Al Mahmoud v AAI Limited t/as AAMI
[2023] NSWPICMP 628
•29 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Al Mahmoud v AAI Limited t/as AAMI [2023] NSWPICMP 628 |
| CLAIMANT: | Talal Al Mahmoud |
| INSURER: | AAI Limited t/as AAMI |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Wayne Mason |
| MEDICAL ASSESSOR: | Gerald Chew |
| DATE OF DECISION: | 29 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Compensation Act 1999: Panel Review of single Medical Assessor certificate; whether proposed psychological treatment is causally related to the injuries sustained in the motor accident and whether they are reasonable and necessary in the circumstances; claimant a 47-year-old male who alleges psychological injury caused by a motor accident occurring on 18 June 2017; claimant was seated in a stationary vehicle when the insured vehicle reversed into the back of the claimant’s vehicle; claimant found to meet the DSM-5 criterion for major depressive disorder; found that the disorder is not caused by the accident; found that a minor motor accident giving rise to no significant physical or psychological symptoms for many months is not capable of causing such a severe major depressive disorder; disorder predates the motor accident and was exacerbated as a result of an unrelated aggravation of a prior lower back injury; found that proposed treatments are not causally related to the injuries sustained in the motor accident and not reasonable and necessary; Held – original certificate affirmed. |
| DETERMINATIONS MADE: | REVIEW PANEL ASSESSMENT – TREATMENT AND CARE 1. The Review Panel confirms the certificate dated 23 November 2021. |
STATEMENT OF REASONS
INTRODUCTION
Mr Talal Al Mahmoud is a 47 year old male who alleges injury as a result of a motor accident occurring on 18 June 2017. The claimant was seated in a stationary vehicle, when the insured vehicle reversed into the back of the claimant’s vehicle causing a collision.
The insurer of the insured vehicle is liable to pay to Mr Al Mahmoud damages under the Motor Accidents Compensation Act 1999 (MAC Act) for the motor accident.
The subject issues in dispute are whether various treatment is reasonable and necessary in the circumstances and/or caused by the accident. These are medical disputes within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act
The various treatment disputes are:
(a) Whether the proposed future 0 –4 psychiatric reviews per annum for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is causally related to the injury sustained in the motor accident and is reasonable and necessary in relation to the injury sustained in the motor accident.
(b) Whether the proposed future 0-30 Valium tablets per month (1 daily) in relation to psychiatric injuries for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is causally related to the injury sustained in the motor accident and is reasonable and necessary in relation to the injury sustained in the motor accident.
(c) Whether the proposed future 0-30 Efexor tablets per month (1 daily) in relation to psychiatric injuries for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is causally related to the injury sustained in the motor accident and is reasonable and necessary in relation to the injury sustained in the motor accident.
(d) Whether the proposed future 0-30 Seroquel tablets per month (1 daily) in relation to psychiatric injuries for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is causally related to the injury sustained in the motor accident and is reasonable and necessary in relation to the injury sustained in the motor accident.
(e) Whether the psychiatric injuries give rise to a need for domestic assistance from 4 December 2017 to 30 January 2018 and whether this assistance is causally related to the injury sustained in the motor accident and is reasonable and necessary in relation to the injury sustained in the motor accident.
(f) Whether the psychiatric injuries give rise to a need for domestic assistance from 2 February 2018 to 2 October 2018 and whether this assistance is causally related to the injury sustained in the motor accident and is reasonable and necessary in relation to the injury sustained in the motor accident.
(g) Whether the psychiatric injuries give rise to a need for domestic assistance from the date of the MAS assessment and for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy and whether this assistance is causally related to the injury sustained in the motor accident and is reasonable and necessary in relation to the injury sustained in the motor accident.
(h) Whether the proposed future bimonthly (0 –2 per month) GP reviews per annum in relation to psychiatric injuries for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is causally related to the injury sustained in the motor accident and is reasonable and necessary in relation to the injury sustained in the motor accident.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[3] Section 60 of the MAC Act.
The dispute was referred to Medical Assessor Fukui who issued a Medical Assessment Certificate dated 23 November 2021 (the medical assessment). Medical Assessor Atsumi Fukui issued a certificate dated 23 November 2021 in which she found the proposed treatment was neither causally related to the accident nor reasonable and necessary.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by
Mr Al Mahmoud within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. [4]
[4] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (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 review provisions provide[5] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[5] Section 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.[6]
[6] Section 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 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 of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the MAC Act.
The Panel convened in a first teleconference on 21 September 2022. Following review of documentation it was decided a re-examination of Mr Mahmoud was necessary because the issue of causation could not be determined on the papers alone. Further, the Panel decided a face-to-face examination was necessary because of the complexity of the issues involved.
Medical Assessor Chew and Medical Assessor Mason met with Mr Mahmoud on
16 November 2022 in the Commission’s consulting rooms on level 8, 1 Oxford St, Darlinghurst. Mr Mahmoud was accompanied by his 47-year-old wife Ms Rianna Jacobs who was present for the duration of the interview. The panel was assisted by Arabic interpreter Ms May Dabliz, NAATI number CPN81SO5R. The interview commenced at 2:15pm and concluded at 3:30pm.
Since the re-examination, the Review Panel was re-created to replace the original Member with Member Medland. A further teleconference took place on 27 October 2023.
STATUTORY PROVISIONS
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 is referred to as “medical assessment matters.” Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
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 of more Medical Assessors.
The mentioned legislative provisions demonstrate that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“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 law 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.”
MEDICAL ASSESSMENT THE SUBJECT OF REVIEW
Medical Assessor Atsumi Fukui issued a certificate dated 23 November 2021 in which she found the proposed treatment was neither causally related to the accident nor reasonable and necessary.
She noted Mr Mahmoud had not worked since 2015 due to back pain and was unemployed at the time of the motor accident. Mr Mahmoud denied a pre-existing psychiatric history. When questioned about a report that he had suffered from depression from 15 years ago he refused to elaborate. Medical Assessor Fukui noted a long history of anxiety and depression from 2008 but Mr Mahmoud denied this.
It was reported that the claimant’s back problems worsened. He returned to Syria in November 2017 for family reasons and he had spinal surgery in Australia in January 2018 which was unsuccessful and this resulted in the decline in his mood. He became very depressed one year after the accident. Multiple pain medications affected his speech. He experienced insomnia and hallucinations. He saw shadows and believed people were calling out his name. He was referred to psychiatrist Dr Elbaky who prescribed amitriptyline which caused side-effects and sertraline which did not help. Efexor and Seroquel resulted in a mild improvement in his symptoms.
Current symptoms were noted to consist of depression and anxiety with visual and auditory hallucinations when he is anxious. Sleep fluctuates depending on pain. Medications consisted of Lyrica 300 mg, Endone as needed, Efexor 150 mg daily, Seroquel 25 mg at night, Crestor, Nexium, Voltaren as needed and Panadol Osteo or Panadol Extra as needed. Medical Assessor Fukui noted a report by psychiatrist Dr Leonard Lee who diagnosed a major depressive disorder related to pain with quasi-psychotic symptoms.
Arabic speaking treating psychiatrist Dr Elbaky noted chronic depression of 15 years standing which had not been medicated or treated in hospital; she diagnosed a major depressive episode with psychotic symptoms and proposed a differential diagnosis of delirium secondary to pain medications.
Medical Assessor Fukui noted depressive symptoms emerged approximately one year after the motor accident following unsuccessful spinal surgery. She diagnosed major depressive disorder with psychotic features not causally related to the subject motor accident and therefore concluded the proposed treatments were not reasonable and necessary.
SUBMISSIONS
Claimant’s review submissions dated 4 January 2022
The claimant submits that the Medical Assessor failed to provide adequate reasons. It is submitted that it can be inferred that the Medical Assessor found the claimant’s psychiatric condition as not related to the motor accident on the basis of finding of Medical Assessor McGrath’s opinion that the claimant’s physical injuries were not caused by the accident. It is submitted that it is not sufficient to simply adopt the findings of another Medical Assessor, and the Medical Assessor was required to exercise her own judgment when determining causation.
The claimant submits that a psychological injury consequent upon a pain syndrome (as diagnosed by Dr Darwish) could be an injury “caused by the accident” within s 58(1)(b) of the Act.
It is submitted that there was a failure to provide adequate reasons due to the Medical Assessor’s failure to explain why she found the claimant’s physical injuries as not being caused by the accident.
It is further submitted that the Medical Assessor failed to take into account Medical Assessor Giblin’s certificate that certified the lumbar spine injuries as being caused by the accident giving rise to a whole person impairment of greater than 10%. As such this amounts to a denial of procedural fairness as well as a failure to have regard to a relevant consideration.
The submissions acknowledge that the Medical Certificate of Medical Assessor Giblin was revoked by a Review Panel, however, that itself does not remedy the error at law.
Insurer’s review submissions dated 4 February 2022
In response to the claimant’s complaint of the lack of consideration of the certificate of Medical Assessor Giblin, the insurer notes that the certificate was revoked and therefore the Medical Assessor was not bound to take it into account. Moreover, the certificate is only conclusive evidence as to the matters certified and the opinion as to causation is not binding.
The insurer also notes case law such as Dunbar v Allianz Australia Insurance Limited [2015] NSWSC 119, as authority for the proposition that a Medical Assessor need not address each and every report which offers a different medical opinion, so long as the Medical Assessor has provided clear reasoning for their own decision.
In respect of the assertion that the Medical Assessor failed to provide adequate reasons, the insurer disputes such argument and refers to the Medical Assessor’s findings that the physical symptoms emerged after the claimant’s trip to Syria, and the psychological disorder was consequent of the physical pain following unsuccessful spinal surgery (which was determined not causally related to the motor accident).
The insurer submits that the Medical Assessor utilised her clinical judgment and skill to form the conclusions reached. It is noted that the physical pain must be considered not only in the context of the trip to Syria but also in light of the pre-existing lumbar spine pain for which he was seeking neurosurgical treatment just six weeks prior to the subject accident.
DOCUMENTS CONSIDERED
The Review Panel have considered all documents lodged in support of the application and reply and all other documentation received from the parties.
The physical review panel certificate dated 23 October 2021 found 0% whole person impairment due to lumbar spine injury. The panel noted both pre-existing and current whole person impairment of 10%. The panel stated, "there has been chronic lumbar spine pain prior to the accident with documented radiculopathy in the right leg." The panel went on to say "furthermore, the panel considered there was a pre-existing cauda equina syndrome prior to the accident which was not caused by the accident".
The review panel certificate relating to a physical treatment dispute dated 8 July 2022 confirmed the original certificate of Medical Assessor McGrath who did not accept that the contribution of the motor accident was more than negligible to the trajectory of the increase in back symptoms. At paragraph 107 the panel concluded:
“The Panel is not satisfied that Mr Mahmoud sustained injury other than possibly a minor soft tissue in the back in the motor accident which resolved within a short period. Accordingly, we agree with Medical Assessor McGrath’s conclusion that there is no causal relationship between the claimed treatment and the motor accident”.
Contained within the certificate was reference to the certificate of Medical Assessor Giblin dated 23 October 2021 which had been revoked by another review panel with the following comment "the panel has noted that this MVA was a minimal impact rear end collision and may have caused a soft tissue injury which would have resolved in weeks of the accident".
The Personal Injury Claim Form dated 10 October 2017 includes the claimant describing being in the driver seat of the vehicle in a car park when it was rear ended by another vehicle. Injuries were listed as back, whiplash, chest pain, right leg numbness, insomnia and psychological. Psychological treatment was provided by Ms Stephanie Ivos of Macquarie Fields. He listed pre-existing back pain but no pre-existing psychological injury.
Mr Mahmoud was assessed by occupational physician Dr Naresh Verma on 9 October 2017. He noted Mr Mahmoud appeared to be in a degree of distress during the assessment. He described psychological symptoms of depressed mood with anxiety, insomnia, irritability and hopelessness but not suicidal ideation. Diagnosis was whiplash associated disorder, exacerbation of discogenic chronic low back pain, cervicogenic headache, depressed mood with anxious distress and associated reduced libido. Dr Verma noted he (Dr Verma) was training to become a psychiatrist.
Psychiatrist Dr Leonard Lee provided a report dated 4 July 2018. He noted Mr Mahmoud had not worked as a cement renderer since 2010 because of an L5/S1 disc injury. He noted ongoing back pain with referred pain down his right leg following surgery by Dr Darwish. This is treated with Endone, Targin and Lyrica but has resulted in worse depression with hallucinations consisting of imagining shadows that are not there and sometimes people calling his name. Referral to psychiatrist Dr Ghada Elbaky resulted in the prescription of Seroquel and Efexor with a slight improvement in his psychiatric symptoms. Dr Lee stated at times his thoughts seemed disordered. He diagnosed major depression with quasi-psychotic symptoms and did not believe his condition had stabilised.
Occupational physician Dr Uthum Dias provided a report dated 12 September 2018. He diagnosed chronic non-specific cervical spine pain, loss of range of movement in right and left shoulders, persistent aggravation of pre-existing chronic lumbar spine pain with L5 radiculopathy and a seatbelt and chest wall injury.
Complete record of Ingleburn Medical Centre is dated 21 January 2021. The record commences on 27 May 2016. There is no reference to psychiatric injury.
Complete record of Macquarie Health Medical Centre covers the period February 2018 until December 2020. The records indicate attendance in July 2015. Amitriptyline 25 mg was prescribed on 17 March 2018 and again on 10 May 2018. Venlafaxine 75 mg was prescribed on 10 September 2018, 18 October 2018, 8 December 2018, 2 May 2019, 1 July 2019,
27 April 2020, 11 August 2020 and 23 October 2020. Quetiapine 25 mg was prescribed on
8 December 2018, 27 February 2019, 2 May 2019, 25 March 2020 and 11 August 2020. Mirtazapine 30 mg was prescribed on 23 October 2020. Major depression was diagnosed on 17 March 2018. Sertraline was ceased and amitriptyline commenced.
The claimant was referred to a psychologist. On 10 May 2018 he was referred to psychiatrist Dr Elbaky for treatment of anxiety and depression. On 24 June 2018 he was diagnosed with depression and medication compliance was discussed. Also provided was a referral to a psychologist.
On 25 October 2018 the claimant’s mood was noted to be improved. On 27 February 2019 he was referred to Macarthur Pain Clinic. On 2 May 2019 Cymbalta 30 mg ceased. Venlafaxine 75 mg added plus Seroquel 25 mg. On 9 December 2019 it was noted antidepressants were well tolerated and there was improved mood and function.
On 14 March 2008 the claimant complained of back pain and was worried about drug proceedings. On 16 April 2008 he was depressed because his family were overseas. On
6 August 2015 he presented with severe lower back pain with radiculopathy. On
29 October 2015 he was referred to a neurosurgeon. On 29 November 2015 he was unable to move due to lower back pain. On 5 June 2016 he was having symptoms of panic attacks with anger issues, a few months of shortness of breath and chest tightness, worsened by family conflict/stress. Recent close death in family and there is a lot of family conflict. He refused referral to a clinical psychologist.On 28 February 2017 a new referral for psychologist was provided. On 27 July 2017 diazepam 2 mg prescribed, together with Targin 10/5 mg twice daily. On 15 August 2017 diazepam increased to 5 mg. By 24 September 2017 there had been no report of the subject motor accident on 18 June 2017. Report by neurologist Dr Stan Levy dated 22 October 2015 indicates Mr Mahmoud was involved in a motor vehicle accident on 10 August 2015. L4/5 spinal surgery by neurosurgeon Dr Darwish on 1 February 2018.
Psychiatrist Dr Elbaky provided an undated report faxed on 10 July 2018. She noted chronic depression and quasi-psychotic symptoms. She noted recurrent depression 15 years ago in the context of leaving Syria and missing his family. The claimant was homesick until he went back to Syria where he was happy until the war started. After being called up for military service he had to leave and return to Australia. He had never been hospitalised or medicated for depression. Diagnosis was major depressive episode with psychotic symptoms and possible delirium in the context of a strong pain killer. Venlafaxine 75 mg and olanzapine 5 mg commenced. His mood had improved after 2 weeks. Plan was to increase venlafaxine to 150 mg and switch to quetiapine 25 mg. Referral to the pain clinic was regarded as critical.
On 6 October 2022, Proper Officer Rachel Brittliff accepted late documents from the insurer consisting of a supplementary report by Dr Michael Griffiths dated 24 August 2021.
On 13 October 2022, orthopaedic engineering specialist Dr Andrew Short provided a report dated 16 June 2021. He concluded the motion of the vehicle was more forward-backward rather than side-to-side and was thus more likely to result in further injury to a person with a pre-existing injury. He disagreed with the report of Dr Michael Griffiths in this regard.
The clinical record of treating psychiatrist Dr Ghada Abd Elbaky of Camden indicates attendances in June 2018. Recent attendances have been in April and June 2022. The doctor provided a report to the referring GP and to Centrelink dated 15 June 2022. Diagnosis was major depressive disorder with quasi-psychotic symptoms. Differential diagnosis was delirium in the context of strong pain killer use. Treatment with amitriptyline and sertraline was not successful. Treatment consisted of venlafaxine 75 mg, olanzapine 5 mg, and she recommended no opioid medication. Pain killing medication was to be limited to Endone, Lyrica and Panadol osteo. In the report to Centrelink, she supported Mr Mahmoud's application for disability support pension.
RE-EXAMINATION
Personal and pre-accident history
Mr Mahmoud is a 47-year-old man who has been in receipt of the disability support pension for two months at the date of re-examination. He stated the pension was granted for a combination of disabling lower back pain and consequent anxiety, depression and hallucinations.
He said he last worked in Australia as a cement renderer in the year 2000; his wife corrected him, stating he last worked in 2006 when the family relocated to Syria. His wife is not employed and receives family tax benefits A and B. The couple have four children. Their 25-year-old daughter Reem has lived independently since 2018 and works as a childcare teacher. 22-year-old Mariam is a childcare worker and lives at home. 21-year-old Jaatar is a sign installer; he lives at home. 16-year-old Yahyah is a year 10 student at Macquarie Fields high school; he lives at home.
Mr Mahmoud was born and grew up in Syria. His father is now in his 60s and his mother is in her late 50s. He is the oldest of seven children. He explained his family runs a mixed business (the equivalent of a corner store in Australia), a motorcycle repair shop and spare parts business, and an import/export business. As the oldest male child he grew up with a sense of responsibility to help his family in the business. He left Syria and came to Australia in 1997 to avoid conscription to the Syrian Army and worked as a cement renderer. The family then lived in Syria from 2006 until July 2015 during which time he was running the family businesses because of his father's illness. He said they made only one trip to Australia in 2012 or 2013 when his wife's sister died; his wife corrected him and said she died in 2011. He and his wife were Australian citizens and he explained the family returned to Australia in 2015 so the younger children could learn to speak English; they had grown up in Syria speaking only Arabic. When asked how he initially injured his back he said it happened while he was lifting a box of Coca-Cola in 2015; he described the pain as feeling like "lightning in his back".
Mr Mahmoud said he has not been able to work since returning to Australia in 2015 because of back pain and was in receipt of Centrelink benefits. When asked how he spent his time he said he helped the children learn English.
Prior to the motor accident, the claimant said he had nothing wrong with him; he saw friends, went fishing with friends on a boat, grew vegetables in his backyard and played with his children. This was challenged due to the GP record of severe pre-existing back pain, which at times was so bad he could not move (as per the GP record of 29 November 2015). He totally denied any impairment from his back injury immediately prior to the motor accident; he said the pain was not constant but intermittent. He occasionally used a walking stick and was using the medications Lyrica and Endone when necessary. He said the pain could last for 4 or 5 days and then he would have pain free periods until he did something to set it off again. He had been taken to Liverpool Hospital by ambulance on 8 March 2016 with acute back pain being unable to move. He had in fact been admitted to Campbelltown Hospital for 6 days in January 2017 with a diagnosis of acute on chronic back pain and was discharged on paracetamol and Targin. He acknowledged this was the case. He had consulted neurosurgeon Dr Darwish who indicated at that time that surgery was not indicated.
When asked about his pre-existing psychiatric condition he said he was taking only venlafaxine 75 mg before the subject motor accident. The reference in the GP record to depression in 2006 involved his reaction to family difficulties which had required him to return to Syria. He said he was concerned and sad for his father-in-law who died in 2016 but said he had no anxiety or depression. He was asked about the GP record of panic attacks and anger in 2016; he said he was sad and concerned about everybody and at that time he was an over-thinker. He said he could not help but worry about family problems. He was asked about a GP reference to family conflict. He said after the death of his wife's father in 2016 her entire family fell apart and there was a lot of conflict and anger between them which caused him distress. It was noted he had been referred to a psychologist in 2016 and again early in 2017; he denied attending, saying it had proved unnecessary. Mr Mahmoud was questioned about a reference by neurologist Dr Stanley Levy to a motor accident in 2015; he said the neurologist was mistaken and he had not been involved in a motor accident apart from the subject motor accident. He said he had not consulted a psychiatrist prior to the motor accident. Psychiatric medication was venlafaxine 75 mg.
History of the motor accident
Mr Mahmoud was asked to describe the subject motor accident. He said he had parked the family 4-wheel-drive Ford Territory directly outside the Medical Centre in the Ingleburn shopping centre. The vehicle was parked with nose to the kerb. He was with his wife and daughter and they had taken their daughter to the doctor because of influenza. They had returned to the car, he put his seatbelt on and was leaning forward slightly bent to insert the key into the ignition. He said before he could start the engine there was a bang and the car shook. He got out of the car to discover a red Tarago travelling behind their vehicle at 90° to the direction in which he was parked had collided at low speed with their rear tow bar. He said the hub cap on the right front wheel of the Tarago had become stuck on their tow bar; his wife corrected him at that point and said it was the right rear wheel hub cap of the Tarago which had become stuck on the tow bar.
He said they got out of the vehicle to discover the driver of the Tarago was a young female P-plate driver with young children. She was in tears and begged for police and insurance not to be involved. She offered to pay $500 to repair damage which they accepted and took no further action. Mr Mahmoud said he was not aware of any injury at the time, physical or psychological. He said he was thrown forward in the accident and his chest hit the steering wheel because he had been leaning forward. He said there was some mild chest pain due to the seatbelt. He went on to explain that he was taking medications at the time which would have masked any pain he might have felt.
History of symptoms and treatment following the motor accident
When asked about psychological symptoms following the motor accident, Mr Mahmoud said he became upset and nervous when the pain increased and he took a lot of medications. He said he was seeing and hearing things which were not around. These perceptual disturbances did not include the hearing of voices; he said they said nothing. They consisted of shadows like someone moving. When asked how often these occurred he said once or twice weekly. He said he talks to them but they do not answer. His wife confirmed he had been observed by family members engaging in these conversations. In addition, he said he became angry, had mood swings, poor memory and was intolerant of the children. He said he would often sit alone and cry which depressed the entire household. He said friends stopped visiting and he did not go to see his sons play soccer. He said he was always at home, feeling upset and bored. He described being angry with his wife and arguing with her a lot. He was told he should see a psychologist to relax and calm down but he did not do so. He obtained treatment from his general practitioner (GP) at the Medical Centre.
The clinical record indicates he did not attend his GP until 18 July 2017, one month after the motor accident, when back pain was noted and he requested a report for a housing application. Diazepam 1 mg was prescribed on 27 July. He said he had an MRI for lower back pain in May 2017 and attended an appointment with his neurosurgeon
Dr Darwish following the motor accident but did not mention it to him because at that time the pain was not severe and he did not think it was significant.
He was referred to psychiatrist Dr Elbaky and saw her on 2 occasions in June 2018 prior to the outbreak of COVID-19. She initiated treatment with the antidepressant venlafaxine and the antipsychotic/antianxiety agent olanzapine 5 mg. She also recommended the cessation of the opioid analgesic Targin. Pain killing medication was to be limited to minimal Endone, plus Lyrica and Panadol.
Subsequent events
At the end of November 2017 Mr Mahmoud travelled to Syria because his father had become ill. He was accompanied by his wife and said it was necessary for him to use a wheelchair at mascot Airport and during the transfer at Abu Dhabi. He flew into Lebanon and travelled 3 hours by car into Syria. He said in order to make the flight he used the medications Targin, Endone, Panadol osteo and Voltaren. He was also taking mirtazapine 15 mg at night, risperidone 1 mg at night and venlafaxine 150 mg in the morning. He had planned to spend 5.5 weeks in Syria and said the lower back pain gradually increased and paralysis came on from mid-December. He said an MRI scan in Syria on 27 December showed a pinched nerve and they wanted to operate. He said they had a return flight booked on 3 January and he decided to return to Sydney. Mr Mahmoud was questioned about his activities in Syria. He said he was not performing any active work in the family-owned business.
He was unable to get an appointment with his neurosurgeon Dr Darwish but was able to get an assessment with Dr Van Gelder's assistant who put him on the waiting list for surgery. He said 2 days later he was unable to empty his bladder or bowels, obtained an appointment with Dr Darwish and had surgery in Liverpool Hospital on 1 February 2018. He said the surgery was unsuccessful and his condition currently is not improved. He said he is still on the waiting list for further surgery by Dr Van Gelder who gives him a 50% chance of improvement in his condition. He is of the belief that a lumbar disc was made worse by the subject motor accident. He denied the rigours of a long flight and car trip to and from Syria contributed to his back condition.
Current symptoms and treatment
Mr Mahmoud said he is now always at home, upset and bored. He said he is taking a lot of medications which cause him to see things that are not there. He remains depressed and difficult to live with. He is unable to be physically active. He uses a walking stick or a walking frame at home in order to get around. He said he is not able to do any independent activities. He relies on his wife for physical support. His mood is low and he often thinks it would be better if he was not alive. He feels guilty for the burden he imposes on his wife and family. He thinks of himself as a useless drain on the family. Current psychiatric medications consist of venlafaxine 150 mg and quetiapine 25 mg at night in order to help with sleep and for treatment of pseudo-hallucinations. He said he is not using regular diazepam. His wife described him as being very difficult to live with and often abusing her.
Medications are as follows:
· Mirtazapine 15 mg before bed;
· Efexor 150 mg;
· Seroquel 25 mg at night;
· Endone 5 mg twice daily;
· Lyrica 150 mg at night;
· Lyrica 175 mg in the morning;
· Nexium 40 mg;
· Crestor 10 mg;
· Perindopril 4 mg;
· Trimethoprim 300 mg daily;
· Advantan 0.1% fatty ointment twice daily, and
· Amphotericin 10 mg lozenge TDS.
Mental state examination
Mr Mahmoud is a 47-year-old man with greying hair and a greying beard who looked significantly older than his stated age. He was neatly casually dressed and wore a mask throughout the interview. He could manage conversational English but said it was not good enough for the interview and he chose to communicate through the Arabic interpreter. He was also assisted by his wife Rianna who frequently interjected to correct matters of fact.
Mr Mahmoud was physically impaired and walked very slowly into the waiting room using a walking stick and leaning on his wife's shoulder. He appeared to be extremely dependent on his wife. There was frequent pain behaviour throughout the interview consisting of grimacing and shifting in his chair. Halfway through it was necessary to provide a different chair.
Mr Mahmoud was a softly spoken man who was depressed in appearance but cooperative with the interview. He spoke very slowly which was indicative of psychomotor retardation. There was no evidence that he was responding to internal stimuli and nothing to suggest the presence of delusions. He appeared to be a gentle person with an air of helplessness and hopelessness about him. He was not tearful and did not display any anger. His autobiographical memory was poor and the facts he provided were frequently corrected by his wife. He denied active suicidal ideation but said he often thought it would be better for everybody if he was not alive. He expressed considerable guilt about the burden he imposed on his family and was ashamed he could not function better as a man and provide for his family.
Mr Mahmoud was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.
Consistency of presentation
There were multiple inconsistencies in Mr Mahmoud's presentation which were noted throughout the description of the interview. These largely consisted of minimisation of the effect of pre-existing pain and maximising the impact of a minor motor accident which gave rise to no significant psychiatric problems for many months afterwards.
Diagnosis
Mr Mahmoud meets DSM-5 criterion A for major depressive disorder. He has depressed mood most of the day nearly every day and has diminished interest and pleasure in almost all activities most of the day nearly every day. There is psychomotor retardation and fatigue nearly every day. There are feelings of worthlessness and inappropriate guilt. There is a diminished ability to think and concentrate and recurrent thoughts of death. There are possible hallucinations although these are not of a depressive character. Criteria B, C, D and E are all met.
Causation
The evidence before the Review Panel leads to a conclusion that the subject motor accident was minor in nature. The damage to the vehicles was minimal. No emergency services were called and the claimant did not seek immediate medical treatment. It is noteworthy, as observed by another Review Panel that the accident occurred outside a medical centre that the claimant frequented, and yet his initial medical treatment did not occur until 18 July 2017 in the context of a certificate for “housing”.
Whilst this Review Panel is not bound by the findings and reasons of previous Medical Assessors and Review Panels, their findings are relevant evidence which provides guidance, particularly in respect of the causation of physical injuries in the context of the motor accident.
It is the opinion of the Review Panel that a minor motor accident giving rise to no significant physical or psychological symptoms for many months is not capable of causing such a severe major depressive disorder. Mr Mahmoud did suffer a major depressive disorder prior to the motor accident which was secondary to lower back pain. There was exacerbation of lower back pain during a trip to Syria which resulted in surgery on his return to Australia and that surgery was relatively unsuccessful. As a consequence of ongoing pain subsequent to that surgery there has been an exacerbation of the pre-existing major depressive disorder.
Despite the claimant’s assertions at re-examination, the evidence demonstrates that pre-accident complaints of pain were symptomatic at the time of the subject accident. It is noted that the claimant had consulted Dr Darwish not long before the accident with the assistance of a walking frame.
The claimant suffered a pre-existing major depressive disorder. This major depressive disorder appears to have been primarily caused by back pain in the context of an injury lifting a box in 2015. The panel concludes that the subject accident did not cause an aggravation of the pre-existing major depressive disorder. The panel notes the minor nature of the motor accident which did not give rise to significant physical or psychological symptoms for many months. There is a significant delay in the onset of the aggravation of the major depressive disorder.
After the motor accident, the claimant travelled to Syria and suffered a significant exacerbation of his physical symptoms. He had surgery on 1 February 2018 for the exacerbation of his physical symptoms which was unsuccessful in resolving his pain or mobility issues. The failure of the surgery with ongoing pain caused significant hopelessness, low self-esteem and an exacerbation of the major depressive disorder. The claimant first sought psychiatric treatment for exacerbation from Dr Elbaky in June 2018 around a year post accident.
Conclusions
The psychiatrist members of the panel concluded Mr Mahmoud is a 47-year-old man who had suffered significant back pain since 2015. He insisted the back pain prior to the motor accident was intermittent and not severe. The GP clinical record indicates otherwise and there were a number of attendances at hospital because of the severity of the pain. He had developed a pre-existing major depressive disorder secondary to that pain. This was treated with a number of antidepressant agents without particularly good effect.
Following the subject motor accident on 18 June 2017 he did not notice any particular increase in pain or psychiatric symptoms. He first attended his GP one month later. The panel noted the most recent physical review panel certificate of 8 July 2022 which concluded, “The Panel is not satisfied that Mr Mahmoud sustained injury other than possibly a minor soft tissue injury in the back in the motor accident which resolved within a short period”.
The psychiatrist review panel members agree Mr Mahmoud currently suffers from a major depressive disorder with possible psychotic features which is of greater severity than the pre-existing condition. There is also agreement, based on the opinion of the physical review panel, that the current condition could not be caused by an exacerbation of pain caused by the subject motor accident. The causation of the increase in severity of his major depressive disorder is thus attributed to the trip to Syria because the severe exacerbation of the pain and the need for surgery occurred while he was in Syria. The panel noted there was no psychiatric treatment until 2018 which followed the unsuccessful neurosurgery.
The panel reached the same conclusion as Medical Assessor Atsumi Fukui that the proposed treatments were not causally related to the subject motor accident and were not reasonable and necessary.
Decisions
The following proposed treatments:
· Whether the proposed future 0 –4 psychiatric reviews per annum for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is causally related to the injury sustained in the motor accident.
· Whether the proposed future 0-30 Valium tablets per month (1 daily) in relation to psychiatric injuries for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is causally related to the injury sustained in the motor accident.
· Whether the proposed future 0-30 Efexor tablets per month (1 daily) in relation to psychiatric injuries for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is causally related to the injury sustained in the motor accident.
· Whether the proposed future 0-30 Seroquel tablets per month (1 daily) in relation to psychiatric injuries for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is causally related to the injury sustained in the motor accident.
· Whether the psychiatric injuries give rise to a need for domestic assistance from 4 December 2017 to 30 January 2018 and whether this assistance is causally related to the injury sustained in the motor accident.
· Whether the psychiatric injuries give rise to a need for domestic assistance from 2 February 2018 to 2 October 2018 and whether this assistance is causally related to the injury sustained in the motor accident.
· Whether the psychiatric injuries give rise to a need for domestic assistance from the date of the MAS assessment and for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy and whether this assistance is causally related to the injury sustained in the motor accident.
· Whether the proposed future bimonthly (0 –2 per month) GP reviews per annum in relation to psychiatric injuries for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is causally related to the injury sustained in the motor accident.
are not causally related to the injuries sustained in the subject motor accident.
The following proposed treatments:
· Whether the proposed future 0 –4 psychiatric reviews per annum for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is reasonable and necessary in relation to the injury sustained in the motor accident.
· Whether the proposed future 0-30 Valium tablets per month (1 daily) in relation to psychiatric injuries for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is reasonable and necessary in relation to the injury sustained in the motor accident.
· Whether the proposed future 0-30 Efexor tablets per month (1 daily) in relation to psychiatric injuries for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is reasonable and necessary in relation to the injury sustained in the motor accident.
· Whether the proposed future 0-30 Seroquel tablets per month (1 daily) in relation to psychiatric injuries for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is reasonable and necessary in relation to the injury sustained in the motor accident.
· Whether 6 –14 hours per week of domestic assistance arising from psychiatric injuries caused by the accident from 4 December 2017 to 30 January 2018 is reasonable and necessary in relation to the injury sustained in the motor accident.
· Whether 6 –10 hours per week of domestic assistance arising from psychiatric injuries caused by the accident from 2 February 2018 to 2 October 2018 is reasonable and necessary in relation to the injury sustained in the motor accident.
· Whether 0 –3 hours per week of domestic assistance arising from psychiatric injuries caused by the accident from the date of the MAS assessment and for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy and whether this assistance is reasonable and necessary in relation to the injury sustained in the motor accident.
· Whether the proposed future bimonthly (0 –2 per month) GP reviews per annum in relation to psychiatric injuries for 1 year, 2 years, 5 years, 10 years and/or the remainder of Mr Mahmoud’s life expectancy is reasonable and necessary in relation to the injury sustained in the motor accident.
are not reasonable and necessary in relation to the injury sustained in the motor accident.
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