Allianz Australia Insurance Limited v Apostolov
[2024] NSWPICMP 431
•3 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Apostolov [2024] NSWPICMP 431 |
| CLAIMANT: | Krsto Apostolov |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Terence O’Riain |
| MEDICAL ASSESSOR: | Doron Samuell |
| MEDICAL ASSESSOR: | Gerald Chew |
| DATE OF DECISION: | 3 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute; claimant involved in a rear end collision; various injuries alleged including psychological condition; considered clinical notes which referred to possibility of post-traumatic stress disorder; original Medical Assessor (MA) assessed that accident caused major depressive disorder with trauma features; MA accepted claimant had no psychological conditions before accident; claimant may also have cognitive disorder; claimant re-examined; Medical Review Panel considered whether accident caused a psychological condition now in remission; clinical expertise of the MA was that the accident did not cause the claimant to suffer a psychological or psychiatric disorder; Held – Medical Assessment Certificate revoked; the accident did not cause the claimant to suffer a non-threshold psychological injury. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury The Review Panel revokes the certificate dated 17 March 2023 and certifies that the motor accident did not cause a psychological or psychiatric non-threshold injury for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
Background
Pre-accident medical history and relevant personal details
Mr Apostolov is an aged pensioner who had been a fitter and welder from 1968 until he retired some years before the subject accident.
He lives with his 76-year-old wife. He has three sons aged 55, 52 and 50.
He was born in Macedonia and grew up there until the age of 23 when he came to Australia to join his brothers.
On 9 February 2021, Mr Apostolov was alone in his vehicle stationary at traffic lights when a bus hit his vehicle from behind, pushing his vehicle into the middle of the road. He says the airbags deployed and he lost consciousness.
An ambulance took him to Liverpool Hospital. He does not remember what treatment the hospital provided, but he says now that he has mental difficulties.
Legislative framework
This is a medical dispute about whether Mr Apostolov has a non-threshold injury following the Motor Accident Injuries Act 2017 (MAI Act)
The Motor Accident Injuries Amendment Bill 2022 amended s 1.6 of the MAI Act so that from 1 April 2023 the term “threshold” substitutes for “minor”. The terms are interchangeable. This decision will retain the former term when talking about earlier decisions, but the current term will be used when addressing the Review Panel’s certificate.
The MAI Act’s statutory provisions, guidelines, and case law which operate to resolve this dispute are set out in Appendix A.
Claim
The claimant claimed statutory benefits under part 3 of the MAI Act for treatment and care benefits under Division 3.4. The insurer insured the owner and/or driver of the vehicle at fault for liability to pay to the claimant any statutory compensation under the MAI Act.
On 18 August 2021, the insurer issued a Liability Notice – Benefits After 26 Weeks advising that liability for the payment of statutory benefits would cease on 10 August 2021. Its decision was based on the claimant having sustained a ‘minor injury’ in the accident.
The claimant alleged that he suffered a non-minor injury after his treating psychologist diagnosed post-traumatic stress disorder.
The claimant sought an internal review, which affirmed the earlier decision on
28 September 2021. The claimant lodged an application to the Personal Injury Commission (Commission) to resolve this dispute.
Medical Assessor Michael Li Hong conducted the original medical assessment and produced a certificate dated 17 March 2023. Medical Assessor Hong found that the accident caused a major depressive disorder with trauma features and that it was not a minor injury for the purposes of the MAI Act.
The insurer applied to the Commission to refer Medical Assessor Hong’s certificate to a Review Panel (the Panel), which was within 28 days after the parties were issued with the original certificate.[1]
[1] Section 7.26(10) of the MAI Act.
On 29 May 2023, the President’s delegate referred the medical assessment to a Panel as she was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]
[2] Section 7.26(5) of the MAI Act.
The President of the Commission constituted this Panel to review Medical Assessor Hong’s certificate (the Review).
Review
On 8 April 2024 the Panel met to discuss the material lodged in the portal and whether to conduct a further re-examination.
The available documents were the insurer's bundle for review panel dated 19 March 2024 including the Presidential delegate's decision to refer Medical Assessor Hong's certificate for review, the claimant's submissions regarding that application and the certificate. These had been provided in accordance with the Panel’s earlier directions.
The Panel agreed Medical Assessors Samuell and Chew would re-examine Mr Apostolov on behalf of the Panel.
The Panel noted that the insurer raised the issue of dementia in its submissions and the RUDA[3] referred to in another Medical Assessor’s certificate. That was a relevant consideration.
[3] Rowland Universal Dementia Assessment Scale.
The Panel also noted that there was no material in the claimant’s general practitioner’s (GP) notes, which address the claimant’s cognitive state before the accident, despite two hospital notes’ entries in April 2016 and February 2017 regarding the claimant’s mental state. The RPA Pain Management Centre was also providing pain counselling in 2017, so his psychological state was being monitored.
The Panel requested further material regarding these aspects. These were provided and the Panel fixed the re-examination to occur on 17 May 2024 via MS Teams.
Assessment under review
The Commission originally referred the following dispute to Medical Assessor Hong to assess:
· psychiatric condition - post-traumatic stress disorder.
Medical Assessor Hong considered the claimant’s psychological history. The claimant told him that he had never had any psychological problems before.
He opined that the accident was the sole cause of any psychological problems.
Medical Assessor Hong did not refer to the earlier hospital admission records before the Panel, which confirms two psychological episodes before the accident where Mr Apostolov sought medical intervention.
Medical Assessor Hong opined that Mr Apostolov had suffered several depressive episodes connected to ruminating over the accident, and that the correct diagnosis was that the accident caused a major depressive disorder with trauma features. This was a non-minor injury for the purpose of the MAI Act.
Disputes and issues identified for review
The insurer disputed the following aspects of the original assessment:
· Medical Assessor Hong did not refer to the earlier psychological episodes;
· Medical Assessor Hong accepted that the claimant was rapidly losing weight and had a suppressed appetite because of the accident when the claimant’s GP’s notes showed the typically lean claimant had gained weight since the accident, and
· the claimant’s medical history also suggests that a chronic pain condition and possible dementia could be operative factors in the claimant’s psychological condition including forgetfulness.
The claimant did not dispute the insurer’s submissions in the review application.
The Panel noted that it was necessary to consider whether the claimant had ever suffered a non-threshold injury.
CLINICAL EXAMINATION
The Medical Assessors examined Mr Apostolov in the presence of his wife, via video link on 17 May 2024.
The video link was good quality, and the claimant was readily understood and seemed to understand the Medical Assessors questions.
HISTORY
Psychosocial history and pre-accident history
Mr Apostolov is aged 80. He was an aged pensioner at the time of the subject accident. He had been a fitter and welder since 1968.
He lives with his 76-year-old wife. He said that he and his wife enjoy a very good relationship. He has three sons, and they are aged 55, 52 and 50. He enjoys a good relationship with them. He said that occasionally there is “a bit of arguing”.
He has no financial or legal difficulty. He does not gamble. He does not drink alcohol. He said that he stopped drinking five or six years before the present assessment. He denied that alcohol was ever problematic for him. He does not smoke, and he takes no illicit substances. He has never been in trouble with the law and there were no previous personal injury claims.
His medical history pre-dating the subject accident included hypercholesterolaemia and hypertension. He said he weighed 75kg before the subject accident and now weighs 58kg. He said that he lost weight in the last 12 months. He denied any family medical history of relevance.
He said that he had no mental health difficulties before the subject accident. The Medical Assessors reflected back to Mr Apostolov that his assertion was inconsistent with the medical records. He disputed being suicidal in 2011, did not recall previously seeing a psychologist and denied mood and sleep difficulty in 2017. He denied any family psychiatric history. It was noted that there was a motor vehicle accident two years before the subject accident. He denied any physical or psychological sequelae from that accident.
He was born in Macedonia and grew up there until the age of 23 when he came to Australia. He came to Australia to join his brothers. Both parents are deceased. He could not recall when they had passed away. He was unaware of his parents’ occupations. He has three brothers and a sister. He is the youngest of the sibship.
He denied any adverse early life events or difficulties. He finished technical college and became a mechanical fitter in Macedonia.
History of the motor accident
The subject accident occurred on 9 February 2021. Mr Apostolov could not recall the date of the accident. He said that he lost consciousness in the accident for an unknown duration. The contemporaneous records did not record any loss of consciousness.
He was in his vehicle unaccompanied and stationary at traffic lights. He said there was no warning about any impact. He said that he remembers another vehicle hitting his vehicle from behind, pushing his vehicle into the middle of the road. He said that his airbags were deployed.
History of symptoms and treatment following the motor accident
He told the Medical Assessors that an ambulance took him to the Liverpool Hospital, but he cannot remember how long he was there. He could not recall what physical treatments he had from the subject accident.
Mr Apostolov said that six months after the subject accident he began to have mental health difficulty. He was unable to advise the Medical Assessors what difficulty he first experienced. He did not recall any treatment that he may have received.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current symptoms
He said that he hardly sleeps, for reasons that were unclear. He said that he had bad thoughts in his head, however, he was unable to be specific about the contents of those thoughts. He said that every night he sleeps for around three hours. He says that he has difficulty getting to sleep, however, he was unable to provide any further details. He did not recall if he previously had difficulties with sleep.
He said that his appetite was poor over the past 12 months, for reasons that were unclear.
When asked about how his mood was most of the time, he had difficulty answering. He said there was nothing he enjoys doing.
His mood did not change from when he woke until evening, so there was no diurnal mood variation.
When asked about concentration difficulties, he said that he had problems, although was unable to provide the Medical Assessors with specific examples.
He said that he was not suicidal.
Mental state examination
Mr Apostolov presented as an elderly-looking man who had balding, white hair. He was appropriately attired. His level of self-care and grooming seemed reasonable. His psychomotor functioning was normal. He was not observed to be distressed or disordered during the assessment.
His speech was largely normal in form, although the content was often vague. Mr Apostolov was unable to recall relevant autobiographical details. He was unable to provide further specifics when the Medical Assessors enquired about his symptoms. He denied factual matters that were recorded in the contemporaneous records. The Medical Assessors did not elicit any significant cognitive distortions.
His affect was reactive and appropriate to the narrative. He did not appear depressed or anxious.
His cognitive functioning was briefly assessed at a clinical level. Mr Apostolov was correctly oriented to the date and month, but not the year. He incorrectly identified the Prime Minister as being Tony Abbott. He was unable to recall any recent items in the news.
There was no evidence of psychosis.
Comments on consistency
The consistency issues about the earlier reports about his psychological health before the accident were addressed above with Mr Apostolov’s response recorded.
Current functioning
Mr Apostolov was an aged pensioner before and after the subject accident. He enjoys a good relationship with his wife and children.
When asked how he spends his time, he responded, “I don’t know how to say, I have problems with my head. I walk around, come back, and go around and walk and come back.” He said that he has friends, and they may sit down in the park on a weekly basis.
He can drive without conditions. He can drive unaccompanied. He said that he drives up to three times per week. He assists his wife with the cooking and cleaning. His wife does the shopping, and he may accompany her. He dresses himself and showers and toilets himself. He said that he showers nearly every second day. He said that his wife may help him on occasion. He said that he was presently showering less frequently as he was tired and did not feel like it.
DETERMINATIONS
Diagnosis and reasons
The Medical Assessors noted Mr Apostolov had pervasive cognitive difficulties that were impactful on the claimant. He has patchy autobiographical recall. Although the Medical Assessors were not provided with relevant medical data, his presentation gave the strong impression that there was likely to be a neurocognitive disorder (which was unrelated to the subject accident).
The Medical Assessors also considered whether the accident caused a non-threshold psychological or psychiatric injury, which could be in remission by the time the Panel examined Mr Apostolov.
At the time of the assessment, the psychological symptoms elicited from the claimant (of a non-cognitive nature) did not reach the threshold of clinical significance, nor were they the source of significant disability.
The Medical Assessors considered this finding had been applicable since the subject accident. On that basis, the Medical Assessors considered that the claimant’s symptoms did not reach the threshold of psychiatric or psychological disorder at any time since the subject accident. Following that basis, no psychiatric diagnosis was made.
Submissions and document summary
The submissions are set out in Appendix B.
The documents are summarised in Appendix C.
Panel deliberations
The Panel met on 28 June 2024. The Panel decided it would adopt the Medical Assessors’ report as evidence in its conclusions. The Panel members also agreed that the Medical Assessors’ reasons and diagnoses would be adopted.
The Panel must satisfy itself there is sufficient evidence that would allow the Panel to feel actual persuasion that the injury occurred in the subject accident, which goes beyond conflicting inferences of equal degrees of probability that the claimant had, inter alia, sustained injury.
The Panel is reliant on the clinical expertise of the Medical Assessors who undertook the re-examination. The Panel also considered the parties’ submissions and the material which we have summarised in the appendices which refer to psychological conditions before the accident and possible cognitive impairment.
Panel decision
The Review Panel’s conclusions on the parties’ issues
Applying the Guidelines in respect of threshold injury using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR) the Panel found there were no psychiatric or psychological conditions connected to the accident.
Considering the preponderance of evidence obtained from the clinical notes before the accident and on examining the claimant the Panel is satisfied that the current threshold injury finding should be revoked.
Causation
The subject motor accident would not have caused the referred injuries for the reasons set out above.
CONCLUSION
All the injuries the Commission referred to the Panel to review have been assessed. The Panel determined the motor accident did not cause any psychological injury.
The Review Panel revokes the certificate dated 17 March 2023 and certifies that the motor accident did not cause a psychological or psychiatric non-threshold injury for the purposes of the Motor Accident Injuries Act 2017.
Member O’Riain, Medical Assessor Samuell and Medical Assessor Chew viewed this certificate and confirmed they agree.
APPENDICES
Appendix A
Statutory provisions, guidelines, and case law
Threshold injury
At the time this dispute became apparent s 1.6 of the MAI Act defined a threshold injury to include a “soft tissue injury” or a “threshold psychological or psychiatric injury”.
Section 1.6 provides regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made following s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether the motor accident caused a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on
1 April 2023 and applies to motor accidents occurring on or after 1 December 2017.
Clauses 5.10 to 5.12 of the Guidelines relate to whether a psychological injury is classified as a threshold injury.
“5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
Part 5 of the Personal Injury Commission Act 2020 (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.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) provides, among other things; that a Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident and whether any injuries were threshold or satisfying the non-threshold definition under the MAI Act.
The Review Panel, comprised of two specialist medical practitioners and a legal member, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45]. and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in Lynch v AAI Ltd [2022] NSWPICMP 6 at [84]-[104] (Lynch) that the claimant bears the onus of proof in establishing any injury is not a threshold injury for the purposes of the MAI Act.
The Panel also adopts the reasoning in David v Allianz Australia Ltd [2021] NSWPICMP 227 and Lynch, (particularly for psychological conditions) that a non-threshold injury can be present at any time to satisfy the concept that the injury is not threshold for the purposes of the MAI Act.
Causation
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation. However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a threshold injury, it is unclear and unlikely the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment apply to assessing causation in threshold injury disputes. This is because Part 6 is specified as applying only to assessing Permanent Impairment.
In order to promote comity and harmony in the determination of medical assessment matters, the Panel proposes adopting the approach to causation set out in clauses 6.6 and 6.7 of the Guidelines.
The decision in Peet v NRMA Insurance Ltd[4] provides guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW[5] who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
The Court observed in Hunter v Insurance Australia Ltd[6] the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation.”
In Briggs Wright J reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty.[7] His Honour stated at [70]-[72]:
[4] [2015] NSWSC 558.
[5] [2012] NSWSC 560.
[6] [2021] NSWSC 623.
[7] Briggs No. 2 [2022] NSWSC 372.
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
Evidence
The rules of evidence do not apply to this Review. The Panel may look into any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.
Appendix B
SUBMISSIONS
The claimant submitted that the claimant suffered a posttraumatic stress disorder and relied on the evidence of his treating psychologist, Carl Nielsen, to assert a non-threshold injury.
The insurer submitted that Carl Nielsen’s diagnosis was made according to a screening test, the PCL-5, which is not a diagnostic instrument.
The respondent further submitted that the NSW Police and Ambulance records indicate that the accident was minor in nature and that the Liverpool Hospital doctors were confident that the claimant did not sustain any injuries in the accident.
The insurer referred to the claim that the customarily lean Mr Apostolov had lost weight since the accident and the allegation the accident caused a psychological condition, which manifested as steady weight loss since the accident. The submissions referred to clinical notes, which confirmed the claimant’s weight at the time of Dr Hong’s assessment was similar to his weight before the subject accident.
The insurer argued that Dr Hong ought to have attributed some symptoms to cognitive disorders rather than a disorder arising from the accident. Additionally, it was noted that Dr Hong did not appear to be aware of earlier psychiatric disorder.
Appendix C
REVIEW OF DOCUMENTATION
Summary of relevant documentation
The Medical Assessors noted the photographic evidence and analysis by R&V Assessment Services regarding the accident on 9 February 2021.
The Liverpool Health Service Emergency Department Discharge Referral dated 9 February 2021 referred to soft tissue injuries arising from a low-speed motor vehicle accident, estimated to be between five and 10 kilometres per hour. It was noted that the claimant was wearing a seatbelt, had no head injury and no loss of consciousness.
The general practitioner’s progress notes were reviewed, as of 17 July 2021. It was noted that the claimant was his wife’s carer, as of 9 August 2010. It was noted, on 8 October 2018, that the claimant had mild cognitive impairment. It was noted, inter alia, on 11 February 2019, that the claimant experienced shortness of breath and a lack of energy. On 6 March 2019, Dr Tan referred the claimant to a pain clinic and created a mental health plan for depression. It was noted, on
19 May 2021, that the claimant had a headache and pain in his back that pre-existed the subject accident. He was complaining of insomnia. He was noted to be anxious and counselled. No psychiatric diagnosis was made, and no psychological treatment initiated. The CT scan, of
19 August 2020, noted moderate periventricular white matter hypodensity, most likely due to chronic microangiopathic ischaemia, with bilateral basal ganglia and vascular calcification. The ventricle sulci and CSF spaces were mildly prominent.
A letter by Dr James Otton, on 12 September 2018, suggested that low vitamin D levels could be the cause of the claimant’s fatigue.
It was noted by Dr Leow, on 27 April 2017, that the claimant was complaining of memory difficulties.
The Panel noted a presentation at Bankstown Lidcombe Hospital, on 6 April 2016, when the claimant presented with suicidal ideation in the context of social stressors. He was contemplating jumping in front of a car or jumping off a building. He reported, at that time, an increase in alcohol consumption. He described a low mood in the three years since retirement, exacerbated by increased conflicts with his sons. It was noted that he had a history of suicidal ideation in 2011.
The records from the Workers Doctors practice were reviewed. It was noted that there was a review by psychologist, Carl Nielsen[8]. The review was brief and referred to self-report test. The review did not substantiate a diagnosis of a posttraumatic stress disorder.
The police records of the subject accident were reviewed.[9] It was noted that the police considered the subject accident to be a minor traffic accident.
Medical Assessor Cameron’s assessment dated 7 February 2023[10], determined minor injuries for the purposes of the MAI Act, being soft tissue injuries to four aspects of the body. There was a Medical Review Panel certificate dated 1 February 2024.[11]
[8] R8 page 838 Apostolov insurer’s bundle.
[9] R2 page 793 Apostolov insurer’s bundle.
[10]page 858 Apostolov insurer’s bundle.
[11]page 877 Apostolov insurer’s bundle.
0
11
0