Allianz Australia Insurance Limited v Anjoul
[2023] NSWPICMP 681
•19 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Anjoul [2023] NSWPICMP 681 |
| CLAIMANT: | Charbel Anjoul |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Matthew Jones |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 19 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Claimant involved in a T-bone motor accident on 17 May 2017; issue of psychiatric injury and extent of permanent impairment; claimant had prior anxiety and depression and physical issues; finding made that motor accident caused post-traumatic stress disorder and cannabis use disorder; assessment of psychiatric condition following examination by both Medical Assessors; Held – medical assessment revoked; finding made that impairment not greater than 10%. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment 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% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: The Panel revokes the certificate dated 4 November 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which is NOT GREATER THAN 10%: · post-traumatic stress disorder, and · Cannabis use disorder. |
REASONS
BACKGROUND
On 17 May 2019 Mr Charbel Anjoul (the claimant) was a passenger when the driver turned in front of an oncoming vehicle causing a T-bone collision into the driver’s door.[1]
[1] Insurer’s bundle, p 18.
Allianz Australia Insurance Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Anjoul any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant alleges that the motor accident caused various physical and psychological injuries.
The issue in this medical dispute is whether Mr Anjoul’s “degree of permanent impairment as a result of the psychological injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. 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.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Shen and dated
4 November 2022 (the medical assessment).[4] The Medical Assessor assessed the degree of permanent impairment at 16%. The details of that assessment are set out later in these Reasons.
THE REVIEW
[4] Insurer’s bundle, p 3.
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[5]
[5] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to 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.[6]
[6] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
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 Merit Reviewer or a Medical Assessor.[7]
[7] 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.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
The parties otherwise filed bundles of documents for the Panel’s consideration and a further bundle was filed by consent.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[10] In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[10] See s 3B(2) of the Civil Liability Act 2002.
[11] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor found that the motor accident caused post-traumatic stress disorder, an exacerbation of major depressive disorder and cannabis use disorder and assessed permanent impairment at 16%.
OTHER MEDICAL ASSESSMENT
Medical Assessor Cameron issued a certificate dated 25 July 2022. He found that the motor accident caused a number of soft tissue injuries and an L3 transverse process fracture and assessed impairment at 2%.[12]
[12] Insurer’s bundle, p 156.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
Clinical notes of the general practitioner (GP) refer to the following:
· March 2015 – anxiety and depression;[13]
· August 2015 – depression – prescribed Lexapro;[14]
· February 2016 – depression – prescribed Lexapro;[15]
· January 2019 – anxiety disorder – prescribed Valium,[16] and
· 8 April 2019 – chronic ankle pain of ten years duration and prescribed Valium.[17]
[13] Insurer’s bundle, p 53.
[14] Insurer’s bundle, p 55.
[15] Insurer’s bundle, p 59.
[16] Insurer’s bundle, p 68.
[17] Insurer’s bundle, p 69.
In October 2016, Dr Chik, cardiologist, noted various conditions including depression and generalised anxiety disorder with binge drinking, two to three times per week and illicit drug taking with occasional cocaine use.[18]
[18] Insurer’s bundle, p 139.
Various records show right ankle issues dating back to 2008.[19]
[19] Insurer’s bundle, p 208.
In a report dated 24 February 2023, the GP noted a past history of depression and generalised anxiety disorder in 2016.[20]
[20] Insurer’s late Bundle, p 289.
Medical records post-accident
The claimant attended the emergency department of Auburn Hospital three days after the motor accident complaining of various physical symptoms including neck and low back pain with referred symptoms.[21]
[21] Insurer’s bundle, p 46.
A claim form completed by Mr Anjoul dated 24 May 2019 noted some physical injuries and “nervous shock” caused by the motor accident.
On 30 May 2019 Dr Singh, orthopaedic surgeon, noted significant neck and low back pain caused by the motor accident.
Dr Abdal Khan, psychiatrist, provided a report dated 10 July 2019.[22] The doctor noted no prior psychiatric history and diagnosed post-traumatic stress disorder caused by the motor accident. In August 2019 Dr Khan recommended a trial of fluoxetine.[23]
[22] Claimant’s bundle, p 68.
[23] Claimant’s bundle, p 70.
In July 2019 the claimant underwent a left ankle arthroscopy and open ostectomy.[24]
[24] Insurer’s bundle, p 334.
In August and September 2019, the GP prescribed Valium in the context of anxiety from chronic pain related to ankle surgery.[25]
[25] Insurer’s bundle, p 73.
In a report dated 22 November 2019, Dr Khan noted limited improvement in the claimant’s trauma-related symptoms and increased the dose of fluoxetine.[26]
[26] Claimant’s bundle, p 73.
Qualified opinions
Dr Inglis Synnott, psychiatrist, was qualified by the insurer and provided a report dated
13 August 2021.[27] The doctor opined that the motor accident had aggravated the underlying major depressive disorder.[27] Insurer’s bundle, p 28.
Dr Synnott doubted the claimant’s credibility in light of the inconsistency between the absence of psychological history and the GP records. The doctor stated:
“Given this discrepancy, I have no confidence in assigning a psychiatric diagnosis or in determining the level of psychiatric impairment that can be attributed to the MVA.”
Dr Richa Rastogi, psychiatrist, was qualified by the claimant and provided a report dated
9 January 2021.[28] The doctor obtained a history of no prior depression or anxiety prior to 2019 with recreational drug use since the motor accident.[28] Claimant’s bundle, p 43.
Dr Rastogi diagnosed post-traumatic stress disorder and cannabis abuse disorder and assessed impairment at 15%.
SUBMISSIONS
Claimant’s submissions dated 18 August 2021[29]
[29] Claimant’s bundle, p 18.
The claimant relied on the opinion expressed by Dr Rastogi that the impairment from the psychological injuries exceed the 10% threshold.
Claimant’s submissions dated 21 December 2022[30]
[30] Claimant’s bundle, p 6.
These submissions were filed opposing the insurer’s application to review the medical assessment.
The claimant submitted that the post-accident references to anxiety in the clinical records could also refer to the motor accident as well as to the ankle condition.
The claimant submitted that references to an Activities of Daily Living report in July 2019 and Dr Synnott’s report in August 2021 has no bearing to the issue of current impairment.
Insurer’s submissions dated 8 September 2021[31]
[31] Insurer’s bundle, p 7.
The insurer noted that the claimant in the claim form failed to refer to a “longstanding history of psychiatric complaints” and referenced:
· clinical notes of Dr Brian Nguy from March 2015 to May 2019 which referred to depression and anxiety with prescriptions for Lexapro and Valium, and
· Dr William Chik in a report dated 20 October 2016 noted illicit drug use with occasional cocaine use and noted anxiety and depression.
The insurer referred to the opinion of Dr Inglis Synnott dated 13 August 2021 who did not assign a psychiatric diagnosis or assess impairment due to the claimant’s inconsistent history. The doctor noted the claimant’s history that he had consulted his GP on one occasion for psychiatric symptoms, had not consulted a psychiatrist or psychologist and had not taken psychotropic medication.
Insurer’s submissions dated 30 November 2022[32]
[32] Insurer’s bundle, p 151.
These submissions sought leave to review the medical assessment. The insurer submitted that the Medical Assessor failed to properly consider and deduct for the pre-existing psychiatric condition.
The insurer submitted that the GP records in August and September 2019 show that the complaints of anxiety and prescription of Valium related to chronic pain from the right ankle condition and were unrelated to the motor accident.
The insurer noted that the Medical Assessor opined that the claimant was inconsistent but then relied on his history in assessing impairment.
The insurer disputed various findings of psychiatric impairment rating scale (PIRS) categories was inconsistent with the histories provided to Dr Synott including that the claimant visited his nephew and driving to local areas. It also referred to the Activities of Daily Living report dated 31 July 2019 that the claimant drove as required.
The insurer noted that the chronic ankle issues had gradually worsened and prevented the claimant from returning to work. The insurer disputed the finding of the effects of treatment given the prior prescriptions of Valium and use of cannabis.
RE-EXAMINATION
Mr Anjoul was examined by both Medical Assessors on 6 December 2023.The examination report is as follows:
General remarks
The claimant attended in person at the Personnel Injury Commission, 1 Oxford Street Sydney on 6 December 2023 as organised by the Commission. He attended alone and was on time. The medical re-examination with Medical Assessors Baker and Jones was performed on behalf of the Panel. The claimant did not require an interpreter. The claimant’s identify was confirmed by his NSW driver’s licence.
Psychosocial history and pre-accident history
The claimant’s early developmental history was confirmed. He was not exposed to developmental trauma. He was born in the Auburn District Hospital. He was educated to Year 10. He worked in construction prior to caring for his mother. He had completed a construction course on leaving school. He also held a forklift driver’s licence prior to the motor accident.
The claimant reported that he was the youngest son and second youngest sibling to his parent’s union. He was the seventh child of eight siblings. He had four elder brothers and three sisters. The claimant’s father died about 10 years ago. The claimant commenced caring for his mother in about 2016. He reported that his mother suffered from a heart condition as well as oesophageal problems. The claimant was receiving an allowance from the Australian Government for the care he provided to his mother prior to the motor accident.
The claimant reported he had been treated for chronic ankle pain from an injury to his left ankle in about 2013. He developed a major depressive disorder and a generalised anxiety disorder commencing in about 2015. He was treated with Lexapro, an antidepressant medication used in the treatment of anxiety and depression. He was investigated for chest pain by a cardiologist in 2016. He was advised that the chest pain was due to anxiety and not heart disease. He was also diagnosed with hyperlipidaemia and hypertension about the same time by the cardiologist. He had last received a prescription for diazepam 5mg tablets for the treatment of his generalised anxiety disorder about 3 days prior to the motor accident on 17 May 2019.
The claimant clarified his substance use history. He reported that he was an occasional user of cocaine prior to the motor accident. He reported his use of cocaine was during celebrations and parties. There had never been any legal matters arising from his cocaine use. He had also smoked tobacco. He was diagnosed with chronic obstructive pulmonary disease in about 2018. He reported that he first commenced cannabis use after the motor accident in May 2019. He reported that he did not consume alcohol prior to the motor accident.
The claimant reported that he had been prescribed Endone 5mg tablets for his pain management prior to the motor accident. He reported that his general practitioner restricted his supply of Endone and cautioned about the risk of opiate dependence with this medication.
The claimant was fully occupied caring for his mother prior to this motor accident.
Pre-existing functioning
The Panel re-examined the claimant’s pre-existing functioning prior to the motor accident. The re-examination of all aspects of the psychiatric impairment rating scale enabled an accurate assessment of the claimant’s functioning prior to the motor accident.
Self-care and personal hygiene
The claimant reported that prior to the motor accident he would mow the lawn, dig weeds from garden beds, pressure hose the driveway and maintain the outside of his mother’s home. He stated that he would assist his mother with laundry, vacuuming, and groceries. His sisters who lived close to the family home would assist their mother should she require personal assistance.
The claimant told the Medical Assessors he did not require prompting to shower and maintain his self-care and personal hygiene. He could live independently prior to the motor accident. Whilst he still experienced anxiety, his major depressive disorder was in remission.
It is the clinical judgement of the medical members of the Panel that the claimant’s pre-existing motor accident class of functioning in this area should be assessed as class 1.
Social and recreational activities
The claimant acknowledged that he would cook the Christmas day barbeque at his mother’s home for his large extended family, most years immediately prior to the motor accident.
The claimant reported that he enjoyed fishing with his best friend Ray, most days at their favourite fishing spot in Drummoyne. They would fish from the shore. He would also fish with his nephews. The fish they caught would be taken home for the family to eat. The claimant did not eat fish himself.
The claimant reported that he would enjoy watching NRL football on Foxtel with his brothers. He reported that only one of his brothers favoured the “Bulldogs” and the remainder favoured the “Sea Eagles”. He reported that he enjoyed sharing these games with his brothers as it also made his mother happy to see her sons together.
It is the clinical judgement of the medical members of the Panel that the claimant’s pre-existing motor accident class of functioning in this area should be assessed as class 1.
Travel
The claimant was able to leave the family home alone without support. He had reported that he was able to leave the house to walk in his local area. He was also able to drive himself to his favourite fishing spot in Drummoyne. The claimant was not avoidant of driving a motor car prior to the motor accident. He could drive to known and unfamiliar locations prior to the motor accident.
It is the clinical judgement of the medical members of the Panel that the claimant’s pre-existing motor accident class of functioning in this area should be assessed as class 1.
Social functioning
The claimant reported that his last intimate relationship was about 8 years prior to this re-examination. The relationship ceased between him and his girlfriend in about 2015. There were no children to this union. He had no contact with this woman since separation.
The claimant reported that his closest friendship was with his best friend, Ray. He said that they were close fishing mates. They would go fishing most days prior to the motor accident. Ray lived close to the claimant’s accommodation.
The claimant reported that he had a good relationship with his extended family. He reported that his second eldest sister would monitor him and his mother.
It is the clinical judgement of the medical members of the Panel that the claimant’s pre-existing class of functioning in this area should be assessed as class 1.
Concentration, persistence and pace
The claimant reported that prior to the motor accident he would monitor and manage his mother’s pharmaceutical prescription. He had purchased a “7-day pillbox”. He explained that he would separate his mother’s medications into her daily dose requirement. He would place each day’s medications in the marked box, for each day of the week. He would complete a week’s mediation in one sitting. He advised that he could concentrate, persist and complete this complex task without error.
The claimant could concentrate to follow his favourite football team on television. He could also concentrate to organise and complete his preparations for fishing, and changing the bait as required in response to the numbers caught on any single fishing trip.
It is the clinical judgement of the medical members of the Panel that the claimant’s pre-existing motor accident class of functioning in this area should be assessed as class 1.
Adaptation
The claimant reports he was able to adapt to his mother’s needs since becoming her career. He reported that he was able to call his sisters to attend should his mother require their personal assistance. He reported he would usually work about 4-hours every day caring for his mother. He reported that most tasks would require intermittent activity. He said that he would for example put the laundry on and then have to wait until the washing machine finished and he could hang the clothes on the line. He would work more than 20 hours per week in his fulltime carer’s role.
The claimant reported that whilst he was fishing he would organise for a sister to attend his mother.
It is the clinical judgement of the medical members of the Panel that the claimant’s pre-existing motor accident class of functioning in this area should be assessed as class 1.
There were significant physical limitations due to pain affecting the claimant’s capacity to engage in more vigorous employment activities prior to the motor accident. The restriction of pain caused by the physical injuries sustained prior to the motor accident where not assessable in the PIRS assessment of WPI. The claimant reported that whilst his pain was treated, he was not impaired in completing his daily activities of living.
History of the motor accident.
The claimant explained that he had been invited to lunch with his best friend Ray. He said Ray was driving his ‘two-seater ute’. They were in transit, returning to the claimant’s house when the motor accident happened.
The claimant was asked what he remembered of the motor accident. He said he was the passenger and Ray was the driver. The claimant was asked to draw where he remembered the at fault car hitting the ute. The claimant marked the front driver’s front side panel at about the area of the side bumper bar area.
The claimant confirmed that he was alert, sitting in the passenger seat with his seatbelt on. He was watching a YouTube video on his mobile whilst Ray was driving. The claimant said that the impact of the at fault car caused him shock. He said he feared he might die in the motor accident. He hit his head on the passenger side window, and this caused him to become dazed. He reported he had a severe panic attack at the time of the motor accident. He did not leave the ute. He could not remember if Ray spoke to the at fault driver.
The claimant reported that after the motor accident he was in pain. He had pain in his head at the point of impact on the window. He also had pain in his neck, thoracic spine, lumbar spine, right arm as well as both legs. He stated that after the motor accident, Ray was still able to drive the ute and this was how he was transferred to the emergency room at Auburn Hospital. The claimant had X-rays of his sites of injuries. He was assessed and discharged after a few hours.
History of symptoms and treatment following the motor accident
The claimant recalled that no police force members or ambulance officers attended the accident scene. He said he stopped everything for about three months as he was too anxious and fearful. He stopped driving his car. He stopped going fishing. He suffered from nightmares about the motor accident.
The claimant reported that he was suffering from a lot of pain. He was not experiencing any benefit from the use of Endone. He had heard about ‘medical cannabis’ and so he decided to trial treatment with medical CBD oil, and ‘medical cannabis flower’. He reported that he purchased an Australian Government TGA approved vaporiser to assist with the administration of the cannabis. He would also roll a ‘joint’ if he was away from the vaporiser. The cost of the medical assessment and prescription of cannabis was prohibitive. The claimant purchased ‘non-medical’ cannabis.
The claimant explained that whilst driving his car after the motor accident he was pulled over by police. He had one ‘joint’ of ‘non-medical’ cannabis on him. He was charged with having a prohibited drug. He attended Burwood Local Court. He said this was the first time he had ever had to attend any court. He was cautioned by the attending magistrate. The claimant continued to use ‘non-medical’ cannabis. The continuation of ‘non-medical’ cannabis after being cautioned by the magistrate is an important symptom for the diagnosis of the onset of cannabis use disorder. The continued use of a substance when it is known by the user to be causing social, psychological or physical harm is part of the DSM5 criteria for a substance use disorder. This was described by the claimant as not being able to cope without cannabis and purchasing ‘non-medical’ cannabis. The use of the substance to achieve satiety is also a primary symptom of substance use disorder. The claimant stated he was aware that driving under the influence of cannabis was physically hazardous.
DSM5 criteria for Cannabis use disorder code 305.20, page 502, is defined as part of the psychological injury, caused by the motor accident as follows:
Cannabis use disorder code 305.20
Diagnostic Criteria
A.A problematic pattern of cannabis use leading to clinically significant impairment or distress, as manifested by at least two of the following, (11 symptoms listed) occurring within a 12-month period:
6. Continued cannabis use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of cannabis.
8. Recurrent cannabis use in situations in which it is physically hazardous.
9. Cannabis use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by cannabis.
The Panel agreed that the condition diagnosed as cannabis use disorder is to be assessed as part of the impairment assessment.
DSM5 criteria for post-traumatic stress disorder code 309.81, page 271, is defined as part of the psychological injury, caused by the motor accident as follows:
Posttraumatic Stress disorder DSM5 code 309.81
The claimant was exposed to a significant motor accident. The consequences of the motor accident included the claimant being a passenger who was shocked by another vehicle unexpectedly crashing into the driver’s side of the ute in which he was travelling. The claimant’s primary restraints had worked. The claimant was dazed and confused at the time of the motor accident. No police or ambulance attended the scene. The claimant reported that the first thoughts he remembered about the motor accident was that he could die. He immediately suffered a severe panic attack and experienced pain to his neck, thoracic, and lumbar spine, as well as pain in his right arm, and both legs. He went to hospital after the motor accident for medical treatment.
The motor accident was sufficient to meet Category A for DSM5 posttraumatic stress disorder criteria. The claimant experienced shock and the immediate thought that he could die from his injuries sustained in the motor accident.
Category B
The claimant reports the presence of recurrent, involuntary and intrusive distressing memories of the motor accident. The claimant also continues to experience distressing dreams about the motor accident.
Category C
The claimant actively avoids external reminders of the motor accident. He reported that his friendship with Ray, the driver during the motor accident, had ceased prior to the re-examination.
Category D
The claimant experiences negative alterations in his cognition and mood. He suffers from persistent negative emotional state with him having shame and guilt due his difficulty in fully recovering from this motor accident.
The claimant has a persistent inability to experience positive emotions and is unable to experience any satisfaction in his daily activities of living.
Category E
The claimant reported recurrent hypervigilance whilst a driver in a car driven by himself since the motor accident.
The claimant reported recurrent difficulties in falling, and staying, asleep with him having restless sleep most nights.
Category F
The claimant has experienced the duration of this disturbance for more than one month. The disturbance has been ongoing since the motor accident without full remission of the symptoms caused by the motor accident.
Category G
The disturbance has caused clinically significant distress and impairment in social activities with his family as well as the loss of his best friend’s friendship.
Category H
The disturbance is not attributable to the physiological effects of a substance (e.g. medication, alcohol) or another medical condition.
The Panel agreed that the condition diagnosed as posttraumatic stress disorder is to be assessed as part of the impairment assessment.
The claimant also experienced episodic severe panic attacks whilst driving that did not prevent him from driving at the time of this re-examination.
The claimant attended a general practitioner, clinical psychologist and consultant psychiatrist. He was treated with Fluoxetine 20mg daily. The fluoxetine caused the claimant to suffer from increased severity of panic attacks after the motor accident. He commenced suffering from urinary urgency whilst driving. Urinary urgency is a known symptom in severe panic attacks. He would have to stop driving his car and urinate on the side of the road before continuing his journey.
The claimant reported that he was referred to Mr Carl Nielsen for psychological treatment. He reported that this had ceased prior to this re-examination. The claimant had also attended Dr Khan, a psychiatric for treatment. The prescription of Fluoxetine 20mg daily was unsuccessful due to excessive side-effects. Fluoxetine is evidence-based treatment for posttraumatic stress disorder. The claimant was not admitted to psychiatric hospital for treatment of his psychological injury caused by the motor accident.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant reported having recently returned to fulltime casual employment as a traffic controller. He reported that his physical condition was sufficient to return to employment in this role.
Current and proposed treatment
The claimant reported he had been prescribed tramadol for his pain management since the motor accident. He reported that he had continued to use “non-medical” cannabis for management of his pain. The claimant had also used diazepam for anxiety related symptoms since the motor accident.
The claimant had been conservatively treated for his psychical injuries sustained in the motor accident. He had an impairment to his right arm caused by the motor accident.
Mental State examination
The claimant was assessed alone. The claimant was dressed in clean clothes. He was groomed. He was not dishevelled.
The claimant was orientated in time, place and person. He had a good memory of the motor accident and the fear and shock caused by the crash.
The claimant demonstrated anxious avoidance. He struggled to speak about his emotions of shame. He spoke about avoiding his family and not participating in family events such as watching football games together or cooking Christmas barbeques as he would have prior to the motor accident.
The claimant did not report a depressed mood. He did report loss of motivation and having his self-esteem and confidence harmed by the motor accident. He had only recently returned to fishing at Drummoyne and employment. He did not report suicidal thoughts or plans.
The claimant reported that his concentration, persistence and pace had been affected by the motor accident. He also reported that he was able to complete the necessary course to work as a traffic controller prior to returning to employment. He had restricted his work role to working without a “walkie-talkie” as his concentration was too poor, and he feared making errors with public road drivers or pedestrians.
The claimant continued to experience poor sleep.
Comments on consistency
The claimant’s presentation was more consistent with most of the history provided being documented by prior authors, and assessors. Specific dates regarding pre-existing conditions remained difficult for the claimant to remember. He presented as an anxious man.
The claimant was frank about the difficulties he had experienced since the motor accident and the length of time, repeated assessments and his lack of full recovery.
Pre-existing psychiatric condition
It is the clinical judgement of the medical members of the Panel that the claimant’s pre-existing psychiatric conditions were most likely major depressive disorder and generalised anxiety disorder. This clinical judgement was made relying on the documentation provided with the referral for re-examination, and the information provided by the claimant at this re-examination.
Current diagnosis
Posttraumatic Stress disorder DSM5 code 309.81
The claimant was exposed to a significant motor accident. The consequences of the motor accident included the claimant’s experience as a passenger when the ute he was travelling in was unexpectedly crashed into by an at fault driver. The claimant met sufficient symptoms at the time of this assessment to be diagnosed with posttraumatic stress disorder.
Cannabis use disorder DSM5 code 305.20
The claimant also suffered from cannabis use disorder for the first time after the motor accident. The commencement of this disorder occurred with the introduction of cannabis as an attempt by the claimant to manage pain. The initial medical cannabis was changed to “non-medical” cannabis. The claimant was subsequently charged with possession of a prohibited substance whilst driving. The claimant was cautioned by the magistrate. The claimant continued to smoke “non-medical” cannabis.
IMPAIRMENT ASSESSMENT
Functioning before the motor accident
There is a pre-existing psychiatric impairment prior to the motor accident. The pre-existing assessable psychiatric conditions included major depressive disorder and generalised anxiety disorder. The whole person impairment for pre-existing impairment was assessed as 0% WPI. Zero percent whole person impairment indicates that the claimant did have a whole person impairment and the claimant was able to function at the assessed level of impairment.
Current functioning
Selfcare and personal hygiene
The claimant could cook his own meals. He had lost interest in shopping for groceries and maintaining his mother’s home. He was no longer the primary carer for his mother. He told the Medical Assessors he did not require prompting to shower or maintain his self-care and personal hygiene. He could live independently at the time of this re-examination. He was not involved in the maintenance of the outside of the home.
It is the clinical judgement of the medical members of the Panel that the claimant’s post motor accident class of functioning should be assessed as class 1 at the time of the re-examination, as he could live independently without assistance and was functioning with only a minor deficit attributable to normal variation in the general population.
Social and recreational activities
The claimant acknowledged that he would not become involved with the traditional family celebrations with his extended family or friends. He was no longer involved or participated in the gatherings of the brothers to watch and cheer during football games. He was not socialising with his friends. He had not participated in Christmas day at his mother’s home where he lived since the motor accident. He would not cook the Christmas barbeque as he had prior to the motor accident.
It is the clinical judgement of the medical members of the Panel that the claimant’s post motor accident class of functioning in this area should be assessed as class 3 at the time of the re-examination.
Travel
The claimant was able to leave the family home alone. He had reported that he was able to leave the house to walk in the local area. He reported he was able to drive in local and familiar areas.
The claimant was anxious and had panic attacks whilst driving. He had continued to drive to his work site. He was hypervigilant whilst a passenger in a car driven by another person.
It is the clinical judgement of the medical members of the Panel that the claimant’s post motor accident class of functioning was class 2 at the time of the re-examination, as he was able to leave the family home alone and travel with some difficulty.
Social functioning
The claimant reported that his relationship with his best friend and driver of the ute, Ray had ceased due to the motor accident. He reported that he was not expecting any reconciliation between him and Ray. He reported that since the motor accident he had ceased the friendship as he was reminded of the motor accident that not been his fault whilst Ray was the driver.
The claimant reported that he had a strained relationship with his mother and seven other siblings as well as his extended family since the motor accident.
It is the clinical judgement of the medical members of the Panel that the claimant’s post motor accident class of functioning in this area was class 3, at the time of the re-examination.
Concentration, persistence and pace
The claimant was observed to be able to concentrate well and persist with the questions asked during the re-examination at a slowed pace. The re-examination lasted about 90 minutes in duration. The Panel confirmed with the claimant that he had recently been able to concentrate, persist and maintain the same pace as the other members of the course he had completed to function as a traffic controller.
The claimant reported that he could concentrate in his role as an on-site traffic controller. He was performing the lesser skill of the onsite, “Stop flagman”. The claimant reported that his concentration and capacity to persist with long periods was insufficient to work as the on road “Stop and Go” traffic controller. He was too avoidant and feared causing traffic accidents should he work the “walkie-talkie” radio and work in the street off site.
It is the clinical judgement of the medical members of the Panel that the claimant’s post motor accident class of functioning in this area should be assessed as class 2 at the time of the re-examination.
Adaptation
The claimant reports he was able to adapt to his employment as a “Stop flagman”. He stated that he was working four days per week for about 8 hours per shift. He could work fulltime hours in this role.
It is the clinical judgement of the medical members of the Panel that the claimant’s post motor accident class of functioning for adaptation was class 2 at the re-examination, as he was able to improve his level of function from the role of carer for his mother to fulltime paid casual employment.
Causation and reasons
The claimant was a passenger in a motor accident in on 19 May 2019. He was a passenger when the ute was crashed into by the at fault driver. He was shocked, dazed and in pain at the scene of the accident. He met criteria for DSM5 Posttraumatic stress disorder and Cannabis use disorder. It is the medical opinion of the Medical Assessors that the motor accident could cause the psychological injuries sustained by the applicant in this motor accident. It is the finding of the Medical Assessors the psychological injury sustained in this motor accident did cause assessable permanent psychiatric impairment as assessed at the time of this re-examination.
The motor accident could have caused other physical injuries including pain. Physical pain is not assessable under current Guidelines at the time of this re-examination.
The main difference between the re-examination findings of whole person impairment made by the Medical Assessors and prior assessments is that the claimant had now reached full medical improvement. The level of functioning at his level of full medical improvement was less than when the claimant was previously assessed.
The psychiatric impairment rating scale assessment below only assesses the assessable psychological injury posttraumatic stress disorder and cannabis use disorder as caused by the motor accident. The pre-existing psychological condition of major depressive disorder and generalized anxiety disorder were also assessed and the whole person impairment due to his pre-existing conditions was deducted from the whole person impairment caused by the motor accident incompliance with current guidelines.
The psychiatric impairment rating scale assessment table
Psychiatric diagnoses
DSM5 code 309.81 post-traumatic stress disorder
DSM5 code 305.20 cannabis use disorder
Psychiatric treatment description
The claimant did use evidence based psychiatric medication Fluoxetine for this psychological injury. He ceased this evidence-based treatment due to side-effects. The claimant did use evidence-based psychological treatment for the assessable conditions.
Category
Class
Reason for Decision
1. Self Care and Personal Hygiene
1
The claimant could cook his own meals. He had lost interest in shopping for groceries and maintaining his mother’s home. He was no longer the primary carer for his mother. He told the Medical Assessors he did not require prompting to shower or maintain his self-care and personal hygiene. He could live independently at the time of this re-examination. He was not involved in the maintenance of the outside of the home.
2. Social and Recreational Activities
3
The claimant acknowledged that he would not become involved with the traditional family celebrations with his extended family or friends. He was no longer involved or participated in the gatherings of the brothers to watch and cheer during football games. He was not socialising with his friends. He had not participated in Christmas day at his mother’s home where he lived since the motor accident. He would not cook the Christmas barbeque as he had prior to the motor accident.
3. Travel
2
The claimant was able to leave the family home alone. He reported that he was able to leave the house to walk in the local area. He reported he was able to drive in local and familiar areas.
The claimant was anxious and had panic attacks whilst driving. He had continued to drive to his work site. He was hypervigilant whilst a passenger in a car driven by another person.
4. Social Functioning
3
The claimant reported that his relationship with his best friend and driver of the ute, Ray, had ceased due to the motor accident. He reported that he was not expecting any reconciliation between him and Ray. He reported that since the motor accident he had ceased the friendship as he was reminded of the motor accident that not been his fault whilst Ray was the driver.
The claimant reported that he had a strained relationship with his mother and seven other siblings as well as his extended family since the motor accident.
5. Concentration, Persistence and Pace
2
The claimant was observed to be able to concentrate well and persist with the questions asked during the re-examination at a slowed pace. The re-examination lasted about 90 minutes in duration. The Panel confirmed with the claimant that he had recently been able to concentrate, persist and maintain the same pace as the other members of the course he had completed to function as a traffic controller.
The claimant reported that he could concentrate in his role as an on-site traffic controller. He was performing the lesser skill of the onsite, “Stop flagman”. The claimant reported that his concentration and capacity to persist for long periods was insufficient to work as the on road “Stop and Go” traffic controller. He was to avoidant and feared causing traffic accidents should he work the “walkie-talkie” radio and work in the street off site.
6. Adaptation
2
The claimant reports he was able to adapt to his employment as a “Stop flagman”. He stated that he was working four days per week for about 8 hours per shift. He could work fulltime hours in this role.
List classes in ascending order: 1, 2, 2, 2, 3, 3
Median Class Value: 2
Aggregate Score: 13 in accordance with table 6.17 this converts to a WPI of 7%
Pre-existing condition assessment
Psychiatric diagnoses
DSM5 code 296.20 Major depressive disorder
DSM5 code 300.02 Generalized anxiety disorder
Psychiatric treatment description
The condition diagnosed as major depressive disorder and co-existent generalized anxiety disorder to be assessed as part of the PIRS assessment. This condition was treated with evidence-based pharmacotherapy prior to the motor accident.
Category
Class
Reason for Decision
1. Self Care and Personal Hygiene
1
The claimant reported that prior to the motor accident he would mow the lawn, dig weeds from garden beds, pressure hose the driveway and maintain the outside of his mother’s home. He stated that he would assist his mother with laundry, vacuuming, and groceries. His sisters who lived close to the family home would assist their mother should she require personal assistance.
The claimant told the Medical Assessors he did not require prompting to shower and maintain his self-care and personal hygiene. He could live independently prior to the motor accident. Whilst he still experienced anxiety, his major depressive disorder was in remission.
2. Social and Recreational Activities
1
The claimant acknowledged that he would cook the Christmas day barbeque at his mother’s home for his large extended family, most years immediately prior to the motor accident.
The claimant reported that he enjoyed fishing with his best friend Ray, most days at their favourite fishing spot in Drummoyne. They would fish from the shore. He would also fish with his nephews. The fish they caught would be taken home for the family to eat. The claimant did not eat fish himself.
The claimant reported that he would enjoy watching NRL football on Foxtel with his brothers. He reported that only one of his brothers favoured the “Bulldogs” and the remainder favorited the “Sea Eagles”. He reported that he enjoyed sharing these games with his brother as it also made his mother happy to see her sons together.
3. Travel
1
The claimant was able to leave the family home alone without support. He reported that he was able to leave the house to walk in his local. He was also able to drive himself to his favourite fishing spot in Drummoyne. The claimant was not avoidant of driving a motor car prior to the motor accident. He could drive to known and unfamiliar locations prior to the motor accident.
4. Social Functioning
1
The claimant reported that his last intimate relationship was about 8 years prior to this re-examination. The relationship ceased between him and his girlfriend in about 2015. There were no children to this union. He had no contact with this woman since separation.
The claimant reported that his closest friendship was with his best friend, Ray. He said that they were close fishing mates. They would go fishing most days prior to the motor accident. Ray lived close to the claimant’s accommodation.
The claimant reported that he had a good relationship with his extended family. He reported that his second eldest sister would monitor him and his mother.
5. Concentration, Persistence and Pace
1
The claimant reported that prior to the motor accident he would monitor and manage his mother’s pharmaceutical prescription. He had purchased a “7-day pillbox”. He explained that he would separate his mother’s medications into her daily dose requirement. He would place each day’s medications in the marked box, for each day of the week. He would complete a week’s medication in one sitting. He advised that he could concentrate, persist and complete this complex task without error.
The claimant could concentrate to follow his favourite football team on television. He could also concentrate to organise and complete his preparations for fishing, and changing the bait as required in response to the numbers caught on any single fishing trip.
6. Adaptation
1
The claimant reports he was able to adapt to his mother’s needs since becoming her carer. He reported that he was able to call his sisters to attend should his mother require their personal assistance. He reported he would usually work about 4-hours every day caring for his mother. He reported that most tasks would require intermittent activity. He said that he would for example put the laundry on and then have to wait until the washing machine finished and he could hang the clothes on the line. He would work more than 20 hours per week in his fulltime carer’s role.
List classes in ascending order: 1, 1, 1, 1, 1, 1
Median Class Value: 6
Aggregate Score: 6 in accordance with table 6.17 this converts to a WPI of 0%
Summary
The summary of permanent impairment assessed by the Panel is:
· Current % permanent impairment 7%
· Pre-existing/subsequent % permanent impairment 0%
· Adjustments % for effects of treatment Nil
· Percentage WPI 7%
The Medical Assessors have considered whether the impairment assessment should be adjusted for the effect of treatment. It is the clinical judgement of the Medical Assessors that there is no adjustment for treatment effect.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[33]
[33] Section 7.26(6) of the Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[34] and Insurance Australia Ltd v Marsh.[35]
[34] [2021] NSWCA 287 at [40], [41] and [45].
[35] [2022] NSWCA 31 at [11], [21], [64].
Our assessment contrast from assessments provided by other doctors. In part that is explicable on the basis of the substantial time differences between the assessments. We also emphasise that the impairment is solely based on psychiatric impairment and does not make allowance for the effects of any physical injuries when assessing the various PIRS categories.
CONCLUSION
The Panel has come to a different conclusion to that of Medical Assessor Shen. The certificate is revoked, and a new certificate issued.
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