AAI Limited t/as GIO v Kotb
[2024] NSWPICMP 137
•8 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Kotb [2024] NSWPICMP 137 |
| CLAIMANT: | Hanadi Kotb |
| INSURER: | AAI Limited trading as GIO |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Wayne Mason |
| MEDICAL ASSESSOR: | Gerald Chew |
| DATE OF DECISION: | 8 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered psychological injury in the motor vehicle accident on 10 October 2020; Medical Assessor (MA) Hong certified the claimant sustained a benzodiazepine use disorder and a driving phobia caused by the accident; this was a non-threshold injury; Held – accident caused psychiatric injury; not meet the criteria for a driving phobia where the claimant continues to drive independently; not meet the criteria for a benzodiazepine use disorder where there is only minimal use of benzodiazepine with little clinically significant impact and no evidence of withdrawal symptoms; certificate of MA Hong revoked; accident caused an adjustment disorder which is a threshold injury. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Michael Li Ying Hong dated 18 March 2022 and determines that the following injury caused by the motor accident is a threshold injury: · adjustment disorder. |
STATEMENT OF REASONS
INTRODUCTION
On 10 October 2020 Ms Hanadi Kotb (the claimant) was a passenger in a vehicle driven by her husband when it was involved in a rear end collision (the accident). The airbags did not deploy. Ms Kotb asserts she sustained the following injuries in the accident:
(a) injury to the cervical spine;
(b) injury to the thoracic spine;
(c) injury to the lumbar spine;
(d) injury to the right hip, and
(e) psychological injury.
Ms Kotb is 54 years of age and was 50 years of age at the date of the accident.
On 3 November 2020 Ms Kotb lodged an Application for personal injury benefits in respect of injuries to the neck, back, right top side and right hip.[1]
[1] Insurer’s Bundle p 45.
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Ms Kotb under the Motor Accident Injuries Act 2017 (the MAI Act).
Ms Kotb’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 11 February 2021 the insurer issued a liability notice declining liability for benefits beyond 26 weeks on the basis the injuries sustained by the claimant were minor (threshold) injuries for the purposes of the MAI Act.[2] The injuries referred to were soft tissue injury to lumbar and thoracic spine and right hip injury.
[2] Insurer’s Bundle p 63.
On 9 April 2021 the claimant requested an internal review pertaining to the threshold injury decision. In the submission in support of the internal review it was stated:
“We note that in particular the internal derangement should be considered non-minor, and further investigation have been foreshadowed in relation to other body parts and her emotional state”.
The insurer issued a Certificate of Determination dated 20 April 2021 affirming the original decision. After addressing the physical injuries, the insurer stated:
“The write notes that, in the Application for Internal Review, your solicitors reported that further investigations were foreshadowed in relation to your emotional state.
The writer notes there is no evidence to suggest that your GP has diagnosed you with a psychological injury or has referred you for psychological treatment.Accordingly, the writer has omitted your alleged emotional state from minor injury assessment.”[3][3] Insurer’s Bundle p 32.
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.[4]
[4] Section 7.20 of the MAI Act.
The dispute as to threshold injury was referred to the Commission and the psychological injury was referred to Medical Assessor Michael Li Ying Hong. He issued a issued a certificate dated 16 August 2022 in which he certified that the psychological injury sustained by Ms Kotb caused by the accident was not a minor (threshold) injury.
The insurer has sought a review of the certificate of Medical Assessor Hong.
EVIDENCE BEFORE THE REVIEW PANEL
The Review Panel (the Panel) issued a Direction to the parties on 19 July 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 marked Insurer’s Bundle paginated from pages 1 to 128. The solicitor for the claimant uploaded to the portal a bundle of documents marked Claimant’s Bundle paginated from pages 1 to 244.
On 15 November 2023 the Review Panel agreed an examination was required. In a report and directions dated 15 November 2023 the Review Panel directed the claimant to upload to the portal the following additional records:
· clinical records of Hurstville City Medical Centre from 21 July 2021 to date;
· clinical records of any other general practitioner (GP), psychiatrist or psychologist consulted by the claimant covering the period 10 October 2020 to date, and
· PBS (Pharmaceutical Benefits Scheme) records from 10 October 2020 to date.
On 9 February 2024 the claimant uploaded to the portal a copy of the clinical records of Hurstville City Medical Centre printed on 25 October 2023 paginated from page 1 to 287 (Hurstville City).
On 9 February 2024 the claimant uploaded to the portal a copy of the clinical records of Dr Wong paginated from page 1 to 177 (Dr Wong).
On 9 February 2024 the claimant uploaded to the portal a copy of the updated clinical records of Ms Moubarak, psychologist paginated from page 1 to 17 (Ms Moubarak).
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.”
CERTIFICATE OF MEDICAL ASSESSOR HONG
In a certificate dated 18 March 2022 Medical Assessor Michael Li Ying Hong certified the following injury caused by the accident was not a minor (threshold) injury for the purposes of the MAI Act:
·Benzodiazepine use disorder, and
·driving phobia.[5]
[5] Insurer’s Bundle p 17.
The injury referred for assessment was “psychological injury”.
Medical Assessor Hong reported Ms Kotb did not have a past psychiatric history. Prior to the accident she attended to the household chores and looked after her husband and children. He reported seven years ago her husband suffered a disability and she became his full time carer. He reported Ms Kotb helped her husband with his medication, took him to appointments, did the housework, cleaned up, helped her husband shower and get dressed and sometimes helped him transfer from the bed. She enjoyed family activities including outdoor activities.
Several days after the accident on 10 October 2020 Ms Kotb said she developed severe pain, predominantly affecting her back and neck. Medical Assessor Hong reported psychologically Ms Kotb started going downhill, she would be happy and then suddenly become upset and cry. He reported when the pain was severe and sometimes for no reason, she became depressed. He reported during the last four months the pain had become worse and it was making her more upset and anxious.
Medical Assessor Hong reported Ms Kotb found it difficult to drive and could only drive half an hour locally but was too scared to go on the highway. She reported sleep problems due to constant pain, passive suicidal ideation, depressed variable mood, reduced enjoyment and motivation, reduced concentration and memory, panic attack-like symptoms, frustration, was quiet and socially withdrawn.
Medical Assessor Hong reported she started Diazepam 5mg with increased usage over time. She now takes it almost daily and if she does not take it her anxiety is worse.
At that time Ms Kotb was living with her husband and children, 16, 24, 26, and 29 and a son in law. Her children have taken over the carer role for her husband. She no longer goes out to dinner, to the beach or does outdoor activities.
Medical Assessor Hong commented on the report of Dr Gertler. He also noted the file of Dr Ben Wong contained almost no information regarding the claimant’s psychological health.
Medical Assessor Hong concluded Ms Kotb had developed anxiety and depressive symptoms consistent with an adjustment disorder. He found she did not meet the diagnostic criteria for major depressive disorder or post-traumatic stress disorder. He found she fulfilled the DSM-5 criteria for a specific phobia, namely driving. He also concluded she was using benzodiazepine in larger amounts than intended or recommended, needing more of it to get the effect wanted from the substance.
REVIEW PROCEDURE
The claimant lodged an application for review of the medical assessment of Medical Assessor Hong within 28 days of the date on which his certificate was made available to the parties.
On 13 June 2022 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 Panel.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of 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.[6]
[6] 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. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
THE EVIDENCE
Photographs of the damaged vehicles
Photographs show obvious damage to the rear bumper bar, boot and tail light area of the white Camry sedan in which the claimant was a passenger.[7] The beige Camry sedan driven by the insured driver showed damage to the front bumper bar on the passenger side and to the passenger side headlight.
[7] Claimant’s Bundle pp 156-157.
Statement of Hanadi Kotb
In her statement dated 16 June 2021 the claimant states:
“14.My emotional state is completely different compared to before the accident, and I find it difficult to cope during any day, I only sleep about 4-5 hours, which is broken and I wake up many times at night, causing me to be very moody during the day [sic].
16.My ability to concentrate and communicate even with my children is very difficult and find that I have no patience at all. I feel as though I can no longer take care of the household duties as I did before…
17.Prior to the accident, I was generally a happy person, life of the party, however, now I feel sad most of the time, I hardly go out and only when forced by my children or close friends.
18.My GP has referred me to see a psychologist, Ms Charmine Moubarak for my depression, anxiety, stress and PTSD.
19.… I take medication for the pain, such as Endone, Targin, Celebrex and Panadol Osteo.”[8]
Treating medical records
Hurstville City Medical Centre
[8] Claimant’s Bundle p 243.
On 24 May 2011 Dr Ben Wong, GP reported the claimant had poor sleep. He prescribed Aropax.[9]
[9] Claimant’s Bundle p 105.
On 4 September 2012 Dr Wong reported left hemi facial headache and spasm of the lower back. He prescribed Valium.[10]
[10] Claimant’s Bundle p 111.
On 4 March 2015 Dr Wong reported the claimant was concerned about her daughter, she had poor sleep and was the main carer to her elderly mother, her spouse and her children.[11] He counselled her re coping mechanism.
[11] Claimant’s Bundle p 122.
On 7 September 2020 Dr Wong recorded long standing weight gain, poor energy level and noted concern re her thyroid status.[12]
[12] Claimant’s Bundle p 161.
On 14 October 2020 Dr Wong reported the accident on 10 October 2020 when the car was hit from behind whilst travelling around 40 km/hr and then swerved towards the footpath.[13] Ms Kotb reported right lower rib discomfort and pain over the chest area but no breathing difficulty.
[13] Claimant Bundle p 161.
On 15 October 2020 Dr Zhang GP reported pain over the right hip area.
On 9 November 2020 Dr Wong issued a Certificate of capacity/certificate of fitness in which the diagnosis was recorded as “Provisional soft tissue injury back (lumbar & thoracic spine)”.[14]
[14] Insurer’s Bundle p 48.
On 17 November 2020 Dr Wong reported ongoing right back pain, and occipital pain with radiation to the left arm.[15]
[15] Claimant Bundle p 162.
On 6 January 2021 Dr Phang GP reported bilateral hip pain which first occurred after the accident. He reported the pain was initially on the right side but lately she has had left sided hip pain.
On 8 March 2021 Dr Wong created a Mental Health Care Plan.
On 30 April 2021 Dr Wong reported ongoing neck and upper thoracic pain and reported no relief with Panadeine Forte and Endone. It was reported pain was preventing the claimant from doing domestic duty. Dr Wong reported the claimant felt tired, she felt down and had no interest in any domestic work, she was flat, and depressed.[16]
[16] Claimant’s Bundle p 169.
On 20 May 2021 Dr Wong referred Ms Kotb to Dr Charmaine Moubarak stating Ms Kotb had suffered from “poor sleep mood swing since his MVA, please kindly review and assess re probably PTSD [sic].”[17]
[17] Insurer’s Bundle p 90.
On 27 September 2021 Dr Wong prescribed Valium for anxiety.[18]
[18] Hurstville City p 88.
On 28 February 2022 Dr Wong prescribed Diazepam 7.5mg tablet twice a day.[19]
[19] Hurstville City p 93.
Other than references to letters to Charmaine Moubarak there is no further mention of psychological symptoms or the prescription of benzodiazepines as of 25 October 2023.
Physio Pilates
Clinical notes of Thuy Nguyen of Physio Pilates detail regular attendances for treatment from 18 December 2020 until 17 May 2021. The records disclose consistent complaints pertaining to the right hip, the lower back, the neck and headaches. Ms Kotb is reported struggling to undertake house work and care for her family. She reported difficulty getting in and out of seats and sleep disturbed by pain.
As of 23 January 2023, the claimant was taking Panadeine Forte, Targin and Endone. On 9 March 2021 it was reported the plan was to aim to minimise dependency on medication.[20] However, the records do not disclose the use of benzodiazepines.
[20] Insurer’s Bundle p 109.
On 9 April 2021 it is recorded:
“CTPs: getting on with more house work; report finally able to perform dusting and clean small jobs – but if on her feet limited to 30 in need frequent breaks
has been avoid lifting as she feels sit aggravates the head and neck; really frustrated with her set back
still reports lingering head and neck headache affecting her concentrationTrying to drive as often as possible…”.[21][21] Insurer Bundle p 113.
Dr Zoltan Szomor, orthopaedic surgeon
On 11 July 2021 Dr Szomor diagnosed right gluteal and thigh pain which he considered probably originated from the lumbar spine. He referred the claimant to Dr Rozario.
Dr Loretta Rozario, rheumatologist
Dr Rozario saw the claimant on 18 February 2015. She reported a longstanding history of chronic pain in the cervical spine radiating into the left arm and left leg. She also reported occasional paraesthesia in her hands, constant left thigh pain and occasional pain in her ankles.
On 8 May 2018 Dr Rozario reported the claimant was a carer for her husband but was keen to be considered for a disability support pension herself.
On 12 July 2021 Dr Rozario reported besides the symptoms of cervical spondylosis and right upper limb radiculopathy the claimant described a six to seven month history of spontaneous onset of pain in the right shoulder with difficulty elevating her right arm.[22]
[22] Claimant’s Bundle p 231.
On 2 November 2021 Dr Rozario reviewed Ms Kotb with neck pain associated with headaches, lower back pain radiating down the right leg, right knee pain and pain along the left side of the lower back radiating to the left foot.[23] On 3 February 2022 Dr Rozario reported chronic cervical and lower back pain and suggested the claimant see a neurosurgeon.
[23] Hurstville City p 260.
Dr Peter Khong, neurosurgeon
Ms Kotb saw Dr Khong on 26 May 2022.[24] He felt her neck pain was coming from C3/4 and/or C4/5 and/or C5/6. He did not recommend surgery. He diagnosed moderate degenerative disc disease at L5/S1. On 10 June 2022 he noted severe degenerative disc disease at C5/6.
[24] Hurstville City p 268.
Charmaine Moubarak, psychologist
Ms Moubarak provided a report dated 1 July 2021.[25] She reported Ms Kotb had attended her second session where she presented with symptoms of depression with anxiety. She reported a depleted level of motivation, low energy, self-confidence and limited tolerance which had impacted on her relationship with her husband and children. She reported Ms Kotb advised at times she needs to ingest a Valium to assist with her anxious states. She has also maintained analgesic medication as prescribed, although she reported it impacted her cognitive functioning, particularly her concentration and attention.
[25] Claimant Bundle p 21.
On 14 December 2021 Ms Moubarak reported Ms Kotb had resumed treatment since contracting COVID.[26] She reported her mood remained low, she demonstrated flat affect and has difficulty managing her pain.
[26] Claimant Bundle p 22.
On 17 January 2022 Ms Moubarak recorded Ms Kotb was very distressed by pain in both shoulders, neck and hip.[27] She reported she was unable to manage the pain, she now needed a cleaner to come in fortnightly and she was finding it difficult to manage her husband’s needs with her pain and psychological distress.
[27] Claimant Bundle p 26.
On 29 March 2022 Ms Moubarak reported Ms Kotb was finding it hard to implement strategies due to heightened pain, and difficulty managing her husband’s ailments as well as her own.[28]
[28] Claimant Bundle p 26.
On 30 March 2023 Ms Moubarak reported ongoing pain had been intrusive to the claimant’s day to day function, her husband had become very dependent on her, her stress was heightened, and symptoms of major depressive disorder were persistent.[29]
[29] Ms Moubarak p 5.
On 10 November 2023 Ms Moubarak recorded Ms Kotb’s back pain had worsened, and she was finding it hard to manage her pain and her husband’s needs. She reported she had maintained driving function given she is now the sole driver.[30]
Medico-legal reports
[30] Ms Mubarak p 14.
Dr Gertler assessed the claimant at the request of her lawyers and provided a report dated 22 July 2021.[31] He reported the claimant had not worked for many years and was the official carer of her husband.
[31] Claimant’s Bundle p 16.
Dr Gertler reported after the accident Ms Kotb began to experience pain in her neck, low back and right hip. She also became increasingly irritable and depressed and found she was unable to function as she did prior to the accident in terms of her domestic duties and her social life. Dr Gertler reported her sleep was affected by pain and her appetite had increased. She had normal concentration and memory and denied feeling anxious when travelling. She described mood swings, was easily irritated and frustrated by her chronic pain and disability.
Dr Gertler diagnosed an adjustment disorder with depressed mood, characterized by feelings of frustration, impatience and easy irritability as well as social withdrawal and a loss of interest in previous activities. He concluded her condition had not stabilised where it was only nine months since the accident and where she had only recently commenced psychological counselling he was not able to determine if it was effective in treating the depression.
Insurer’s submissions
The insurer provided submissions dated 14 April 2022.[32]
[32] Insurer’s Bundle p 1.
The insurer submits Medical Assessor Hong took the claimant’s account on face value and failed to explain how the claimant’s condition met the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5) diagnosis of Benzodiazepine use disorder and a driving phobia as a result of the accident.
The insurer submits Dr Gertler reported the claimant denied being anxious in cars and drove locally. The insurer also noted the claimant reported to Dr Gertler that her failure to execute activities of daily living was due to pain rather than any psychological condition. Dr Gertler also reported the claimant had mood swings and is irritable due to pain not due to any psychological condition. The insurer argues Medical Assessor Hong failed to address the inconsistencies between the histories reported by the claimant to Dr Gertler and to the assessor.
The insurer also submits there have been no reports and/or evidence that the claimant has been suffering any reliance on Benzodiazepine, nor have there been any reports of a specific driving phobia.
In earlier submissions dated 8 June 2021 the insurer submitted there was no medical evidence that a psychological diagnosis had been made in accordance with DSM-5[33].
[33] Insurer’s Bundle p 9.
Claimant’s submissions
The claimant provided undated submissions asserting that Medical Assessor Hong relied on his clinical expertise and set out a clear path of reasoning.[34]
[34] Claimant’s Bundle p 2.
The claimant submits in relying upon the opinion of Dr Gertler as to the claimant’s capacity to drive the insurer is simply seeking to rely upon a different medical opinion.
The claimant provided updated submissions in support of the minor (threshold) injury dispute.[35] In relation to the psychological injury the claimant submitted she anticipated being referred to a clinical psychologist to treat her psychological condition and on this basis it was premature to conclude she had sustained a minor psychological condition.
[35] Claimant’s Bundle p 8.
THE MEDICAL EXAMINATION
The medical panel examined Mrs Kotb on 29 February 2024 via telehealth using the Microsoft Teams application. Ms Kotb was unaccompanied for the interview and present at her home. She was identified by her New South Wales Drivers Licence. An Arabic interpreter was available for the interview.
Ms Kotb is 55-years-old and lives with her 67-year-old husband and three of her six children in Bankstown. She has two other children who are married and live out of home. Another child is married and lives in a granny flat at the home. She has three grandchildren.
Ms Kotb was born in Lebanon and migrated to Australia aged four with her mother. Her father had come to Australia prior. She is an Australian Citizen. She has two younger brothers who were both born in Australia.
Ms Kotb reported a good childhood and said that she was “spoiled” by her parents. She said that school was “nice”. She left school after year 10 and described herself as an average student. She lived in Adelaide for four years. She got engaged the year after she left school and was married. They went to Egypt for around four months then returned to Sydney and started a family. Most of her life she has been a “housewife” however, she worked for a few years in various jobs including at a petrol station, restaurant, cleaning and a tobacconist.
She does not smoke, drink or use recreational drugs.
The accident
When asked to describe the accident, Ms Kotb reported she was a restrained front seat passenger in a rental car driven by her husband in Bankstown at a speed of around
40-50kmph. She said she saw a car travelling fast behind them at around 80kmph. This car hit them “so hard” and caused them to swerve to the left. No airbags were deployed. She did not hit her head or lose consciousness. She remembered feeling “shocked” and a witness ran to them to check if they were okay. She said she and her husband got out of the car and spoke to the other driver. She said the other driver was reticent to exchange details but her husband said “I’m not leaving until we get your licence”. They exchanged details then drove back to the rental car office.
Symptoms
Ms Kotb reported within the next few days she began to experience pain in her right shoulder, neck and back.
She said over the next few months the symptoms worsened and she also developed pain down her right leg with her right leg giving way. Ms Kotb said the symptoms have continued to get worse and she has “severe” pain in her neck and headaches and constant back pain.
Because of the pain she has become more irritable with a short temper. She said that she has been unable to clean as much noting “usually I’m a clean freak” and has paid a cleaner on occasion. Her children also help more with the cleaning.
Ms Kotb reported an increase in stress. She reported poor sleep where she wakes up in pain. She said the pain has made her feel depressed. She said she cried from time to time. She denied any suicidality. She said she felt “damaged” and less motivated to socialise. She said she used to dress up a lot and go out but now rarely socialises.
The claimant is able to drive and does all the driving for her and her husband. Ms Kotb attends to shopping and groceries weekly. She drives to her parents in Greenacre once a week to once a fortnight. She is familiar with the Hurstville/Kogarah area and attends to most of her medical appointments and shopping there.
Ms Kotb reported ongoing good relationships with her family, however, noted there was an increase in irritability with arguments from time to time.
She does not drive long distances because of pain.
She has not been on a holiday since prior to COVID.
She enjoys watching television/video media including Arabic movies and series, news and religious lectures.
Ms Kotb identifies as Muslim and prays regularly at home.
Ms Kotb reported significant stressors since the accident. She said both her and her husband had COVID and were hospitalised. She reported her husband’s illness was very serious and he was in hospital for two and a half months. She said he would call her in the middle of the night confused. She said this period was very stressful.
Ms Kotb reported in October last year her husband was in hospital for knee surgery for about four weeks including in ICU (intensive care unit) for two days. Again, her husband would call her in the middle of the night confused. This was also a very stressful time.
Ms Kotb’s husband has been suffering from early Alzheimer’s disease. She said this had worsened since the accident, particularly since the knee operation.
Treatment
Ms Kotb attended her GP and has been prescribed pain relief including Targin, Endone and Panadol Osteo.
She has been attending physiotherapy which she says provides temporary relief.
Ms Kotb has been attending the same psychologist, Ms Charmaine Moubarak as her husband who was also involved in the accident. She said they travel together (she drives) and have individual sessions one after the other. She saw the psychologist every one to two weeks; however, she has not seen her for a few months because she commenced maternity leave.
Current and proposed treatment
Ms Kotb is currently attending physiotherapy. The claimant is taking pain relief and she has been prescribed Valium. She takes Valium 5-10mg once or twice a week.
Ms Kotb claimant attends psychological therapy.
Past psychiatric history
The claimant said she “can’t remember” any past psychiatric history. On further prompting Ms Kotb admitted that she may have been prescribed Valium once or twice before, however, said she had not had any significant issues and none as significant as after the accident.
Medical history
Ms Kotb denied any past medical history.
Mental state examination
The claimant appeared neatly and appropriately groomed. She was wearing culturally appropriate head covering. She engaged freely and easily. She reported a “stressed mood”. Her affect was very reactive. Her speech was increased in rate and rhythm at times, with normal volume and prosody. There was no formal thought disorder. There were no delusions and no hallucinations. She was oriented to time, place and person. Her cognition appeared grossly intact with no obvious concentration difficulties. There had been no suicidality.
PANEL CONCLUSIONS
Diagnosis
The claimant suffers from an adjustment disorder. Ms Kotb meets the DSM-5 criteria as follows:
· she has developed emotional symptoms in response to the motor accident (criterion A);
· the symptoms are clinically significant causing marked distress (criterion B);
· the stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder (criterion C);
· the symptoms do not represent normal bereavement (criterion D), and
· the symptoms are persisting because of ongoing pain from the motor accident (criterion E).
The panel notes that the claimant’s adjustment disorder symptoms have been contributed to by subsequent stressors including COVID illness, and her husband’s deteriorating health including significant hospitalisation and complication post knee surgery.
Ms Kotb does not meet the criteria for a specific driving phobia. While there is some mild anxiety around driving, she continues to drive independently, and significantly her driving includes regular trips from Bankstown to Hurstville every week. Indeed, on 10 November 2023 Ms Moubarak reported Ms Kotb had maintained her driving function given she is now the sole driver.
Ms Kotb does not meet the criteria for a benzodiazepine use disorder. There is only minimal use of occasional benzodiazepine with little clinically significant impact on function or psychological distress. Nor is there any evidence of the development of withdrawal symptoms.
Causation
The Panel concluded the accident combined with the claimant’s ongoing pain and functional limitation caused by the accident was sufficient to cause a psychiatric condition in the absence of any pre-existing psychiatric condition.
The Panel notes this opinion is consistent with the opinion of Dr Wong, Ms Moubarak and Dr Gertler. The Panel concludes the accident was the cause of the claimant’s adjustment disorder.
Threshold injury
The Panel notes in accordance with s 1.6 of the MAI Act and Part 1 cl 4(2) of the MAI Regulation an adjustment disorder is a threshold injury for the purposes of the MAI Act.
The claimant suffers from an Adjustment Disorder which is a threshold injury as defined by the Regulation.
PANEL DETERMINATION
The Panel revokes the certificate of Medical Assessor Michael Li Ying Hong dated 18 March 2022 and determines that the following injury caused by the motor accident is a threshold injury:
· adjustment disorder.
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