AAI Limited t/as GIO v Oh
[2024] NSWPICMP 608
•28 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v Oh [2024] NSWPICMP 608 |
CLAIMANT: | Soo Min Oh |
INSURER: | AAI Limited trading as GIO |
REVIEW PANEL | |
MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | John Baker |
MEDICAL ASSESSOR: | Wayne Mason |
DATE OF DECISION: | 28 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; section 1.6(3); threshold injury; treatment dispute; psychiatric consultation; Medical Assessor found claimant sustained persistent depressive disorder which was not a threshold injury; insurer sought review; insurer relied on report of Dr Tyler who administered psychometric testing and found claimant malingering; test conducted in English; interpreter left 30-60 minutes into 4-hour questionnaire; inconsistency explained by cultural norms and poor comprehension of complex tasks; Held – best diagnosis is persistent depressive disorder; Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 ASSESSMENT OF THRESHOLD INJURY
ASSESSMENT OF TREATMENT AND CARE
|
STATEMENT OF REASONS
INTRODUCTION
Ms Soo Min Oh (the claimant) was driving her motor vehicle on 8 March 2020 with her two children as passengers. The at fault vehicle collided with the rear of her vehicle causing it to collide with the vehicle travelling in front of her before the at fault vehicle collided with the rear of her vehicle a second time (the accident).
Ms Oh is 42 years of age and was 38 years of age at the date of the accident.
On 9 March 2020 Ms Oh lodged an Application for personal injury benefits in which she alleged injuries to her neck, both shoulders, knees, wrists, pelvis, stress and anxiety.[1]
[1] Insurer’s bundle p 29.
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay statutory benefits to Ms Oh under the Motor Accident Injuries Act 2017 (the MAI Act).
Ms Oh’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 accident were threshold injuries.
On 4 June 2020 the insurer issued a liability notice accepting liability for benefits beyond 26 weeks on the basis the injury sustained by the claimant, namely post-traumatic stress disorder was a non-minor (threshold) injury for the purposes of the MAI Act.
On 21 June 2021 the insurer issued a further liability notice declining liability for benefits beyond 26 weeks. The insurer determined following a review of psychometric testing undertaken on 18 June 2021, which provided a diagnosis of malingering, that the claimant had sustained minor (threshold) injuries for the purposes of the MAI Act.[2]
[2] Insurer’s bundle p 84.
On 21 June 2021 the claimant requested an internal review pertaining to the minor (threshold) injury decision.
The insurer issued a Certificate of Determination – Internal Review dated 6 July 2021 affirming the decision that the injuries met the definition of minor (threshold) injury for the purposes of the MAI Act.[3]
[3] Insurer’s bundle p 312.
On 6 July 2021 Dr Chesterfield-Evans referred the claimant for a consultation with Dr Selwyn Smith, psychiatrist.
On 9 July 2021 the insurer declined liability for the consultation with Dr Smith (the treatment dispute).
On 9 July 2021 the claimant requested an internal review of the treatment dispute.
The insurer issued a Certificate of Determination – Internal Review dated 19 July 2021 in relation to the treatment dispute.[4] The insurer denied the request for a consultation with Dr Selwyn Smith on the basis it would not improve recovery where the claimant had been afforded 34 sessions of psychology and had previously been seen by Dr Smith with very minimal functional improvement documented. The insurer noted the claimant’s general practitioner had reported the claimant’s reluctance to take the medication prescribed by Dr Smith. The insurer also noted the diagnosis of Ms Tyler of malingering.
[4] Insurer’s bundle p 317.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the minor (threshold) injury dispute and the treatment dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act” and whether treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances and relates to the injury caused by the motor accident.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[5]
[5] Section 7.20 of the MAI Act.
The dispute as to threshold injury in respect of the psychological injury and the treatment dispute was referred by the Commission to Medical Assessor Samson Roberts.
The insurer has sought a review of the certificate of Medical Assessor Roberts.
DOCUMENTS BEFORE THE REVIEW PANEL
On 23 April 2024 the insurer uploaded to the portal a bundle of documents indexed and paginated from pages 1 to 341 (hereinafter called the insurer’s bundle).
On 13 May 2024 the claimant uploaded to the portal a bundle of documents indexed and paginated from pages 1 to 55 (hereinafter called the claimant’s bundle).
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.”
ASSESSMENT UNDER REVIEW
In a certificate dated 12 May 2023 Medical Assessor Samson Roberts certified the following injury caused by the accident was not a minor (threshold) injury for the purposes of the MAI Act:
· persistent depressive disorder.[6]
[6] Insurer’s bundle p 17.
Medical Assessor Roberts also certified the following treatment and care related to the injury caused by the accident, was reasonable and necessary in the circumstances and would improve the recovery of the claimant:
· consultation with Dr Selwyn Smith.
The injuries referred for assessment were:
· psychiatric injury including post-traumatic stress disorder and anxiety.
Ms Oh reported she sustained a left shoulder injury in an earlier motor vehicle accident in 2018 (the 2018 accident).
Medical Assessor Roberts reported Ms Oh worked as general manager for a commercial cleaning business until the accident.
Ms Oh confirmed the accident occurred when the car she was driving was hit from behind and in turn impacted the car in front. Her children were passengers in the car. Ms Oh reported she was overwhelmed and shocked. She reported the car behind her driven by an elderly lady was “so damaged” and her car, a four or five year old Toyota Camry, was written off. Ms Oh recalled pain in her ankle, knee, shoulder and neck.
Ms Oh reported her mood deteriorated one or two months after the accident. She reported a lack of energy, a reduction in “zeal”, the absence of motivation and found it hard to fulfil her household and parenting obligations. She consulted psychologist Jung Sook Kim and she saw a psychiatrist on one occasion before he died. She was prescribed Endep.
Medical Assessor Roberts reported Ms Oh exhibited a flat affect and her account reflected a depressed mood. Her thought processes seemed slow and there was a lack of spontaneity of speech. He reported she frequently contradicted herself and on occasion changed her answers giving the appearance of evasiveness. She mixed up the two accidents.
Medical Assessor Roberts reported a number of inconsistencies were evident on the history provided by Ms Oh. He concluded her manner of answering questions and contradicting herself cast doubt on the reliability of the history provided by her.
Medical Assessor Roberts concluded:
“As stated above, the reliability of Ms Oh’s account is in doubt. Aspects of the history provided by her and of her presentation at interview supports the conclusion that she is suffering a depressive condition. Accepting that this is the case, she is suffering a persistent depressive disorder.”
He thought it as unlikely that it arose solely as an effect of the accident given her involvement in the 2018 accident, although found it contributed to a greater than negligible degree to her current condition.
He also concluded it was reasonable and necessary as a result of the injury caused by the accident that Ms Oh be referred for a psychiatric assessment.
REVIEW PROCEDURE
The insurer lodged an application for review of the medical assessment of Medical Assessor Roberts on 13 June 2023 within 28 days of the date on which his certificate was made available to the parties.
On 21 July 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. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] 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.
On 12 June 2024 the Panel agreed an examination was required.
EVIDENCE BEFORE THE REVIEW PANEL
The certificate of Medical Assessor Truskett
Medical Assessor Truskett issued a certificate dated 24 November 2021 in which he certified the following injuries caused by the accident were minor (threshold) injuries for the purposes of the MAI Act:
· soft tissue injuries to neck, shoulders, lumbar spine, left knee and right ankle.[8]
[8] Insurer’s bundle p 330
Medical Assessor Truskett noted the following inconsistencies:
· the claimant’s neck movement when examined was far less than that observed when she was being interviewed;
· there was negative impingement of both shoulders. Medical Assessor Truskett reported Ms Oh pushed down heavily with passive abduction which he considered tended to suggest that the reduced shoulder movement was voluntary;
· there was a sensory loss of the left lower limb that could not be explained by anatomical, radicular, or sensory nerve injury; and
· there was weakness of the muscles of both hands which could not be explained by an anatomical lesion.
Medical Assessor Truskett recorded that Ms Oh sustained a motor vehicle accident in 2018 but denied any injury. He reported she had no symptoms relating to the body parts he was asked to assess. However, Medical Assessor Truskett reported that from documentation from the local medical practitioner it was clear that Ms Oh had pre-existing issues relating to pain to her neck and back at least two years prior to the accident.
He concluded based on the history, his physical examination and the documentation that Ms Oh had sustained soft tissue injuries to her neck, both shoulders, lumbar spine, left knee and right ankle caused by the accident.
Treating medical evidence
Dr C Costa clinical notes
On 15 June 2018 Dr Chesterfield-Evans, general practitioner reported the claimant’s involvement in the accident on 11 June 2018. He reported she had sustained a whiplash to the left arm and elbow, a left shoulder strain and bruise to the left upper arm, left clavicle and upper rib contusion, low back pain, post-accident anxiety and damage to the right upper molar.[9]
[9] Insurer’s bundle p 121.
As of 24 August 2019, Dr Chesterfield-Evans reported the claimant still had back and neck pain. On 22 October 2018 Dr Chesterfield-Evans reported the claimant had right sided cervical pain and on 26 October 2018 he reported physio was helping and Ms Oh was going to try and work three hours three days a week. On 30 November 2018 Dr Chesterfield-Evans reported the claimant was better since having back and neck physio. The dental problem remained. The claimant was not working.
The next entry was on 9 March 2020 when Dr Chesterfield-Evans reported the claimant’s car was rear-ended. Dr Chesterfield-Evans issued a Certificate of Capacity/Certificate of Fitness in which he stated, “had previous MVA, but had recovered and was working normally”. He diagnosed whiplash and pain radiating down to arms, bilateral shoulder tendon pain, pain both elbows and wrist, low back pain and sacroiliac pain, sore knees and an anxiety reaction.[10]
[10] Insurer’s bundle p 34.
On 16 March 2020 Dr Chesterfield-Evans noted the claimant felt depressed and demotivated.[11] He reported she worked as general manager of a building maintenance company, but her brother and sister-in-law were doing that job and looking to replace her. Ms Oh sought a referral to Dr Jung Sook Kim, psychologist. On 12 May 2020 Dr Chesterfield-Evans reported the claimant was still not working. The main reason was she was nervous driving. On 2 June 2020 Dr Chesterfield-Evans reported the claimant could not sleep, she was waking at night and reliving the accident. She was reported to be very scared when driving with her husband and did not drive alone. Ms Oh was referred to Dr Selwyn Smith, psychiatrist.[12]
[11] Insurer’s bundle p 116.
[12] Insurer’s bundle p 114.
In a Certificate of Capacity/Certificate of Fitness dated 16 June 2020 Dr Chesterfield-Evans recorded:
“Pain severe in neck, shoulders, elbows, wrists, low back and knees. … Very anxious – needs to see psychologist as too nervous to drive which makes it hard to RTW. Pt needs rehab to RTW and wants to see Liz McLean of SOS Rehab who she had after a previous accident. I have suggested driving lessons and will discuss this with her psychologist, Dr JS Kim. … Psyche very fragile – see Dr Selwyn Smith psychiatrist ….”.[13]
[13] Insurer’s bundle p 37.
On 30 June 2020 Dr Chesterfield-Evans recorded inter alia:
“Very depressed. Flat Affect. Considerable deterioration.
DASS 42:36:36, 40, All extremely severe.
Sees JSK weekly.
Sleeps poorly – start Endep.”
On 21 September 2020 Dr Chesterfield-Evans reported inter alia:
“Pt was feeling very unwell, and very stressed and anxious when driving. She does sometimes drive her daughters to school, usually with her husband Anthony with her.
She says she cannot work as she is too depressed, cannot concentrate, even for short periods. Some effort made by both myself and Liz McLean to get her to try some work. Pt adamant. Has problem sleeping and has nightmares and wakes in the night and cannot get back to sleep. Cannot get deep sleep and is sleepy during the day.”[14]
[14] Insurer’s bundle p 110.
On 8 December 2020 Dr Chesterfield-Evans reported Ms Oh was reluctant to take the medication prescribed by Dr Selwyn Smith. In a Certificate of Capacity/Certificate of Fitness dated 8 December 2020 Dr Chesterfield-Evans recorded, inter alia, a diagnosis of major depressive disorder and generalised anxiety disorder with car phobia.[15] He reported:
“Pain severe in neck, shoulders, elbows, wrists, low back and knees. … Very anxious – needs to see psychologist as too nervous to drive which makes it hard to RTW. Case conference with Liz McLean of SOS Rehab today. …Psyche very fragile – saw Dr Selwyn Smith psychiatrist – 28/10/20 who added medics. Unable to drive both physically and mentally…. Note change to psychiatric diagnosis on basis of
Dr JS Kim’s report of 8/1/20”.[15] Insurer’s bundle p 40.
On 2 March 2021 Dr Chesterfield-Evans reported the claimant was very subdued, she was at home and was quite agoraphobic. He reported she could not sleep. He described depression as the major problem and recommended further review by Dr Smith.[16]
[16] Insurer’s bundle p 107.
On 11 May 2021 Dr Chesterfield-Evans reported the claimant was very subdued, not working, very anxious and seemed quite agoraphobic. She only went out with her husband Anthony, she walked around her home and made very short drives to take her children to school. [17]
[17] Insurer’s bundle p 211.
On 29 June 2021 Dr Chesterfield-Evans reported:
“She is very traumatised as she did PTSD test for insurer which took 4 hrs and she only had interpreter for 1 hr. 500 questions. Pt said she could not do it with the language problem. Then the insurer accused her of faking and refused all benefits. …
Message from Dr JSK, who was very concerned that Pt was so traumatised…
She says she cannot drive and does not even take kids to school – Anthony does”.
On 27 July 2021 Dr Chesterfield-Evans reported Ms Oh was home with Anthony, she was very withdrawn and would only speak after him. On 16 August 2021 Dr Chesterfield-Evans reported Ms Oh was still very depressed, she had not seen Dr Kim and the appointment with Dr Smith was cancelled because the insurer refused to pay. He reported pain in the neck, back and knee persisted but her main problem was depression. He changed Endep to Lexapro 10mg.[18]
[18] Insurer’s bundle p 209.
On 8 November 2021 Dr Chesterfield-Evans reported Ms Oh was very depressed, she could not sleep. He also recorded her complaints of neck, back and right shoulder pain.
Dr Jung Sook Kim, psychologist
Dr Kim’s comprehensive clinical notes were provided.[19]
[19] Claimant’s bundle pp 20-55.
In an Allied health recovery request (AHRR) dated 6 May 2020 Dr Kim reported the following:
“Ms Oh has experienced various symptoms including feelings of hopelessness, hypervigilance sleeping problems, fatigue and tiredness, lack of energy, persistent headaches, irritability, difficulties coping, agitation, social withdrawal, unable to relax due to intrusive thoughts, decreased motivation and confidence, concentration problems, recurrent memories of the accident, feelings of shame and guilt, confusion, decline in short term memory and problem solving capacity, and recurrent thoughts of death.
Ms Oh was administered DASS 21 on 24/03/2020 and she scored 40/42 for depression, 42/42 for anxiety and 42/42 for stress.”[20]
[20] Insurer’s bundle p 59.
In relation to relevant pre-existing factors Dr Kim recorded:
“Ms Oh was involved in an accident in June 2019. She underwent physiotherapy and did not undergo psychological treatment. Other than this I am not aware of any pre-existing factors directly relevant to the compensable injury”.
Dr Kim also reported Ms Oh had stopped work and was reliant on her husband and mother-in-law in relation to domestic duties and parental responsibilities.
In an AHRR dated 3 May 2021 Dr Kim reported Ms Oh continued to suffer from depression, persistent pain and car phobia which were adversely impacting her recovery.[21] She reported a loss of confidence and self-esteem.
[21] Insurer’ bundle p 71.
Report of Dr Jung Sook Kim
Dr Kim provided a report dated 12 September 2022.[22] She reported Ms Oh had attended approximately 40 sessions of treatment over 2.5 years. He reported following the 2018 accident she underwent physiotherapy and recovered. Whilst Dr Chesterfield-Evans referred Ms Oh to her she did not undergo psychological treatment at the time as she felt it was unnecessary.
[22] Claimant’s bundle p 8.
Following the accident Dr Kim reported Ms Oh was preoccupied with the wellbeing of her daughters who were shocked and injured. She reported following the accident Ms Oh was unable to return to work as general manager in her husband’s business and experienced diminished ability in relation to her domestic duties and parental responsibilities. Dr Kim reported initially she was unable to drive but has since been able to drive to nearby and familiar areas. She reported Ms Oh experienced palpitations and excessive worries while driving and startled responses when exposed to traffic conditions. Dr Kim reported Ms Oh experienced feelings of hopelessness and helplessness and now experiences a withdrawn and restricted lifestyle. She reported Ms Oh felt she had experienced personality changes and was now reserved and quiet. She reported Ms Oh had sleeping difficulties including nightmares and bad dreams. She tends to be exhausted and lacks concentration during the day.
Dr Kim reported Ms Oh showed low mood and presented herself as a depressed individual. She neglected her personal grooming and clothing. She reported Ms Oh stopped most social and recreational activities after the accident.
Dr Kim diagnosed major depressive disorder and generalised anxiety disorder which was primarily caused by the accident.
Dr Kim commented that the assessments of Dr Vickery and Ms Tyler were each based on a single session. She stated even with the aid of an interpreter there are sociolinguistic factors that can impede communication. She also stated that Korean patients have a tendency to express their depression and anxiety through the expression of physical symptoms which have less cultural stigma than expressing changes in feelings.
In relation to the opinion of Dr Vickery, Dr Kim stated she found Ms Oh’s worries and depressive moods primarily concerned her lack of abilities, loss of confidence and uncertainty in relation to the future. She did not consider her excessive thoughts were focused on her health or somatic symptoms.
In relation to the opinion of Ms Tyler, Dr Kim stated the administration of the assessment on Ms Oh was invalid due to her comprehension, cultural and linguistic differences, and the side effects of medications which Ms Oh was taking at that time. Dr Kim said she disagreed with Ms Tyler that Ms Oh was malingering having regard to her history and her view that she was not motivated by money. She reported she has been diligent in attending regular treatment sessions and making an effort to improve her condition.
Dr Selwyn Smith, psychiatrist
Dr Smith saw the claimant on 29 October 2020. He provided a report dated 17 November 2020.[23]
[23] Insurer’s bundle p 92.
Dr Smith reported Ms Oh was involved in the 2018 accident. Her husband was also involved in that accident and continues to be disabled as a result. He also reported the claimant’s mother died as a result of a motor vehicle accident in 2005.
Dr Smith concluded Ms Oh demonstrated an adjustment disorder with mixed depressed and anxious mood. He recommended she continue with Dr Kim, psychologist and prescribed Prazosin for her flashback episodes similar to a post-traumatic stress disorder and Ativan for her anxiety.
Complete Allied Health Care
Ms Oh underwent exercise physiology in respect of her cervical spine, lumbar spine, bilateral shoulders, left knee and right ankle. In a report dated 17 December 2020 Christian Lee, exercise physiologist reported Ms Oh demonstrated pain focused and fear avoidant behaviour.[24]
[24] Insurer’s bundle p 101.
Professor George Murrell, shoulder surgeon
On 20 January 2021 Professor Murrell reported the claimant’s involvement in the accident. His assessment was of an impingement of the right shoulder. He recommended a corticosteroid injection.
Medico-legal reports
Ms Alicia Tyler, psychologist, Need A Pysch
Ms Tyler administered psychometric testing when she assessed the claimant on 3 June 2021. She provided a report dated 18 June 2021.[25]
[25] Insurer’s bundle p 226.
Ms Tyler reported Ms Oh stated she felt anxious at the start of the assessment. She reported Ms Oh said she was experiencing low mood; her affect was restricted, and she did not smile throughout the assessment. She noted a Korean interpreter was present for the clinical interview and the first half hour of testing, however, the interpreter assessed that Ms Oh did not require interpreting support for completion of the testing. Ms Tyler reported all six of the understanding scales across the MMPI-2, MMPI-20RF and PAI were within the acceptable ranges meaning Ms Oh understood the questions she was responding to. She also noted that Ms Oh stated in her former role as a general manager she communicated in both English and Korean.
Ms Tyler reported Ms Oh exceeded the cut-off for potentially malingering on 23 of the 25 scales. Ms Tyler concluded a finding of genuine mental illness was excluded because the claimant endorsed fictious symptoms, symptoms that were inconsistent with genuine psychiatric patients, exaggerated symptoms; unusual somatic complaints that were unlikely in genuinely mentally ill people; and unusual memory and cognition complaints that were not accounted for even if a brain injury had been sustained. She reported based on the responses she could not reliably accept Ms Oh suffered any diagnosis other than malingering.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 13 June 2023 in support of the application for review.[26]
[26] Insurer’s bundle p 1.
After assessing the claimant on 29 September 2022 and 17 November 2022 Medical Assessor Roberts issued a certificate dated 19 December 2022. Principal Member Harris subsequently determined that certificate was incomplete because Medical Assessor Roberts had not been provided with a copy of the certificate of Medical Assessor Truskett who assessed the claimant’s alleged physical injuries. Principal Member Harris referred the matter back to Medical Assessor Roberts and asked him to issue a complete certificate. The certificate of Medical Assessor Roberts dated 12 May 2023 is the subject of this review.
The insurer submitted Medical Assessor Roberts did not address the diagnostic criteria for persistent depressive disorder under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The insurer notes criteria A, B and C within the DSM-5 for persistent depressive disorder requires the following:
“A. Depressed mood for most of the day, for more days than no, as indicated by either subjective account or observation by others, for at least 2 years.
B. Presence, while depressed, of two (or more) of the following:
1.Poor appetite or overeating.
2.Insomnia or hypersomnia.
3.Low energy or fatigue.
4.Low self-esteem.
5.Poor concentration or difficulty making decisions.
6.Feelings of hopelessness.
C. During the 2 year period … of the disturbance, the individual has never been without the symptoms in Criteria A and B for more than 2 months at a time.”
The insurer submits Medical Assessor Roberts failed to provide sufficient reasons for his opinion as to diagnosis in the context of the observed inconsistencies and the opinion of Dr Tyler that the claimant was malingering.
The insurer notes that Medical Assessor Truskett also observed a number of inconsistencies in the claimant’s presentation including that she deliberately limited the amount of movement available during formal examination. This opinion was consistent with the positive malingering finding of Dr Tyler and was, the insurer submitted, not properly considered by Medical Assessor Roberts.
The insurer also submits Medical Assessor Roberts did not properly consider the certificate of Medical Assessor Truskett, where he stated Medical Assessor Truskett “found that the motor accident of 8 March 2020 had caused physical injuries” but where he did not comment on the view formed by Medical Assessor Truskett that the claimant was malingering given the significant inconsistencies observed and the inconsistencies in the histories given to Medical Assessor Roberts and to Medical Assessor Truskett.
Claimant’s submissions
The claimant provided submissions dated 11 February 2023 and 27 June 2023 in response to the application for review.[27]
[27] Claimant’s bundle p 1.
The claimant submits Medical Assessor Roberts considered the opinion of Ms Tyler but arrived at a different view after concluding that she had not distinguished between exaggeration and fabrication with respect to the symptoms and responses provided by the claimant.
The claimant also submits that Medical Assessor Roberts confirmed he considered the late documents which including the certificate of Medical Assessor Truskett.
The claimant submits Medical Assessor Roberts was entitled to make his assessment using his own clinical judgment and professional expertise.
THE MEDICAL EXAMINATION
Re-examination
On 5 August 2024, Ms Oh was examined by Senior Medical Assessor Baker and Senior Medical Assessor Mason using MS Teams in a teleconference with a Korean Interpreter. The claimant was located at her home and was unaccompanied.
Psychosocial history and pre-accident history
Ms Oh is a 42-year-old woman who reported she had been separated from the father of her children since 2023. The father was aged 45 years. She said she had never married the father of her children. She lives with two children to the union, her eldest daughter aged 11 years, and her younger daughter aged 9 years. Ms Oh said her husband provided her with money to care for the children. She also received money from her father aged 75 years who lives in Korea with her elder sister aged 46 years. Ms Oh said she also received some money from claiming Family Tax Benefit A and B. She said she had not worked since the subject motor accident.
Ms Oh was born in a northern region of Seoul, Korea. Her father was retired and had worked for Daewoo motor industries. She said he was an upper middle manager. Her mother died aged 55 years in about 2005. The claimant said her mother died from a motor accident. Ms Oh was asked about her emotional response to the death of her mother. She said she grieved normally. Ms Oh was asked did her mother’s death return to her mind when she had experienced the subject accident. She dismissed her mother’s death as not related to the subject accident.
Ms Oh reported she had attended public education for primary school and middle school. She attended private education for her higher school education. She said she studied all her school education in Korea. She said Korean was her primary language.
After completing school, Ms Oh attended university and studied family studies. She changed from this course to study a Bachelor of business accounting, offered by the University of Central Queensland. She said she first entered Australia in 2002 as a single person on a student education visa.
Ms Oh worked in Sydney whilst attending off campus educational requirements in the Sydney based education suites for the University of Central Queensland. She was asked about her English skills and English training and tuition. She said prior to arrival in Australia she only spoke Korean. She said she received two months of English tuition provided by University of Central Queensland and a further three months of tuition on campus at the University of Tasmania.
Ms Oh found work in Sydney, and she initially worked as a tax agent for an accountant. She then found work at a Korean speaking bank. She said she spoke mainly Korean and performed her transactions in Korean with the bank.
Ms Oh met the father of her children in Australia. They settled and formed a family. She was a stay-at-home mother. She said she worked in the family business commencing in about 2017. She was the manager for the family company. The company provided commercial cleaning services. Both Ms Oh and the father of her children co-owned the business. Ms Oh said the father of her children stopped work after the motor accident in 2018. She stopped work in the family company in 2020, after the accident.
Ms Oh said the family business was still operating on a small scale. She said the brother of the father of her children had taken over the day-to-day management of the business.
Ms Oh did not report any physical or psychological complications in relation to her pregnancies or the birth of her daughters. She said her children spend about 50% of their time with their father. She did not report any trauma, neglect or abuse during her childhood development.
2018 motor accident
Ms Oh was asked to describe the 2018 motor accident. She provided the following
history:
(a) the car was being driven by the father of her children;
(b) she was in the front passenger seat;
(c) the daughters were in the rear seats;
(d) the family was returning from grocery shopping;
(e) Ms Oh said she remembered hitting her left shoulder on the window, as the car was hit on her side;
(f) she remembered the police arriving;
(g) the family was transferred to hospital by ambulance and discharged after a few hours, and
(h) the next day Ms Oh and her husband presented to their general practitioner.
Ms Oh was asked had she suffered from a psychological injury caused by the 2018 motor accident. She said she was not psychologically injured. She was then informed that her general practitioner said she had an anxiety reaction from the 2018 motor accident. Ms Oh said this was not the case, as she was preoccupied with physical injuries.
Ms Oh reported she returned to her role as the manager of the family commercial cleaning business about one week after the accident. She reported that the father of her children was more injured and had not returned to work since the 2018 motor accident.
Ms Oh stated she had remained capable of performing the work she did prior to the 2018 accident. These duties included managing staff and meeting clients. She did site inspections and trained staff in cleaning techniques. She said she did not have any specific training or certificates from TAFE NSW to teach cleaning. She said she had a “White Card” which she said was a work, health and safety card. Ms Oh said she performed her duties in Korean mainly and English only when required.
The accident
Ms Oh was asked to describe the accident on 8 March 2020. She provided the following history:
(a) she was the driver of the car on 8 March 2020;
(b) her daughters were seated in the rear;
(c) she and her daughters were returning home from a daughter’s friend’s birthday party;
(d) she could not remember exactly the street name where the accident happened;
(e) she remembered the location as close to the “Hume Highway near Liverpool”.
(f) she was stationary at traffic lights prior to the accident;
(g) her car was hit from behind;
(h) her car was shunted into the car in front of her;
(i) she did not know who called the police and ambulance;
(j) her children were “shocked and crying”. Ms Oh gave them water. She did not say she suffered any shock from the accident. She had not “expected the accident” and was confused as to how to proceed. She called the father of her children who arrived at the scene. She decided not to go to hospital and the children’s father drove them home, and
(k) she did not know what happened to the car she was driving.
Ms Oh said she attended her general practitioner the next day due to pain in her back and her neck. She experienced ongoing pain that prevented her from sleeping. She said her sleep was poor since the accident. She said she would wake up in pain. Ms Oh said life had become hard for her since the accident. She suffered from her physical injuries and had not been able to adjust to her new life and circumstances. She reported a depressed mood and anxiety. She stated that the nightmares had lessened. She now had nightmares at a frequency of one every three months. Ms Oh said she does not have energy and interest in her life.
Ms Oh stopped working in the family company. She said the father of her children left the family home in 2023, as she was not helping and did not work. She said she was afraid for her future. Her appetite was reduced, and she had lost about 8 kgs in weight.
Ms Oh reported that her general practitioner had prescribed Mirtazapine initially 15mg and then 30mg to help with her sleep. She was referred to a psychologist Dr Kim for psychological treatment of her anxious and depressed mood.
Ms Oh was assessed and treated for pain affecting her neck, back, ankle and shoulders. She stated she was investigated with imaging studies looking for physical injuries. She was prescribed medication for her pain. She was referral to a specialist for further assessment. She was treated conservatively with physiotherapy, but her pain condition failed to resolve fully.
Ms Oh continued to report suffering from a depressed mood and anxiety. She reported she was low in her energy and mood. She reported she had lost interest in her career. She reported she had poor sleep due to pain. Ms Oh was able to care for herself and her children independently. She said she was unhappy with her life as things had become hard because she had not been able to adapt to her current circumstances.
Ms Oh presented as an anxious woman. She frequently provided little detail to the questions asked. When provided with open questions she would provide responses that she had previously provided. At times she made claims that were difficult to fully understand. An example of this behaviour was when Ms Oh was asked whether she thought about her mother’s motor accident. She responded firmly “No, I do not”. When asked to provide a broader response, she could not do so.
Similarly, when questioned about the notation of “post trauma anxiety” following the 2018 accident Ms Oh firmly replied “No” and declined to provide any further explanation. Over the length of the examination rapport had to be rebuilt many times. Ms Oh was a poor historian and details that would have been expected were only confirmed when direct examples from prior documented examinations were brought to her notice. Another example of this complex behaviour was when the claimant was asked about her mental health, she responded, “they think I’m crazy”. When asked who, she said the father of her children and the children’s grandmother.
Ms Oh was orientated in time, place and person. She was able to concentrate and use an interpreter for the entire duration of the assessment for up to 110 minutes. She did not provide any report of delusions, or psychotic symptoms. She reported having no interest in rising to help her daughters each day before school. She had a low mood and was sullen in the assessment. She confirmed her depressed mood was ongoing since the onset of this psychological injury. She was insightful and her judgment was not impaired. She reported no plans to harm herself. She had no past history of self-harm.
Ms Oh reported the following changes since the accident in 2020:
(a) Self-care and personal hygiene.
She reported that she was able to live independently. She receives help once each month from her cousin who visits. The children’s grandmother checks on them. Ms Oh said she cooks simple foods for her children and herself.
Ms Oh said she washed her children’s clothes, school uniforms and her own laundry. She cleans the house less frequently. She attributed her reduced self-care and personal hygiene to her low energy. She showers and supervises her daughters’ personal hygiene.
(b) Social and recreational activities
Ms Oh reported she did not participate in festivals with the father of her children or her daughters. Her daughters go out most weekends with their father. She said since the separation from the father of her children she was not interested in celebrations. She was able to take her daughters with her and her cousin back to Korea for a holiday in 2023.
(c) Travel
The claimant said she had travelled to Korea with her daughters and her cousin who visits her once each month from Sydney. Ms Oh said she usually leaves her house about five times each week alone. She goes to local and familiar areas. She has in person appointments with her psychiatrist Dr So, in Burwood. She sees her psychologist in person on occasion and her last in person attendance was in May 2024.
(d) Social functioning
Ms Oh reported verbal arguments between her and the father of her children. She reported her husband left the family home in 2023. She said the father of her children pays money for support of the children and has about 50% of the time with his children.
The claimant said the reason for the children’s father leaving was because she did not work or help as she had before the 2020 motor accident.
She said her cousin visits her once every month. She talks to her mother by telephone most days.
(e) Concentration, persistence and pace
Ms Oh said she had lost some of her English as she was not required to speak as much English as when she was in the community and managing the business. She said she tries to read easy English stories to the children. She said she preferred her primary language and usually could read in her own language without difficulty for her needs.
(f) Adaptation.
Ms Oh said she had not been able to adapt after the accident. She had not been able to work like she had before the 2020 motor accident. She continued to have a “hard time” in her life. She said her sleep and energy was poor and she had lost interest in her career. She said she remained, “sick”, not like the person she was prior to the accident.
Consistency of presentation
The claimant presented as an anxious woman. Enquiry was made regarding the psychometric testing administered by Ms Tyler on 3 June 2021. Ms Oh said she was aware the insurer said she was “faking”. She said she told Ms Tyler many times in the assessment that she did not understand the questions. Ms Oh said the Korean interpreter left between 30 to 60 minutes into a four hour questionnaire and examination because the Korean interpreter “did not understand the questions either”.
Ms Oh reported that she felt forced to respond to the questions. She said she felt “trapped”. She said she was not informed prior to commencing the four hour questionnaire, that the examination was going to be for that length of time. The claimant said that she would have never had agreed to start the testing had her informed consent been sought.
From careful consideration of the report provided by Ms Tyler and the difficulties encountered by the claimant and Ms Tyler, on the balance of probabilities, the use of English based tests in a person whose primary language is Korean is unlikely to provide confidence in either the person being assessed or those who seek to understand and have confidence in any purported outcome.
Importantly the Minnesota Multiphasic Personality Inventory-2-Restructured Form (MMPI-2-RF) is available in Korean, and Minnesota Multiphasic Personality Inventory-2 (MMPI-2) is also available in Korean. The inconsistency identified might be better explained by cultural norms and poor comprehension of complex tasks such as repeated forced response questionnaires in a multicultural civilian setting. From a clinical perspective having a claimant assessed using their primary language is preferrable to the use of second language interpretation and responses to written questions. Similarly, explanations in the claimant’s primary language regarding length of time required, purpose and reasons for assessment are required to enable the claimant to be fully aware of the nature and purpose of the assessment.
At the examination the claimant’s responses to questions was consistent with the responses reported in other clinical assessments. Ms Oh had previously stated that her memory is not complete for all details across either the 2018 and 2020 accidents and this remained unchanged at this examination.
In relation to the insurer’s submission that the claimant was malingering given the inconsistencies observed by Medical Assessor Truskett, the Panel notes Medical Assessor Truskett found the claimant had sustained soft tissue injuries to her neck, both shoulders, lumbar spine, left knee and right ankle.
The Panel is also mindful of the cultural and linguistic differences reported by Dr Kim and her assertion that “Korean patients had a tendency to express their depression and anxiety through the expression of physical symptoms which have less cultural stigma than expressing changes in feelings”.
PANEL CONCLUSION
Diagnosis
The Panel considered the diagnosis of persistent depressive disorder. The Panel weighed not only the documented diagnosis of Medical Assessor Roberts but also the foundation reasons on which the diagnosis was made. The Panel noted that Medical Assessor Roberts accepted the “reliability” of the claimant’s “account” was in doubt. He stated “her (Ms Oh’s) account reflected a depressed mood” but he did not document that she reported a depressed mood. In relation to her current symptoms, Medical Assessor Roberts reported “When asked regarding her mood around the time of the assessment, Ms Oh replied tangentially, stating that she ‘had no energy, and she wants to lie down…’”. She did not state at the time of direct enquiry that she was depressed in her mood. As reported by Dr Kim, sociocultural factors are present when understanding the claimant’s self-report of her low mood. The Panel determined that the best clinician to fully understand the claimant’s persistently depressed mood is a skilled clinician who is able to speak the claimant’s primary language and understand the claimant’s cultural norms from the claimant’s community of origin.
Dr Kim’s report dated 12 September 2022, documented the following:
“Ms Oh was referred to me by her general practitioner, Dr Arthur Chesterfield Evans. She has been under my care since 24/03/2020. She has been undergoing treatment for Major Depressive Disorder and Generalised Anxiety Disorder stemming from a motor vehicle accident (MVA) on 08/03/2020…”
The Panel reviewed the clinical records of Dr Kim the treating psychologist. The Panel noted the psychologist had attended the claimant on 40 occasions. The psychologist first documented depression and anxiety in a clinical note on 2 September 2022 stating, “Her condition did not change much and continued to suffer from pain, depression, and anxiety…”.
The Panel noted the Depression Anxiety and Stress Scale 21 (DASS21) on page 96 of the clinical records of the psychologist. Scoring on the scale was recorded five times between about April 2020 and about April 2021. The scores were in the severe range. No further scores are documented until November 2023 when the scores remain at the same level. The DASS21 screening scores in conjunction with the clinical records of the general practitioner demonstrates continuous low depressed mood from the onset of this psychological injury without any remission of this symptom of depressed mood until the date of this assessment.
The Panel recognises that the DASS 21 scale is a clinical screening tool and not a diagnostic instrument. However, the DASS 21 scores were repeatedly measured with a persistent record of depression and depression related symptoms made on subjective self-report and verified by Dr Kim’s clinical notes and general practitioner records of low depressed mood during treatment.
The Panel finds the presentation of the claimant has not clinically changed. Dr Kim frequently uses the term “low mood”. The term "low mood” is an older clinical term that was often used to define a DSM-IV Dysthymic disorder. DSM-5-TR F34.1 persistent depressive disorder represents a consolidation of DSM-IV-defined chronic major depressive disorder and dysthymic disorder. Both conditions are types of depressive disorder that can present due to psychological injury caused by trauma such as the injury sustained in motor accidents.
The Panel reviewed the updated clinical records of Dr Kim as of 1 August 2024. Accepting the complex sociocultural factors reported by Dr Kim together with the clinical judgement of Medical Assessor Baker and Medical Assessor Mason, the best diagnosis that explains the claimant’s psychological injury is DSM-5-TR F34.1 persistent depressive disorder.
The Panel is aware of many different diagnoses and explanations having been offered to explain the claimant’s condition since the accident on 8 March 2020. After careful consideration of all the information forwarded including the alleged physical injuries and suggested psychological diagnosis, the best explanation and most durable diagnosis is DSM-5-TR F34.1 persistent depressive disorder.
Diagnostic criteria used to define DSM-5-TR F34.1 persistent depressive disorder is documented below:
“A. Depressed mood for most of the day, for more days than not, as indicated by either subjective account or observation by others, for at least two years.
This criterion is met and evidenced by the general practitioner clinical records, the treating psychologist’s clinical records and by the claimant’s subjective account as defined by the reports of her DASS21 symptom screening record.
B. Presence, while depressed, of two (or more) of the following:
Poor appetite
This criterion is met and evidenced by the claimant’s self-report of loss of about 8 kgs in weight since the onset of this psychological injury.
Poor concentration or difficulty making decisions.
This criterion is met and evidenced by the inability of the claimant to work in her role due to poor concentration as reported since the onset of her psychological injury to the date.
Feelings of hopelessness
This criterion is met and evidenced by the frequent recording of hopelessness in the clinical records since the onset of the psychological injury to date.
C. During the 2-year period of disturbance, the individual has never been without the symptoms in Criteria A and B for more than 2 months at a time.
This criterion is met and evidenced by the general practitioner’s records of depression as well as the treating psychologists’ clinical records that document the claimant’s persistent low mood. Between these two clinical records the criterion is met.
D. Criteria for a major depressive disorder may be continuously present for 2 years.
The inclusion of major depressive disorder is not required for a diagnosis of persistent depressive disorder. The provision of Criterion D is to enable additional clinical information that alerts the clinician to a more severe type of depressive disorder that is not present at this assessment.
In summary, Criterion D. is not applicable to the claimant’s diagnosis of persistent depressive disorder.
E. There has never been a manic episode or a hypomanic episode.
This criterion is met as evidenced by the general practitioner’s clinical records, the treating psychologist’s clinical records as well as the report by the claimant at the time of the re-examination.
F. The disturbance is not better explained by a persistent schizoaffective disorder, schizophrenia, delusional disorder, or other specified or unspecified schizophrenia spectrum and other psychotic disorder.
This criterion is met as evidenced by the general practitioner’s clinical records, the treating psychologist’s clinical records as well as the report by the claimant at the time of the re-examination.
G. The disturbance is not attributable to the physiological effects of a substance or another medical condition.
This criterion is met as evidenced by the general practitioner’s clinical records, the treating psychologist’s clinical records as well as the report by the claimant at the time of the re-examination.
H. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.”
Causation
Ms Oh was not psychologically injured in the 2018 accident. She experienced anxiety related symptoms after this accident however she did not suffer from any psychological impairment sufficient to meet the criteria for any DSM-5-TR diagnosis. For these reasons she does not have a pre-existing psychological injury.
Ms Oh was able to work in her role as a manager of the co-owned commercial cleaning company. She was able to function as a partner and mother to her daughters prior to the accident on 8 March 2020.
Ms Oh suffered a psychological injury because of the accident on 8 March 2020.
The diagnosed psychological injury is DSM-5-TR F34.1 persistent depressive disorder. This diagnosis could cause the psychological injury sustained in the accident. The diagnosis could clinically and medically persist due to psychological impairments in social and occupational functioning that commenced at the time of the accident and continued without remission until this examination.
The Panel determines that the accident did cause the psychological injury, DSM-5-TR F34.1 persistent depressive disorder.
The Panel determines that the claimant suffers from DSM-5-TR F34.1 persistent depressive disorder because of the injury sustained in the accident.
Threshold injury
The Panel finds that the diagnosis of DSM-5-TR F34.1 persistent depressive disorder, is a non-threshold injury within the meaning of the MAI Act.
The Panel affirms the certificate of Medical Assessor Roberts dated 12 May 2023.
Treatment dispute
The claimant saw Dr Smith on 9 October 2020 when he diagnosed an adjustment
disorder with mixed depressed and anxious mood. Ms Oh continued under the care of Dr Chesterfield-Evans and Dr Kim, psychologist.
On 6 July 2021 Dr Chesterfield-Evans referred the claimant back to see Dr Selwyn Smith, psychiatrist. The insurer declined liability for that consultation on 9 July 2021. That declinature was affirmed by the insurer in a Certificate of Determination – Internal Review on 19 July 2021. This is the treatment dispute which was referred to Medical Assessor Roberts.
If the claimant had returned to see Dr Smith following the referral from Dr Chesterfield-Evans on 6 July 2021 the Panel is satisfied the consultation was reasonable and necessary in the circumstances having regard to the persistence of the claimant’s symptoms and that the consultation was related to the injury caused by the accident where the evidence demonstrates that the claimant’s psychological symptoms date from the accident.
However, if the claimant had not returned to see Dr Smith the referral is now moot where Dr Smith died on 18 January 2022.
The Panel affirms the certificate of Medical Assessor Roberts dated 12 May 2023.
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