Allianz Australia Insurance Limited v Balhas
[2024] NSWPICMP 515
•30 July 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Balhas [2024] NSWPICMP 515 |
CLAIMANT: | Ibrahim Balhas |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | John Baker |
MEDICAL ASSESSOR: | Wayne Mason |
DATE OF DECISION: | 30 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whether the psychiatric injury sustained was a threshold injury; re-examination of claimant; consideration of factors contributing to the injury according to clause 6.6 of the Motor Accident Guidelines; claimant was diagnosed with a persistent adjustment disorder; Held – Medical Assessment Certificate revoked; the psychiatric injury caused by the accident was a threshold injury. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Panel revokes the determination of Medical Assessor Fukui and substitutes the determination to certify that the injury referred to the Panel and caused by the accident was a threshold injury: (a) persistent adjustment disorder. |
STATEMENT OF REASONS
INTRODUCTION
Ibrahim Balhas (Mr Balhas), the claimant, was injured in a motor vehicle accident (the accident) on 26 March 2018 when his vehicle was T-boned by the insured’s vehicle while crossing an intersection with a green light.
Allianz Australia Insurance Limited ABN 15 000 122 850 (Allianz) was the insurer.
Under the provision of the Motor Accident Injuries Act 2017 (MAI Act) in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.
Mr Balhas submitted an Application for Personal Injury Benefits dated 5 April 2018.
Threshold injury dispute
Allianz determined that Mr Balhas had sustained a minor (threshold) injury and denied liability for statutory benefits beyond 26 weeks after the accident.
Mr Balhas subsequently filed an application in the Personal Injury Commission (Commission).
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters were declared to be a medical assessment matters, including whether the injury caused by the motor accident was a threshold injury.
A medical assessment matter was determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
THRESHOLD INJURY- STATUTORY PROVISIONS
Assent was given to the Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” was known as a “threshold injury” and “minor injuries” were known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
A threshold injury was defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that was not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) were made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident was a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury was a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim was a soft tissue injury or a threshold psychological caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of Allianz determining whether the injury related to the claim was a threshold injury. Diagnostic imaging was not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from Allianz.
5.6 The assessment of whether an injury caused by the accident was a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(e)a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that were used to support the assessment should correspond with symptoms and findings on examination.”
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There was no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5 An assessment of the degree of permanent impairment was a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment was related to the accident in question was therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation was defined in the Glossary at page 316 of the AMA4 Guides as follows:
“Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it was necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which was a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which was a non-medical determination.”
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There was no simple common test of causation that was 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 was a contributing cause, which was 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 was not a definitive test and may be inapplicable in circumstances where there were multiple contributing causes.’”
ASSESSMENT UNDER REVIEW
The injuries referred for assessment to Medical Assessor Atsumi Fukui (the Medical Assessor) in respect of the dispute as to threshold injury were:
(a) psychological – post-traumatic stress disorder and major depressive disorder.
At [3]-[4] in his reasons, Medical Assessor Fukui noted the submissions made by Mr Ibrahim Balhas and Allianz.
The Medical Assessor took a pre-accident medical history at [8].
Medical Assessor Fukui noted no previous significant medical history.
The Medical Assessor took a history of the motor accident at [9] and a history of the symptoms and treatment following the accident at [10]:
“The accident occurred on 28 March 2018. He was the driver of a vehicle and wearing a seat belt. He had finished a job and was on his way to another jobsite. He had stopped at a red light and when the light turned green a vehicle from his right-hand side crossed through a red light and collided with the driver’s side of his car. His vehicle spun and hit a pole. He stated that he thought he was going to die and thought, ‘this was it!’. Airbags were deployed and hit the right side of his temple. He was unsure whether he lost consciousness but felt dizzy. He remembered people surrounding his door. Police and ambulance attended, and he was taken to Bankstown Hospital where he underwent investigations and discharged home the same day. He stated that he felt ‘shocked and scared’.”
The Medical Assessor listed the current symptoms at [12]:
“Mr Balhas reported ongoing severe anxiety with daily panic attacks. He stated that he was sensitive to noise and light and cannot be in crowds. He was restricted with his driving and needs a companion because he continues to feel ‘scared that something bad was happening’. He reported poor concentration and forgetfulness. He was anxious as a passenger in a car. He reported feeling ‘down and blue’ with respect to his mood. He experienced disrupted sleep with nightmares and waking up with palpitations. His appetite has been poor with a weight loss of 16 kilograms although he managed to regain 8 kilograms since commencing treatment. He reported anhedonia, anergia and lack of motivation. He lost interests and was no longer socially engaged. He described being disconnected from everyone and socially isolated. He denied thoughts of self-harm or suicidal ideation. He continues to have ongoing pain symptoms in his neck, shoulder and lower back. He sees his general practitioner up to three times per week.”
The Medical Assessor set out the clinical examination at [14] – [15]:
“14. Mental state examination
Mr Balhas presented with low mood and a flat affect. There was no evidence of anxiety. He was articulate and there was no evidence of formal thought disorder or psychotic symptoms. He denied active thoughts of self-harm or suicidal ideation. His cognition was grossly intact.
15. Current functioning
Mr Balhas reported being socially isolated. His wife has always done cooking and housework. He has to be prompted to shower. He lacks motivation to do anything. He does not sleep with his wife and avoids family events. He has not been able to work since he stopped working in mid-2019.”
The Medical Assessor commented that there were no inconsistencies in Mr Balhas’ history but there were omissions such as his prior contact with a psychiatrist and prescription of psychotropic medications. The Medical Assessors’ impression was that he was somewhat an unreliable historian.
Medical Assessor Fukui determined that Mr Balhas had been suffering from post-traumatic stress disorder and major depressive disorder on a background of chronic pain disorder. He met the DSM-5 diagnosis for post-traumatic stress disorder in that he was in a significant motor vehicle accident where he thought he would die (Criterion A). He reported re-experiencing phenomena, intrusion symptoms characterised by nightmares and flashbacks (Criterion B). He avoids driving his car unless he needs to and can only drive short distances with a companion. He was highly anxious as a passenger in a car (Criterion C). He has become angry and irritable and has become socially isolative. He feels disconnected from his family and avoids engaging in any family events (Criterion D). He has suffered from insomnia, hypervigilance and poor concentration (Criterion E). His symptoms have persisted for longer than 12 months (Criterion F). His condition causes significant impairment in his occupational and psychosocial functioning (Criterion G). His condition was not due to another medical condition or effects of a substance use (Criterion H). The Medical Assessor also determined that Mr Balhas’ condition also meets a diagnosis of major depressive disorder. He [Mr Balhas] reported pervasive depressed mood and presented with low mood and a flat affect. He has lost appetite and has lost weight. He described anergia, amotivation and loss of interest. He has become socially withdrawn and avoids social contact.
The Medical Assessor confirmed that the psychological symptoms were caused by the motor vehicle accident.
Medical Assessor Fukui certified that the following injuries were NOT threshold injuries:
(a) post-traumatic stress disorder and major depressive disorder.
REVIEW PROCEDURE
Allianz lodged an application for review of the assessment of the Medical Assessor.
On 20 June 2023, 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).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) were made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review was by way of a new assessment of all matters with which the medical assessment was concerned.
SUBMISSIONS
Allianz’s submissions, dated 8 May 2023
Failure to address a substantially made argument in relevant submissions made on behalf of Allianz regarding the relevant material
Allianz submitted that the Medical Assessor cited the records of Dutton Street Medical Centre, however, did not comment on the records nor respond to Allianz’s submissions as to the pre-existing psychiatric condition elsewhere in the certificate.
Allianz noted the Supreme Court decision of Dogon v Redmond [2010] NSWSC 1329 held that a mere recitation or summary of the evidence as it appears in the respective report followed by a statement as to causation was not a sufficient performance of the Medical Assessor’s obligations.
In line with Dogon, Allianz submitted the Medical Assessor erred in failing to engage with relevant material, namely the clinical notes of Dutton Steet Medical Centre, and simply citing the evidence was not sufficient to discharge the Medical Assessor’s obligation.
Allianz appreciated that it was not incumbent upon Medical Assessors to address each and every piece of evidence, however, as held by the Court of Appeal in Campbell City Council v Vegan (2006) NSWCA 284, where more than one conclusion was open, it was necessary for a Medical Assessor to give some explanation for her/his preference of one conclusion over another and that that aspect may have particular significance in circumstances where the medical assessor has come to a different conclusion from that reached by other medical practitioners as set out in the reports provided to her/him.
Allianz also referenced the records of Dr Jacobson (A5), psychiatrist, which notes that in October 2018 Mr Balhas had been suffering from anxiety and panic attacks for two years. Further, the report dated 5 November 2018 of Dr Jacobson which noted a two-year history of severe anxiety, panic disorder and episodic depression.
At the assessment, Mr Balhas advised Medical Assessor Fukui he experienced “stress” in 2014 when his father was ill and was diagnosed with cancer. He denied seeing a psychologist or psychiatrist prior to the accident and said that his general practitioner prescribed paroxetine for a period of three months after which he ceased taking it as “everything was resolved”.
At paragraph 19, Medical Assessor Fukui acknowledged Mr Balhas’ history of anxiety and depression at the time of his father’s diagnosis, however, went on to state that he was functioning well and did not suffer prior psychosocial or occupational impairment. It appears the Medical Assessor simply accepted Mr Balhas’ self-reporting of his pre-accident history and did not adequately engage with Allianz’s submissions or the records of Dr Jacobson.
From the commentary at paragraph 19, it appears Medical Assessor Fukui formed the view Mr Balhas’ pre-existing psychological complaint had entirely resolved by the time of this accident. Allianz respectfully submitted that the records of Dr Jacobson, contradict this view. It was Allianz’s submission that the Medical Assessor failed to adequately engage with the relevant materials in concluding Mr Balhas was functioning well at the time of the accident.
Allianz submitted that the Medical Assessor has failed to engage with the relevant material, namely Allianz’s submissions as to the pre-existing psychiatric condition and records of
Dr Jacobson, in concluding Mr Balhas was functioning well at the time of this accident.
Failure to adequately apply the test of consistency
Allianz submitted that there were a number of inconsistencies in Medical Assessor Fukui’s certificate, which warrant review.
The Motor Accident Guidelines applicable as at October 2021, and therefore in place at the time the original assessment was conducted, state at cl 6.40:
“The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests were plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report.”
Clause 6.41, provides that:
“Where there were inconsistencies between the medical assessor’s clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person’s attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”
On Mr Balhas’ self-reporting, it appears his pre-accident psychological complaint was limited to “stress” in 2014 when his father was diagnosed with cancer. He asserts that after three months, everything resolved, and he ceased taking anti-depressant medication. Allianz notes Mr Balhas’ father passed away in 2020.
In providing a pre-accident history, Mr Balhas denied having consulted with a psychologist or psychiatrist prior to the accident. On page 5 of the certificate, it appears the Medical Assessor reminded Mr Balhas of his treatment from Dr Jacobson, psychiatrist. At that point, Mr Balhas indicated the medication was stopped as he “may have suffered side effects”. This was entirely inconsistent with the pre-accident history provided by Mr Balhas to the effect he ceased taking paroxetine after three months as “everything had resolved”. From the certificate, it does not appear that the Medical Assessor brought this inconsistency, being the reason for cessation of the medication, to Mr Balhas’ attention for his comment.
At paragraph 14 of the certificate (A2), Medical Assessor Fukui stated that there was no evidence of anxiety during the mental state examination. However, when forming her diagnosis, she stated Mr Balhas developed significant psychological symptoms characterised by anxiety and depressive symptoms, inconsistent with the findings of her mental state examination.
At paragraph 19, Medical Assessor Fukui acknowledged Mr Balhas’ history of anxiety and depression at the time of his father’s diagnosis, however, went on to state that he was functioning well and did not suffer prior psychosocial or occupational impairment. This was in direct contrast with Dr Jacobson’s clinical entry, which noted a two year history of severe anxiety, panic disorder and episodic depression, which significantly pre-dates the subject accident.
Allianz submitted that the test of consistency operates as a dual safeguard, and therefore, it was imperative that the inconsistencies outlined above, and observed by various medico-legal practitioners, be brought to Mr Balhas’ attention.
Despite the above inconsistencies, Medical Assessor Fukui did not bring same to Mr Balhas’ attention and provide him with an opportunity to respond as required pursuant to cl 6.41 of the Guidelines.
Materiality of the error
In Meeuwissen v Bodeni [2010] NSWCA 253, the Court of Appeal held that for an error to be considered material to a medical assessment it does not need to be able to change the outcome of the assessment from above the threshold to below, or vice versa. Rather, the error just needs to be considered to not be ‘trivial, insignificant or immaterial’.
Allianz submitted that failures to adequately apply the test of consistency and adequately consider the relevant material, were not trivial, insignificant or immaterial errors.
In addition, it was relevant to note that according to s 7.26(2) of the Act and Dominice, the matter as to which the delegate was to be satisfied was not whether the assessment was incorrect in a material respect, but whether ‘there was reasonable cause to suspect’ that the assessment was incorrect in a material respect. In such circumstances, the delegate has a non-discretionary duty to refer the application to a review Panel.
Conclusion
Allianz submitted that, as outlined in the above submissions, there was reasonable cause to suspect that significant errors have been made in the previous medical assessment that would cause more than a ‘state of unease’.
Mr Balhas’ submissions in reply, dated 29 May 2023
Failure to consider evidence as to pre-existing psychological complaint
At paragraph 6 of its submissions, Allianz referred to several entries in the clinical record of Dutton Street Medical Centre, which reflect the history described by Mr Balhas in interview with Medical Assessor Fukui, namely depression and anxiety in the period May 2016 to
May 2017.
Contrary to what Allianz submitted in paragraph 7 of its submissions, it was not incumbent on Medical Assessor Fukui at all to refer to these individual clinical entries in discharging her obligations under the Act. In any event, the Medical Assessor did take a history of pre-existing anxiety and depression in the context of Mr Balhas’ father’s illness and death.
At paragraph 10 of its submissions, Allianz suggests that “more than one conclusion” was open to Medical Assessor Fukui in weighing Mr Balhas’ pre-existing history and the medical records of Dutton Street Medical Centre. However, no alternative conclusion was identified in the submissions. Was Allianz suggesting that Mr Balhas was diagnosed with either post-traumatic stress disorder or major depression (in the sense that he was clinically diagnosed with either of those conditions prior to the accident) and that such a diagnosis or diagnoses remained after the subject accident or was unchanged by the subject accident? There was no evidence to support such a conclusion before Medical Assessor Fukui, and the Medical Assessor was best positioned as an independent expert to provide an opinion on causation, having taken a full history in interview with Mr Balhas and having had the clinical records available to her.
Allianz also refers to the records of Dr Jacobson (psychiatrist) who saw Mr Balhas twice in late 2018, after the accident had occurred, and noted a two-year history of severe anxiety, panic disorder and episodic depression. This was not evidence of a pre-existing diagnosis of either post-traumatic stress disorder or major depressive disorder which might have caused Medical Assessor Fukui to pause before finalising her opinion on causation.
In any event, Medical Assessor Fukui expressly refers to Dr Jacobson’s clinical records at pages 6 and 7 of her Certificate. She expressly notes Dr Jacobson’s finding of a two-year history of psychological symptoms. None of this was controversial and indeed Mr Balhas was frank about his history of psychological symptoms prior to the accident. Mr Balhas also points out that Dr Jacobson was not Mr Balhas’ treating psychiatrist prior to the accident, so he could not possibly provide any proper opinion about pre-existing clinical disorder. At its highest, the records of Dr Jacobson reflect a longstanding history of anxiety, panic and, from time to time, depression. All of this was uncontroversial and was taken into consideration by Medical Assessor Fukui on the face of the Certificate.
Failure to adequately apply the test of consistency
Mr Balhas noted that Medical Assessor Fukui did indeed form an impression that Mr Balhas was “somewhat an unreliable historian”. This appears to have been based not on inconsistencies in his history but rather omissions “such as his prior contact with a psychiatrist and prescription of psychotropic medications”.
Allianz refers to cl 6.41 of the Motor Accident Guidelines in paragraph 18 of its submissions. The guidelines were engaged when inconsistencies arise between clinical findings and information obtained through medical records. Medical Assessor Fukui expressly found no inconsistencies in Mr Balhas’ history, so Mr Balhas submitted that the clause was not engaged.
There seems to be some suggestion in Allianz’s submissions that Dr Jacobson had treated Mr Balhas prior to the accident. This was not the case. There were two consultations, the first on 25 October 2018 and the second on 22 November 2018, both post-accident. How
Dr Jacobson could have provided any insight about Mr Balhas’ psychiatric history, aside from what was self-reported, was not clear from Allianz’s submissions.
The “clinical entry” as it was described by Allianz in its submissions of Dr Jacobson carries very little weight in any assessment of Mr Balhas’ psychological or psychiatric history because Dr Jacobson was not his treater prior to the accident. In any event, it was clear from the Certificate that Medical Assessor Fukui took into consideration Dr Jacobson’s report, even expressly referring to the entry upon which Allianz relies.
It was clear from the Certificate that Medical Assessor Fukui’s assessment of Mr Balhas as a “unreliable historian” was based upon his apparent omissions about prior contact with a psychiatrist and prescription psychotropic medications. This was in the context of his post-accident treatment. Medical Assessor Fukui noted on page 5 of her Certificate that
“Mr Balhas was reminded about consulting a psychiatrist, Dr Jacobson, whom he saw twice. He stated that the medication was stopped because he may have suffered side effects. He was not engaged in treatment and there was no symptomatic improvement”. Mr Balhas’ omission about his consultation with Dr Jacobson could not possibly have any bearing on causation of injury.
Mr Balhas reiterates that Medical Assessor Fukui did not find any inconsistencies in the history.
Materiality of the error
None of the apparent errors referred to by Allianz, if corrected, could possibly have any material effect on the outcome of the Certificate. This was not a case where there was before the Medical Assessor, evidence of a pre-existing clinical diagnosis of psychiatric injury, specifically post-traumatic stress disorder or major depressive disorder, which were the diagnoses made by Medical Assessor Fukui.
MEDICAL EVIDENCE
Application for Personal Injury Benefits (APIB) form, dated 5 April 2018
In his APIB form, Mr Balhas stated that as a result of the accident he was suffering from severe back pain which had impacted his ability to work and prevented him from doing other daily living.
NSW Ambulance Report
Police and ambulance attended the accident. NSW ambulance made the following report:
“O/A 23 YOM POST 2 CAR MVA, PTS CART BONED AT MODERATE SPEED. PT CAR PUSHED INTO LIGHT POST ON OPOSITE SIDE OF ROAD. ALL AIR BAGS DEPLOYED IN BOTH CARS. PT STS HIT HIS HEAD ON ·CURTIN AIRBAG AND FELT DIZZY. O/E PT FOUND TO HAVE BEEN HIT IN DRIVERS SIDE WITH VEHICAL SPINNIG SEVERAL TIMES ACROSS TWO LANES OF TRAFFIC INTO A TRAFFIC LIGHT INPACTING ON DRIVERS SIDE, PT SELF EXTRICATED, PT C/O R SHOULDER PAIN, LOWER GENERALISED BACK PAIN . PT STS FEELING STRANGE DIZZY AND LIGHTHEADED POST HIT, PT HAS FULL MOVEMENT IN ALL LIMBS, DENIES CHEST PAIN SOB, ABDO PAIN, A- PAITENT, BNORMOPENIC, RR16. C- NORMOTENSIVE, NORMOCARDIC CAP REFIL <2SEC, D- NIL KNOWN, E- NIL KNOWN, AFEBRILE, WELL HYDRATED. PT GIVE ORAL PAIN MANAGEMENT EN ROUTE TO ED PT STABLE NOAD.”
Photographs and video footage of the accident
Mr Balhas uploaded photographs and video footage to Pathways. These images demonstrate the nature of the collision, in that Mr Balhas’ vehicle has spun on impact and collided with a traffic light pole.
ED Discharge Referral
Mr Balhas was discharged from Bankstown – Lidcombe Hospital who provided the following summary of the accident:
“MVA today approximately 12:30pm
T boned by another car, car spun around a few times and hit a pole, the other car ht the driver’s side
Air bag deployed, hit him in the face
Was able to walk out of the car, but then due to shock sat himself down
….
Denies LOC at scene”
Clinical records of Dr Manambrakkat, psychiatrist
The report of Mr Balhas’ psychiatrist Dr Manambrakkat dated 17 December 2020 stated a diagnosis of post-traumatic stress disorder with major depressive disorder. His prognosis was uncertain as he was significantly disabled by physical pain and psychological morbidity. I don't see him recover fully or return anytime sooner to levels of functioning he had tried to the accident. There's a direct relationship between the accident and injury suffered. He remained unfit from work from psychiatric and cognitive perspective. He has no drive or motivation. His concentration was poor, and he couldn't read few sentences even. He has a lot of anxiety when driving and he was hyper vigilant on the road. Chronic pain and nightmares affected his sleep causing him to be exhausted during the day he remains unfit to any type of work. He continues to be unfit for any type of work currently. He would need ongoing psychiatric consultations and an inpatient stay for three weeks in a private psychiatric facility with the need for follow up appointments.
Dr Manambrakkat reviewed Mr Balhas on 14 April 2021 and reported that the panic attacks were slightly better, that he had post-traumatic stress disorder symptoms, nightmares and flashbacks. He noted that Mr Balhas did not like to drive and only drove locally. He also commented that Mr Balhas was “worried about future”.
Report of Dr Richa Rastogi, consultant psychiatrist, dated 19 August 2022
Dr Rastogi’s report of 19 August 2022 commented that:
“He immediately experienced panic attacks and poor sleep. He had intrusive nightmares and
flashbacks. He was having constant panic attacks and was startled easily. He was aroused and vigilant. He had crying spells and was emotionally dysregulated. He could not return to driving and developed fear of driving. He felt depressed and sad all the time. He struggled with concentration and remembering things. He did not enjoy things socially and had anhedonia. He was very irritable and has poor frustration tolerance. He lost his motivation and drive and future aspirations. He has marked anhedonia and feels displaced, empty, and numb. He avoids conflict or contact with people and procrastinates on things. He has self-doubts and feels hopeless and worthless and cannot trust himself. He was reliving the accident and was fearful of having another accident and he continued to have intrusive flashbacks of the accident. He lost confidence in driving and has become very on edge and aroused. He was very cautious on the road and unfamiliar roads and has dark thoughts and catastrophic thoughts. He struggles with approaching round abouts and has palpitations. He was forcing himself to drive to other places. He hates being a passenger and was very cautious, hypervigilant, and aroused. He feels safe at home. He avoided driving and was easily triggered replaying the accident with loss of control. He hated noise and was easily startled. He cannot handle high stimulus environments. He resumed work on and off, but his brother would transport him to work.”Dr Rastogi’s mental state examination found:
“Mr Balhas was a thin built, petite male who looked tired and frazzled. He was co-operative, pleasant and rapport was established. He presented with limited self-aware. His speech was spontaneous and forthcoming. He was distressed in his demeanour.
His mood was anxious and depressed, and his affect was restricted and dysphoric. He described feelings of hopelessness, worthlessness, and sense of despondency. He was aroused and troubled by irrational fear and avoidance. He was pessimistic about the future and the fear of disability. He reports profound memory deficits and problems with working memory. He denied psychotic features. He has fleeting suicidal ideation. He was orientated to time, place, and person.”Dr Rastogi diagnosed Mr Balhas with a major depressive disorder and post-traumatic stress disorder.
Report of Dr Alister Ramachandran pain specialist dated 19 November 2020
Dr Ramachandran reviewed Mr Balhas and reported that:
“He has physical deconditioning and has impacted significantly on a psychological functioning. He presents with adjustment disorder and associated pain disorder and was under the care for psychiatrist. There were multiple other social stresses which maintain his current pain levels. I recommend he engages in a multidisciplinary pain management programme.”
THE MEDICAL EXAMINATION
The first MRP Meeting
The Panel had its first meeting on 9 May 2024.
The Panel had a discussion of the salient issues and agreed that it was necessary to have a further medical examination for the purpose of questioning Mr Balhas in respect to the history and the injuries allegedly caused by the accident.
The examination was conducted by Medical Assessors Baker and Mason on 28 June 2024.
Brief personal details
Mr Balhas was a 29-year-old man who was in receipt of worker’s compensation payments arising from the subject motor accident. He said he last worked in 2019. He lives in his own home in south-western Sydney with his 23-year-old wife Natalie who does some home-based catering which earns very little. They have no children.
Psychosocial history
Mr Balhas was born in a small village 15 minutes outside of Tyre in southern Lebanon. He described a normal birth and development. He was the youngest of five children having two older sisters and two older brothers. He described a happy safe family life growing up. He did not remember much of life in Lebanon apart from brief memories of being in year 2 at primary school. He did learn to speak some French but not English. He denied exposure to war or conflict and denied any form of abuse in childhood. The family migrated to Australia in 2001 when he was 6 or 7 years of age.
His father died at 64 years of age in 2020; he had been diagnosed with lung cancer in 2017. He was employed in the construction business and set up the family company. His 60-year-old mother did not work. He said he commenced school in Australia at Belmore South public school in year 3 or 4. He recalled attending some special English classes. He completed year 5 and 6 at Punchbowl primary school and then attended Punchbowl Boys High School from years 7-12. He completed his schooling in 2012 saying he had focused on construction subjects and had won a regional certificate in that area.
He started work as a carpenter in the family business, Unique Building Corporation Pty Ltd, and was functioning in more of a coordinating role at the time of the motor accident. He would deliver products to building sites, deal with customers and ensure trades people had what they needed. He had not completed any training at TAFE.
In regard to relationships, he said he had been in an 18-month relationship from the time he was in school. This was followed by another relationship for one year. He broke up after a 2-year relationship in 2016; his partner left him because he lost his driving licence. He said he became quite depressed and upset at that time. His relationship with his wife commenced after the motor accident and he was introduced through a family friend known to his parents and sister. He travelled to Lebanon with his sister in 2018 because of the death of an uncle. He met Natalie then and they had an Islamic marriage; he said he thought this would help resolve the number of problems he was facing at the time. He returned to Australia without her, and she joined him in 2019.
When asked about leisure activities prior to the motor accident he said he was attending the gym five days weekly in order to increase his fitness. At that time, he said he was playing state cup soccer. He also described a wide social network in which he would go to barbecues and festivals with a group of friends.
Mr Balhas denied any past insurance claims for motor accident, personal injury or worker’s compensation matters.
Forensic history consisted of loss of licence 12 months in 2016 for travelling at 150 kmph in a 70 kmph zone. Also, in 2016 he attempted to speed up an application for a motorcycle driver’s licence by fraudulently obtaining a fake Indian driver’s licence online. His intention was to ride his KTM390 motorcycle which has a top speed 165 kmph. His home was raided by police in 2018 in relation to this matter. They found Alprazolam which had been illegally obtained through a friend on the black market and charged him with both the fraudulent driving licence and drug-related charges. He attended court in 2019 and said he was granted a 1-year good behaviour bond with no fine.
Medical history consisted of a possible neck injury in 2014 while he was using a trampoline at Sky Zone. He was taken to the Royal Prince Alfred Hospital and remained there for a few days under observation before discharge with no permanent injury. His appendix was removed when he was in year 7. He said there were no other medical problems. He was asked about palpitations and said they still occur intermittently. He said he has attended a Professor at Royal Prince Alfred Hospital who told him there would be no benefit to performing a procedure. He said he has not been put on any medication. He referred to work injuries consisting of lower back pain which had resolved and a right shoulder injury which had also resolved.
He said past psychiatric history commenced in 2016 or 2017. He had lost his driver’s licence, and his girlfriend left him causing him to become depressed. At that same time, he lost three cousins. An 18-year-old cousin died in his sleep in Australia. A 17-year-old cousin in Lebanon died because his heart just stopped. A 50-year-old cousin died in America by gunshot wound during an attempted car hijack. In addition, his father was diagnosed with lung cancer caused by smoking cigarettes. Mr Balhas denied these events resulted in palpitations and anxiety about his cardiac functioning. He said he sought help from a GP at the Dutton Street Medical Centre and was prescribed the antidepressant paroxetine 30 mg which he took for three months, and the anxiety resolved. He said he was also referred to a psychologist but did not attend; he could not remember the name. Mr Balhas was asked about multiple hospital attendances in regard to palpitations; he said he was very worried about these events, but he did not believe they were panic attacks. The Panel note the record of Bankstown Hospital which indicated they were anxiety related but Mr Balhas did not accept this. Finally, the Panel had to question Mr Balhas about chest liposuction in June 2018. He acknowledged this was to remove fatty breast tissue caused by the use of anabolic steroids at the gymnasium. He then acknowledged anxiety regarding his appearance due to gynaecomastia (swollen male breast tissue caused by hormone imbalance). Family psychiatric history was denied.
Current medications consisted of the antidepressant mirtazapine 45 mg in the morning, the atypical antipsychotic agent quetiapine 50 mg at night to assist with sleep and the alpha blocker prazosin 3 mg at night for nightmares. In addition, he used Palexia (tapentadol) 50 mg immediate release twice daily for pain.
With regard to substance use he said he does not use cigarettes. He described casual use over a period of years, but he stopped following his father’s diagnosis of lung cancer. With regard to alcohol, he said he has an occasional drink with friends but was never a regular user. He described using MDMA on one occasion in 2017 in a social situation. He said he regretted taking it because it caused “brain zaps” which lasted four days and he has not used it again. He denied the use of opioids, cannabis, LSD cocaine and amphetamines. He was questioned about the use of benzodiazepine agents and acknowledged using diazepam before the charges relating to alprazolam. He stated he obtained diazepam legally from medical practitioners, but the alprazolam was illicitly obtained. He stated he had used the alprazolam only for one to two months to help him sleep.
He was questioned about the report by Dr Alyosha Jacobson in 2018 who noted a 2-year history of benzodiazepine use disorder consisting of diazepam 5 mg four times daily and alprazolam obtained on the internet. The Panel noted this level of consumption constituted a benzodiazepine use disorder and was capable of causing panic attacks. Mr Balhas denied this was so.
History of the motor accident
On 28 March 2018 Mr Balhas was driving his brother’s Ford Ranger utility. He said he was stopped at a set of traffic lights and proceeded when they turned green after looking left and right. He said he was T-boned by another vehicle at the level of the driver’s door. He said he was aware his vehicle had tipped up onto the left two wheels and then spun away and collided with a traffic control light pole on the passenger side. He said he had thought he might be killed. One airbag deployed from the driver side door and hit his head in the temporal region. He said he was dazed, perplexed and confused. Bystanders rushed to help because the driver side door was jammed shut. Someone offered him water and he threw the bottle away. Eventually they opened the door and assisted him onto the sidewalk where he collapsed. He said smoke was coming from the vehicle and fluid had spilled everywhere. People were fearful of a fire. The ambulance attended and he was transported to Bankstown Hospital. Police consulted with him in the hospital.
History of symptoms and treatment following the motor accident
Mr Balhas said he was in hospital for approximately four hours. X-rays were taken and no fractures were detected. He was discharged with Panadol and Nurofen. He said attended the Dutton Street Medical Centre the next day to initiate a claim for the motor accident. He said the doctor told him "a payout would not be happening". He complained the doctor did not have a treatment plan. However, he was referred for physiotherapy and was advised to continue using Panadol and Nurofen. Mr Balhas insisted he had told the doctor he was suffering from anxiety and panic attacks and could not sleep but there was no record of this in the consultation notes.
The Panel noted he did attend the GP the day after the subject motor accident who recorded pain which was severe at times. However, there was no mention of psychiatric symptoms in the GP record until 19 October 2018 when Mr Balhas presented with panic attacks and was noted to be using alprazolam obtained on the black market. It was also noted he had an appointment to see a psychologist and was required to attend court following the police raid. Mr Balhas denied the anxiety was related to the police raid and insisted it was related to the motor accident. This assertion was not supported by the GP record.
Physical symptoms consisted of lower back pain, middle back pain and neck pain plus right shoulder pain. He said each of these pains was consecutive to the others and said they would take it in turns. He said he attended multiple physiotherapy sessions which helped temporarily but later made the pain worse. He said he does his own physiotherapy workouts on a treadmill he had purchased and uses three times daily. Mr Balhas said six months later the injury was deemed minor and the CTP insurer “let him go” because he had no case. He then had to pick and choose what treatments he would engage in because he had to pay for them himself.
When asked if he had any pain management treatment, he said he was referred to
Dr Ramachandran who had performed two procedures, radiofrequency neurotomy paid for by Allianz and a nerve block which he paid for himself. He said the current pain he experiences was 7/10 or 8/10 on a visual analogue scale. He said currently the pain level was 7/10 while he was lying half upright in bed speaking to the Panel. He said the medication Palexia does help. He was prescribed Lyrica, but he stopped that in 2019 because it did not help.
He stated he was unable to work in construction because his back pain was worsened by crouching or bending down which was frequently required on building sites. He said after his claim was denied in 2019, he attempted to return to work but for every week he worked he would have to take one or two weeks off due to exacerbation of pain. He said he could not drive between sites because the pain restricts his driving to 10 or 15 minutes. He said at home his wife has to do everything including the house-cleaning and the gardening.
When asked to describe his psychiatric symptoms he repeated he thought he would die in the subject motor accident. He said he has lost interest in activities, and he does not want to see friends. He said he does not visit his family and only sees them when they come over to visit him every week or two weeks. He said he was very foggy and finds it hard to concentrate. He was unable to deal with small problems. He said he was sensitive to loud noises and bright lights; exposure causes his legs to feel weak and he starts to tremble. He said he has excessive anxiety when he goes out of the house, and he was overthinking everything. He said he gets aroused while driving, especially at traffic lights. He said nowadays he always looks left and right extra carefully when he was moving off from traffic lights. He said he experiences nightmares of the motor accident on a daily basis. He said these nightmares consist of an exact replay of the motor accident. He said the symptoms have made him into “a very unsocialisable [sic] person” and now everything was stripped away. He said in the past he was fit and now he was deconditioned. At that point in the interview, he said he was starting to feel very foggy.
When asked about psychiatric treatment he said he was referred to a pain management programme. He was not clear where that was but when reminded confirmed it was at the Hills Clinic. He said his sister would drive him there. He saw pain management specialist
Dr Ramachandran, a physiotherapist for pain management control and psychologist
Dr Imogen Munday for psychological aspects of pain management. He said he saw her weekly for a while in 2021 and she taught him different ways of coping with pain and recovering from trauma. He had been referred by Dr Ramachandran to psychiatrist
Dr Mananbrakkat who saw him on four occasions, in March, April June and July 2021.
Mr Balhas said he last attended approximately two months ago but the Panel has no record of this. Dr Mananbrakkat diagnosed panic attacks, post-traumatic stress disorder and major depression arising from the subject motor accident. He prescribed mirtazapine 45 mg, quetiapine 50 mg at night and prazosin 3 mg at night.
There has been no psychiatric or psychological treatment since then, but Mr Balhas said he had been referred to psychologist Dr Shayma Almoty of Bankstown and was waiting for worker's compensation approval to attend.
Mr Balhas was reminded he had attended Dr Alyosha Jacobson on two occasions since the accident and did not mention this in regard to treatment. He said at that time there was no claim open so he could not afford to continue seeing him. He said he tried to go back to work in October 2018 but that did not work out because it was deemed a minor injury. He said he used his savings to survive after that. He was reminded that Dr Jacobson had referred only in passing to the accident and was asked why that was the case; he said he did not know.
History of injuries and conditions since the motor accident
This was denied. He was questioned about his father's death in 2020. He said his father’s death was expected and resulted in normal grief. Mr Balhas said he was most affected by the diagnosis in 2017 when he learned the condition was terminal.
Current symptoms
These were as described above. Pain continues to restrict his activities. He continues to experience intermittent panic attacks and anxiety. He described ongoing nightmares every night which consist of an exact replay of the accident. He has socially withdrawn and has no interest in seeing friends. He described a difficult relationship with his wife but does not expect they will separate. He experiences anxiety at traffic lights while driving. He was depressed by the fact that he was deconditioned and physically cannot do the things he did in the past.
Current and proposed treatment
Mr Balhas said he continues to use the medications prescribed by psychiatrist
Dr Mananbrakkat. He has sought worker's compensation insurer approval to consult psychologist Ms Almoty.
Mental state examination
Mr Balhas was a 29-year-old left-hand-dominant man who was located in bed in his home in a Southwestern Sydney suburb. His wife was present in the home in another room. He was identified from his photograph on his NSW driver licence. He was interviewed using the Microsoft Teams with a good internet connection. The interview commenced at 9:00am and concluded at 11:00am.
Mr Balhas was neatly groomed and well presented. His hair was neatly cut, and his beard neatly trimmed. There was no evidence of poor nutrition or weight loss. He was cooperative with the interview and provided information willingly and without prompting. He was lying semi-upright in his bed which he said was the most comfortable position regarding his back pain. There was no evidence of pain behaviour throughout the interview.
Mr Balhas was neither depressed nor anxious throughout the interview. He displayed a full range of appropriate affect. He did not describe suicidal ideation. He did not become distressed as he described the motor accident. At no point did he become tearful or agitated. To the contrary, he provided a clear and succinct description of the accident without any emotional disturbance. He described some anxiety symptoms while driving but indicated his ability to drive was limited by pain. He described nightmares of the accident occurring every night which consisted of an exact replay of the event. He did not appear distressed as he provided this description.
There was no evidence of impaired concentration or memory throughout the 2-hour interview. At one point he described feeling foggy, but this did not impair his ability to proceed with the interview. He took a break to go to the bathroom when the internet connection of one of the Medical Assessors was interrupted.
Mr Balhas was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.
Current functioning
Self-aware and personal hygiene: Mr Balhas said he showered only twice weekly and only when his wife prompted him. She had to tell him to change his clothes. He said his appetite was poor and he has lost 15 kg; he did not look cachexic (loss of weight and muscle mass). He did not contribute to the housework.
Social and recreational activities: Mr Balhas said he has stopped seeing all his friends and sees his family only when they visit every week or every second week. He said he and his wife do not go out for coffee or for a meal because of his lack of motivation. He said the effort to go out and face things was too great but if he has to he will. Mr Balhas was informed he was observed in surveillance videos to move comfortably around a shopping centre; he said this was at Hurstville and he was having lunch.
Travel: Mr Balhas said he could drive for 10 to 15 minutes because of pain. He said he cannot use public transport alone. He has been to Lebanon twice since the accident but was accompanied by his sister and flew business class each time. He said his condition has worsened and he would not be able to fly now.
Social functioning: Mr Balhas said his relationship with his wife was stressed and they were fighting a lot because he had no libido. He said they sleep in different rooms. He hoped they did not break up because he loved her. Family members visit every week or two. His sister took him to appointments. He had stopped seeing friends.
Concentration, persistence and pace: Mr Balhas said this was very poor and he was foggy all the time and found it hard to remember. He said in the past he loved reading but could not do it anymore because he could not remember what he read on the first page. He could watch whatever he wanted on Netflix. He managed the household accounts. The Panel noted no impairment in this during the 2-hour interview.
Adaptation: Mr Balhas was unable to work largely because of his physical injuries and pain. He also claimed his concentration was not good enough and he would have difficulty driving. He did not help at home.
Consistency of presentation
There were a number of inconsistencies in Mr Balhas' presentation.
Most notable was his disagreement with his treating general practitioner regarding entries of psychological symptoms in the medical record for the first six months following the subject motor accident.
There were inconsistencies noted in the mental state examination in that he claimed to be suffering from severe mental illnesses but presented with no observable symptoms of anxiety or depression.
From the surveillance footages and reports submitted on the day of the interview Mr Balhas was able to drive a Ford Mustang alone, kneel, crouch and bend to put air in his car tyres, lean into the car, carry a hedge trimmer, attend a convenience store, carry two shopping bags, move comfortably around a shopping centre unaccompanied and have a meal alone in the food court. These activities were inconsistent with the history provided to the Panel. He responded that his symptoms were intermittent.
The Panel also noted the report by psychologist Mr Chafic Awit dated 29 February 2019. In this document he referred to multiple stressors in the life of Mr Balhas but mentioned the motor accident only in respect of the disc bulges. He diagnosed both panic disorder and major depressive disorder arising from multiple life stressors which did not include the psychiatric impact of the motor accident. These disorders were present from 2016 prior to the motor accident and were exacerbated by the police raid following the accident.
Diagnosis and reasons
Mr Balhas presented for re-examination in regard to diagnoses of post-traumatic stress disorder and major depressive disorder. The Panel noted pre-existing diagnoses of panic disorder and major depressive disorder indicated in the report of psychologist Mr Awit and substance use disorder in the report of Dr Jacobson. These conditions were diagnosed independently of the accident.
The Panel considered the DSM-5 diagnosis of post-traumatic stress disorder.
Criterion A. Mr Balhas was certainly involved in a frightening and potentially life-threatening high-speed T-bone motor accident on the driver side of his vehicle.
Criterion B. He described the persistence of intrusion symptoms of nightmares every night which were exact replays of the motor accident. It was the view of the Panel that it was very unusual for nightmares every night to persist for five years and be an exact replica of the motor accident. He did not describe flashbacks or intense psychological distress at cues and external reminders. In fact, he displayed no arousal while discussing the motor accident.
Criterion C. He described arousal at traffic lights, but surveillance videos indicate he was able to drive through heavy traffic areas. He did not satisfy criterion C.
Criterion D. He described markedly diminished interest or participation in significant activities. Again, the video surveillance indicates this not to be the case. He does not satisfy criterion D.
Criterion E. He described only problems with concentration, although this was not supported by mental state examination or video surveillance. He did not meet criterion E.
In summary the Panel concluded he did not meet DSM-5 diagnostic criteria for post-traumatic stress disorder.
The Panel considered the DSM-5 diagnosis of major depressive disorder.
Criterion A requires five or more of the following nine symptoms:
(a) he did not describe depressed mood most of the day nearly every day;
(b) he did describe diminished interest or pleasure in almost all activities, but surveillance video suggests otherwise;
(c) he claimed 15 kg weight loss;
(d) he did not describe insomnia or hypersomnia nearly every day;
(e) there was no evidence of psychomotor agitation or retardation;
(f) he did describe fatigue and loss of energy nearly every day, but this was not evident in the surveillance video;
(g) he did not describe feelings of worthlessness or excessive guilt;
(h) he did describe diminished ability to think or concentrate but this was not evident throughout the mental state examination, and
(i) he did not describe recurrent thoughts of death or suicidal ideation.
In summary, the Panel concluded he did not meet DSM-5 diagnostic criteria for major depressive disorder.
While it was likely Mr Balhas did not develop any psychiatric symptoms as a consequence of the accident it was not possible to exclude a DSM-5 diagnosis of adjustment disorder with mixed anxiety and depressed mood subsequent to pain. He was in a frightening motor accident, and he did develop subsequent symptoms.
He meets DSM-5 criteria for an adjustment disorder with mixed anxiety and depressed mood as follows.
Criterion A. He developed emotional and behavioural symptoms in response to the subject motor accident.
Criterion B:
(a) there was marked distress that was out of proportion to the severity or intensity of the stressor, and
(b) he reports impairment in social and occupational functioning.
Criterion C. The disturbance does not meet criteria for another mental disorder and was not merely the exacerbation of a pre-existing mental disorder.
Criterion D. The symptoms do not represent normal bereavement.
Criterion E. The symptoms have persisted for more than an additional six months and was therefore a persistent form (see DSM-5 Page 287).
Causation
Mr Balhas was involved in a frightening motor accident. He did suffer from pre-existing psychiatric conditions. On examination he did not display evidence of a panic disorder or a major depressive disorder. The Panel was satisfied the accident gave rise to a persistent adjustment disorder with mixed anxiety and depressed mood which was a threshold injury for the purposes of the Act.
Conclusion
The Panel revokes the determination of Medical Assessor Fukui and substitutes the determination to certify that the injury referred to the Panel and caused by the accident was a threshold injury:
(a) persistent adjustment disorder.
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