AAI Limited t/as GIO v Zalghout
[2024] NSWPICMP 452
•10 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Zalghout [2024] NSWPICMP 452 |
| CLAIMANT: | Mohamed Zalghout |
| INSURER: | AAI Limited trading as GIO |
| REVIEW PANEL | |
| MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Thomas Newlyn |
| MEDICAL ASSESSOR: | Wayne Mason |
| DATE OF DECISION: | 10 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant was involved in two low impact motor vehicle accidents within ten days; claimant’s car was either stationary or travelling slowly and was hit from behind by other cars; Medical Assessment Certificate (MAC) found the claimant sustained psychiatric injuries and assessed permanent impairment of 12% from second accident; Medical Review Panel considered a long-standing history of psychological symptoms and distress; claimant confirmed that the only problem he had arising from the motor accident was continuing back pain; Held – the subject accidents did not cause, contribute or exacerbate any psychological injury or impairment experienced by the claimant; assessment of psychiatric permanent impairment is not needed; MAC revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Michael Robertson dated 18 February 2023 and issues a replacement certificate determining that there were no psychiatric injuries caused by the motor accident on 10 July 2017 that gives rise to any permanent impairment. 2. The Review Panel revokes the certificate of Medical Assessor Michael Robertson dated 18 February 2023 and issues a replacement certificate determining that there were no psychiatric injuries caused by the motor accident on 25 July 2017 that gives rise to any permanent impairment. |
STATEMENT OF REASONS
BACKGROUND
Mohamed Zalghout (the claimant) was involved in two motor vehicle accidents on 16 and 25 July 2017. In both motor accidents it seems that the claimant’s car was either stationary or travelling slowly and was hit from behind by other cars.
After the accidents the claimant was able to drive his car home. He did not attend any hospital immediately after the accident.
AAI Limited trading as GIO (the Insurer) is the relevant insurer with liability to pay any damages to Mr Zalghout under the Motor Accident Compensation Act, 1999 (the MAC Act).
In a certificate dated 17 January 2023, Medical Assessor Alexander Woo determined that Mr Zalghout’s injuries from the accident on 25 July 2017 gave rise to permanent impairment of 1% and that the treatment and care in dispute was not related to the injury and was not reasonable and necessary.[1]
[1] Insurer’s bundle p 4.
The certificate dated 17 January 2023 of Medical Assessor Alexander Woo has been reviewed by another Review Panel. In that decision dated 11 June 2024 the other Review Panel found that there was a total 6% whole person impairment (WPI). The left shoulder at 1% WPI. The lumbar spine injury was an aggravation of pre-existing facet arthralgia resulting in a finding of DRE category II at 5 % WPI. All of the other injuries showed a normal range of motion and no assessable impairment.
In a certificate dated 18 February 2023 Medical Assessor Michael Robertson determined that Mr Zalghout’s psychiatric injuries from an accident on 10 July 2017 and another accident on 25 July 2017 gave rise to permanent impairment of 12%.
This present dispute is about the certificate of Medical Assessor Robertson dated 18 February 2023. It is in relation to the degree of permanent impairment sustained by Mr Zalghout as a result of his psychiatric injuries from an accident on 10 July 2017 and another accident on 25 July 2017.
This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] Sections 57 and 58 of the MAC Act.
REVIEW PROCEDURE AND PROCEDURAL FAIRNESS
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The relevant medical assessment was conducted by Medical Assessor Michael Robertson. He issued a certificate dated 18 February 2022.
The insurer’s solicitor sought a review of Medical Assessor Robertson’s assessment certificate.
On 23 May 2022, a delegate of the President decided that she was satisfied that there was a reasonable cause to suspect that the medical assessment of Medical Assessor Robertson was incorrect in a material particular. The delegate was satisfied that the assessment was incorrect because of the applicant’s ground for review that the Assessor failed to adequately consider/address submissions and evidence relevant to the determination of causation of the injury and failed to provide adequate reasons for the determination of causation.
The delegate has referred the medical assessment to the Review Panel (the Panel).[3]
[3] Section 63(2B) of the MAC Act. Decision of the Presidents delegate dated 11 October 2021. Insurer’s bundle of documents AD 4 p 7.
All Panel members have had no previous involvement with the claimant or with this matter.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Clause 14F of Schedule 1 of the PIC Act provides that the new review provisions apply in relation to a decision of a new decision maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[4] that a Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
[4] Sub-s 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor.[5]
[5] Sub-s 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to sub-section 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[7]
[7] Clause 1.2 of the Guidelines.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the MAC Act.
The Panel is not required to choose between competing medical opinions but is required to form its own opinion. See the decisions in: Insurance Australia Group Ltd v Keen[9] and Insurance Australia Ltd v Marsh.[10]
[9] [2021] NSWCA 287 at [40], [41] and [45].
[10] [2022] NSWCA 31 at [11], [21] and [64].
RELEVANT STATUTORY PROVISIONS AND GUIDELINES
A brief summary of the legislation and Guidelines relevant in this case can be stated as follows.[11]
[11] For a detailed explanation of how the legislation and Guidelines work together please refer to the decision of Walton J in: Insurance Australia Group Limited t/as NRMA Insurance v Saraceni [2020] NSWSC 1045.
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5-1.7 of the Guidelines relate to assessing permanent impairment and causation. The Guidelines provide in part:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The Panel notes that when considering the issue of causation of injury it had regard to the recent decision in: AAI Limited t/as AAMI Limited v Jacobs [2024] NSWSC 371. In Jacobs the insurer argued that the medical assessor had disregarded all of the contrary views so that the causation issues had not been properly dealt with. In response the claimant submitted that the medical assessor found there had been physical injuries which in turn caused psychiatric injuries. The court then held that the medical assessor had considered the whole of the material before him and had subsequently reached a conclusion that was available to him. His Honour stated that:
“In other words, it is obviously not enough to simply consider one side’s material, but that does not mean that every dispute in the material needs to be described and particularly resolved. This, albeit imperfect, assessment did look at both sides and did reach a conclusion, including specifically on causation.”[12]
[12] Per Elkaim AJ at [45]-[46]. Refer also to Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 and Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41]-[44]].
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act.[13] In Raina v CIC Allianz Insurance Ltd Campbell J stated:[14]
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[13] Sub-section 3B(2) of the CL Act.
[14] [2021] NSWSC 13 (Raina) at [65].
MEDICAL ASSESSMENT UNDER REVIEW
In his certificate dated 14 February 2022 Medical Assessor Robertson conducted a medical assessment and determined that the claimant’s psychological injury gives rise to permanent impairment of 12% and is greater than 10%.
Medical Assessor Robertson diagnosed the claimant with a chronic major depressive disorder comorbid with a somatic symptom disorder.
Medical Assessor Robertson’s conclusions about causation were that the:
“… issue of causation is complex. While prima facie the applicant was involved in nonfatal and ostensibly non-severe motor vehicle accidents leading to chronic pain which appears to be disproportionate to the observed pathology. There is considerable evidence of pre-existing significant vulnerabilities to mental illness including childhood trauma through the geopolitical circumstances of southern Lebanon during the applicant’s childhood and early adulthood. There is evidence of significant marital and interpersonal disharmony and receipt of psychological therapy at various points predating the accident.”[15]
[15] Insurer’s bundle at p 17.
Medical Assessor Robertson apportioned the impairment between the two accidents as follows.[16] “As the first accident was minor and he continued to work with minimum disruption following this, there is 10% apportionment to the first accident APP# 10370187 (16/07/2021) and 90% apportionment to the second accident APP#10370169 (25/07/2021).”
[16] Insurer’s bundle at p 20.
MATERIAL BEFORE THE REVIEW PANEL
The Panel issued two Directions to the parties dated 19 April and 3 July 2023 which required each party to file an indexed, paginated bundle of documents and requested Mr Zalghout to attend a medical examination.
In response to these directions the solicitor for the insurer and claimant filed bundles of documents.
The Panel notes that there are over 2,000 pages of medical records. These extensive and voluminous medical records, reports and clinical notes relate to the claimant’s psychological and physical injuries including: cervical spine, lumbar spine, right knee, left and right hips, left and right shoulders. The Panel has read and carefully considered all of these medical records reports and notes before it. The Panel has not referenced or summarised the records relating to Mr Zalghout’s physical injuries unless they are relevant or have some bearing on the consideration of Mr Zalghout’s psychological injuries which are the focus of this Panel’s reassessment process.
The Panel has reviewed and considered the certificate and reasons of the other Review Panel decision dated 11 June 2024 that reviewed the certificate of Medical Assessor Alexander Woo concerning the claimant’s physical injuries. The also Panel carefully considered and took into account the detailed medical history of Mr Zalghout’s injuries and treatment as recounted in the other Review Panel decision dated 11 June 2024.
If some of medical records and reports are not referred to in the Panel’s review, it should not be assumed that the Panel was unaware of that medical material or that the Panel failed to take the material into account. See Roger v De Gelder [2015] NSWCA 211 and Dunbar v Allianz Australia Insurance Limited [2015] NSWSC 119 which decided that there is no requirement for a medical assessor to address each and every report which offers a different opinion and explain how and why his/her own opinion differed.
In its review the Panel is endeavouring to carry out its statutory function and promote the objects of the legislation it operates under including the legislator’s guiding principle that proceedings in the Commission be just, quick and cost-effective resolution of the real issues in the proceedings.[17]
[17] Sections 3 and 42 PIC Act
Pre-accident records
There are a large volume of medical and clinical records relating to Mr Zalghout’s pre-accident medical history. The pre-accident medical records show that the claimant experienced or variously reported back pain and other complaints including to his knees, elbows, hips, legs and feet prior to the motor accidents in July 2017. In 2016 and early 2017 before the subject accidents, Mr Zalghout was diagnosed with inflammatory joint disease, rheumatoid arthritis and osteoporosis.
The pre-accident records also show a prior history of occasional treatment and counselling for anxiety and stress. For example Mr Zalghout consulted Dr Thaaer Al-Khalidy from Wetherill Park Medical and Specialist Centre on 4 August 2016 where he reported and was counselled for stress and anxiety. [18]
Post-accident records
[18] Insurer’s bundle AD 2 at p 70.
Motor Accident Personal Injury Claim Forms
In his Motor Accident Personal Injury Claim Form dated 7 March 2018,[19] Mr Zalghout wrote as follows. He nominated the date of the accident as 16 July 2017.
[19] Insurer’s bundle of documents pp 40-46.
In answer to question 7 in the form, he wrote that he was taking medication for arthritis.
In answer to question 22 in the form, he listed his injuries as low back disc, whiplash in the neck.
In answer to question 24 in the form, which asks if there were any other injuries or illnesses before the accident, the claimant wrote: arthritis, back, neck, right knee, shoulders, and anxiety.
In answer to questions 27-29 on the form the claimant wrote that he was employed as a security guard before the accident, he had not taken time off work as a result of the accident and he had returned to work.
In a second Motor Accident Personal Injury Claim Form dated 9 March 2018,[20] Mr Zalghout wrote as follows. He nominated the date of the accident as 25 July 2017.
[20] Insurer’s bundle of documents R5 pp 25-29.
His answers to question 22 in the form are unclear and difficult to read. His listed injuries appear to include: low back soft tissue, left and right shoulders, soft tissue neck, aggravated both knees, psychological post-traumatic stress anxiety state and depression and hips.
In answer to questions 27-29 on the form the claimant wrote that he was employed as a security guard before the accident, he had taken time off work as a result of the accident and he had returned to work.
Statements of Mohamed Zalghout 6 September 2018 and 26 April 2022
Mr Zalghout has produced two statements dated 6 September 2018 and 26 April 2022.[21]
[21] Claimant’s bundle A 30 and A 32 pp 391-397 and 468-473.
In his first statement Mr Zalghout describes how he arrived in Australia in 1988, worked as a printer and then as a labourer working in paving and then as a taxi driver for 12 years until 2002. He also states that in 2012 he obtained his security licence and commenced work with Stargate security.
The claimant describes his diagnosis with an arthritic condition in 2010. He also describes both car accidents which occurred on 16 July and 25 July 2017 and how he felt immediate pain in his back left and right shoulders, neck, knees and hips and was in shock.
He describes in some detail the history of his medical treatment from July 2017 until he travelled to Lebanon in May 2018.
Mr Zalghout said he told Dr Bazina that he was a paver and had not worked as a paver for at least four years and that he had been working security for the past four years.[22] He said that his symptoms started about two months earlier and this coincided with the change in the nature of the pain that he was experiencing since the car accidents.
[22] Claimant’s bundle of documents AD 2 p 395.
In his second statement dated 26 April 2022 the claimant denies telling Dr Bazina that he worked as a tiler. He says he obtained his security licence in 2012 and worked as a security guard until 2019 when he could no longer do that work due to his first back operation.
The claimant says he assisted his sons Ali and Hassan working at the business New Star Paving. He said that he did not receive any money for helping his sons run that business that he once operated. He says he attended jobs from time to time to give quotations but that he only managed jobs and directed his sons on how to do the jobs. But the most he ever did was only hold a string line and a broom. He was never expected by his sons to do any hard work. He said he only occasionally received money from his sons working in business.
Mr Zalghout stated in paragraphs 26-32 that:
“26. I went off the deep end psychologically between 2019 and 2022. Over the next two to three years I got psychologically significantly worse so everything I told Assessor Robertson in February 2022 was perfectly correct, and whilst the business was being operated and although I was intermittently helping with that operation it was mainly a business that was being operated by my sons and all the money went to them.
27. I do not feel confident I can ever run a business again. I get really anxious when driving and I am reluctant to drive far from home. I don’t like leaving home. I no longer feel comfortable or confident outside of my home.
28. I feel like a completely different person since the accidents. I do not socialise with friends or family, I have no motivation and little enjoyment of life.
29. I feel like I have significantly deteriorated physically and mentally since the accidents. The operations on my back took a toll on me and I simply haven’t felt like normal in a long time.
30. I tried to keep working after the accidents but eventually I could not cope anymore. I constantly felt pain and discomfort and tired.
32. I find that I have become moody and have a high level of anxiety, which I didn’t have before the accident.”
He told medical assessor Robertson in February 2022 that he was helping to operate the family paving business but that it was mainly being operated by his sons and all the money went to them.[23]
[23] Claimant’s bundle of documents AD 2 p 475.
The claimant says he did not renew his paving licence as he never did paving work since his car accidents and because of his rheumatoid arthritis.
Treating general practitioner and hospital records
There are a large number of treating general practitioner records that have been supplied to the Panel by both the claimant and insurers solicitors including Wetherill Park Medical and Marketplace MediClinic. There are also treating records that have been supplied to the Panel by the claimant from Sydney Southwest Private Hospital. The Panel has carefully reviewed all of these general practitioner and hospital records.
The treating general practitioner records seem to show an absence of contemporaneous complaint of accident related psychological symptoms. The medical records from Market Place Mediclinic show that between 6 February and 16 July 2018 there appears to be no record of any complaint made to the treating doctors by the claimant about the subject motor accidents.
The first clear report by the claimant of any psychological symptoms or impairment to his treating general practitioner appears to be in April 2019 with the claimant reported anxiety stress and depression to Dr Hatoum.
On 16 May 2019 the claimant was referred by Dr George Hatoum to Mr Sava Tsoli for an opinion and management of his depression.[24]
[24] Insurer’s bundle AD 2 at p 440.
Medico-legal reports
There are numerous reports from various specialists including: Dr Loretta Rozario, consultant rheumatologist; Dr Renata Bazina, neurosurgeon; Dr Peter Conrad; Dr Warwick Stenning; Dr Loretta Reiter, rheumatologist neurosurgeon; Dr Stephen Rimmer, orthopaedic surgeon and Dr James Van Gelder, the claimant’s treating neurosurgeon and spine surgeon which the Panel noted.
Essentially these reports together with the pre-accident medical records show that the claimant had reported long-standing and persistent back pain and pain and impairment to his knees, elbows, hips, legs and feet prior to the motor accidents in July 2017. Prior to the two subject motor accidents Mr Zalghout was also diagnosed and treated for inflammatory joint disease, rheumatoid arthritis and osteoporosis.
Report of Dr Robert Kaplan , forensic psychiatrist 26 November 2019
On 26 November 2019 the claimant was examined by Dr Robert Kaplan, forensic psychiatrist. There are two reports from Dr Kaplan dated 26 November 2019 and 3 March 2021.[25]
[25] Insurer’s bundle of documents pp 457-458.
Dr Kaplan reported that the claimant was initially referred to a psychologist because he was arguing with his family, and had low mood due to poor pain management. He stated that the claimant was also upset as his brother had passed away in Germany and he was unable to attend to the funeral. Dr Kaplan considered the claimant’s treatment to date had been reasonable and it appeared he was seeing a psychologist as much for family problems as pain management. Dr Kaplan considered the claimant’s condition was consistent with chronic pain syndrome and that he was likely exhibiting learned pain behaviour. The claimant reported that the pain from the two accidents was the worst thing in his life. The claimant said this had resulted in him ceasing work and suffering financial and marriage problems.
In the report dated 3 March 2021 Dr Kaplan made a diagnosis of chronic pain disorder or somatic disorder which he said could not be attributable to either of the motor vehicle accidents that occurred on 16 July or 25 July 2017.[26]
[26] Insurer’s bundle of documents pp 457-458.
Report of Mr John Raue, vocational psychologist
There is a report dated 10 December 2020 from Mr John Raue, vocational psychologist.[27] In regard to the claimant’s psychological condition Mr Raue writes:
“Because of Mr Zalghout’s apparently long history of injury claims and reportedly having something of a catastrophic emotional reaction to his current circumstances an inventory of symptoms related to the impact of pain on mood was administered. There are validity measurements within this test to identify potential exaggeration. On this test Mr Zalghout’s results as listed in the table below at face value indicate very high levels of depressive symptoms as well as high levels of stress and anxiety.”
SUBMISSIONS
[27] Insurer’s bundle AD 2 at pp 457 - 467
Insurer’s submissions
The insurer provided submissions dated 28 March 2022 , 21 July 2021 and 21 December 2020.
In the submissions dated 28 March 2022 the insurer’s solicitors argue that Medical Assessor Robertson used an incorrect method of assessment. The insurer notes Medical Assessor Robertson completed an assessment of whole person impairment by completing the following:
“(a) Assessed present whole person impairment in accordance with the PIRS scale;
(b) Then assessed whole person impairment related to pre-existing illness according to the PIRS scale;
(c) Then deducted pre-existing impairment from the present impairment to arrive at a present assessment of 12%;
(d) Then split the present assessment between the two motor accidents 10%/90% split.
The insurer submits such method of assessment is incorrect and not permitted by the Medical Assessment Guidelines.”
The insurer submits the method was correct until the Medical Assessor Robertson completed a cursory percentage split of the present assessment of whole person impairment.
The insurer submits in compliance with the Guidelines, the Medical Assessor ought to have completed a precise assessment of whole person impairment in respect of each accident using the psychiatric impairment rating scale (PIRS) scale.
The insurer submits that Medical Assessor Robertson had fallen into error by only providing one certificate.
The insurer also submits that Medical Assessor Robertson erred because the certification of whole person impairment based on anxiety state/shock/depression does not accord with the actual diagnosis of Medical Assessor Robertson, being Chronic Major Depressive Disorder, Somatic Symptom Disorder.
The insurer notes Medical Assessor Robertson has had regard to the impacts of pain during his PIRS assessment which is not permitted by the Guidelines. The insurer notes the same Guideline applies to a diagnosis of Somatoform Disorder which does not attract an assessment of whole person impairment.
The insurer submits that Medical Assessor Robertson failed to adequately consider the insurer’s submissions and evidence associated with the issue of causation of injury. In its submissions dated 21 July 2021, the insurer noted the contemporaneous lack of complaint of accident related psychological symptoms and that it did not appear there was any complaint of psychological distress until 1 April 2019, almost two years after the motor accidents and even then the reference to symptoms was associated with his son’s anger issues and personal problems. The insurer noted the claimant was referred to Ms Tsolsis, psychologist, for counselling but that the mental health care plan made no reference to the motor accidents.
The insurer notes it provided submissions placing causation in issue. Medical Assessor Robertson accepted that causation is complex but his failure to provide any reasons is a fundamental error.
In the submissions dated 21 July 2021 the insurer contends that that any ongoing psychological symptoms have arisen outside the context of the subject accident.
The insurer points to the lack of contemporaneous complaint of accident related psychological symptoms. The medical records produced by Market Place Mediclinic show that, over the course of 12 consultations between 6 February 2018 and 16 July 2018, the claimant made no reference to the subject accident.
The insurer says that after the accidents the first complaint made by the claimant of psychological distress was not until 1 April 2019, almost two years after the subject accident.
Secondly, the insurer submits that the claimant has a highly relevant history of psychological symptoms. The insurer notes that the claimant disclosed a history of anxiety in his Personal Injury Claim Form (A2). Further, records produced by Wetherill Park Medical and Specialist Centre indicate the claimant presented with anxiety and stress on 4 August 2016.
The insurer submits that several doctors have reported the claimant suffered from psychological distress prior to the subject accident. In particular, the insurer points to the notes of Dr Sam Borenstein, psychologist. He noted the claimant was exposed to traumatic war experiences in his childhood which had made him more vulnerable to develop symptoms of depression, and that he had previously consulted a psychologist following a marital separation.
The insurer referred to the reports of Mr John Raue, vocational psychologist, who tested Mr Zalghout and reported that the claimant’s test results were indicative of high levels of depressive symptoms, as well as high levels of stress and anxiety. The test results were suggestive of the claimant being overly focused on pain and may have been exaggerating the impact of his condition.
For the above reasons insurer refutes any casual connection between the subject accident and any alleged psychological injury.
In the submissions dated 21 December 2020 the insurer makes submissions about injuries to the claimant’s neck, lower back and left shoulder.
Claimant’s submissions
The claimant’s solicitors provided undated submissions in response to the insurer’s submissions about Medical Assessor Robertson’s assessment.[28]
[28] Claimant’s Combined reply bundle R1-R3 13 May 2022 pp 1-5 .
The claimant argues that there is no constraint on the assessment methodology utilised in the assessment of Medical Assessor Robertson. Medical Assessor Robertson has, generally, used his clinical judgment as a qualified psychiatrist in undertaking his assessment in apportioning impairment as between the two accidents. There is no precise method of calculation prescribed by the Guidelines. Medical Assessor Robertson has performed the task that he was required to perform by utilising his clinical judgment.
The insurer incorrectly refers to cl. 6.215 of the MA Guidelines. Clause 1.215 of the Guidelines is the equivalent clause. It relevantly provides that the PIRS must not be used to measure impairment due to somatoform disorders or pain. Contrary to the insurer’s assertions that the Medical Assessor has done what is proscribed by cl. 1.215, from a fair reading of the PIRS ratings assessed by the Medical Assessor, it is not apparent that he has attributed any impairment due to the diagnosed Somatic Symptom Disorder. It would be fairly inferred that Medical Assessor Robertson has determined PIRS ratings not due to any effect of pain, but, rather, due to the sequelae of the claimant’s chronic major depressive disorder.
The claimant submits that the diagnosis of the Somatoform Disorder has played no material role in the assessment of permanent impairment.
In response to the insurer’s submission it is clear from a fair reading of the certificate, particularly at paragraph 4 of the certificate, that the Medical Assessor has considered the insurer’s submission concerning the lack of contemporaneous complaint of accident related psychological symptoms until “almost two years after the subject accident”.
In paragraphs 37 to 39 of the Insurer’s submissions, it is submitted that Medical Assessor Robertson has reached an appropriate conclusion as to causation of the injury as set out at paragraph 20 of the certificate. The “psychosocial morbidity predating the accident” to which Medical Assessor Robertson ultimately refers at the last sentence of paragraph 19, should be fairly read as the precipitating factor for the development of the diagnosis of chronic major depressive disorder, which Medical Assessor Robertson has diagnosed.
RE-EXAMINATION AND MEDICAL ASSESSMENT
On 20 October 2023 Mr Zalghout was interviewed via telehealth by psychiatrists Dr Thomas Newlyn and Dr Wayne Mason on 20 October 2023. He was assisted by Arabic interpreter Ms Rose Haddad, NAATI No CPN1LJ74N.
He is a 57-year-old man who has received the disability support pension for six or seven months for ongoing lower back pain. He is not working. He lives in Department of Housing accommodation in a South Western Sydney suburb with two of his sons who are aged 11 years and 18 years.
Motor Accident of 16 July 2017
Mr Zalghout said he will never forget it. He was alone in the vehicle and was going to work on a Saturday. He had stopped at a red light and was rear ended by a red four-wheel drive vehicle. He said he immediately felt shaky and was aware of feeling pain in his lower back. He said his vehicle was pushed two metres forward. He was wearing a seatbelt but no airbag deployed. He did not hit his head and there was no loss of consciousness. He got out of his car and said the other driver was aged about 60. The lights turned green and a passing police car stopped and told them to move the cars and exchange details between themselves; the police did not get involved in the motor accident. No ambulance attended. He said despite the pain in his lower back he had to go to work. He said he was doing only three or four hours/day as a security guard on weekends. This involved driving to work sites and walking around. He said he did not go to the doctor straight away but the pain became unbearable and he saw the doctor within two days. He was prescribed Panadol and Panadeine Forte but the pain did not go and it became intolerable. Mr Zalghout was reminded that the medical record indicates he did not attend the general practitioner for a number of weeks (29 July 2017); he said it was such a long time ago and he could not remember. He was asked if there were any psychological problems arising from the motor accident and he said that was not the case. He was asked again about psychological injury and he confirmed the only problem arising from the motor accident was pain.
Motor accident of 25 July 2017
Mr Zalghout said he was travelling in a different car on the M7 in heavy traffic at approximately 50 to 60kmph. His son Hassan was a front seat passenger and both were wearing seat belts. He said suddenly the car in front of him stopped and a car driven by a
22-year-old female collided with his vehicle from the back. He said they pulled over on the right-hand side of the road and exchanged details. He believes he was stationary and she was travelling at approximately 50 or 60kmph. Airbags did not deploy, there were no head injuries, and police and ambulance did not attend. Following the accident he continued with his journey. He said the pain in his back increased more and more and he had pain in his left shoulder. There were no other physical injuries. He was asked about psychological injuries and specifically stated there were no psychological conditions immediately after that accident. He was again questioned about psychological injuries and he confirmed there were none arising directly from that motor accident, only exacerbation of pain.
Subsequent developments
Mr Zalghout said by 1 August 2017 the pain has become unbearable and he attended his general practitioner Dr Al Khalidy at Smithfield who ordered an MRI scan and referred him to a specialist. He subsequently had a steroid injection in his shoulder which was helpful. He said he then attended an Asian doctor in the same practice and she told him only to take Panadol but he did not feel comfortable with her. He then attended Dr Dewan at the Carnes Hill Medical Centre who prescribed Endone. Mr Zalghout said he was bedridden with pain and could not move for two weeks after the second motor accident. He said he was able to stand for only one minute and had pain running down into his leg. He had to use a chair in the shower and get his wife to help him. He said he had two steroid injections to the lumbar spine at about 12 and 18 months after the motor accidents and they helped a lot. By August or September 2019 he was wheelchair bound and was taken to see neurosurgeon Professor James Van Gelder.
He said when the pain became unbearable he had problems with his wife. He said he could not work so could not afford to meet the mortgage payments on the house and his wife was not at all understanding of his situation and was not supportive of him. They separated for three months in 2019 and during that time he stayed with his sister. He said he attempted to get counselling for both of them but she refused to come so he went alone; he said he saw psychologist Dr Sava at Bankstown Medical Centre about five times which did not in the end prove to be helpful. He said eventually his sons talked his wife into coming back but she did not change and they finally separated in 2020. He said he had to sell his house in order to pay all his debts and his wife had to sell her jewellery. As a consequence of the ongoing pain, inability to work, lack of money and problems with his wife he became depressed.
At this point in the interview Mr Zalghout was extremely distressed and found it difficult to stop sobbing. He said everything had been destroyed. His wife and children were gone, his wife did not stand with him and he could not say anything to her. He added three months ago she had kicked his son out of the house. He went on to explain his youngest son aged 11 was at school which finishes at 3.00pm. His wife had not collected him by 3.30pm and she was not answering the phone so the school called him. He collected him and brought him home but his wife would not have him back. Mr Zalghout said he does not receive enough money on the pension to support his two sons but he has no choice.
He then went on to explain that he had two lower back surgeries with Professor Van Gelder. As a consequence the pain has slightly improved but he is unable to carry anything heavy. He said his toes go numb if he is standing or makes a physical effort and then the pain comes back. He said if he sits for a long time he has pain. He estimated the current average pain level at 4 or 5/10 on a visual analogue scale in which 10 is most severe. This depends on him not doing very much and if he has to make any effort at all it goes up to 8 or 9/10.
Current symptoms
Mr Zalghout said: “I face a wall” and “there is no solution”. He said he is “stuck in a hole”. He said pain is the main issue followed by the problems with his wife. He said the pain made him sit at home and made him useless and as a result he lost his wife. He said he has been unable to relate to anyone else, by which he meant he has not attempted to engage in another relationship. He said he is having difficulties caring for his boys, partly because they do not take any responsibility for the management of the home, partly because of financial pressure and partly because of physical symptoms.
Because Mr Zalghout appeared to be extremely depressed he was asked if he had experienced suicidal ideation and he replied “of course”, but he went on to say he does not have any plans to act on the thoughts.
Current treatment
Mr Zalghout said he is not taking any antidepressants because they have never been helpful. He is also not participating in counselling because this also has not been helpful. He said he is stuck and does not know what to do. He continues to see his general practitioner.
Medical history
Mr Zalghout said he suffers from inflammation in the joints which he agreed was arthritis. He said he also had Crohn’s disease which developed at the beginning of 2023; he has seen a specialist because of blood in his stools. He said he also has had blood pressure. He said he has consulted with Dr Samuell regarding a right knee problem and has been told he needs a total knee replacement.
Substance use
Mr Zalghout said he has stopped using cigarettes. He denied the use of alcohol and recreational drugs and said he does not gamble. When specifically asked, he said he had tried medicinal cannabis but found it did not help his pain so he has not continued.
Current medications
Panadeine Forte two tablets on three or four days of the week for pain. There is a specific medication for Crohn’s disease which he could not remember. Arava (leflunomide) 20mg for arthritis. Tritace 2.5mg for hypertension. He said he had been told to stop taking sildenafil because of pancreas problems.
Personal history
Mr Zalghout was born in Beirut Lebanon and was one of nine children. He said he was impacted by the civil unrest and attended school only until year 5. He said he is literate in Arabic but not in English. He commenced work at 12 years of age and worked in restaurants, tyre fitting, a printing business and a car electrical company. He came to Australia at age 21 in 1988, married and had two children. His marriage ended and he lost contact with his two children. He was here for eight years and then went back to Lebanon for about 18 months where he married again and came back to Australia. He has four children, one born in Lebanon and the other three in Australia. His oldest son is aged 25 and lives with his mother; he said he is very derogatory towards him and swears at him if he sees him. The 23-year-old son is married and has a daughter. The 18 and 11-year-old boys live with him. He said he is close to the younger three and gets along well with them.
Mr Zalghout was questioned regarding his ability to help his children in the family tiling business. He said that was a number of years ago and he simply provided them with advice in terms of quoting and planning jobs. He said he did not do any of the physical work himself. He said the company is no longer functional.
Current and proposed treatment
There is no current or proposed psychological treatment.
Current functioning
When asked how he spends his time he said takes the child to school, does the shopping and does the cooking. He said he then sits at home watching TV. He occasionally takes his 11-year-old to the park. He spontaneously added Australia is a beautiful country and he loves to see various parts of it but he cannot do that and he is very unhappy.
Self-care and personal hygiene: Mr Zalghout said he showers weekly. His son regularly cuts his hair. Mr Zalghout does the cooking and laundry and some of the lighter housework.
Social and recreational activities: Mr Zalghout said he does not have any friends. He was closest to his sister but he said she is busy and often does not answer his telephone calls. He said he does not meet friends for coffee or meals. He said he sometimes goes out to the park with his youngest son but this is limited because he cannot walk very far. He sometimes has coffee with his 18-year-old son Hassan who also takes him out for his birthday and father’s day.
Travel: Mr Zalghout said he can drive short distances. If he goes any further his leg gets numb. He is able to use public transport. He said he becomes anxious if he is in heavy traffic. He travelled to Lebanon in 2022 following the death of his father and stayed five weeks to spend time with his mother.
Social functioning: Mr Zalghout has separated from his wife. He does not feel he can cope with meeting a potential new partner. He said he has lost all his friends and his oldest son will not speak to him.
Concentration, persistence and pace: Mr Zalghout said he watches Arabic TV but there is no particular programme he really likes to watch. He said he cannot watch a movie because he is not able to sit long enough to see it through. He said he does not read although he is literate in Arabic. He is able to manage his own money online. His ability to concentrate throughout the interview was satisfactory until he became extremely distressed on a number of occasions.
Adaptation: Mr Zalghout is in receipt of the disability support pension for back pain. He is unable to work. He said he is not doing any part-time security work and he does not provide any supervisory assistance to his sons with regard to tiling work. He does the cleaning around the house as is necessary within the limits of his back pain.
Mental state examination
Mr Zalghout was a 57-year-old right-hand dominant man whose appearance was consistent with his stated age. He was interviewed with the assistance of an Arabic interpreter and all communication he took place through the interpreter. He was alone in his own home. The interview was conducted via the Microsoft Teams application with a good internet connection. He was identified from his photograph on heavy vehicle driver’s licence 5367FL with expiry date 4 February 2028. The interview commenced at 10.30am and concluded at 12.05pm.
Mr Zalghout was neatly dressed and well presented. He was wearing a clean shirt, and he had neatly cut hair and a moustache. He was cooperative with the interview. Initially he was rather restricted in affect but did not appear to be anxious or distressed. He gave a clear account of both motor accidents, noting they both resulted in lower back pain and specifically denying any direct psychological injury arising from them.
He became extremely distressed when he described the onset of severe back pain and being confined to a wheelchair resulting in lower back surgery in June 2020 and October 2021. He was even more distressed as he reported the loss of his marriage, the need to sell his home and his estrangement from his oldest son. He reported suicidal ideation regarding these developments.
Mr Zalghout was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.
Diagnosis
Mr Zalghout presents with Somatic Symptom Disorder with Predominant Pain, Severe. He meets DSM-5-TR criteria for this condition as follows:
Criterion A. Lower back pain results in distress and disruption of daily life.
Criterion B. The pain symptoms dominate his thoughts, feelings and behaviours.
Criterion C. The pain is constantly present.
Mr Zalghout also presents with symptoms consistent with a Persistent Depressive Disorder with Major Depressive Episodes. He meets DSM-5-TR criteria for this condition as follows:
Criterion A. He has depressed mood most of the day on more days than not.
Criterion B. He has low energy, low self-esteem, and feelings of hopelessness.
Criterion C. He has never been without the symptoms in the last 2 years.
Criterion D. Criteria for major depressive disorder have been intermittently present.
Criterion E. There has never been a manic or hypomanic episode.
Criterion F. There is no evidence of psychosis.
Criterion G. The condition is not due to a substance or another medical condition.
Criterion H. It causes significant distress and impairment in social and occupational functioning.
Causation
Medical Assessor Alexander Woo provided certificates dated 17 January 2023 in which he assessed claimant’s physical whole person impairment of 0% for the first motor accident and 1% for the second motor accident. In his certificates he determined the L5/S1 microdiscectomy for lower back pain performed by Professor James Van Gelder was not related to the motor accident and the treatment was not reasonable and necessary. Mr Zalghout was clear there was no direct psychological injury caused by either accident and that his psychiatric symptoms were secondary to pain.
Another Review Panel reviewed the certificate of Medical Assessor Alexander Woo in a decision dated 11 June 2024. That Review Panel found that there was a total 6% WPI. The left shoulder was assessed to be 1% WPI. It also found that the lumbar spine injury was an aggravation of pre-existing facet arthralgia resulting in a finding of DRE category II at 5 % whole person impairment. All of the other injuries showed a normal range of motion and no assessable impairment.
The Panel notes that Mr Zalghout reported in his Personal Injury Claim Form that he had pre-existing anxiety. His pre-existing anxiety and stress was also noted by Dr Thaaer Al-Khalidy from Wetherill Park Medical and Specialist Centre on 4 August 2016 where he reported and was counselled for stress and anxiety. The claimant appears to make no clear report or complaint to his treating doctors of any psychological complaints or impairments until about April 2019.
The Panel also notes that Mr Zalghout reported a long-standing history of psychological symptoms and distress. The Panel notes that the insurer points to the notes of Dr Sam Borenstein, psychologist. He noted the claimant was exposed to traumatic war experiences in his childhood and that he had previously consulted a psychologist following a marital separation.
At the re-examination that Panel repeatedly asked Mr Zalghout about any psychological injury or symptoms arising from either of the two motor accidents in July 2017. Mr Zalghout confirmed many times that the only problem he had arising from the motor accident was continuing back pain. He described the ongoing consequences of the motor accidents for him were ongoing pain, an inability to work, lack of money and problems with his wife which led to him feeling depressed.
Therefore based on the physical evidence of causation of pain together with the other factors referred to above, neither his Somatic Symptom Disorder nor his Persistent Depressive Disorder were caused by the subject accidents.
Based upon the re-examination of the claimant together with his detailed medical history and the clear denials by the claimant of any ongoing psychological injury he attributed to the subject motor accidents, the Panel’s conclusion is that the subject accidents did not cause, contribute or exacerbate any psychological injury or impairment experienced by the claimant.
Because there was no psychiatric disorder caused by the subject accidents an assessment of Psychiatric Whole Person Impairment is not needed.
CONCLUSION AND CERTIFICATION
The Panel’s opinion is that the two accidents did not cause, contribute or exacerbate any psychological injury or impairment to the claimant.
Because there was no psychiatric disorder caused by the two subject accidents an assessment of a Psychiatric Whole Person Impairment is not required.
The Panel’s two certificates in the two matters are attached at the commencement of these reasons.
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