Allianz Australia Insurance Limited v Black
[2023] NSWPICMP 443
•7 September 2023
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Black [2023] NSWPICMP 443 |
CLAIMANT: | Andrew James Black |
INSURER: | Allianz |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Matthew Jones |
MEDICAL ASSESSOR: | Michael Li Ying Hong |
DATE OF DECISION: | 7 September 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury; secondary psychological injury; major depressive disorder; re-examination of claimant; work-related injury; prescription of medications; attention deficit disorder; psychiatric history; alcohol intake; mental state examination; functioning; DSM 5 criteria; Held – Medical Assessment Certificate revoked; major depressive disorder caused by the motor accident is a non-threshold injury. |
DETERMINATIONS MADE: | Review panel assessment of threshold injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the Act) The Review Panel revokes the certificate dated 15 June 2023 and issues a new certificate determining that: The following injury caused by the motor accident: · major depressive disorder is a NON-THRESHOLD INJURY for the purposes of the Act. |
STATEMENT OF REASONS
BACKGROUND
The medical assessment conducted by Samson Roberts dated 15 June 2022 was referred to the panel for determination under s 7.26 of the Motor Accident Injuries Act 2017 (MAI Act).
CONDUCT OF THE REVIEW
The Review Panel met by teleconference on 29 August 2023 and determined that a re-examination of the claimant was required. This re-examination occurred with Medical Assessor Michael Li Ying Hong and Medical Assessor Matthew Jones on 15 August 2023.
ASSESSMENT SUBJECT TO A REVIEW
Medical Assessor Samson Roberts provided a certificate dated 15 June 2022 finding that the claimant suffers a major depressive disorder and that the condition arises as an effect of the motor accident.
The President’s delegate referred the medical assessment to the Review Panel as they were satisfied there was reasonable cause to suspect the medical assessment was incorrect in the material way having regard to the particulars set out in the insurer’s application.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by 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 its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
As to the threshold injury constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
The applicant’s insurer has sought a review of a certificate of Medical Assessor Roberts and submits that the medical material does not support a finding that the claimant sustained a threshold injury.
The applicant’s insurer has sought a review of the Certificate of Medical Assessor Roberts and submits all medical material does not support a finding the claimant sustained a threshold injury.
SUMMARY OF MATERIAL CONSIDERED
All Review Panels confirmed that they have received and considered the following material:
(a) the Certificate of Medical Assessor Roberts dated 15 June 2022;
(b) Application for a review and attached documents;
(c) Reply and attached documents;
(d) insurer’s Commission review application and submissions, and
(e) the response to the insurer’s application.
ISSUES
The insurer submitted that Medical Assessor Roberts erred by attributing the claimant’s psychiatric diagnosis to his physical symptoms in so far as the claimant’s physical symptoms led to the cessation of his employment which, in turn, led to the onset of a psychiatric condition which was found by Medical Assessor Roberts to be a major depressive disorder which is not a threshold injury.
The claimant’s reply contained submissions that it was open to Medical Assessor Roberts to find that psychiatric symptoms arose in response to the loss of employment and the enduring nature of his physical symptomology and that, in particular, the biomechanical report of Road Safety Solutions dated 7 May 2021 was of no relevance to the psychiatric examination.
RE-EXAMINATION
The assessment occurred on 15 August 2023 via MS Teams organised by the Commission. Mr Black was in his home. The Panel consisted of Medical Assessor Michael Hong who was in his rooms and Medical Assessor Matthew Jones, also in his rooms.
Mr Black was a 43-year-old man currently residing in Lalor Park with his wife and two children, a 14-year-old daughter and an 11-year-old son. He is currently not working and receives workers compensation payments. He last worked in 2019 and was a truck driver transporting containers. He reported that it was during his employment that the subject accident occurred.
HISTORY OF THE ACCIDENT
Mr Black confirmed the accident occurred on 11 September 2018. He was driving a truck which was not his usual truck which had a “prime seat” and when he drove over a speed bump it “shot him to the roof and then dropped him down”.
HISTORY OF CURRENT SYMPTOMS
Mr Black reported the next day he was unable to stand up and was “bent over as all hell”. He said he was in pain and only able to complete half a day’s work and could not continue. He saw his general practitioner and underwent numerous scans. He put in a claim for workers compensation which was accepted. He had six months off work attending physiotherapy and returned to work on light duties.
After approximately a year of light duties he was told “see you later”. That is, his employment was terminated. The light duties he had been attending to included driving only within 10 minutes of the yard, minor cleaning tasks and some administrative work.
Mr Black reported that for a year or so after the accident he had physiotherapy and is continuing to have physiotherapy, funded by EML the workers compensation insurer, every two weeks.
When asked about other treatment he stated that he was sore for about a year and a half. He advised that he had had two discs removed and is “slowly healing”. He confirmed that he has had six cortisone injections over about a three-week period in his left hip and that L4, L5 and S1 being one injection at each site. He also reported he had had three rounds of “nerve burning” which attempted to treat 20 nerves on each occasion.
Mr Black lamented that he had done everything that EML had asked of him and he was still not improving.
With respect to his physical injuries he said he continue to feel pain, his right foot burns, he has pain in his right buttock and right leg. When asked what physical injuries were preventing day to day activities he responded “everything”. He uses walking stick which causes some pain but allows him to move further than would otherwise be the case. He is unable to mow lawns. He says showering is difficult. He reports he sleeps on a lounge which has adapted to the contour of his body and has not slept in his bed for five years. He states he can only spend half an hour in bed because it is too sore to lay flat on his stomach or his back or his side.
Mr Black reported that it was the “depression crap he hates”. He said he “got real bad for a bit” and tried to hang himself twice a little over two years ago in his old house in the shed.
He stated “everything was crashing around”. He reported he had not been admitted to a psychiatric hospital but he had been referred to a psychologist at the medical centre. He saw the psychologist about 10 times approximately two years ago but reported getting worse during these treatments. This was the only person he had seen apart from his general practitioner for his mental health.
He had been prescribed Amitriptyline 50mg and takes two tablets a night. He has also been prescribed Palexia 50mg and takes three of these a day, when required due to pain. He comments that he had a hot water bottle on his back during the assessment and said that “cold is a killer”. He noted his blood pressure had increased and he took two antihypertensive medications for this.
Mr Black had reported over the last two years or so he had not seen either a psychologist or psychiatrist and has no plans to do so.
He reports his current mental health is such that he has ups and downs every day. We explored the origins of Mr Black’s mental health problems. He reported that he had “been born with Attention Deficit Disorder and he takes no medications for this but did as a child”. With respect to more recently, he said he initially noticed that he was unable to do anything and he was “getting shitty”. He also developed problems with speaking (stuttering), and this occurred after he lost his job. He reiterated that he just wants to get his back fixed. He said he has developed a stutter from the depression, and it is particularly bad when he gets irritable. He said this occurs more when he gets stressed, for example when he had trouble turning the camera on for the MS Teams meeting.
Mr Black clearly stated that nothing from a mental health perspective had happened before he had lost his job. We asked about the impact of losing his job and he said that he had always brought in money for the family and, all of a sudden, he was not sure what he was going to do. We asked if he had considered other types of employment and he said he had not much as all of his jobs had been physical and he was also unable to read and write. He said he cannot understand computers at all.
Mr Black reported that the depression was because he had “lost everything” and “everything fell away”. He said at 7.00am he received a phone-call informing him not to come back to work and he was also in a lot of pain at that stage. He received a phone-call from his old employer and one from the insurance company and he thought “What the hell is going on?” He reported that he was referred to a psychologist after that point.
We asked how Mr Black was day-to-day currently and he said he was “shitty because [he] can’t do anything”. He reported not being able to go up the street for a walk and being unable to mow his lawns and he has difficulty riding his motorcycle (he was a keen motorcycle rider, having a Honda CBR 1100 and he used to do track days at Eastern Creek). He also has problems sweeping and doing the dishes and finds these things too hard. He needs to bend his knees down to attend to the sink.
PSYCHIATRIC HISTORY
Mr Black was diagnosed with attention deficit disorder (ADD) as a child and had medications, but stopped at the age of twelve or 13 because he was “growing too fast”. He remembers having six tablets a day of Dexamphetamine. He also reported that his father would get irritated with having to keep getting prescriptions for him. He reported that he was receiving Centrelink benefits around the age of 17 or 18 and was on the Disability Support Pension for his ADD. He said he did not like being on the pension. He had had special classes at school and said he did not learn maths and English like other children did. He could however drive and liked mechanical matters and would rebuild car engines, for example. His previous work has been mostly hands-on, such as a machine operator or making concrete stencils. These were up to 20kg in weight. He reported he previously had a forklift licence, but this lapsed and there have been government changes to the knowledge test and he would not be able to reinstate it. He declared there was “nothing [he] can do”.
Mr Black denied any history of formal psychiatric diagnosis such as depression, anxiety or psychosis. He had not seen a psychologist or a psychiatrist at any time prior to the subject accident. He denied any family history of major mental health problems.
MEDICAL HISTORY
Mr Black reported he had high blood pressure but no other medical diagnoses. He reported never having taken regular medications. He said that he had two bad knees and had old injuries to these and they had been bothering him more of late. Surgically, he had had a partial finger amputation and also had a lump removed out of his neck. He had his appendix removed when he was approximately aged 35. At the age of eighteen he also had an arthroscopy on his knee as he had played a rough football at school, namely rugby league. He denied any medication allergies but said seafood makes him particularly sick to the stomach.
DRUG AND ALCOHOL HISTORY
There is no recreational drug history of significance. Mr Black reported drinking some alcohol lately and he might have two six-packs of beer per week, approximately two cans every second day. Previously he would drink no alcohol at all as he was working 14 hours a day as a professional driver. He has never been to detoxification, nor rehabilitation for his alcohol ingestion and has had no legal complications such as drink driving charges.
Mr Black does not smoke tobacco and has no problematic gambling history. He has never been addicted to prescription medications and does not ingest excessive caffeine, maybe having up to four coffees per day.
RELEVANT INJURIES OR CONDITIONS SUSTAINED SINCE THE MOTOR ACCIDENT
Mr Black made reference to his parents passing away before the assessment. Mr Black was the eldest of three and there had been no contact with his brother since his father passed away and his contact with his sister has only been intermittent.
FORENSIC HISTORY
Mr Black denied any criminal history. He had no history of significant work related injuries and has not been involved in any other major motor vehicle accidents or other compensation or litigation processes.
EMPLOYMENT HISTORY
Mr Black reported he had been a professional driver for about two years and obtained his Heavy Rigid licence through the RTA. He said driving had never been a problem for him. He had no accidents in his driving career. Prior to that, Mr Black worked for Makita for approximately five years undertaking a picking and packing job in their factory.
Prior to his job at Makita Mr Black worked for a construction company repairing and cleaning formwork.
Prior to the above jobs his first proper job was around 2000 when he worked as a machine operator making concrete stencils.
MENTAL STATE EXAMINATION
Mr Black was a male Caucasian who had a long crew-cut, an impressive beard and appeared of solid build. He was at home and wore a black hoodie. He was polite, cooperative and attentive and there were no abnormal movements. He did stand at about the 60 minute mark and stretched due to pain. His speech was of normal volume and rate but there was a stutter apparent at times. There was no evidence of formal thought disorder or delusional thought processes. He said he had no current thoughts of self-harm or thoughts of harm to others, but said sometimes, for no reason, he will “whimper in the corner”. His affect was generally reactive, congruent and appropriate and he was teary at times.
RECENT SYMPTOMS
Mr Black reported that his sleep is disturbed and the maximum he will obtain is about five hours. He will sleep a couple of hours, then wake and fall back to sleep. He said his back hurts more if it is cold. When asked about his appetite, he said he does tend to have hunger and he is trying to decrease his food intake. He reported his weight hit a maximum of 146kg and said he was down to 130kg and it had taken a year. Mr Black’s recollection was that he was 100kg in weight when he was a driver and he was “fit as a fiddle” and would go to the gym on the weekends and could run 14km. When cross-checked against his weight around the time of the accident (which was considerably higher) he said that he could not clearly remember. His recollection is that he put on 45kg to hit his top weight.
CURRENT FUNCTIONING
The Panel asked Mr Black if he had no pain what would he want to do for work, and he adamantly said that he would want to be driving and he liked that job. He would work 10 hours a day, 5 days a week. When he started truck-driving his wage doubled and he also did overtime.
Socially, Mr Black reported that all of his friends were at his workplace. He does see his old neighbour occasionally and he is getting on well with his wife, who is supportive. He reported he gets on with his children on most days.
The Panel asked Mr Black how he passed time on an average day and he said that if he is not in too much pain he has a small garden out the back growing hydroponics including vegetables and that he would potter in this garden. He also plays chess with his son a couple of times a week and sometimes will play with his daughter and her friends. He rarely goes out with his own friends. He does not like going out and said that with his ADD people treat him differently. He also said he has a walking stick. He told the Panel his right foot is deviated to three o’clock and his left foot was deviated to eleven o’clock and his right knee causes great pain and he needs to crack it to reduce the pain.
Mr Black reported he has been with Nicole for up to 20 years and there has never been a period of separation and they had never been apart. He has had no other major relationships.
SUMMARY
Mr Black reported a narrative and presented at the assessment conference consistent with having significant ongoing pain and physical limitations in most areas of his activities of daily living, but most important for Mr Black it would appear with respect to his ability to undertake paid employment in some type of physical role. His pain and physical limitations are for the comment of other qualified specialists.
With respect to his mental health, he reported a narrative and presented at assessment as consistent with having an ongoing mood disorder, which is consistent with a major depressive disorder. He had symptoms of low mood on most days and pervasive depressive symptoms, loss of enjoyment in almost all activities, diurnal mood variation, sleep disturbance, a period of significant reported weight gain (more than 5% of his body weight), chronic low levels of energy and motivation (although he maintains motivation for some activities), a period of suicidality and attempts at self-harm and having seen a psychologist for a period. Mr Black also reported that he has developed a stutter which he said is linked to his mental state.
Mr Black clearly stated that his problems with his mood commenced after receiving a phone-call informing him that he had been made redundant, as his capacity to return to full work duties was not improving. He remembered not being able to do all of the work required and was only at that stage working five hours per day, four days per week because of his back problems. Although his psychological health was good after the subject accident, he lost his job as he could not return to work in his substantive role in normal hours, due to his physical injuries. He then became depressed.
In terms of causation, his psychological injury is caused by the loss of his employment, which is caused by his physical injuries. The Panel noted the Medical Review Panel’s SOR, dated 24 January 2023, had concluded his physical injuries are threshold injuries but nevertheless caused by the subject accident. His psychological injury is consequent upon his physical injuries, and therefore his psychological injury is caused by the subject accident.
Mr Black satisfies the following DSM 5 Criteria A to E for a diagnosis of major depressive disorder:
· depressed mood most of the day, nearly every day;
· markedly diminished interest or pleasure in all, or almost all, activities most of the day;
· significant weight gain (eg. A change of more than 5% of body weight in a month) this is multi-factorial and his depressive symptoms is a major cause of weight gain;
· insomnia nearly every day;
· fatigue nearly every day;
· feeling of worthlessness, and
· recurrent suicidal ideation and having attempted.
The symptoms cause clinically significant distress and impairment in social, occupational, or other important areas of functioning.
The symptoms are not better explained by a medical condition, substance use, or other psychiatric condition, such as psychotic disorder, mania or Bipolar disorder.
The Panel noted his pre-existing ADHD, and this is unrelated to his current major depressive disorder, and the Panel has not included his cognitive difficulties as part of the major depressive disorder DSM-5 diagnostic criteria.
In terms of his pre-motor vehicle accident sleep problems, he clearly developed major decline in his sleep as a result of his depression and his current sleep disturbance is not simply a pre-existing sleep problem.
The Panel has considered the Biomechanical report, however this does not override the Commission certificate by Medical Assessor Assem and does not alter the history that he lost his job due to a consequence of the subject accident.
In the Panel’s opinion the Biomechanical report cannot, of itself, override the weight of medical material, at the examination undertaken by the claimant. The findings by Medical Assessor Assem can be post-accident and treatment provided to the claimant all of which support his contention of a physical disability.
The Panel finds that Mr Black did sustain a major depressive disorder consequent on the sequalae of the motor vehicle accident. That is consequent on the claimant’s physical injuries leading to the loss of employment on the claimant which caused the major depressive disorder.
CONCLUSION – Non-threshold injury
The following injury is a non-threshold injury – major depressive disorder.
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