Ali v AAI Limited t/as AAMI
[2023] NSWPICMP 144
•14 April 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ali v AAI Limited t/as AAMI [2023] NSWPICMP 144 |
| CLAIMANT: | Maibul Ali |
INSURER: | AAI Limited t/as AAMI |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Samson Roberts |
| MEDICAL ASSESSOR: | Wayne Mason |
| DATE OF DECISION: | 14 April 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Medical Review Panel; review of Medical Assessment Certificate (MAC) of Medical Assessor Samuell who assessed 2% whole person impairment (WPI); dispute related to assessment of permanent impairment; Held – diagnosis of post-traumatic stress disorder (partially resolved), MAC of Medical Assessor Samuell revoked; new certificate issued; assessment of 1% WPI. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 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% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the Certificate of Medical Assessor Doron Samuell dated · post-traumatic stress disorder. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 24 August 2018 Ms Maibul Ali (the claimant) was driving her vehicle when another vehicle made a right hand turn across the path of her vehicle causing a collision (the accident).
Ms Ali was 56 years of age at the date of accident and is now 60 years of age.
Ms Ali asserts she sustained the following injuries in the accident:
1. (a) fracture to the manubriosternum;
2. (b) injury to both knees;
3. (c) injury to the cervical, thoracic and lumbar spine;
4. (d) injury to both shoulders, and
5. (f) psychological injury.
Ms Ali has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
AAI Limited trading as AAMI (the insurer) is the relevant insurer with liability to pay any damages to Ms Ali under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Ms Ali as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment in respect of the claimant’s psychological injury was referred to Medical Assessor Doron Samuell. He issued a certificate dated 30 November 2021.
ASSESSMENT UNDER REVIEW
The injury referred to Medical Assessor Samuell for assessment was psychological injury. He issued a certificate dated 14 December 2021.[2]
[2] AD4 p 53.
Medical Assessor Samuell diagnosed a post-traumatic stress disorder caused by the accident and provided the following assessment of impairment under the Psychiatric Impairment Rating Scale:
6.
7. Category
8. Class
9. Reason for Decision
1.
10. Self-care and Personal Hygiene
11. 1
12. She is able to attend to all activities of daily living without psychological impediment.
2.
13. Social and Recreational Activities
14. 1
15. She enjoys a good relationship with her children. She loves to go out with her friends for coffee or a movie and does so once or twice per month.
3.
16. Travel
17. 1
18. She can drive, and does so locally by herself, limited only by physical reasons. There is no psychological impediment to travel.
4.
19. Social Functioning
20. 1
21. She has some difficulty in communication with her husband that appears to relate to his standards rather than her condition. She enjoys a good relationship with her children
5.
22. Concentration, Persistence and Pace
23. 1
24. There were not clinically significant problems with concentration.
6
25. Adaption
26. 1
27. She is unable to work in her usual role, however this is attributable to her physical condition by the claimant. There is no psychological impediment to work.
In his certificate dated 30 November 2021 Medical Assessor Samuell added 2% for the effects of treatment and assessed a total whole person impairment (WPI) of 2% caused by the accident.
REVIEW PROCEDURE
Ms Ali has sought a review of the medical assessment of Medical Assessor Samuell.
The application was lodged on 12 January 2022 within 28 days of the date on which the Certificate of Medical Assessor Friend was made available to the parties.[3]
[3] Section 7.26(1)(b) of the MAI Act.
On 17 March 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[4]
[4] Section 7.26 of the MAI Act; AD2 p 6.
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 new review provisions provide 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] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[5] Section 7.26(5A) of the MAI 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 is by way of a new assessment of all matters with which the medical assessment is concerned.
On 13 February 2023 the Panel agreed an examination was necessary. All Panel members have had no previous involvement with the claimant or with this matter.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 30 January 2023 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents marked AD1 paginated from pages 1 to 517. The solicitor for the insurer uploaded to the portal a bundle of documents marked AD4 paginated from pages 1 to 207. The Panel has also had regard to the Certificate of Medical Assessor Cameron dated 27 February 2022 marked AD2 and the Certificate of the Medical Review Panel dated 27 September 2022 marked AD3.
Statement of Maibul Ali
Ms Ali provided a statement dated 29 October 2020.[8] She states she was in good health physically and psychologically before the accident. She stated she had been working as a machinist at Australian Sheepskin for 24 years and rarely took leave.
[8] AD1 p 13.
Ms Ali reported she had a right parotidectomy with selective neck dissection in December 2018 for a thyroid tumour with radiotherapy from which she made a good recovery.
Ms Ali states she was aware of psychological symptoms from the date of the accident including difficulty sleeping, nightmares and constant pain. Her general practitioner (GP) referred her to Dr Rastogi psychiatrist who she has continued to see. She states she also consulted a psychologist Faria Khan on a regular basis. Ms Ali asserted she stayed home constantly and was in a bad mood a lot of the time. This was placing a strain on her marriage.
Treating medical evidence
Ambulance report
The Ambulance report reports[9]
28.“Pt states at approx. 1730, Pt was travelling approx. 50km/hr when a car pulled out in front of her and she t-boned them. Per police, minimal damage to pts vehicle. O/E pt alert, orientated and well perfused. Pt denies any LOC or hitting her head. Self-extricated. Nil air bag deployment. Pt c/o generalised sternal chest pain which is worse on movement. States that’s where she hit the steering wheel. Nil obvious seat belt marks. Lung sounds clear. Speaking in full sentences. Abdo soft non tender. Pt c/o generalised non specific bilateral arm pain but has full ROM and assist getting on/off stretcher. Equal limb strength. …”
Fairfield and Liverpool Hospital
[9] AD4 p 181.
Ms Ali was transported by ambulance to Fairfield Hospital and subsequently transferred to Liverpool Hospital where she was an inpatient until 30 August 2018.[10] A CT scan of the chest disclosed a fracture of the sternal manubrium. A CT scan of the cervical spine disclosed degenerative changes but no fracture. It was reported she had pain and tenderness over the sternum, tenderness over the cervical and thoracic spine and tenderness of the abdomen.[11] It was also reported she felt her left knee was swollen.
[10] AD1 p 298.
[11] AD1 p 115.
Dr K C G Au-Yeung
On 24 August 2018 Ms Ali completed an Impact of Event Scale scoring 57 out of 75.[12]
[12] AD1 p 305.
On 1 September 2018 Ms Ali consulted Dr Au-Yeung in respect of the accident.[13] He reported a fractured sternum and a head injury and on 6 September 2018 he also added a neck and back injury.
[13] AD1 p 280.
On 10 September 2018 Dr Au-Yeung completed the medical certificate to be submitted with the Personal Injury Claim Form.[14] The certificate listed the following injuries:
· sternum fracture;
· neck strain injury on previously stable spondylosis;
· lumbar strain injury on stable spondylosis, and
· severe nervous shock.
[14] AD1 p 301.
Dr Au-Yeung continued to report chronic pain but on 2 November 2018 he also reported stress and distress and counselled Ms Ali.[15] On 12 December 2018
Dr Au-Yeung reported inter alia “secondary depression and stress”. In December 2018 Ms Ali was diagnosed with the left parotoid tumour and underwent surgery on28 December 2018.[15] AD1 p 281.
It seems Ms Ali travelled to Fiji in about June 2019 and on 22 July 2019 Dr Au-Yeung reported Ms Ali had left neck swelling treatment in New Zealand. On 8 August 2019
Dr Au-Yeung reported Ms Ali was stressed, worried about her husband and her recovery from her face tumour. On 26 August 2019 Ms Ali was referred to Dr Rastogi, psychiatrist.[16][16] AD1 p 286.
The clinical notes of Dr Au-Yeung thereafter and up until 18 May 2020 include references to stress, distress, depression secondary to the accident, and note ongoing psychiatric and psychological review.[17]
[17] AD1 452 – 455.
Dr Y. Kai-Lee, orthopaedic surgeon
Dr Kai-Lee saw Ms Ali on 2 October 2018.[18] He reported the sternum fracture would take time to heal and described the neck, shoulder and back injuries as mild. On
10 October 2019 Dr Kai-Lee reported Ms Ali still had pain in her sternum, shoulders and right knee.[18] AD1 p 307.
Benchmark reports
Mr David Peacock of Benchmark completed an assessment on 1 May 2019.[19] He reported Ms Ali had commenced paying for a cleaner in about March/April 2019 but was independent with tasks including meal preparation, bed making, laundry and personal administration. He also considered she had the physical capacity to undertake suitable duties in the workplace.
[19] AD1 p 364.
In a case closure report dated 14 January 2020 Mr Peacock suggested Ms Ali was not willing to engage in the rehabilitation process and displayed fear avoidant and pain focussed behaviours.[20]
[20] AD4 p 185.
Medimind clinical records
On 27 August 2019 Dr Rastogi psychiatrist reported the reason for contact was major depressive disorder, anxiety - post-traumatic stress disorder.[21] He prescribed Mirtazapine 15mg and Ativan 0.5 to 1mg.
[21] AD1 p 341.
On 10 September 2019 Fariha Khan, psychologist reported a history of the accident on 24 August 2018.[22] Ms Khan reported a history of symptoms similar to those described by Dr Rastogi in his report dated 27 August 2019.
[22] AD1 p 340.
On 17 September 2019 Ms Khan reported that following the accident Ms Ali was suffering from rib, neck and back pain at the same time dealing with cancer. She had limited social support and limited support from her husband.
On 24 September 2019 Ms Khan reported Ms Ali was stressed about the slow recovery from her injuries, she was not able to attend to normal domestic and personal care due to pain in her chest. She described feeling helpless and hopeless.
On 12 October 2019 Dr Rastogi diagnosed major depressive disorder, ceased the Mirtazapine and commenced Lexapro 10mg daily.[23] Ms Ali’s sleep was erratic, anxiety was episodic, she felt numb and empty and was preoccupied with the accident and her future.
[23] AD1 p 339.
On 28 October 2019 Ms Khan reported Ms Ali was very stressed, anxious and felt hopeless and helpless.
On 14 November 2019 and 19 November 2019 Indrani Mukherjee, psychologist reported sleep problems and anger outbursts. She indicated she wanted to go to Mecca with her sister-in-law.
On 6 December 2019 Dr Rastogi diagnosed bipolar affective disorder. He ceased Lexapro and added Seroquel tablet 50 to 100mg. Ms Ali saw Ms Mukherjee the same day when she reported improving psychological wellbeing.
On 27 December 2019 Ms Mukherjee reported Ms Ali was going to commence taking 100mg that night. She reported Ms Ali was waking up with car crash dreams and reported mindlessness. On 9 January 2020 Ms Mukherjee reported nightmares and 100% anxiety.
On 18 January 2020 Ms Khan reported with the increase in medication her sleep had improved, she felt unsafe and insecure.[24] Counselling was recommended for anxiety and chronic pain.
[24] AD1 p 336.
On 10 February 2020 Dr Rastogi reported ongoing dreams, disturbed sleep and not coping.
Ms Ali saw Fariha Khan on 10 February 2020, 17 February 2020, 2 March 2020,
18 March 2020, 30 March 2020, 14 April 2020, and 28 April 2020. She continued to complain of anxiety, feeling nervous when driving short distances, feeling depressed and reactive to pain.On 4 May 2020 Dr Rastogi reported Ms Ali was taking Seroquel 200mg and still not sleeping. On 12 June 2020 he reported she had sweats ongoing and hot flushes associated with anxiety and vivid dreams.
On 16 June 2020, 30 June 2020, 22 July 2020 and 10 August 2020[25] Ms Khan reported feeling otherwise unwell but was continuing to feel stressed with anxiety symptoms.
[25] AD1 p 334.
On 12 October 2020 Ms Khan reported Ms Ali was very stressed, upset and feeling depressed about her physical pain, stating she did not want to do anything and stayed mostly in bed.[26]
[26] AD1 p 388.
Ms Ali consulted Ms Khan on 21 October 2020, 10 November 2020, 3 February 2021 and 20 October 2021 when she continued to complain of stress tolerance and chronic pain.[27]
[27] AD1 p 388.
An Allied health recovery request (AHRR) was completed by Ms Khan of Medimind dated 12 September 2019 in which it was reported Ms Ali was independent with self-care but needed assistance with daily living activities.[28] She was able to drive short distances. She also reported whilst Ms Ali’s parotid cancer was in remission, she had worrying thoughts about the reoccurrence of cancer.
[28] AD1 p 344.
An AHRR dated 18 February 2020 reported some level of improvement in anxiety levels, but Ms Ali still had sleep disturbances and flash backs of the accident, felt isolated, worried, had difficulty concentrating and low motivation.[29] An AHRR dated
16 June 2020 showed little change.[30][29] AD1 p 349.
[30] AD1 p 358.
An AHRR dated 11 August 2020 reported Ms Ali’s sleep and mood was better and her symptoms of flashback were under control.[31] She felt tired and fatigued and had anxiety about her persistent pain and the burning sensation in her stomach.
[31] AD1 p 423.
An AHRR dated 7 December 2020 reported fluctuating anxiety due to pain and stated Ms Ali remains emotionally vulnerable, gets upset, nervous and reactive to any stressful situation.[32]
[32] AD1 p 408.
Dr Rastogi, psychiatrist
Dr Rastogi provided a report dated 27 August 2019.[33] He reported disturbed sleep, flashbacks, nightmares and panic attacks on a daily basis. He reported she was on edge with intrusive thoughts, avoided driving, had marked arousal, struggled with anxiety and had poor stress coping. He noted loss of confidence and marked irritability. Concentration and energy were poor, she struggled with household chores and felt a burden. She was unable to relax, was tearful, lonely, isolated and experienced relationship conflict. Dr Rastogi stated Ms Ali reported chronic headaches, neck and back ache and shoulder pain.
[33] AD1 p 321.
Dr Rastogi reported Ms Ali’s mood was depressed and her affect restricted. He diagnosed generalised anxiety disorder with panic attacks and major depressive disorder with post traumatic features.
On 6 December 2019 Dr Rastogi reported Ms Ali was still very irritable with poor sleep, autonomic arousal, and intrusive dreams.[34] She was screaming at night and waking up in a panic attack. She was anxious and fearful with loss of confidence.
[34] AD1 p 325.
Dr Rastogi provided a report dated 22 June 2020.[35] He had seen Ms Ali on five occasions and diagnosed:
· generalised anxiety disorder with panic attacks;
· major depressive disorder with post traumatic features, and
· chronic pain.
[35] AD1 p 35.
He listed the following symptomatology:
· catastrophic thinking patterns and feels overwhelmed;
· feeling of entrapment and hopelessness;
· fear of returning to same position;
· inability to do ADLs (activities of daily living) and self-care;
· relationship strained with husband and lack of intimacy;
· sleep issues with initial and middle insomnia;
· panic attacks and acute anxiety;
· hyper vigilance and arousal;
· depressed mood with excessive crying and extreme fear;
· selected social interaction only with family;
· social withdrawal and poor frustration tolerance;
· hopelessness and worthlessness;
· poor concentration and memory problems;
· marked anhedonia and loss of interest in activities, and
· struggle with ADLs.
Dr Rastogi reported Ms Ali was attending psychological sessions regularly and her medications included Pristiq 200mg, Mirtazapine 30mg and Ativan. He reported she had developed acute anxiety with functional impairments and social isolation. She described loss of interest in activities, social isolation, fear about the future and negative cognitions with anxiety and depression. He reported poor motivation and drive, erratic sleep patterns and impaired concentration.
Medico-legal evidence
Report of Dr Evan Dryson, occupational physician
Dr Dryson assessed Ms Ali on 1 April 2020 and provided a report dated 8 April 2020.[36]
[36] AD1 p 16.
He concluded the accident caused a whiplash associated disorder, injury to the right knee and a whole-body chronic pain syndrome. He also noted it had caused psychological injuries and reported Ms Ali was consulting a psychologist every two weeks and taking Lexapro, Seroquel and Ativan.
Dr Ben Teoh, psychiatrist
Dr Teoh assessed Ms Ali on 11 May 2020 and provided a report dated 15 May 2020.[37] He reported she had multiple injuries including fractured ribs, injury to her neck and right knee and a whiplash injury to the neck.
[37] AD1 p 27.
At the time of the accident Ms Ali had worked as a sewing machinist for 24 years.
Dr Teoh reported complaints of insomnia, preoccupation with negative thoughts, intrusive memories of the accident, acute anxiety attacks, characterized by breathlessness and dizziness. She had been irritable, isolated and lonely. She worried about further accidents and avoided driving. Ms Ali had no history of prior claim, alcohol or substance abuse. He reported a lack of motivation, loss of interest in usual activities, a strained relationship, poor concentration and persistent preoccupation with negative thoughts. He found she was not fit to work at all.
Dr Teoh reported Ms Ali presented with significant anxiety symptoms and physical pain and disability. He diagnosed a generalised anxiety disorder associated with depressive symptoms. Dr Teoh assessed a 19% WPI.
Dr Andrew Keller, occupational physician
Dr Keller assessed the claimant and provided a report dated 23 July 2020.[38] Other than the confirmed diagnosis of a fracture of the manubrium he was of the view there were no other musculoskeletal injuries as a result of the accident.
[38] AD4 p 74.
Dr Matthew Jones, psychiatrist
Dr Jones assessed the claimant at the request of the insurer and provided a report dated 1 September 2020.[39]
[39] AD4 p 62.
He reported a recent improvement in her condition with a change of medication six months earlier. He diagnosed a generalised anxiety disorder, in partial remission.
Dr Jones assessed 6% WPI.
Dr Neil Berry, general surgeon
Dr Berry assessed Ms Ali and provided a report dated 16 November 2020. Dr Berry reported Ms Ali had a parotid tumour on the left side removed in October 2018 and has made a full recovery. Dr Berry reported Ms Ali sustained a fracture of the manubrium sternum and has since developed musculoskeletal problems with the neck and back, left wrist and right knee. He did not record any history of psychological symptoms.
Other medical assessments
Certificate of Medical Assessor Cameron dated 27 February 2022
Medical Assessor Cameron assessed the claimant on 15 February 2022. He certified the following injuries were caused by the accident and resulted in a WPI of 2%:
· right knee – soft tissue injury;
· left knee – soft tissue injury;
· cervical spine – soft tissue injury, and
· lumbar spine – soft tissue injury.
He found the following injuries were not caused by the accident:
· right shoulder;
· left shoulder;
· stomach - gastrointestinal injury, and
· thoracic spine.
He also certified the claimant had sustained a fracture of the sternum but noted the fracture had healed and was not associated with permanent impairment.
Medical Review Panel Certificate dated 27 September 2022
A Medical Review Panel reviewed the Certificate of Medical Assessor Cameron and certified that the following injuries caused by the accident gave rise to a permanent impairment not greater than 10%:
· cervical spine;
· lumbar spine;
· right shoulder – Nguyen principle;
· left shoulder – Nguyen principle;
· gastrointestinal condition, and
· right and left knee.
Procare Desktop Investigation Report
Procare prepared a report dated 16 July 2020 following an investigation of the claimant’s property, business, and social media profile.[40]
[40] AD4 p 106.
Facebook entries show the following social attendances;
(a) 9 November 2018 – movie at Hoyts Wetherill Park and dinner at Rashay’s restaurant;
(b) 28 November 2018 – having a great time with her grandson;
(c) 29 November 2018 – with her grandchildren at a playground in Wellington, New Zealand;
(d) 1 December 2018 – attending a birthday party;
(e) 9 December 2018 – celebrating the birthday of her son;
(f) 20 August 2019 – dinner at Rashay’s restaurant in Liverpool with friends and family visiting from Melbourne and Auckland;
(g) 21 August 2019 – attending a wedding;
(h) 23 August 2019 – dinner at Rashay’s Restaurant followed by a movie at Hoyts Wetherill Park;
(i) 24 August 2019 – dinner with friends at Buffalo’s Burgers Wings and Steaks in Liverpool;
(j) 30 August 2019 – movie at Hoyts Wetherill Park;
(k) 13 September 2019 – movie at Event Cinemas Liverpool;
(l) 14 September 2019 – signing event with friends at Skyview Reception Functions Centre, Liverpool;
(m) 19 September 2019 – lunch with son in Queensland;
(n) 19 September 2019 – dinner with high school friends at PappaRich restaurant in Brisbane;
(o) 22 September 2019 – a night out with friends and family in Brisbane;
(p) 8 October 2019 – baking with her grandchild;
(q) 25 October 2019 – movie at Hoyts Wetherill Park;
(r) 28 October 2019 – celebrating Diwali at a friend’s house;
(s) 13 December 2019 – attending Event Cinema’s Liverpool with friend;
(t) 20 December 2019 – movie at Hoyts Wetherill Park followed by dinner at Rashay’s restaurant with friends;
(u) 31 December 2019 to 4 January 2020 – travelling in New Zealand;
(v) 8 February 2020 – attending Skyview Reception Function Centre, Liverpool with friends;
(w) 1 March 2020 – attending granddaughter’s birthday party as cat-woman;
(x) 6 March 2020 – movie at Hoyts Wetherill Park with friend;
(y) 11 May 2020 – celebrating Mother’s Day with family;
(z) 5 July 2020 – attending the zoo, and
(aa) July 2020 – attending signing event and after party with friends.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 12 January 2021.[41]
[41] AD1 p 12.
The claimant submits it is not clear from Medical Assessor Samuell’s certificate whether the claimant’s impairment is consistent with a class 1 or class 3. It is submitted that the Medical Assessor failed to obtain a history of the claimant’s pre-accident lifestyle, activities and habits and then to assess the extent to which they have changed as a result of the psychiatric injury. Whilst Medical Assessor Samuell reported “she loves to go out with her friends for coffee or a movie and does so once or twice a month” it is submitted it is not apparent whether this level of activity is consistent with class 1, class 2 or class 3.
The claimant submits whilst Medical Assessor Samuell stated the claimant enjoys a “good” relationship with her children in assigning a class 1 impairment in social and recreational activities he did not detail the claimant’s interactions with her children before and after the accident to assess the level of impairment.
The claimant also submits that Medical Assessor Samuell erred in assessing her relationship with her children as bearing upon the category of “social and recreational activities” and in doing so has taken into account an irrelevant consideration in making his decision.
Insurer’s submissions
The insurer provided submissions dated 26 November 2020.[42] The insurer submits psychological injury is questionable given the claimant’s post-accident activities.
[42] AD4 p 14.
The insurer notes on 12 June 2020 Dr Rastogi reported the claimant was “feeling not too bad and not too good” and on 6 December 2019 the reason for contact was given as “bipolar affective disorder”.
The insurer also notes Dr Teoh did not consider the claimant’s ability to travel overseas since the accident nor the effect of the cancer diagnosis on her psychological condition. The insurer also notes in reaching his conclusion Dr Teoh did not have the benefit of the claimant’s complete pre and post-accident medical records. The insurer relied upon the opinion of Dr Jones who assessed a 6% WPI.
The insurer notes the claimant was able to travel overseas, travelling to Dubai in about July 2019 for her birthday, to New Zealand on or about 31 December 2019 and to Fiji in mid-2019.
The insurer relies upon the Procare Desktop investigation report in particularly the claimant’s Facebook page which shows she regularly posted images of family gatherings and other social gathering.
The insurer provided submissions dated 3 February 2022.[43]
[43] AD4 p 5.
In respect of social and recreational activities the insurer submits “someone who loves to go out with her friends for coffee or a movie” could not be considered “quiet and withdrawn” and she did not provide a history of needing a support person to go out. The insurer submits Medical Assessor Samuells accurately assessed class 1.
The insurer submits social functioning focuses upon relationships including specifically family relationships and having regard to the example in the Guidelines submits the claimant clearly meets class 1.
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt 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.[44]
[44] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
29. “6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
30. '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:
31.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
32.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
33. This, therefore, involves a medical decision and a non-medical informed judgement.
34. 6.7 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.”
MEDICAL EXAMINATION
Who attended the assessment
Medical Assessor Samson Roberts and Medical Assessor Wayne Mason undertook the reassessment on 21 March 2023 utilising Microsoft Teams. Ms Ali participated in the interview from her home in Minchinbury.
Psychosocial history and pre-accident history
Ms Ali is a 60-year-old married woman. She and her husband have two sons and five grandchildren. She resides with her husband.
Ms Ali is in receipt of the Disability Support Pension in addition to which she works six hours per week. Her husband works 15 to 20 hours a week as a joiner.
In terms of background, Ms Ali was born in Fiji. She is the sixth of seven siblings. Three of her four brothers are deceased.
Ms Ali recalled a positive relationship with her siblings and parents. She attended school in Fiji and was a “brilliant student”. Her parents were poor and could not afford to send her to college. She marriage at age 17 years and the elder of her sons was born in Fiji. She, her husband and first son migrated in 1981 and her second son was born in Australia.
Ms Ali worked for ten years at the Bonds factory in Wentworthville before obtaining employment at the Berlei factory in Parramatta where she worked for five years. She then worked for Australian Sheepskin manufacturing UGG boots for 23 years. By the end of her employment she was supervising, teaching and working in the shop. She did not resume work after the accident.
Ms Ali did not report any past medical conditions other than a Caesarean delivery of her second child. This was undertaken due to bleeding during pregnancy and her baby was “not growing”. She did not report any other operations, injuries or motor accidents. She did not report cigarette smoking, the use of alcohol or the use of illicit drugs.
History of the accident
Ms Ali was driving in the middle lane down a hill, intending to turn right when a provisional driver sought to turn right across her path from her left side. Ms Ali T-boned the other vehicle.
Ms Ali recalled that the impact felt as if someone had dropped the car in front of her. She was travelling at 50 - 60kph in a Toyota Corolla. The other vehicle was a small car. Ms Ali’s vehicle hit the pillar of the other car. Her airbags did not deploy. She recalled that she hit the steering wheel. Her chair moved forward. She hit her knee on the dashboard. She stated that she lost consciousness for a few seconds.
There was a police car on the other side of the road which stopped, and she was assisted from her vehicle by the police officers.
History of symptoms and treatment following the accident
Ms Ali recalled a tight sensation in her chest. She was unable to breathe. A police officer sat her on a chair and then told her to go home. Ms Ali asked the police officer to call her an ambulance. She was conveyed to Fairfield Hospital. She has a recollection of being placed in a neck brace and undergoing X-rays. She was diagnosed with a sternal fracture and fractured ribs. She was transferred from Fairfield Hospital to Liverpool Hospital where she was admitted to the intensive care unit because one of her fractured ribs was touching her heart. She remained in intensive care for eight days. Ultimately, she was discharged home. She attended follow up with her general practitioner. She was referred for physiotherapy and massage. She was prescribed analgesia.
Ms Ali recalled that she started seeing the psychologist and psychiatrist in 2019 because she was suffering insomnia. At the time, her sleep was affected by dreams. She had dreams of falling off her bed or falling off a ship. She would have dreams of various unusual themes. She would wake sweating and scared. She was also suffering hot flushes. She was unable to sleep under a blanket. She suffered headaches and was forgetful. She stated that she was “furious” and would ask herself, “When will this ever be finished?” She expressed frustration at her inability to do things because of the extent of her pain.
Details of any relevant injuries or conditions sustained since the accident
Ms Ali recalled that she was on thyroid medication, but this ceased three to four years ago. She underwent surgery for her parotid gland tumour and attends annual appointments. By her account the parotid tumour is in remission.
Current symptoms
With respect to her physical condition, Ms Ali reported ongoing chest pain and a lump under her left breast. She experiences a tight sensation when anything is around her chest. By way of example, she referred to wearing a bra or wearing a seat belt.
Ms Ali enjoys time spent with friends. She initially stated that she is in a good mood when she is in their company but then stated that her mood is not consistently good. She is able to engage in conversation. She continues to think, “Will my life ever be like before?” and reflects on the extent to which she previously enjoyed life, her work, and her holidays. In the past, she had no financial concerns.
Ms Ali continues to ruminate on the consequences of the accident, but she no longer reflects on the accident itself. She nevertheless becomes scared when driving, for example, when driving to her psychologist. She is particularly scared when driving next to large trucks. She did not describe excessive caution when driving and expressed her opinion that she drives normally notwithstanding her account of fear. She may however break her drive because of foot pain, and she may need to stretch.
Ms Ali stated that she does not eat much despite which she gains weight and then loses weight. She also stated that she must take breaks when she is doing things and raised the prospect that her concentration is not what it used to be.
When asked further regarding her dreams, Ms Ali replied that she would initially dream about the accident and did not resume driving for two years. She required others to drive her to physiotherapy. She identified that she still feels anxious when she is braking in the car and experiences doubt as to whether she is pressing the brake hard enough. She recalled that she previously suffered from anxiety in the mornings, but this has been assisted by medication. With her psychologist she talks about various matters, for example her dreams, and she engages in relaxation therapy.
Current and proposed treatment
Ms Ali is prescribed Lyrica for neck and shoulder pain. She could not recall the tablet strength but stated that she is on one to two tablets per day. She takes one tablet of Panadeine Forte each night otherwise pain prevents her from sleeping. She also takes quetiapine one tablet at night. She could not recall the tablet strength. She takes pantoprazole daily for gastritis. She was previously on amitriptyline. She could not recall the dose. She was also on Seroquel (quetiapine) in the morning but this has ceased. She stated that her general practitioner had recommended stopping these medications.
Ms Ali continues to undergo physiotherapy two or three times a week in Wetherill Park. The treatment is focused on her neck and shoulder pain.
Ms Ali has been under the care of psychiatrist Dr Rastogi whom she sees every three months. She expressed uncertainty regarding the number of sessions that she has engaged in. It is Dr Rastogi who prescribed quetiapine. Her general practitioner,
Dr Glen prescribed Endep. She remains under the care of psychologist
Dr Fariha Khan.
Mental state examination
As stated above, the assessment was undertaken using audio visual technology. The quality of the connection was satisfactory. Ms Ali presented with adequate grooming. She did not appear to be wearing makeup, but her hair appeared to be tinted. She exhibited a reactive affect. She became overtly upset when describing her physical condition and the extent that it has caused limitations, but she did not report pervasively depressed mood or an inability to enjoy herself. She described anxiety when driving albeit improved since the period following the accident. She gave an account of intrusion symptoms and past avoidance behaviour. No psychotic phenomenology was apparent.
Current functioning
Ms Ali’s physical conditions qualified her for the Disability Support Pension in 2022. She could not recall whether she was on a different Centrelink benefit prior to receiving the pension. She obtained employment through a disability employment organisation in December 2022 working two hours on Mondays, Wednesdays and Fridays. She is a cleaner at a club in Liverpool, a ten-minute drive from home. She mops and dusts.
Ms Ali and her husband share household tasks. She undertakes tidying, dusting, cooking and washing the dishes. Either she or her husband hangs the laundry. She drives to the shopping centre and does the shopping.
In her spare time, Ms Ali undertakes sewing, goes on the computer and watches television, specifically she watches the news. She drives to her psychologist in Northmead, a journey of 45 minutes. Sometimes her physical symptoms undermine her ability to drive.
On weekends, her children and grandchildren visit. Sometimes friends will pick her up and take her to the movies. She does not go to restaurants with her friends because she cannot afford to do so. Friends rarely visit. She does not go out socially with her husband. Her last holiday was in 2019.
Ms Ali maintains her personal care. She eats regularly. She does not neglect her hygiene or grooming. She showers and dresses daily.
When asked regarding her relationship with her husband, Ms Ali replied that he is “very old school” and does not like that she does not cook every day. He has always been quick to anger. Sometimes her husband will drive her but otherwise she drives herself. Her sons have been supportive of her, but they are busy.
Information derived from the Facebook record was put to Ms Ali. She confirmed her attendance at a restaurant and stated that this only occurs for birthday celebrations. In July 2019 she travelled to Fiji. It was her 40th wedding anniversary and Ramadan. In 2019 she travelled to Brisbane for her niece’s wedding. In 2018, following the accident she travelled to New Zealand. Her son lives there.
Consistency of presentation
No inconsistencies were identified with respect to Ms Ali’s account or her presentation at interview.
Diagnosis
The accident, as described by Ms Ali, was an objectively serious motor vehicle accident in which she T-boned another vehicle that appeared suddenly in her path. She sustained injuries of sufficient seriousness to compel an intensive care unit admission. Following the accident, she was too anxious to drive for two years. She suffered nightmares and ruminated about the accident. Her account of symptomatology reflects the development of post-traumatic stress disorder in accordance with DSM-5 criteria.
Over time, Ms Ali has been able to resume driving albeit limited by physical symptoms. Her dreams are no longer of the nature that they were in the period following the accident and she did not report flashbacks or intrusive memories of the accident itself. It is apparent therefore that the severity of post-traumatic stress disorder symptoms have diminished over time.
Causation and reasons
The history provided by Ms Ali indicates that the accident represents the only circumstance that has contributed to the diagnosis of post-traumatic stress disorder. No other factors were identified as influencing the causation or course of this condition.
Psychiatric diagnoses
1. Posttraumatic Stress Disorder (partially resolved)
Psychiatric treatment description
Psychological therapy
Quetiapine
Psychiatric follow up
Category
Class
Reason for Decision
1. Self-care and personal hygiene
1
Ms Ali reported having maintained attention to her personal care, hygiene and grooming. No deficits with respect to personal care were apparent at interview. Her account in this regard is consistent with the images provided in the documents. She did not report diminished attention to her diet. She continues to participate in household tasks including cleaning and meal preparation. No evidence of psychiatric impairment was identified in this area.
2. Social and recreational activities
1
Ms Ali described engaging in outings with her friends. She goes to movies. She has regular visits from her family. She engages in home-based recreational activities. She has been on holidays since the accident albeit not for several years. She did not report engaging in activities with her husband but her account indicated that this does not reflect a change in their circumstances. She attributed limitation in the nature of her social outings to financial constraints, not to matters of a psychiatric nature. No psychiatric impairment was identified.
3. Travel
1
Ms Ali drives unimpeded by psychiatric factors. She experiences anxiety when driving near trucks and she experiences anxiety when braking in her car but not to an extent that she is limited in her ability to travel freely and independently. During the two years following the accident she did not drive but this restriction has evidently resolved. She remains physically limited by the need to take breaks and stretch.
4. Social functioning
1
Ms Ali spoke positively of her relationship with her children and grandchildren. She described her husband’s reaction to her inability to attend to tasks to his satisfaction, attributing his frustration to his personality. Her account did not indicate any change in the dynamics of their relationship. She continues to engage with friends. She did not report any change in social functioning.
5. Concentration, persistence and pace
2
Ms Ali was able to participate effectively in a lengthy interview without demonstrating impairment of concentration. No deficits of memory were evident. She gave the impression that her concentration generally is not of the standard that it was previously and she is not able to maintain tasks as she would have previously. Her persistence and pace is likely to be undermined by non-psychiatric factors but the Panel concluded that the nature of the psychiatric injury is such that it is likely to be undermining her ability to sustain concentration, compromising her in this area of functioning. It is appropriate to conclude that she is mildly impaired.
6. Adaptation
2
Ms Ali is currently working six hours a week. She ascribed her inability to maintain her pre-injury role to physical factors. It is probable that symptoms of post-traumatic stress disorder would have undermined her ability to sustain this role to the level she was previously working even in the absence of non-psychiatric factors. It is appropriate to conclude that she is therefore mildly impaired in this area.
List classes in ascending order: 1, 1, 1, 1, 2, 2
Median Class Value: 1
Aggregate Score: 8
% Whole Person Impairment: 1%
*%WPI = Percentage Whole Person Impairment
Apportionment
As specified in paragraphs 7.14 and 7.15 of the Guidelines, only those aspects of impairment attributable to psychiatric factors may be considered in the calculation of psychiatric whole person impairment. Namely, impairment arising as a result of pain and physical compromise has been excluded from the assessment of psychiatric whole person impairment.
Pre-existing/subsequent impairment
No evidence of pre-existing or subsequent impairment was identified.
Effects of treatment
It is not apparent that the treatment has contributed meaningfully to a reduction of symptomatology such that it can be accepted to have influenced the impairment.
The Panel finds the following permanent impairment.
A
Current % permanent impairment
1%
B
Pre-existing/subsequent % permanent impairment
0%
C
Adjustments % for effects of treatment
0%
Final % permanent impairment 1%
The post-traumatic stress disorder has caused whole person impairment of less than 10%.
0
0
0