AAI Limited t/as GIO v Nazari

[2022] NSWPICMP 486

DETERMINATION OF REVIEW PANEL

CITATION:

AAI Limited t/as GIO v Nazari [2022] NSWPICMP 486

CLAIMANT:

Reza Nazari

INSURER:

AAI Limited t/as GIO

REVIEW Panel

MEMBER:

Belinda Cassidy

MEDICAL ASSESSOR:

Atsumi Fukui

MEDICAL ASSESSOR:

Michael Hong

DATE OF DECISION:

25 November 2022

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017 (2017 Act); medical disputes about minor injury and permanent impairment and review of the Medical Assessor’s assessment under section 7.26 of the 2017 Act (psychological injury); claimant was hit from behind while stationary in traffic on the freeway; taken to hospital by ambulance with laceration over his eye, soft tissue injuries and aggravation of a previously broken elbow; claimant developed symptoms of post-traumatic stress disorder (PTSD) and major depressive disorder (MDD); dispute about whether claimant satisfied the criteria for PTSD or MDD and therefore whether injuries minor or non-minor; no issue with methodology of whole person impairment assessment (WPI) (19%) or application of the permanent impairment rating scale (PIRS); Held – claimant satisfied criteria for both PTSD and MDD, injuries non-minor and degree of WPI 17%; no matter of principle.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION
Issued under s 7.23(1) of the Motor Accident Injuries Act 2017

In relation to the assessment of Medical Assessor Smith dated 22 July 2021, the Panel:

1.     Affirms the certificate in relation to the dispute about “minor injury”.

2.     Revokes the certificate in relation to the dispute about the degree of the claimant’s whole person impairment.

3.     Certifies that the degree of Reza Nazari’s permanent impairment resulting from his injuries caused by the motor accident of 6 August 2018 is greater than 10% (17%).

STATEMENT OF REASONS

Introduction

1. Mr Reza Nazari was involved in a motor accident on the M4 motorway on 6 August 2018.

2. Mr Nazari made a claim for statutory benefits and later damages against GIO the third-party insurer of the at-fault motor vehicle.

3. Two medical disputes have arisen in connection with the claim:

   (a)   whether the claimant’s only injuries sustained in the accident are minor injuries, and

   (b)   the degree of permanent impairment of the claimant’s accident-related injuries.

4. Those disputes were referred to the Personal Injury Commission (the Commission) for assessment.

5. The claimant has both physical and psychological injuries. His physical injuries were assessed by Medical Assessor David Gorman on 14 March 2021. The claimant lodged an application for review of that assessment. On 29 June 2021, delegate of the President Ms Redmond determined there was reasonable cause to suspect a material error in that assessment. The President has convened a Review Panel, but no determination has yet been made by that Panel.

6. The claimant’s psychological injuries were assessed by Medical Assessor Glen Smith who determined on 22 July 2021 that the claimant had non-minor injuries (major depressive disorder and post-traumatic stress disorder) and that those injuries attracted a degree of whole person impairment that is greater than 10%. The insurer sought a review of that assessment and on 29 October 2021, Ms Edwards, another delegate of the President determined there was reasonable cause to suspect a material error in the assessment and the President has convened this Panel.

Legislative framework

General

1. Mr Nazari’s claim and his entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). Under that Act, if a person is injured in a motor vehicle accident, they are entitled to make two claims:

   (a) a claim for statutory benefits under Part 3 of the MAI Act (weekly payments and treatment and care benefits), and

   (b) a claim for lump sum damages under Part 4 of the MAI Act.

“Minor injury” provisions

1. While almost all injured persons are entitled to some statutory benefits under Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “minor” injuries.

2. It should also be noted that in a damages claim, no damages are recoverable if the claimant’s injuries are “minor injuries”.

What is a minor injury?

1. Section 1.6 of the MAI Act provides a definition of “minor injury” relevant to psychological injuries as follows:

   “(1)   a minor injury is ‘a minor psychological or psychiatric injury’, and

   (3)    a minor psychological or psychiatric injury is an injury ‘that is not a recognised psychiatric illness’”.

2. Clause 4(2) of the MAI Regulation declares the following psychiatric injuries to be minor injuries.

   (a)   acute stress disorder, and

   (b)   adjustment disorder.

3. Clause 4(3) provides that the terms acute stress disorder and adjustment disorder have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5)[1].

   [1] Published by the American Psychiatric Association in May 2013.

4. The Motor Accident Guidelines (the Guidelines) provide in chapter 5 for the assessment of minor injuries and state:

   (a)   it is essential for there to be a psychiatric illness present (cl 5.10);

   (b)   whether a psychiatric illness is present is determined using the DSM-5 (cl 5.11), and

   (c)   where the symptoms do not meet the assessment criteria (in the DSM-5) the injury will be considered a minor injury (cl 5.12).

Non-economic loss provisions

1. Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[2] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.

   [2] The current maximum as of October 2022 is $605,000.

2. If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[3].

   [3] See s 4.12 of the MAI Act.

Permanent impairment assessment

1. Permanent impairment is to be assessed in accordance with chapter 6 of the Guidelines[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).

2. The Guidelines provide the Psychiatric Impairment Rating Scale (PIRS) which is a framework for the assessment of mental and behavioural disorders.

3. Clause 6.213 of the Guidelines provides that the impairment must be attributable to a psychiatric diagnosis recognised in DSM-5. The report or assessment determination must specify the diagnostic criteria upon which the diagnosis is based on six areas of function (self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration / persistence / pace and adaptation) and five classes ranging from no impairment to extreme impairment[5].

Dispute resolution

[4] Section 7.21. The current version of the Guidelines is Version 8 which is effective from April 2022.

[5] See cls 6.201-6.212; 6.219-6.221 and Tables 6.11-6.16.

1. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including:

   20.   “(a)  the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident”, and

   21.   “(e)  whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.

2. Chapter 7, Division 7.5 of the MAI Act provides for the assessment of medical assessment matters by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Gorman’s or Medical Assessor Smith’s, further medical assessments and the review of medical assessments by this and the other Review Panel[6].

   [6] Sections 7.20, 7.24 and 7.26 of the MAI Act.

Assessment under review

1. Medical Assessor Smith conducted his assessment on 16 July 2021 and issued his certificate on 22 July 2021. He was asked to assess “psychiatric condition – psychological injury – PTSD” (post-traumatic stress disorder).

2. The claimant gave the following history:

   (a)   he denied any significant anxiety or depressive symptoms before the accident including with his experience as a refugee;

   (b)   he was well before the accident with no health conditions and that since the accident he has had cardiac issues investigated and has had two surgeries to his hand;

   (c)   he denied consumption of illicit drugs or alcohol but says he has taken opioid medication since the accident;

   (d)   he gave a history of the accident where he was stationary on the freeway stuck in traffic. He looked in his mirror and saw the insured vehicle approaching “very fast” and that he was hit from behind and pushed into the vehicle in front. Airbags did not deploy but police and ambulance attended. He had a cut over his eye which was sutured at Westmead Hospital;

   (e)   immediately after the accident he was fearful of driving and leaving the house. He had persistent neck, back, left hand and leg pain, and

   (f)    he developed anxiety following his inability to work, he felt suicidal at time and developed depression and anxiety. He has been prescribed medication.

3. The claimant reported current symptoms of depression, anger and driving anxiety. He said he had put on weight, found it difficult to think and concentrate and had recurrent intrusive thoughts about the accident while driving.

4. Mr Nazari said he had psychological counselling but could not recall the name of the counsellor. He last had treatment a few months before.

5. Medical Assessor Smith takes a history of the claimant’s current functioning, reviews the documentation and provided reasoning for his diagnosis of Major Depressive Disorder and post-traumatic stress disorder which he found were non-minor injuries. In terms of the WPI dispute, Medical Assessor Smith considered the claimant’s condition had stabilised with persistent anxiety and depressive symptoms experienced for three year after the accident and Mr Nazari’s condition was permanent and his WPI was 19%.

Issues for determination

Insurer’s submissions

1. The insurer’s submissions argue:

   (a)   Medical Assessor Smith failed to provide reasons for diagnosing a major depressive disorder and post-traumatic stress disorder.

   (b)   The Medical Assessor did not differentiate between the symptoms of the major depressive disorder and the symptoms of the post-traumatic stress disorder and this is in breach of the DSM-5 in particular the note: “Do not include symptoms that are clearly attributable to another medical condition”.

   (c)   The Medical Assessor incorrectly applied the DSM-5 criteria to the claimant’s symptoms to come up with the diagnosis of post-traumatic stress disorder in particular a failure to consider criterion: “the disturbance is not attributable to the physiological effects of a substance (e.g. medication, alcohol) or another medical condition.”

   (d)   DSM-5 prevents a diagnosis of both a major depressive disorder and post-traumatic stress disorder.

2. The insurer’s submissions address matters primarily relevant to the minor injury certificate and do not raise any issues with the methodology of impairment assessment or the categorisation of the class of impairment or the final result of greater than 10%.  The insurer asserts that if the Panel finds the claimant has non-minor injuries there is no need to assess WPI at all.

Claimant’s submissions

1. A large part of the claimant’s submissions dealt with the timeliness of the insurer’s application for review. However, in respect of the substantive submissions the claimant says the DSM-5 is not to be applied like a piece of legislation. The claimant relies on the case of Gonzales v Allianz [2016] NSWSC 1549 and says that the medical assessor is entitled to form his own opinion on the medical question.

2. The claimant also points out that if one or other of the diagnoses made (major depressive disorder or post-traumatic stress disorder) the other would stand and both are non-minor injuries.

Panel’s report and directions

1. After the teleconference on 20 September 2022, the Panel advised the parties of the re-examination appointment and sought submissions in respect of the following:

   (a)   the insurer’s submissions raise no issue with the assessment of whole person impairment;

   (b)   the panel intends to assess minor injury first and then assess WPI subject to any agreement by the parties as to the degree of the claimant’s WPI;

   (c)   the cases of David v Allianz Australia Insurance Ltd[7] and Lynch v AAI Limited t/as AAMI[8] suggest that the issue of minor versus non-minor is determined by the Panel at the re-examination but if, at any time since the accident, the claimant’s accident-related injury falls outside the definition of “minor injury” contained within s 1.6 of the MAI Act, the claimant must be found to have non-minor injuries regardless of the state of the injury (healed, recovered, in remission) at the time the Panel undertakes its assessment, and

   (d)   the Panel expressed a preliminary view that a patient can develop depression after a post-traumatic stress disorder diagnosis.

   [7] 2021 NSWPICMP 227.

   [8] 2022 NSWPICMP 6.

2. The claimant provided additional submissions on 8 October 2022[9] submitting:

   (a)   the claimant noted that as the insurer has not challenged the WPI certificate the Panel does not need to assess it;

   (b)   the claimant does however acknowledge there is no agreement as to WPI and that the insurer is likely to seek the re-assessment of WPI and therefore suggests minor injury be assessed first followed by WPI, and

   (c)   the claimant also submitted that the Lynch decision is correct and points to the evidence supporting a finding that the claimant has had post-traumatic stress disorder since at least 27 September 2018 when he was diagnosed as such by his psychologist Mr Carl Nielsen and on 10 February and 7 May 2020 when Dr Khan also diagnosed post-traumatic stress disorder.

   [9] Document AD8 in the Commission’s electronic file.

3. The insurer provided additional submissions undated but received by the Panel on 17 October 2022. The insurer says:

   (a)   there is no agreement as to the degree of impairment;

   (b)   the Panel should assess WPI regardless of whether there is a minor injury or non-minor injury;

   (c)   the insurer does not press the submission that a claimant cannot be diagnosed with post-traumatic stress disorder and major depressive disorder and says the claimant did not sustain either injury;

   (d)   Dr George’s opinion should be preferred as he “is the only independent health practitioner with speciality in psychology / psychiatry to have examined the claimant”;

   (e)   the insurer concedes the circumstances of the accident could have the potential to satisfy criterion A for post-traumatic stress disorder;

   (f)    the claimant’s Blacktown general practitioner (GP) does not make any note of post-traumatic stress disorder symptoms the only specialists or doctors that diagnose post-traumatic stress disorder are doctors at the Workers Doctors;

   (g)   the insurer refers to Dr Nielson a psychologist and says he would not have the skills to perform a DSM-5 assessment and so too Dr Calvache-Rubio and suggests their diagnoses ought be approached with causation, and

   (h)   Dr Khan is also a treating health practitioner at the Workers Doctor and is not truly independent.

Review of the evidence

Claim form and claim documents

1. The claimant’s application for personal injury benefits was typed and dated 28 August 2018. He gave a history of the initial impact, a second impact from behind and then two impacts into the vehicle in front. Mr Nazari lists his physical injuries (neck, back, five stitches) says he went to hospital and states that two and half years before the accident he had an operation to his elbow.

2. There are a variety of medical certificates. The first certificate of fitness is dated 4 October 2018, was completed by Dr Calvache-Rubio and deals primarily with the physical injuries but notes the claimant’s severe pain and psychological distress may affect his recovery.

3. Later certificates also refer to post-traumatic stress disorder, the claimant’s left elbow surgery in November 2019, cervical disc protrusions and cervical radiculopathy. The last certificate is dated 8 May 2020.

Treating medical records and reports

1. There is a referral[10] from the claimant’s GP to Dr Khan dated 2 April 2019 concerning the claimant’s “persistent post-traumatic stress disorder symptoms post MVA”.

   [10] Document A9 in the insurer’s bundle from Dr Sebastian Calvache-Rubio of the Workers Doctors.

2. The claimant’s treating psychologist Dr Nielsen provided a short report to GIO dated 11 June 2019[11] addressing each of the Criteria A-H set out in DSM-5 for post-traumatic stress disorder.

   [11] Document a 10 in the insurer’s bundle from Dr Joshua Lee of the Workers Doctors.

3. There is a further referral from the claimant’s GP to Dr Kumagaya dated 15 August 2019 for “persistent post-traumatic stress disorder symptoms post MVA. Nil improvement with psychology reviews”.

4. There is a handwritten report from Dr Nielsen dated 29 August 2019[12] which diagnoses post-traumatic stress disorder, advises there has been cognitive behavioural therapy, exposure therapy, controlled breathing and sleep hygiene has been addressed.

   [12] Document A12 in the insurer’s bundle. This was in response to a letter from the insurer.

5. Dr Kumagaya provided a report to Dr Lee on 12 December 2019[13]. He noted the claimant was taking gabapentin (a pain killer two tablets at night) and the antidepressant Sertraline in the morning. Dr Khan refers to a worsening of symptoms and an increase in his antidepressant was recommended. The diagnosis was “enduring Posttraumatic Stress Disorder”.

   [13] Document A15 in the insurer’s bundle.

6. Dr Kumagaya provided a report to Dr Lee dated 30 January 2020[14] noting “mild improvement in his mental state”. The claimant had started part time work which had helped. The claimant’s Sertraline medication was further adjusted up to 150mg.

   [14] Document A17 in the insurer’s bundle.

7. The claimant has provided bundles of records from his GPs, the first are from the Workers Doctors (Parramatta) which commence on 19 September 2018 to 16 April 2021. The second bundle is from the Restwell Street Medical Centre in Bankstown from 11 August 2018 to 20 October 2021.

Medico-legal reports

Dr Khan

1. Dr Khan saw the claimant for his solicitors on 10 February 2020.

2. He has a history of a single impact from behind and to the front. Dr Khan notes the claimant developed chronic pain in his neck back and left elbow. He documents a deterioration of mental state including recurrent memories and flashbacks, avoidance, negative thinking and emotional state and so on. Dr Khan records that the claimant is taking anti-depressants.

3. Dr Khan takes a report from the claimant of symptoms of trauma which are improving and has the names of the claimant’s psychologist and psychiatrist.

4. The claimant denied any physical or mental pre-existing conditions and despite noting persecution in Iran saying this did not impact his mental health.

5. Dr Khan diagnosed post-traumatic stress disorder in accordance with DSM-5 and went through the A-H criteria.

6. He notes the claimant was working as a self-employed tailor before the accident 25 hours a week but is now only able to work as an employed tailer four hours a day, three days a week.

7. Dr Khan assess the claimant at 20% WPI.

Dr George

1. Dr George saw the claimant at the request of the insurer on 17 March 2020. The claimant said he had come to Australia in 2017 and was working as a tailor 5 to 10 hours per week whereas before the accident he worked up to 20 hours a week.

1. Dr George has a history of two impacts from behind and two impacts with the vehicle in front, a laceration and five stiches to a cut on the right eyebrow. He also notes the diagnosis of a whiplash injury and aggravation of pre-existing degenerative changes.

2. The claimant said he was taking an antidepressant and he had seen a psychologist and possibly a psychiatrist. He reported difficulty sleeping due to nightmares but not currently. He had been fearful of driving but was now independently driving and catching the train.

3. The claimant told Dr George he showered daily, would dress without assistance, and take his children to and from school, he might go out for coffee and would take his children to the park. He reported good relationships with his wife and children.

4. Dr George did not diagnose an ongoing psychiatric disorder. He noted the medication consumed was “due to pain” and that the claimant had returned to work. Dr George said he found no basis for a diagnosis of post-traumatic stress disorder.

Physical injuries

1. There is a report from Dr Marsh, occupational physician in respect of the claimant’s physical injuries. He diagnosed a whiplash injury to the neck and lower back and aggravation of the claimant’s left elbow injury which required further surgery. Dr Marsh has a history which suggests the claimant has returned to his normal work duties and that the claimant does have difficulties undertaking his usual domestic duties. He found a 4% WPI for the left elbow injury.

2. There is also a report from Dr Polanski, orthopaedic surgeon who considered the claimant aggravated pre-existing cervical and lumbar spondylosis, sustained bursitis and impingement in both shoulders, lateral epicondylitis in the left elbow and chondromalacia patella in the right knee. He assessed the claimant’s WPI at 17%.

Physical assessment

1. Medical Assessor Gorman was asked to assess the claimant’s cervical and lumbar spine, right and left shoulders, left elbow, right knee and scarring.

2. Medical Assessor Gorman has the same history of two impacts from behind and two impacts to the vehicle in front. He has a history of the claimant’s previous left elbow injury (in Indonesia) and the surgery after the accident to have the hardware removed.

3. The claimant complained of continued pain in the lower back and neck in both shoulders (the left more than the right), restricted movement in the left elbow and knee pain. He said he was depressed asking “why did it happen to me?”.

4. The claimant said he was on 50mg of Sertraline 50mg, Quetiapine 25mg and occasional over-the-counter medication.

5. Medical Assessor Gorman found a whiplash injury to the neck, soft tissue injury to the lower back, bursitis and impingement to the shoulders, post traumatic epicondylitis to the left elbow, aggravated chondromalacia patella and a superficial laceration to the right eye lid and laceration to the right eyebrow.

6. He found all physical injuries were minor and WPI was 7%.

General observations about the evidence

1. The Panel notes the insurer submits that the claimant’s medical evidence is not independent in that Dr Khan operates from the same practice as his GP and psychologist.

2. The claimant has had a usual GP (Restwell Medical Centre) in addition to the health practitioners at the Workers Doctor practice. This is of itself not unusual as the Panel is aware that some doctors may not take “compensation cases”. The Panel does not intend to further comment on whether the practitioners at Workers Doctor have provided appropriate care and advice to the claimant or not. The Panel is making a fresh assessment of both the medical assessment matters before it based on all of the evidence, both the written material and in particular the oral evidence of the claimant.

3. The insurer also submits the Panel should prefer the evidence from Dr George because he is the only independent and expert psychiatrist to examine the claimant.

4. The Panel notes the decision of Wingfoot Australia Partners Pty Limited v Kocak[15] (Wingfoot) where, at 46, the High Court said:

   “The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”

   [15] (2013) NSWCLR 480.

5. While the Wingfoot decision concerned a Victorian medical panel under Victorian legislation it has been applied in NSW in motor accident cases[16]. Again, the Panel has considered all of the written evidence but in particular the oral evidence given by the claimant to the Medical Assessors during the course of their re-examination to come to their own opinion of the matters referred for assessment.

   [16] See for example Jarvis v Allianz Australia Insurance Ltd [2022] NSWSC 161.

Re-examination findings

1. Medical Assessors Fukui and Hong conducted an audio-visual assessment of Mr Nazari on 28 October 2022 over a period of 75 minutes.

2. Mr Nazari attended unaccompanied from his solicitor’s office with a Farsi interpreter.

Social history

1. Mr Nazari gave the following history:

   (a)   he has not had any previous car accidents;

   (b)   he was born in Iran and came to Australia in 2017 as a refugee. There was no developmental trauma identified, and

   (c)   he is not aware of a family history of mental illness, has no other relevant medical conditions and denies any drug or alcohol problems or previous psychiatric history.

History of the motor accident

1. On 6 August 2018, Mr Nazari says he was driving on his own on the M4 Motorway wearing a seat-belt. There was heavy traffic in front, and he stopped; however, two cars behind him did not stop and rear-ended his vehicle. His car was pushed forward and collided with the car in front. There were four cars involved in the collision. His airbag was not deployed but his car was written off by the insurer.

2. Mr Nazari described feeling frightened because his car was moving backwards and forwards with the multiple impacts. He said his head hit the mirror and there was blood. He tried to get out of the car quickly, as he worried there would be another car hitting his car. He recalled he felt dizzy and had neck pain and was struggling to get out.

3. The ambulance came and took him to Westmead Hospital where his forehead was stitched. He was discharged the same day and saw a GP the following day.

History of symptoms and treatment following the motor accident

1. Mr Nazari has developed neck, back, left arm and left leg problems, and said the pain is better now because he is taking an analgesic, but he is still suffering severe neck and back pain. He had surgery twice on his left arm, the last time in 2021.

2. As a result of the subject accident, Mr Nazari described persisting driving anxiety. Whenever he goes near the location of the accident, he becomes frightened and therefore he said he tries to avoid being on the M4 Motorway and only takes the M4 Motorway when absolutely necessary. He said he can drive up to 40 minutes, then he starts feeling “pressured” and elaborated by saying that his body becomes tense and that psychologically he starts having worrying thoughts and thinking about the accident.

3. Mr Nazari reported that since the subject accident he constantly worries that his family would die, or he may have similar accidents and die. He described flashbacks in that he gets frightened and gets “the view in my mind” of the accident.

4. Mr Nazari described having depressive symptoms and said that his thoughts are always in a "negative" state, and he worries about bad things that can happen. For example, if he walks into a building, he worries the building would collapse and he would die.

5. The medical members of the Panel note that Mr Nazari described being frightened during the accident and gradually developed symptoms of post-traumatic stress disorder. He subsequently developed pervasive depressive symptoms and major depressive disorder.

6. Mr Nazari denies having had any further car accidents or sustained other psychological injuries.

Current symptoms

1. Mr Nazari feels like he has no aim in life anymore and stated that he should go and live by himself, away from the population. His low mood has fluctuated over time although he described having constant depression and there has been no remission at any time since the subject accident. He also said he avoids being in crowded places because he feels anxious.

2. Mr Nazari finds it difficult to enjoy things. Normally, he likes martial arts and he used to practice Karate, Taekwondo, and Kung Fu and would go to martial art clubs. He was doing bodybuilding. Since the accident, he cannot do these activities anymore, and explained that it is too physically demanding. Mr Nazari said that even when watching martial arts videos, he feels sad because he no longer can do this and he does not enjoy watching those videos.

3. The only thing that cheers him up now is spending time with the children. However, at times the children want him to play with them, but he cannot and they do not understand. He stated that he gets comments from his children such as “you don’t love me” and this “breaks my heart”. He stated that his wife encourages him, and sometimes he would go with the family to the park to watch them play.

4. He described having reduced concentration and memory and being easily fatigued.

5. He says his weight has fluctuated by 4kg after the subject accident, and recently he weighs 79kg.

6. He reported having sleep problems. He has had nightmares regularly which have gradually reduced in frequency to one every one to two months. His dreams are about accidents where he or his family dies. Sometimes he screams in his sleep.

7. He feels anxious. He has been irritable and would speak with a loud voice, without physical aggression.

8. He has intrusive memories of the car accident, causing significant anxiety. He is hyper-vigilant on the road and constantly looks out for potential dangers.

9. He reported being quiet and socially withdrawn. He stated that he wants to be left alone.

Current and proposed treatment

1. Mr Nazari says he is currently taking:

   (a)   Sertraline 150 mg, and

   (b)   Panadol as needed for his physical symptoms.

2. His file indicated he took Seroquel previously but this appears to have been ceased.

3. He does not know his psychologist’s name. He stated his psychologist tries to change his negative outlook. His file indicated Carl Nielsen is one of his psychologists. He ceased consultation with Dr David Kumagaya, psychiatrist but cannot remember when.

Assessment AND consideration of the issues

Clinical examination

Mental state examination

1. Mr Nazari had short greying hair and a full beard. He engaged well with the assessment process.

2. The claimant presented as flat in his mood and serious in his manner. He was consistently restricted in his affect range and reactivity. He spoke spontaneously and readily and was not thought disordered. There were no psychotic symptoms. He denied active thoughts of self-harm or suicidal ideation. There was no evidence of cognitive deficits.

3. Many of the psychiatric terms were repeatedly explained to him through the interpreter to ensure comprehension.

Current functioning

1. Mr Nazari is living with his wife who works from home as a tailor. They have four children, aged 4 months, 2, 6 and 10 years old.

2. He only showers every 7 to 10 days and said he does not see any need to shower, and his wife complains about it and asks him to shower.

3. He said he stopped having contact with his friends. Sometimes, he still sees people he knows on the street, he might talk to them for a few minutes, but they do not attend activities or go to a café. He stated that even with his family, he has only gone out to a restaurant maybe twice or three times a year. He does not go to any weddings or social events and explained that is because he has no friends anymore.

4. Mr Nazari pays the families bills, predominantly online, and said sometimes he would read a short story and can focus for about 20 minutes.

5. He has been married for 11 years but said that the marriage has suffered, and his family has suffered because of his depressive condition in particular, and they now keep to themselves.

Employment history

1. In Iran, Mr Nazari completed six or seven years of school and then trained and worked as a tailor.

2. He came to Australia and studied English at TAFE.

3. He then started his own business as a tailor. Before the accident, he worked from home and was building up his business with his wife.

4. Following the accident, Mr Nazari could not work for a long time, then he started returning to work sporadically. He said he may now do 10 or 20 hours of work per week, and probably on average about 15 hours per week. His wife does most of the work. He said that if a garment is too complicated, he would just leave it to his wife to complete as he is unable do it. He also finds some of the garments too heavy for his hand to manage.

Comments of consistency

1. There was no inconsistency identified by the Medical Assessors in the claimant’s history or presentation.

Findings

Does Mr Nazari have a post-traumatic stress disorder?

1. There are eight criteria listed in DSM-5 to guide psychiatrists in diagnosing the above psychiatric disorder as follows:

   (a)   Criterion A – direct exposure to actual or threatened death, or serious injury - Mr Nazari sustained significant physical injuries and stitching and surgery. He also recalled being frightened from multiple impacts during the accident and therefor criterion A is fulfilled.

   (b)   Criterion B – intrusion symptoms – Mr Nazari has developed flashbacks and nightmares related to the accident.

   (c)   Criterion C – avoidance – the claimant has had persistent avoidance of situations related to the subject accident (he avoids driving on the M4 where possible) and anxiety when exposed to reminders of the accident.

   (d)   Criterion D – negative alterations in cognition and mood – Mr Nazari continues to experience negative cognitions and moods, including fear, markedly diminished interest, and inability to experience positive emotions.

   (e)   Criterion E – alteration in arousal and reactivity – the claimant described physiological hyper-arousal manifesting in his behaviour, sleep disturbance, difficulty concentrating, preoccupation with danger and threat-scanning.

   (f)    Criterion F – duration of more than one month – it is now more than four years since the accident and while the claimant’s condition has improved, he continues with psychological symptoms.

   (g)   Criterion G – functional significance – Mr Nazari has developed psychological impairment which affects his ability to socialise.

   (h)   Criterion H – exclusion – the Panel notes the claimant has physical injuries which are affecting his work and home activities, but the Panel has not identified an alternative psychiatric diagnosis that is a better fit for his trauma symptoms.

2. The Panel is satisfied that, in accordance with cls 5.12 and 6.213 of the Guidelines that Mr Nazari meets the criteria to warrant the diagnosis of post-traumatic stress disorder.

Has Mr Nazari developed a Major Depressive Disorder?

1. There are five criteria listed in DSM-5 to help the medical members of the Panel make a diagnosis of major depressive disorder as follows:

   (a)   Criterion A – five or more depressive symptoms – Mr Nazari has at least five depressive symptoms during the same two week period causing a change in his normal functioning. Mr Nazari reported a pervasively depressed mood, almost complete anhedonia, sleep impairment, marked loss of energy, significant cognitive problems and recurrent thoughts of death.

   (b)   Criterion B – distress and impairment – Mr Nazari is distressed by his symptoms and he reports a loss of friendships and social interactions as a result.

   (c)   Criterion C – no physiological effect – the claimant’s symptoms are not due to the physiological effects of a medication or substance and are not part of a general medical condition.

   (d)   Criterion D – presence of other disorders – his recurrent thoughts about the accident and the presence of nightmares about the accident in particular suggest Mr Nazari’s symptoms are not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder or schizophrenia/psychosis spectrum disorder, acute stress disorder symptoms or adjustment disorder.

   (e)   Criterion E – presence of manic or hypomanic episodes – Mr Nazari has not experienced a manic or hypomanic episode. His depressive symptoms are not better explained by any other psychiatric diagnosis.

2. The Panel is satisfied that, in accordance with cls 5.12 and 6.213 of the Guidelines that Mr Nazari meets the criteria to warrant the diagnosis of major depressive disorder.

Can the claimant have both disorders?

1. The insurer submitted that a major depressive disorder and post-traumatic stress disorder cannot co-exist. This is based on a misinterpretation of Criterion H for the DSM-5 diagnosis of post-traumatic stress disorder which states "the disturbance is not attributable to the physiological effects of a substance or another medical condition". The insurer suggests a major depressive disorder is “another medical condition”. The medical members of the Panel are of the view that Criterion H is referring to a "medical condition" being a condition related to a physical medical illness, not a psychiatric condition, and that the words "physiological effects" relate to both the “substance” and “another medical condition”.

2. It is, in the clinical experience of the Medical Assessors possible for persons to have multiple DSM-5 diagnoses. Dual diagnoses of post-traumatic stress disorder and major depressive disorder are common clinical findings in a motor accident setting.

3. The Medical Assessors also note that DSM-5 is a statistical research tool and there is no requirement to have a mono-diagnosis (a single unifying diagnosis). In clinical settings, if a person’s presentation fulfils both post-traumatic stress disorder and major depressive disorder, it is a common practice to diagnose both conditions, and the DSM exclusion criteria (criterion H in post-traumatic stress disorder) are not a prohibition to poly-diagnosis.

Causation

1. Mr Nazari does not report a past psychiatric history and there is no documented evidence of a past psychiatric history.

2. He developed psychological symptoms immediately following the reported to his GP and treated with psychological counselling, psychiatric diagnosis and medication. There is no other factor identified which could cause a psychological injury.

3. The Panel is satisfied that the motor accident on 6 August 2018 is the cause of the claimant’s current psychological condition.

Does the claimant have “minor injuries”?

1. There is no evidence of Mr Nazari having any previous psychiatric problems.

2. After the accident he has described anxiety symptoms and driving anxiety, post-trauma symptoms with characteristic intrusion symptoms consistent with post-traumatic stress disorder. He also described depressive symptoms consistent with major depressive disorder. It is now four years since the accident and his condition has stabilised.

3. For the reasons above the Panel is of the view that the claimant has both a major depressive disorder and a post-traumatic stress disorder and therefore his psychological injuries fall outside the definition of “minor injury” in s 1.6 of the MAI Act.

What is the degree of the claimant’s WPI?

1. Using the recommended assessment form from Figure 6.2 the Panel has applied the PIRS in accordance with chapter 6 of the Guidelines.

Psychiatric diagnoses	1. Post-traumatic stress disorder		2. Major depressive disorder
Psychiatric treatment description	Antidepressant medication Psychiatrist Psychologist
Category	Class	Reason for Decision
1.  Self Care and Personal Hygiene (current)	3	Moderate impairment - Mr Nazari reported neglecting his self-care. He said he skips meals and that his weight has fluctuated over time. He only showers every seven to 10 days, his wife complains and prompts him to shower.
2. Social and Recreational Activities	3	Moderate impairment - he used to have social and recreational activities and enjoyed body-building and social sports at the martial arts club but his physical injuries prevent this. This distresses him and he cannot even enjoy martial arts videos. He avoids crowded places and does not engage in any social and recreational activities now.
3.   Travel	2	Mild impairment - He can drive on his own, but Mr Nazari is anxious on the road and avoids being on highways and the M4 Motorway if possible.
4.   Social Functioning	2	Mild impairment - Mr Nazari's relationship with his wife has deteriorated and they have become emotionally distant due to his depressive disorder. He does not contact his friends anymore again because of his mental health state. The relationship with the children has deteriorated due to his physical impairments  (which distresses him) but also due to his depressed state.
5. Concentration, Persistence and Pace	2	Mr Nazari reported having reduced concentration. He can pay the bills (online) and focus on reading books and his tailoring work, and intellectually demanding tasks but for no more than 20 minutes.
6. Adaptation	3	He works as a tailor, but he can no longer manage all of his pre-injury duties. The Panel notes that when Mr Nazari was assessed by Assessor Smith he could not perform any work. Since then, there has been some improvement and the claimant is now managing around 10 to 20 hours of tailor work in a week. While there are aspects of his physical complaints that affect his ability to work, the Panel notes that he leaves the complex garments to his wife as he cannot focus on them.
List classes in ascending order: 2 2 2 3 3 3
Median Class Value: 3 (cl 6.226)
Aggregate Score: 15 (cl 6.228)
Whole Person Impairment: 15 %

Effects of Treatment

1. Mr Nazari has gained symptomatic relief and functional improvement with medication (currently 150mg of Sertraline), and with his psychologist's encouragement, he has been able to return to work as a tailor.

2. The Panel therefore considers this is a moderate treatment effect and in accordance with cls 6.222 and 6.223 of the Guidelines considers it appropriate to increase the WPI percentage by 2%.

Conclusion

1. For the reasons set out above, the Panel is satisfied that the claimant has sustained injuries that are not minor injuries namely:

   (a)   a post -traumatic stress disorder, and

   (b)   a major depressive disorder.

2. The Panel is also satisfied that the claimant has a WPI of 17% resulting from the above injuries.

3. Although the outcome is the same for both the minor injury dispute and the permanent impairment dispute, because the degree of whole person impairment is different, the Panel will revoke Medical Assessor Smith’s whole person certificate.