way to a routine medical appointment for diabetes mellitus at the time of the accident and he continued to the appointment and informed the doctor of the accident.

History of symptoms and treatment following the accident

BQR said he experienced pain in the back immediately after the accident and his GP referred him for investigations. He stated the pain was worse the next day, and he experienced diffuse pain across the shoulders, neck and lower back. He said that the scans showed “inflammation and osteoporosis”. He stated that he was in “extreme amounts of pain” and he needed to use a walking stick. Subsequently, there were COVID-19 restrictions and it was difficult to see a specialist due to those restrictions.
BQR stated he did not have significant time off work initially after the accident. He received “lots of physiotherapy” and massage treatments. His pain persisted and he had a fusion of the lower back in around March 2021 and an operation on the neck in
October 2021, both operations performed by Dr Peter Wilson at the Prince of Wales Hospital.
He stated the operations resulted in improvement of his pain but no full remission. He tried to return to work after the operations but he noted, “I probably went back to work way too early”. He did not see a pain specialist. BQR stated that he had substantial periods of time off work between 2021 and 2023 and his employment was ultimately terminated because he remained unfit for work from a physical perspective.
He stated he had an assessment that determined he could not return to work from the perspective of his physical injuries. BQR used CBD oil occasionally for the pain but it was not beneficial.
From a psychological perspective, BQR stated after the accident, he felt depressed because of his inability to work and engage in other activities, “I’ve been trying to get jobs but as soon as they hear you’re injured, they don’t want to employ you”. He stated he has been unable to mow the lawn and that has been depressing. He stated that the main issue has been that he has been unable to work.
He stated prior to the accident he was attending the gym four times per week but he has been unable to continue attending the gym. He stated he tried to return to work in 2022 but he was not allowed to continue and he became more depressed in that context.
BQR said he used a walking stick after the accident and he experienced pain which he found frustrating. BQR stated he felt anxious about driving after the accident but he did not report intrusive memories of the accident itself. He stated that at times he saw
Ms Glancey fortnightly due to the worsening of his mood. His sodium valproate dose was increased to 700mg twice daily and the GP told him that this was for “nerve pain”. He has not seen a psychiatrist for treatment.

Details of any relevant injuries or conditions sustained since the accident

BQR reported he was involved in an altercation in 2023 for which he was charged but not convicted. He denied involvement in any other motor accidents.

Current symptoms

BQR reported that his mood has improved, “it’s okay, I feel negative when I don’t get a job”. He stated he applied for a couple of jobs recently but was unsuccessful and he felt demoralised after that. He enjoys spending time with his dog and he enjoys restoring a Mustang car but someone else is doing the work for him due to his physical limitations. He feels positive about his upcoming wedding in two weeks and he has been active in planning this event. BQR stated he goes to bed at 6:30pm. He watches television and he is asleep by 8:30pm or 9:00pm and he wakes between 5:00am and 7:00am. He reported reasonable energy but sometimes he lies in bed due to the pain. He sometimes naps at around 1:00pm.
He experiences pain daily in his neck and lower back of varying intensity. His appetite is “good” and he is trying to lose weight. He has reduced weight since the accident. He has had periods of time in which he thought life is not worth living but he denied recent suicidal ideation. He reported subjective difficulties with thinking and concentration.
He stated he did an exam (‘a prep course’) for retraining to try to obtain new jobs, around one month ago and he found this difficult. BQR stated he cannot drive for greater than 20 minutes due to the pain. He previously felt anxious driving to work and he described feeling more cautious at roundabouts. He has spoken to his psychologist about his driving, where he “fears driving around people and around lots of traffic, driving down a freeway”.

Current and proposed treatment

BQR reported that he continues to see his psychologist, Ms Glancey, monthly.
BQR sees his GP, Dr Ibrahim Abo-Elhoda, every six weeks.

Medications

Currently BQR takes the following medications:
·        Escitalopram 20mg daily (SSRI);
·        Sodium valproate 700mg twice daily (epilepsy;
·        Warfarin 7mg to 8mg daily (anticoagulant medication);
·        Gliclazide (diabetes mellitus);
·        Forxiga 10mg (diabetes mellitus);
·        Sitagliptin/Metformin (diabetes mellitus), and
·        Atorvastatin 20mg daily (hypercholesterolaemia).
BQR stated he has taken diazepam (benzodiazepine medication for anxiety) occasionally, most recently around one to two months ago.

Mental state examination

BQR was visible in the telehealth session from the shoulders up. He was casually dressed in a black t-shirt. His speech was of normal volume and his thought form was coherent and logical. He described his mood as “okay” and his affect was appropriately reactive. He stated he was looking forward to his wedding. He denied suicidal ideation. He was alert and oriented and his concentration was reasonable throughout the assessment of over 60 minutes.

Current functioning

BQR reported he showers and cleans his teeth daily. His partner prepares meals. He stated he performs some cleaning duties but he finds this difficult and he has organised cleaners at times. He stated his partner has been mowing the lawns over the last couple of years. He cannot do the hedges due to his physical limitations.
He is enjoying planning the wedding and fixing up his cars. He stated he drives alone for up to one hour. He is planning the wedding in two weeks. He said they are planning to go to Fiji in August and he would like to go to Europe but has no firm plans for this travel. He stated he works in around four sessions of ‘extras work’ in films per month.

Comments of consistency

BQR did not describe distress associated with bullying at work and his daughter not seeing him. He stated his mood was stable and he was enjoying work prior to the accident. This inconsistency was discussed with BQR and he said that his boss “was very hard [initially], but he came around and was one of my biggest supporters in the end”.
He stated on direct questioning about the relationship with his daughter that “like most children, she had been poisoned [his daughter], she doesn’t like me and my missus”. She stopped coming to see him at age 13 and he noted, “that was devastating, I was pretty depressed about that”.

Summary of relevant documentation
Certificate of Medical Assessor Roberts, dated 13 December 2022

In his certificate Medical Assessor Roberts stated:
“The totality of the history with respect to BQR reflects pre-existing Alcohol Use Disorder and a pre-existing depressive condition. It would seem that the depressive illness has been longstanding and it has been associated with anxiety and in accordance with DSM-5 criteria is best diagnosed as a Persistent Depressive Disorder with Anxious Distress. BQR has evidently been in long-term treatment for this condition.
The account presented by BQR reflected an exacerbation of Persistent Depressive Disorder with Anxious Distress consequent upon the subject motor accident. It reflects an ongoing Alcohol Use Disorder albeit at a lesser degree of severity. He attributed this change to his loss of taste for alcohol following spinal surgery…
The exacerbation of Persistent Depressive Disorder with Anxious Distress arose as an effect of the motor accident. Although work stressors are documented it is evident that the motor accident has a greater than negligible contributor to the causation of the exacerbation…”

Report of Dr Graham Vickery, psychiatrist dated 6 January 2023

Dr Vickery assessed the claimant at the request of the insurer. In his report he stated:
“It is my opinion that BQR’s psychopathology satisfies the diagnostic criteria of Somatic Symptom Disorder with chronic predominant persistent pain (DSM5) in which there are prominent somatic symptoms associated with incapacitating pain perception in the context of health concerns which give rise to emotional distress and functional impairment and significant disruption to daily life.
The persistent focus on somatic pain symptoms and their significance is a primary feature of Somatic Symptom Disorder with chronic predominant persistent pain which occurs in the context of high levels of anxiety and distress in relation to the associated incapacity and loss of quality of life involving impairment in identity, lifestyle and interpersonal relationships and which has a duration of more than six months.
Somatic Symptom Disorder with chronic predominant persistent pain is co-existent with significant sleep disturbance, fatigue, loss of motivation, a down or depressed mood with feelings of despair, anxiety, avoidance behaviour, social withdrawal, a lowered frustration tolerance with irritability and impairment of identity, lifestyle and interpersonal relationships…
In relation to psychiatric assessors making a diagnosis of Adjustment Disorder in the context of chronic incapacitating pain perception the DSM5 criteria C for this diagnosis states quite clearly that ‘the stress related disturbance does not meet the criteria for another mental disorder’ which excludes making a diagnosis of Adjustment Disorder when the criteria are met for Somatic Symptom Disorder with chronic predominant persistent pain.
In relation to making a diagnosis of Major Depressive Disorder or Persistent Depressive Disorder in the context of incapacitating pain perception the DSM5 criteria C for these diagnoses also clearly states ‘the episode is not due to the physiological effect of another medical condition’ which is similar to the exclusion criteria of Adjustment Disorder and would preclude making these diagnoses when the symptoms meet the criteria for Somatic Symptom Disorder with chronic predominant persistent pain…
Somatic Symptom Disorder with chronic predominant persistent pain is a somatoform related disorder and is not utilised in the assessment of Whole Person Impairment.
There is 0% Whole Person Impairment due to the motor vehicle accident…”

Clinical notes of Ms Kate Glancey, treating psychologist

BQR saw Kate Glancey for the first time on 13 June 2017.[15] She reported he was employed as the Operations Manager for Cleanaway. BQR reported he felt excluded, had mood swings, did not feel happy, was withdrawn, was fearful of failure and experienced chest pains with stress.
[15] Insurer’s bundle p 299.
He had been exposed to three major accidents in a year, a staff member was nearly hit by a truck; a woman was run over and lost her leg; and another guy ran up the back of a parked trailer resulting in horrific injuries for the driver and the passenger.
BQR also reported to Ms Glancey:
(a)   the preceding week he sacked someone for ringing another driver and threatening to stab someone;
(b)   five weeks earlier he had a heart attack and three years earlier he had a valve replacement;
(c)   his daughter stopped visiting two hears earlier. BQR reported she had issues with his new partner, and he did not get on with his daughter’s mother who he believed created division between him and his daughter, and
(d)   he was raised in a home at Strathfield before being fostered at age 6. He denied abuse. He reported his first family split up and he became the brunt of their fights. He left home at 17.
At subsequent consultations he described stress at work causing anxiety and chest pain. On 3 April 2018 he described memories of his time in the orphanage and the abuse he experienced when he was 3 or 4 years old.
On 25 July 2018 he reported he was preparing a statement about the abuse. He found it hard to face and reported destructive behaviour, drinking too much, terrible anxiety, disrupted sleep, depression, low mood, withdrawal, and difficulty with intimacy. BQR described spiralling down, bad depression, very low mood and feeling little value for his life. In further consultations up until 28 September 2018 Ms Glancey reported BQR’s experience of abuse as a young child, his trust issues, the impact on his relationships of those trust issues and his concerns about his relationship with his daughter.
On 17 July 2019, Ms Glancey noted:
“At work Friday. Cop abuse every day from boss. It kept building up and up to the point where I couldn’t do anything at work...
When I got back from holidays he gave me one days grace, then ripped into me. Been back about 4 weeks. There were problems when I was away, blamed me. Criticised the supervisor I hired, although he liked him at first. It just went on every day. Then Friday happened. He has changed. ‘Just take your time’. He said, ‘As long as f have a job here, you will have a job here’, He went to work today. Needed to face my fear. Fear of facing him. I needed to do it. Will make it easier tomorrow.
Vulnerability! Shame!
He was in a bad place Monday. Spent the day or two in bed. Couldn’t face anything…”
On 17 December 2019, Ms Glancey noted:
“Not doing well. He been getting twitches. They’ve increased his Epilum. It’s been escalating over a period of time. Jerking motions ... his leg will kick out, arms kick out.
Took himself to hospital on Friday with massive spasms in his back. Lump in throat like
he going to vomit.
Involuntary movements. Not sure what is going on. Go to neurologist at Liverpool
tomorrow.
Stressed re potentially having to hand his license in. Stressed then re income, work…”
On 18 February 2020, Ms Glancey noted:
“Had a car accident 2 weeks ago. 29 January 2020
Had MRI, has 2 bulging discs…
Pain that night. The pain is getting worse. Pain is different on different days.
Pain in neck. Today is lower back and chest. Lower back seems to be getting worse.
Chest is sore. Pain is coming from his back through to his chest.
Had chest pains ... had an ecograph [sic] on the heart for periocardal [sic] infusion…
Concerns: my working life. How will this impact my longevity with work. As the results all came back in, it is sounding not great. If I can’t work my retirement won’t be the same.
Worry about pain. Can’t imagine the discs getting any better. There are degenerative parts also. The Dr said not much you can do about that.
They are saying osteoarthritis in my spine ... ‘severe damage with impingement’.
Moods haven’t been good. I keep it in, I feel like l’m whinging too much. Very confronting. Emotional as he speaks…”
On 4 March 2020, Ms Glancey noted:
“Didn’t want to drive that car anymore. Isuzu ute. Bounced around. Bought a new car.
BMWXS.
Had a cyst cut out of his back, mid back. Ver painful. Couldn’t lay down.
His pain has settled for the most part. Lower back still sore. Can drive the car for an hour
now, couldn’t so that before. Can drive back and forth from work with out too much
issue.
Shoulder pain now settled too. Some sharp pains. The neck clicks and cracks, a little bit
of pain.
It’s at3 or4/10, rather than an 8.
Avoiding things that aggravate his lower back
Good days and bad days. Bad days are anxiety. Anxiety precipitated when attacked.
Don’t handle that too well.
Feels vulnerable when put on the spot
Feels vulnerable when he feels incompetent…”
On 30 April 2020, Ms Glancey noted:
“Work is demanding. Still working through Covid. There is a lot more waste, because
everyone is at home.
Back pain has flared up. Physio 3 times a week. The pain is frustrating. They’ve knocked
back his claim, said it’s not serious enough.
He apparently has nerve damage. Seeing a specialist soon.
BMS quite paranoid about Covid.
He has to be on to the workers at work. They quite blase. Their hygiene isn’t so great.
Frustrated with both claims. Frustrated with pain, pushing through the pain.
Some days are really dark…”
On 7 October 2020, Ms Glancey noted:
“His anxiety is really really high, like massively high. I don’t want to go to work. It’s really
easy to sit at home and do nothing.
I didn’t have my car for the week. I had to drive another car to work and I didn’t want to
drive to work bc of pain. That’s where the anxiety started.
Low mood. Depression. No motivation. Cant getup and going.
Loss of worth when can’t go to work.
Can’t drive his mustang, can’tgarden bc of pain ... can’t do any of the things I love to do…”
On 21 October 2021, Ms Glancey noted:
“Stress of driving back to work. Stress of being in traffic.
One way travel to work is an hour.
Took me over an hour today bc there was an accident.
Just sitting for that long...i’m getting better. Has a pillow to give him support...helps to
reduce impact up through the spine.
If work was 5 minutes down the road it wouldn’t be a problem. It is a long drive.
They want me back 5 days but currently happy if he goes back 2 days and 3 days at home.
I can only give it a go. If it goes alright, I’ll keep going.
Will go in early to avoid the traffic…”
On 11 November 2021, Ms Glancey noted:
“Pain from sitting down too much.
Working full time, but not driving to work every day.
Last time I saw him, he wasn’t working at all.
Pressure to go back to work…
The drive to work is hard. Anxiety...’i’ve got to drive again...I’ve got to drive again’. I’d rather be 5 minutes from work. If I lived 5 minutes from work I’d have gone back earlier. I try and drive early...3am, to avoid cars on the road. Then leave round 12pm, not a lot of traffic. Don’t like driving in the traffic...anxiety high. Waiting for something to happen. All the senses massively heightened. Hypervigilance.
He doesn’t drive the Mustang often. Gets sore…”
On 17 February 2022, Ms Glancey noted:
“I can not continue to drive to work. Pain is too high. I can manage a couple of days a week.
but I sit and home and still have pain. I’m more efficient with my own work but if I’m not at
work shit doesn’t get done…
Seriously considering if he can continue with work. The travel exacerbates pain. Bumps on the road exacerbate pain.
We was planning retirement, might bring it forward.
If the pain doesn’t ease I can’t keep going.
Up through neck and shoulders; pain…”
On 18 August 2022, Ms Glancey noted:
“He’s been up and down.
He supposedly got another job, within the same company. But he hasn’t heard back from them. He was recommended by his old boss. I spoke to 2 people about the job, but then nothing.
Won’t go back to my old job. Mentally I can’t go back, can’t cope with. the driving, going up and down stairs all day. Can’t cope with the pain and then can’t cope mentally when the pain increases.
The thought of driving to a job site closer he doesn’t have as much anxiety. Feels like he is going a bit brain dead.
Full time hours, but will have stipulations regarding breaks, getting up from desk etc to walk. Will talk to GP about that. Will need a clearance…
On 10 November 2022, Ms Glancey noted:
“I’m pissed off. I’m still in pain. I’m still miserable.
I can’t just sit. It’s ridiculous. Relying on pain killers…
The report says I’m an alcoholic and I’m depressed all the time. But it’s not bc of the MV accident…”
On 22 November 2022, BQR complained about pain, anxiety, feeling tired, exhausted, low mood, inability to drive long distances, and his dislike of driving in traffic.[16]
[16] Insurer’s bundle p 121.

Statement of BQR dated 16 August 2018

Adopting the paragraph numbers as they appear in this statement BQR stated:
“21. I remember that I was fondled (molested) by That Woman on at number of occasions. I believe I a [sic] may have been penetrated.
22.    I was around 3 or 4 years old at the time…
28.    Each time That Woman did something to me sexually, I recall I froze. I did not call out and I recall just being really scared and confused…
43.    I think I have shame. I think growing up in an Orphanage made me feel unworthy and unimportant. I think I carried that shame with me all my life. I still feel ashamed and I think I have this shame because of the way I was treated as a child orphan and that makes me not share those experiences with people.
44.    When I think about That Woman and what That Woman did to me I feel scared and vulnerable. I feel she was a nasty woman. The feelings of fear I had for her are still vivid in my mind. It I try not to think about" it. It is coming up more regularly now and it has a significant impact on my moods. I get angry more often. I drink alcohol to deal with the anger. For many years I could not understand why I had such a distrust for people but now I know this is where it stems from…
45.    I suffer from extreme anxiety. That anxiety regularly causes me physical pain and I have lived with this all my life.
46.    I am fearful of meeting new people. For a long time, I avoided meeting new people. I will confront those situations now, but I will not do it on my own. I feel anxious when I am in a room full of people. I have always had anxiety dealing with females. I was never confident in approaching woman when I was a single man. I would experience anxiety if I am approached by a female -there were times when I literally ran away from the situation. Females have always scared me. When I experienced this anxiety, I would get angry; I was angry because I could not cope in that situation.
47.    The physical symptoms of anxiety I experience are pain in my chest. I am fearful that I am having a heart attack when I suffer the pain in my chest. My heart races. My hands sweat and shake. My whole-body shakes, and I have shortness of breath. I experience tremors in my head -it is a feeling of fearing like my whole head is shaking. During this time, I would not be able to think properly and make sense of things in my mind. I feel that I am unable to talk because I cannot form sentences properly. I jumble my words, and makes me feel extremely overwhelmed. On two occasions where I thought I was having a heart attack I was taken to hospital. They tested me for a heart attack, but no blockages have been found. The doctors were unable to explain why I was having chest pain. My psychologist believes these were episodes of panic.
48.    Episodes of anxiety can last 15 minutes, or they can last over days…
74.    I feel like I have been depressed for most of my life. I feel like I function constantly with depression. It is just the severity that varies. I was an angry unhappy teenager. I got into fights, I ran away from home. There are some days where I cannot be bothered to shower and get dressed. Some days I work from home because I can’t be bothered to face people. I have found coping mechanisms to live with it. I try and make jokes of everything. Sometimes depression gets on top of me. do not exercise when I am going through periods of depression. That is when I drink more, I do not exercise.
75.    I avoid people. I feel like my depression goes to greater depths. That’s when I have feelings of despair. There are times when I feel suicidal. I have engaged in self harm when most depressed. Recently I visualised. breaking a wine glass in my hand and shoved the glass stem into my neck. I have thoughts of driving my ear off a bridge. I have thoughts like, ‘If I had a gun’. I think about dying to take away the pain. I have previously contacted Beyond Blue because I felt suicidal on several occasions. I feel guilty for having suicidal thoughts but then I think the guilt will go away if I’m dead…
102. have been diagnosed with major depression, anxiety and PTSD by my psychologist and my General Practitioner.
103. I started seeing my psychologist in June 2017. I am currently attending approximately fortnightly…”[17]
[17] Insurer’s bundle p 207.

Clinical Notes of Dr Abo-Elhoda of Hyde Parade Family Practice

On 11 May 2017 and on 12 May 2017 Dr Ibrahim Abo-Elhoda GP reported poor sleep, early morning wakening, depressed mood, low self-esteem, irrational fear and noted BQR had not been able to see his daughter for two years. He diagnosed major depression.[18]
[18] Insurer’s bundle p 462.
On 13 June 2017 Dr Abo-Elhoda reported BQR had seen a psychologist for ongoing depression. He prescribed Lovan 20 mg.[19]
[19] Insurer’s bundle p 461.
BQR reported depressive symptoms on 4 September 2017, on 1 June 2018,
[20] Insurer’s bundle p 453.
4 June 2018 and 13 July 2018.[20]
On 15 July 2019, Dr Abo-Elhoda noted:
“…chest pain on friday seen at the hospital all test normal
increasing pressure at work
manger stressing him every day
increasing anxiety and depression
not able to make decision or cope…
Depressive anxiety disorder…
LOVAN CAPSULE 20mg ceased.
Prescription added: LEXAPRO TABLET 10mg 1 daily m.d.u…”[21]
[21] Insurer’s bundle p 447.
On 7 February 2020 Dr Abo-Elhoda noted:
“increasing pain ol [sic] mid and lower back
since the accident
on panadol 1gm tds
massage with physio and heat pack
numbness of left arm and forearm
mild weakness…”
On 15 February 2020, Dr Abo-Elhoda noted:
“increasing pain of the neck and lower back with stiffness and restriction
on medication panadol 1g tds
and epilim 700mg twice a day
also started physitherapy [sic] three times a week
not able to do domestic work at home, cleaning house. washing shopping including cutting lawns
also not able use campany [sic] car to drive as not comfortable
heavy duty chokes…
increasing anxiety restless, tremors of both hands
increasing depressive anxiety on driving…”[22]
[22] Insurer’s bundle p 442.
On 18 February 2020, Dr Abo-Elhoda noted:
“Back pain. No joint stiffness. Restricted movement. Sciatica.
radiating to left side down to heel
some pain of right side
ct scan review of lumber spine
increasing anxiety with restless [sic] and agitation when driving since the accident
depressed mood…
L3/4 ,14/5 and L5/S1 diffuse disc bulge
PTSD (post-traumatic stress disorder)…”
On 6 March 2020, Dr Abo-Elhoda noted:
“…anxiety on driving
seen by psychologist
on regular counselling
Affected joints: L. Shoulder, R. Shoulder
Affected joint details: between shoulders
Reason for contact:
Depressive anxiety disorder
Whiplash
Diffuse disc bulge of L3/4, L4/5 ,L5/S1…”
On 8 July 2020, Dr Abo-Elhoda noted:
“Back pain. Neck pain. Joint stiffness. Restricted movement.
seen by neurosurgeon for conservative therapy
physio and medication

getting angery [sic] at the time as pain not improving…

Depression – Major…”

On 17 November 2020, Dr Abo-Elhoda noted:
“Back pain. Joint pain. Joint stiffness. Restricted movement. Neck pain.
unable to sit or stand more than half hour
.on pain medication
increasing anxiety Psych: Panic attacks. Poor sleep. Early morning wakening. Depressed mood. Low self
esteem. Irrational fear. Compulsive behaviour. No substance abuse. No delusions. No hallucinations. No
suicidal thoughts.
still on medication…”
On 6 March 2021, Dr Abo-Elhoda noted:
“Joint pain. Back pain. Neck pain. Joint stiffness. Restricted movement.
Psych: Poor sleep. Early morning wakening. Low self esteem. Depressed mood. Irrational fear. No
compulsive behaviours. Panic attacks. No delusions. No hallucinations. No suicidal thoughts. No
substance abuse.
Reason for contact:
Depressive anxiety disorder…”
On 25 February 2022, Dr Abo-Elhoda noted:
“Neck pain. Back pain. Joint stiffness. Restricted movement.
Psych: Poor sleep. Early morning wakening. Depressed mood. Low self esteem. Irrational fear. Panic
attacks. No delusions. No hallucinations. No substance abuse. No suicidal thoughts.
Reason for contact:
Anxiety disorder
L4/5 and L5/S1 back pain…”
On 18 October 2022, Dr Abo-Elhoda noted:
“Neck pain. Back pain. Joint stiffness. Restricted movement.
Psych: Poor sleep. Early morning wakening. Depressed mood. Low self esteem. Irrational fear. Panic
attacks. No substance abuse. No delusions. No hallucinations. No suicidal thoughts.
Examination:
Musculo-Skeletal:
Back: neck: tender, restriction present, restricted ROM.
Reason for contact:
Osteoarthritis - Spine
Depressive anxiety disorder…”
On 24 January 2023, Dr Abo-Elhoda noted:
“Poor sleep. Early morning wakening. Depressed mood. Low self
esteem. Panic attacks. No delusions. No hallucinations. No suicidal
thoughts. Substance abuse.
Substance usage: increasing alcohol intake…”

On 27 February 2023, Dr Abo-Elhoda noted:
“Poor sleep. Early morning wakening. Depressed mood. Low self
esteem. Irrational fear. Panic attacks. No delusions. No hallucinations. No
suicidal thoughts. No substance abuse.
on medication and regular counselling
increasing depression for ongoing assult by neighbour…”

DETERMINATION

Diagnosis

The Panel considered that, based on the provided history, the mental state examination and review of the available documentation, BQR presented with symptoms consistent with the following recognised psychiatric diagnoses according to the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR, American Psychiatric Association, 2022):
·        pre-existing post-traumatic stress disorder without aggravation;
·        adjustment disorder with mixed anxiety and depressed mood, and
·        pre-existing alcohol use disorder without aggravation.
BQR reported a history consistent with the diagnosis of post-traumatic stress disorder in relation to childhood abuse. The Panel were not of the opinion that this condition has been aggravated by the accident. Critically, in that regard, the motor accident did not satisfy criterion A for the diagnosis of post-traumatic stress disorder and there were no intrusive re-experiencing phenomena related to the accident. Although BQR’s GP documented the diagnosis of post-traumatic stress disorder on 18 February 2020, there was no documentation of the symptoms and rationale for this diagnosis and whether it was related to the motor accident or the history of childhood abuse.
BQR described a history of longstanding anxiety and depressive symptoms, developing in the context of various stressors, including workplace factors, difficulties with his daughter and medical illness, primarily cardiac disease and epilepsy. He provided an account of anxiety regarding driving and depressive symptoms, in the context of persistent pain and limitation of functioning after the accident in January 2020. This was corroborated by the documentation of his treating practitioners (Dr Abo-Elhoda and Ms Glancey).
The Panel considered that BQR had developed symptoms consistent with the additional diagnosis of adjustment disorder with mixed anxiety and depressed mood after the accident in January 2020. The criteria for adjustment disorder were met as follows:
(a)   BQR experienced anxiety regarding driving and depressed mood in the context of pain and limitation in functioning (Criterion A);
(b)   the symptoms had been significant as evidenced by his level of distress and impairment (Criterion B);
(c)   in the Panel’s opinion, BQR’s symptoms had not met criteria for the diagnosis of major depressive disorder or persistent depressive disorder. Specifically, his presentation on assessment on 24 May 2024 did not fulfil criteria for criterion A for the diagnosis of persistent depressive disorder, because he did not describe “depressed mood for most of the day, for more days than not, for at least two years”. He presented with “okay” mood and that had been the case for longer than two months (Criterion C);
(d)   his symptoms do not represent normal bereavement (Criterion D), and
(e)   notwithstanding that his mood was much improved on assessment, the pain persisted and so the stressor had not ceased (Criterion E).
BQR also reported a history of symptoms consistent with the additional diagnosis of alcohol use disorder, likely developing in the context of his post-traumatic stress disorder and depressive symptoms, a very common presentation. He reported marked tolerance (criterion A10) and continued alcohol use despite advice to reduce or cease alcohol (criterion A9), satisfying criteria for the diagnosis of alcohol use disorder. After the accident, his alcohol consumption reduced to a low level and there is no aggravation as a result of the accident.
The Panel noted the opinion of Dr Vickery regarding the diagnosis of somatic symptom disorder. The Panel does not agree with the diagnosis of somatic symptom disorder because it is not clear that BQR’s thoughts about his pain have been disproportionate to the seriousness of his physical symptoms, as required by Criterion B for that diagnosis.
BQR suffered physical injuries that have been certified by Medical Assessor Herald and Medical Assessor Shahzad.
The Panel agrees with the opinion of Medical Assessor Mason as to the diagnosis of an adjustment disorder. However, the Panel does not agree with his diagnosis of somatic symptom disorder where he did not justify his diagnosis of somatic symptom disorder by reference to the criteria as defined by DSM-5-TR and as already stated, it is not clear
BQR’s thoughts about his pain have been disproportionate to the seriousness of his physical symptoms.
Dr Rastogi, in her assessment on 2 September 2021, diagnosed BQR with an exacerbation of major depressive disorder and noted his current symptomatology as follows:
·        loss of interest in activities;
·        feels overwhelmed;
·        high avoidance and struggles with anxiety;
·        nightmares and flashbacks occasionally;
·        sleep disturbances with initial insomnia and interrupted with pain;
·        pain in left shoulder and arm;
·        concentration limited and short span;
·        emotional detachment and sense of despair;
·        loss of desire, questioning existence, and
·        hopelessness and worthlessness.
The Panel note that this description is consistent with their diagnosis of adjustment disorder with mixed anxiety and depressed mood in relation to the accident. Dr Rastogi did not confirm that BQR’s depressed mood and/or loss of interest or pleasure were present for “most of the day, nearly every day for a period of two weeks or more” in conjunction with the other associated depressive symptoms as required for the diagnosis of major depressive disorder according to DSM-5-TR criteria.
She noted a history of ongoing depression over years but, notably, she did not make the diagnosis of persistent depressive disorder. As her assessment occurred within two years of the accident, the diagnosis of persistent depressive disorder solely in relation to the accident, by definition, could not be made because the DSM-5-TR criteria for that diagnosis require that symptoms have been present for two years continuously with no remission of symptoms for over two months at any stage.
Dr Rastogi diagnosed an alcohol use disorder and documented an increase in alcohol consumption after the accident. The Panel asked BQR regarding his alcohol use after the accident and he noted a decrease in alcohol consumption rather than an increase after the accident, consistent with the history documented in the certificate of Medical Assessor Roberts. The Panel accepted BQR’s history in that regard and did not diagnose an aggravation of alcohol use disorder in relation to the accident.
The Panel has considered the diagnosis of persistent depressive disorder, however, his depressive symptoms have fluctuated and there is no evidence of BQR having two or more depressive symptoms on “more days than not for two years” as a result of the accident at any time, and as the non-motor vehicle accident stressors have been alleviated, he now presented with minimal depressive symptoms and his presentation does not fulfil criteria for the diagnosis of persistent depressive disorder.

Causation

BQR reported a history of anxiety and depressive symptoms pre-dating the motor accident in January 2020, likely related to adverse experiences in childhood, including a history of abuse from very early childhood. There was also a history of work-related stressors and medical illness, namely cardiac disease and epilepsy, contributing to his anxiety and depressive symptoms in the months prior to the accident in January 2020.
BQR reported the development of worsening anxiety and depressive symptoms in the context of pain and limitation in functioning after the motor accident in January 2020. The Panel accepted that his anxiety and depressive symptoms after the accident were significant and this is consistent with the documentation of his treating GP and psychologist. Although there were other stressors after the accident, including ongoing work stressors, the Panel conclude that the effect of the motor accident was more than negligible. The Panel diagnosed pre-existing post-traumatic stress disorder and alcohol use disorder that were not aggravated by the accident and the development of an adjustment disorder with mixed anxiety and depressed mood that was caused by the accident.
The Panel concludes that BQR has suffered from significant anxiety and depressive symptoms, consistent with the diagnosis of adjustment disorder with mixed anxiety and depressed mood that developed after the motor accident in January 2020.
An adjustment disorder with mixed anxiety and depressed mood is a threshold injury in accordance with Part 1, cl 4(2) of the MAI Regulation.

CONCLUSION

The Panel revokes the certificate of Medical Assessor Samson Roberts dated
13 December 2022 and issues a new certificate determining that the following injury caused by the motor accident is a threshold injury:
· adjustment disorder with mixed anxiety and depressed mood.

[2024] NSWPICMP 362

6 June 2024