Allianz Australia Insurance Limited v Buestami

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Buestami [2024] NSWPICMP 647
CLAIMANT:	Heri Buestami
INSURER:	Allianz
REVIEW PANEL
MEMBER:	Stephen Boyd-Boland
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Matthew Jones
DATE OF DECISION:	12 September 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about degree of permanent impairment; psychological injury; major depressive episode with anxious distress with features of post-traumatic stress disorder; Medical Assessor (MA) Shen found that the injuries were caused by the motor accident; exacerbation of major depressive disorder, with current major depressive episode, with symptom exaggeration; MA Shen found that the following injuries were not caused by the motor accident ongoing grief related to the death of his mother and complex post-traumatic stress disorder related to his childhood adversity; MA Shen assessed whole person impairment (WPI) as follows exacerbation of major depressive disorder, with current major depressive episode, with symptom exaggeration 19%; re-examination by Medical Review Panel (Panel); the Panel found that the following injuries recurrence of the post-traumatic stress disorder were caused by the motor accident; the Panel assessed WPI as follows: recurrence of the post-traumatic stress disorder 9%; Held – the injuries caused by the motor accident give rise to a permanent impairment of 9%; the Panel revoked the earlier certificate and issued a new certificate.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 *of theMotor Accidents Compensation Act 1999*** The Review Panel: 1. Revokes the certificate issued by Medical Assessor Yu Tang Shen dated 28 September 2022. 2. Certifies that the degree of the claimant’s permanent impairment that has resulted from the injury, post-traumatic stress disorder, is 9% which is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

On 5 October 2016, Heri Buestami (the claimant) sustained injury in a motor vehicle accident (the accident).
Allianz Australia Insurance Limited (the insurer) is the relevant insurer.
The claimant lodged an Application for Personal Injury Benefits and also an application for Damages under Common Law arising out of the motor accident against (the insurer).
In this context claims and entitlements to benefits and compensation are governed by the provisions of Motor Accidents Compensation 1999 (the MAC Act).
Compensatory damages under the MAC Act are awarded for economic as well as non-economic losses resulting from the injuries, disabilities and impairments caused by the motor accident.
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act with some limitations and restrictions. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134 and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority (SIRA) may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act.
A medical assessment was conducted by Medical Assessor Yu Tang Shen who subsequently provided a certificate dated 28 September 2022.

The Assessors Certificate

The following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Yu Tang Shen for assessment:
(a) Psychiatric Injury – Major Depressive Episode, Major Depressive Episode with Anxious distress with features of PTSD.
Medical Assessor Shen found that the following injuries were caused by the motor accident:
(a) Exacerbation of Major Depressive Disorder, with current Major Depressive Episode, with symptom exaggeration.
The Medical Assessor found that the following injuries were not caused by the accident:
(a) Ongoing grief related to the death of his mother;
(b) Complex PTSD related to his childhood adversity.
The Medical Assessor determined the degree of permanent impairment was 19%.
The Medical Assessor determined the degree of permanent impairment from any pre-existing or subsequent impairment was 0%.
The Medical Assessor determined that the effects of treatment were “none”.

The Review

The insurer lodged an application for review of the assessment of Medical Assessor Yu Tang Shen.
On 2 December 2022 the delegate of the President determined there was reasonable cause to suspect a material error in that assessment.
The President of the Commission then convened a panel to conduct the review.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a Medical Assessor – see s 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts the proceedings and may determine the proceeding 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.
Whilst the Review is a new assessment it occurs in the context of the initial decision and the determination there was reasonable cause to suspect a material error in that assessment.
Both the claimant and the insurer are legal represented and have the opportunity to provide submissions and to identify and narrow the issues in dispute so as to meet the objectives of the MAC Act.
The following injuries were referred by the Commission for assessment:
(a) Exacerbation of Major Depressive Disorder, with current Major Depressive Episode, with symptom exaggeration

Material Before the Review Panel

The parties were asked to provide submissions for the purpose of the Review addressing various specific issues.
The parties provided documentation to the Review Panel.
The claimant provided:
(a) a bundle of documents described as “R1-Claimant's Submissions” being 10 pages;
(b) a bundle of documents described as “Claimant's Review Panel Index and bundle of documents” being 531 pages.
The insurer provided;
(a) a bundle of documents described as “Buestami - 25.10.2022 - Insurer's supporting documents” being 5 pages;
(b) a bundle of documents described as “Buestami - 06.07.2023 - Insurer's Review Panel Bundle of Documents” being 762 pages.
On 26 September 2023 Directions were issued by the Review Panel and the claimant was re-examined by Medical Assessors Matthew Jones and Michael Hong on behalf of the Review Panel on 21 December 2023.
The claimant did not attend that examination at the appointed time.
The claimant was re-examined by Medical Assessors Matthew Jones and Michael Hong on behalf of the Review Panel on 4 March 2024.
The claimant sought to admit late documents to the Commission including:
(a) the consultation records of Dr Chee, and
(b) the records of Australian Health Care Centre.
The Panel considered that these documents should be admitted and sought further submissions from the parties on the content of this material.
The claimant provide submission dated 19 April 2024.
The insurer provide submission dated 24 April 2024.
The Panel then considered this further material and the submissions.

The Applicant Insurer submissions

The insurer’s submissions of 25 October 2022 include that Medical Assessor Shen has failed to provide any reasons, or any adequate reasons, for key decision reached by him in relation to his assessment of whole person impairment and his apportionment of impairment between multiple causal events that he identifies.
Further that Medical Assessor Shen failed to set out the actual path of reasoning by which he obtained his decision.
The insurer’s submissions include that Medical Assessor Shen failed to explain how he obtained its WPI findings.
The insurer’s submissions include that Medical Assessor Shen identified several causal factors underlying the psychiatric diagnosis that he obtained, some of those causes were not accident related, but he failed to explain how he apportioned impairment between those causes, or why he chose not to do so.
The insurers’ submissions of 24 April 2024 assert that the notes from Dr Chee show psychological symptoms unrelated to the accident.
The treating evidence demonstrates relevant pre-accident psychological history and deteriorating symptoms since 2020 due to factors unrelated to the accident. The treating evidence reveals recent symptom improvement.

The Respondent Claimant submissions

The claimant’s submissions of 15 November 2022 refer in some detail to the material before the assessor and to the conclusions reached.
The claimant’s submissions maintain there was no error.
The claimant refers to the opinion of Dr Canaris to the effect that:
“.. his current condition remains inextricably linked to the motor vehicle accident of 5 October 2017. Mr Buestami continues to show evidence of high anxiety related to cars and reliving phenomena. I note the presence of other symptoms related to depression such as sadness over earlier losses. However, it should be recalled that depression is common enough as a comorbid condition with posttraumatic stress disorder and I note in this context the continuity between his current symptoms and earlier posttraumatic and depressive symptoms.”
The claimant refers to the opinion of Dr Malik reporting the Claimant’s psychological conditions include chronic complex post-traumatic stress disorder, major depression and generalised anxiety disorder.
The claimant’s submission of 19 April 2024 address causation, noting the claimant was asymptomatic pre-accident and confirm a diagnosis of post-traumatic stress disorder.

Re-Examination of the Claimant

History

Mr Buestami was in his solicitor’s office and assessed on his own. His son took him there. Medical Assessors Jones and Hong were in their Sydney offices.

Psychosocial history and pre-accident history

Mr Buestami was born in Indonesia and came to Australia in 1997. He reported that growing up he was in a small town and his father was very strict. He cried as he discussed that he would be slapped from a very young age, around two or three years old. At school, it was not much better and some of the students bullied him, he said out of jealousy. They called him names, and this happened every day. He stated his mother was the only person who protected him. He grew up with his parents and was the eldest of five siblings.
He had a car accident in 2002, when he was working as a taxi driver. He reported he had worked as a taxi driver on and off for many years and after that accident, he suffered post-traumatic stress disorder with depression and anxiety, and he also suffered flashbacks to his childhood trauma and his nightmares happened every day for a while. He recalled the accident was very scary. He started seeing a psychologist and had seen his current psychiatrist, Dr Keith Chee, at that time, and had regular treatment. He said it was not until 2011, when he recovered to a point that he could go back to work. He received a payout for his psychiatric injury from that accident.
Mr Buestami then started working for the Iraqi Consulate and did many different jobs. He did photocopying, fixed the printer, driving and had worked more than full-time hours. He said that by that point, his depression and anxiety had completely gone away and he was not taking psychotropic medications anymore, and he was no longer seeing a psychologist or psychiatrist. He stated because he did his job well, everybody appreciated him, and he was treated well at work. He remembered being happy and he wore a suit and tie to go to work and presented himself well.
When he was not working, he would go to the club or a restaurant for lunch and dinner, with his wife and some friends. He said he had more than 10 friends at that time. He also enjoyed singing. He would go and entertain the senior citizens and sing to them. He sang and played a keyboard. He would sing a combination of English and Indonesian songs.
In terms of general medical history, he does not have cardiac, thyroid or liver disease. He said he thought he had heart problems, and the ambulance took him to the hospital, and he was told it was a panic attack. He had a stress echocardiogram with a cardiologist and there was no cardiac disease found.
He does not have drug or alcohol problems.
In terms of family history, an uncle has depression.

History of the motor accident

On 5 October 2017, Mr Buestami was driving the Consular General, who had finished his work in Sydney and was looking for a place for his children to study in Sydney. They took the Anzac Bridge, and he remembered there was a traffic light, and he had stopped, and he was the third car from the light. Suddenly, there was a loud bang, and he remembered being surprised and in shock. He exited the car and saw that there were two young men in a ute. The driver was in shock and stayed in the car, and the offsider in that car came out and started yelling at him, “Why are you staying there” and tried to blame him for the accident and abused him. He asked Mr Buestami to give him his number. Mr Buestami recalled he tried to talk to the driver in the ute and exchanged IDs with him. There was no loss of consciousness or brain injury. The ambulance and police were not called. He dropped off the Consular General and drove back to the Consulate, parked the car and went home. Ever since then, he has not gone back to any work.
His airbags were not deployed, and he said his vehicle was later repaired.
He said he started having nightmares again, very similar to what happened after the first accident. He also suffered neck and back pain. Later, his GP said there was a fracture at C5-6 and referred him to a psychologist.
Physically, he reported that he is still having a lot of problems with constant headaches, particularly on the right side. He also has developed problems with his legs, and has significant problems walking, particularly because of his left knee. He does not use a walking stick and said that he can walk 1km now.
He reported having bilateral shoulder problems, especially on the right, which causes him some problems with lifting.

History of symptoms and treatment following the motor accident

Mr Buestami remembered he avoided driving after the second accident and Dr Chee encouraged him to drive. He remembered being scared driving at night, even when there was nobody around on the road. He was able to continue driving short distances for maybe two years after the accident and after that, he stopped driving and he said his wife had to drive him, or if he went out with his friends, his friends would come and pick him up. The Panel noted an ADL report noted he was driving in 2022, and he could not be sure when he stopped.

Details of any relevant injuries or conditions sustained since the motor accident

Mr Buestami reported that around four years ago, he went out to a local shop nearby and was walking, and suddenly a dog bit him and ripped his pants, and then the owner was upset with him and kept saying “Show me where you have been bitten” as if to question whether he was bitten at all, and then the dog owner tried to punch him. Mr Buestami felt very scared. This happened in the Sutherland Shire in Killarney, where he was living. He said that he was very close to home, and he had gone out to buy something when the attack happened. Ever since then, he has become so scared to go out, that he has not gone out on his own and always needs somebody to accompany him - he worries about being attacked. The Panel confirmed with him that this was unrelated to the car accident, and before the dog attack he was going out by himself and even though he had driving anxiety and avoided driving, he remained independent in travel.

Current symptoms

His anxiety symptoms are triggered by driving. He described chronic depressive symptoms and periods of improved moods. He has concentration and memory problems. He said he had suicidal ideation for a while after he lost his singer, and a friend developed dementia, and they could not sing together anymore. He has flashbacks and nightmares related to the accident. He has been easily frustrated without anger problems. He has panic attacks. He has poor sleep, with initial insomnia and often wakes up late, e.g. 11 am.
The Panel determined he does not have true psychotic symptoms, and also noted his treating psychiatrist did not prescribe an antipsychotic medication after he assessed his "voices".

Current and proposed treatment

Mr Buestami is currently taking:
(a)    Allegron (Nortriptyline), 25 mg tablet, 6 tablets daily.
(b)    Epilim 200 mg tablet, 2 tablets daily.
(c)    No change in medication for a couple of years.
He consulted Helen Austen, psychologist, but not for a couple of years now. He has been consulting Dr Chee, psychiatrist, first in 2002 and again since the subject accident, recently every two months.
He attended St John of God Hospital and was admitted twice, the last time was around two years ago. Day program was discussed but did not eventuate, as it was during the COVID pandemic.
There are no proposed treatments.

Clinical Examination

Mental State examination

Mr Buestami was assessed by video. He had a moustache and a goatee beard and was somewhat dishevelled. At the start of the assessment, he appeared to have difficulties responding with a marked latency and little body movement, which disappeared as the assessment progressed. After a while, he gestured freely and responded to questions without latency and there was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and reactivity. He smiled and laughed briefly. He spoke spontaneously. He was not thought disordered. Mr Buestami was attentive and remained focused throughout the assessment. No overt cognitive impairment was observed.

Current functioning

Mr Buestami is 70 years old and has two adult children with one son. He lives with his wife and said they had separated three or four years ago and live under one roof and are not formally divorced yet.
He said he spends most of his time at home and she is busy with their four grandchildren.
He is on the Age Pension now and reported that he has a support worker who comes two days a week to take him out. He feels anxious when he is out and reported that he never goes out by himself since the dog attack. Because his family are busy, even though they visit, they have no time to take him out. The support worker takes him out to lunch and helps him wash his clothes and clean his house.
He reported that he had been with his wife since 1980, but they had separated. He said that he started having sexual problems and Dr Chee said this was caused by his depression. He said because he could not be sexually active anymore, his wife wanted to separate from him. He also explained that his wife did not understand him and called him lazy, because he did not want to cook, clean or cut the grass like he used to before the subject accident.

He remembered around 2019 (around two years after the subject accident), he was still in a singing group but then the female singer decided to return to Indonesia, and at a similar time the other member in the group started having problems with memory and later was diagnosed with dementia. He said he suddenly lost two members of his singing group, and he stopped wanting to go out or to continue his usual singing activities. Before his friend developed dementia and the female singer returned to Indonesia, he said that they were regularly playing and performing for senior citizens, maybe every second week, and he enjoyed it. They continued for a couple of years after the accident, and he continued to play the keyboard.
The Panel asked him about organising the singing duet. He said that was a long time ago, maybe a couple of years ago and not recently.
Mr Buestami is singing again now and likes karaoke, and sings as part of Smule, which is a singing group with members all over the world. He will meet random people online once a week for about an hour, and they will learn a song together. They will practice several times and then record it and then upload the song. Mr Buestami said he tends to sing sad songs now and sometimes he will cry after he has been singing, especially songs about mothers, because he misses his mother.
His mother passed away in 2012. He reported that he sometimes hears his mother’s voice and at night he also hears a baby crying outside his home, which he knows is impossible. He sometimes hears the door slam when there is no wind. He spoke to Dr Chee about this, and he has never been prescribed antipsychotic medication, and he recalled Dr Chee suggested Allegron can help with these "voices", and said this is because he has post-traumatic stress disorder.
He spends time on his computer and likes to play a Dragon game, in which he fights dragons. He said he spends money on gear for the game, and when he gets online, he would be online for 24 hours. But in reality, he only plays for one or two hours at a time, but he would be registered as online but “away from the keyboard”. He said he plays in a guild with a group of people that he met online, and he has played regularly for a couple of years now.
He recalled that he was 100kg and has managed to lose weight and is now 90kg. He is on a low carbohydrate diet and avoids eating rice and noodles. He said he has lost maybe 10kg in the past six months and is hoping that he can get down to about 80kg, but he has not been 80kg for many years now. He also said that he had read up on a lot of different things, for example, the Pakistani population has a long lifespan, and he is trying to emulate their lifestyle so he can live longer. He said he tends to order Lite n’ Easy for himself because it is healthy food and delivered to his home.
Mr Buestami has two children and four grandchildren, and they visit him once a month. He said he does not keep in contact with any friends anymore. He said he does not really do anything with his wife anymore. He has siblings overseas, but they are not close and rarely talk.
He does not read books, and he Googles everything. If he is not sure about something, he will do research online. He manages his own finances.
Mr Buestami said he has an aged care package, and he does not have dementia. He has problems with his memory and struggles to remember things from five minutes ago. The Panel discussed with him that his memory seemed reduced but not to the point he could not remember things from five minutes ago during the assessment, and there was not specific response.
The last time Mr Buestami flew overseas was in 2018, back to Indonesia with his wife for his son’s wedding. He said he felt good during the trip, but once he was back in Australia, because of the environment he became depressed again. He said if he is on a holiday again, he would feel better now, but he has not been on a holiday.
He does not go to the mosque anymore because nobody can drive him.
The Panel discussed with him, his GP records seemed to suggest that in 2023 he gained some psychological improvement, although this did not seem to reflect Dr Canaris' report, as his impairment rating was higher at a later assessment. He reported that he does not feel much better because he feels lonely, and maybe he will be better for a week but then worse. He confirmed that he has been eating better and losing weight successfully and his mood has been stable, or “good” at times, but not all the time.
The Panel discussed with him some of the recorded history when seen by Dr Newlyn in 2019, a year after the second accident, and he was still driving locally by himself and going out with the senior citizens. He reported that he was only driving once or twice a week at that point and remembered catching the train to Newcastle with the senior’s club, because the train fare only cost $2.50 for seniors. However, he said he does not belong to the senior’s club anymore because two of his friends from the group had died and everybody there was more senior than him and they would die soon, and he would rather hang out with younger people.

Comments of consistency

There was no significant inconsistency identified.

Review of Documentation

Summary of relevant documentation

Dr KY Chee treating psychiatrist records 19/08/2022 – 04/01/2024, hand-written notes:
19/08/2022, Allegron 25 mg x6 in 2022. Recent panic attack, one support person to go out. Added Epilim.
8/2/23, has regular support worker. Go out to Cronulla once a week by train and walk.
4/1/24, wife had to drive him here today. Still withdrawn.
Patient Health Summary dated 22 July 2021. Medication list included Allegron 25 mg tablet, 6 tablets at night. Post-traumatic stress disorder from accident in 2012, and a recent MVA flaring up his symptoms, with diagnosis of anxiety and post-traumatic stress disorder, with previous Worker's Compensation claim settled April 2007. Past treatment included sertraline, moclobemide, escitalopram, Fluoxetine. He has not engaged well with psychological intervention.
Psychology session notes, 25 November 2019. He had ongoing anxiety, and stress over relationship and finances. Medications include venlafaxine, Parnate. He was referred to the day program at St John of God, but this was cancelled due to COVID. He had increasing social isolation due to COVID, being fearful to go outside due to this. He has not been driving due to the subject accident.
Discharge Summary dated 7 December 2017. He presented with post-traumatic stress disorder.
Ambulance report dated 1 September 2020.
SIRA certificate by Assessor Jager, dated 16 October 2020, with diagnosis of recurrent post-traumatic stress disorder, Major Depressive Disorder, with Permanent Impairment less than 10%. He had a MVA on 5 October 2017, while stationary he was rear-ended, and he did not think he had a serious injury. He then had neck pain, with 2 damaged discs, and it affected him emotionally, with nightmares. He continued to have headache, depressed, anxious, restless sleep, and post-traumatic stress disorder from childhood abuse. He was on nortriptyline 25mg, olanzapine 2.5mg. He self-cares sometimes, with very close friends, no driving, and broken down relationship with his friend, and lost most friends, and stopped singing. He provided a PIRS 1,2,2,3,2,5, the total WPI was 9%.
Psychiatrist letter from Dr Chee, dated 7 April 2021, for referral for admission, for medication changes, for depressive symptoms, with treatment of venlafaxine, olanzapine, mirtazapine and nortriptyline.
Sutherland Hospital discharge Summary dated 22 April 2021. He was admitted to hospital for suicidal ideations, and depressed, with a recent overdose attempt on 15 April 2021. There was a pre-existing post-traumatic stress disorder and major depressive disorder from 2002 from a previous MVA. He was reactive in company, but more depressed when isolative, and fearful of driving, and unmotivated to leave home and participate in community, with difficult relationship with his wife. He had improving mood in the ward environment, which he found therapeutic, and recommendations to engage in social activities on discharge. He was on Nortriptyline 50mg daily.
Allied health recovery request form for his psychological injury has been noted.
Dr Christopher Canaris, IME psychiatrist reported on 30 September 2021. He has ongoing anxiety around cars, avoids driving, and avoids going out alone, and remains depressed, anhedonia, lack of motivation, reduced self-care. He was seeing his psychiatrist Dr Chee, and psychologist Helen Austen, and still depressed, hopeless, and isolative. He plays computer games and has poor concentration. He was diagnosed with post-traumatic stress disorder and major depressive disorder or persistent depressive disorder. He provided a PIRS 333 335, he provided a PIRS 27%.
Activities of daily living report dated 4 July 2022. Mr Buestami has no physical symptoms, but ongoing depression and post-traumatic stress disorder. He was previously a goldsmith, then a driver for the Iraq Consulate, until his subject accident. He had a previous MVA in 2002, when he had post-traumatic stress disorder and major depressive disorder, and out of work until 2011. Showering, grooming, dressing required occasional prompting, and self-initiated when required and meals prepared for him. He could drive in his car, but had panic attacks; and took public transport, however previously mentioned driving in his neighbourhood, and catches a bus with a friend. He had enjoyed socialising with others, and was attending senior group, weekly appointments, going to the mosque.
Comment: the Panel confirmed the described travel capacity was before his subsequent psychological injury from the dog attack, which he estimated as four years ago but could be more recent.
Dr Thomas Newlyn IME psychiatrist provided a report dated 28 July 2022. He diagnosed post-traumatic stress disorder and Persistent depressive disorder, and major depression, due to the COVID-19 Pandemic and was stable. He provided a PIRS 1,2,2,3,2,1, the final WPI is 5% after treatment uplift 1%. He deducted 1% pre-existing WPI, due to pre-existing family relationship difficulties.
Psychological Stress Assessment dated 4 July 2002.
Dr Selwyn Smith, provided several IME reports, dated 24 September 2002 and 21 February 2003, with WPI 30%, report 19 December 2003, 14 December 2004 with WPI 30%, Report 11 July 2006 with WPI 19%
Outcome measures dated 12 December 2002, with Beck’s depression inventory (BDI) score noted Severe depressive symptoms (16), BAI 30.
Letters by psychologist Alyson Evans, dated 6 June 2002, 6 August 2002, 12 August 2002, 11 October 2002, 13 January 2003, 4 March 2003, 25 March 2003
Letter by psychologist Susan Bourne, dated 15 December 2003 physical abuse as a child, MVA noted and recommended CBT.
GIO claims dated 12 June 2002.
Report by Dr Chee noted.
NSW Police report dated 27 February 2003.
Report by Assessor Yvonne Skinner dated 27 September 2005. Current WPI 17%, pre-existing WPI 1%, 50% attributed to family issues, 30% related to anxiety as taxi driver. Compensable WPI related to the accident 1%.
Sutherland ED record dated 7 January 2007
Sutherland Discharge Summary dated 30 March 2014.
Centrelink Medical Certificate.
Facebook posts and exchanges.
St John of God admission dated 2021, and his mood improved in the therapeutic milieu of the hospital and engaged in the group program, with a trigger being isolative and feeling abandoned by his family. His Nortriptyline dose was increased to 150mg.
Facebook and Youtube Videos: Singing in a band 11 April 2018, 2 short videos with him dueting with another singer on 1 February 2022 and singing in a face-to- face duet on 3 January 2018 and was reactive and euthymic.
Chronology for the subject accident; 28/5/2002, intrusive thoughts, anxiety and depressive symptoms, with many health entries showed ongoing psychological symptoms. Unexplained break in evidence was mentioned by the insurer. The last entry before the subject accident was 30 March 2014. Admission following an episode of diaphoresis while ironing clothes and suddenly experiencing sweating. The triage form references “anxious and has stress issues”.
Keep U on track psychology file from Helen Austen.
25/11/19. Workers Comp injury - driving as a Consulate Driver when he had an accident. Has been diagnosed with post-traumatic stress disorder previously by Dr Malik and Dr Chee. He reported his claim was not accepted for over 18 months and this had a catastrophic effect on his finances and mood. He explained he nearly lost his home and his relationship with wife broke down. Highly anxious and a lot of panic. Has not been able to drive.
30/1/20 Mr Buestami had a review with Dr Malik and Dr Chee. His medication has been changed due to poor / low mood from Effexor to Parnate. He is still reporting very poor sleep patterns where he can’t go to sleep and then wakes readily. Discussed behavioural strategies with Mr Buestami such as his deep breathing and relaxation music - he says he forgets to do this and discussed ways to make it a habit. He attends the gym four days per week which is very good for his mood - he reports a "great improvement" in his mood but still lacks confidence - particularly with driving.
7.4.2020 He discussed he tried to start his driving desensitisation however ceased due to increased anxiety and panic. He has withdrawn from all of his activities including exercise due to COVID fears and he apologised for non- attendance and withdrawal, but he became very scared. He feels as though because of his age he is a high risk, and his anxiety has accelerated to the point where he has withdrawn from activities and stays at home. Discussed relationship issues at length - Mr Buestami feels as though his wife is finding him "annoying" as she has to drive him everywhere and he feels the family is feeling the strain. Worked on open and positive communication strategies.
8.5.2020 Mr Buestami also feels very sad and a real sense of loss that he cannot work - he discussed this was his identity which he was very proud of.
26.8.21, St John of God day program closed due to COVID pandemic and Mr Buestami disappointed as he feels ready to go but looking forward to when he can. Provided Mr Buestami with more online activities for mindfulness. Mr Buestami doing some online singing activities, but he feels as though he is drawn to the "emotional and sad songs" and this makes him cry a lot - asked his to shift to the feel-good, more upbeat songs as this may assist his mood.
9.9.21 Mr Buestami discussed he remains isolated at home due to COVID however he has set up Menu Log and is enjoying the luxury of ordering food online.
Many Allied health recovery request forms, with diagnosis of post-traumatic stress disorder and depression from the subject accident. Previous MVA 2007. From Ms Austen.
Patient health summary from Dr Helen Chan:
1/12/2000, no history
22/8/2002, seen psychiatrist. Regularly GP visit over the years.
11/5/05, only driving when wife in car
11/12/07, MVA 2002, Workers’ compensation settled 2007. Still flashbacks and depression.
Certificates of capacity with some work capacity in 2006. From Dr Helen Chan.
Sutherland hospital discharge summary, 7/12/17, panic attacks thinking about mother passed away a few years ago at this time, attacks a couple of times since the accident in October. MVA 15 years ago and had PTSD. To see his usual psychiatrist and mental health care plan. BIBA six weeks ago sore neck post MVA and recent history of left headache-mild has had impending doom and anxiety since MVA.
Certificate of capacity 3 hours, 2 days per week work capacity in May 2019.
MAA Review Panel certificate, 7/6/2006, he has Major Depressive Disorder and Post-Traumatic Stress Disorder, and he has 17% WPI related to the accident.
Ms Austen’s report 18/8/21, noted the subject accident. If Mr Buestami had not sustained this injury he would be working full time as a Driver. If he had not sustained this injury, he would not be taking medications to manage his mood which have also had quite an impact on his physical state. Additionally, had this incident not occurred he would not have sustained financial stressors and distress and unlikely his family relations would have been as fractured as they are. He was involved in an accident in 2002 and was reportedly diagnosed with post-traumatic stress disorder. He made positive recovery, and all psychological symptoms resolved to the point where he secured employment with the Consulate General of The Republic of Iraq. He discontinued psychological treatment in late 2020 for unknown reasons and his rehabilitation provider closed their file at the same time. Following, his psychological state deteriorated, and he was admitted the Sutherland Hospital for one week and then transferred to SJOG under the care of Dr Chee. He spent a short time in hospital and received treatment and he was discharged. On discussions with Dr Chee, it was agreed Mr Buestami would significantly benefit from attending day program weekly at the hospital to manage his mood and psychological state as well as regular psychological therapy. Unfortunately, COVID lockdown and isolation is having further negative effects on him, heightening his need for this support during this difficult time.
Allied health recovery request form from Ms Austen, noted post-traumatic stress disorder and depression from the subject accident.
Late document noted: Patient health summary:
12/9/22, Allegron 25 mg.
5/10/22, crying, worsening memory, short-term memory problem, depression, 103.5kg, added Epilim
12/1/23, 98.5kg, post-traumatic stress disorder, anxiety and depression, BMI 25 in 12 months.
17/8/23, ongoing depression, 97kg
14/9/23, no issue with weight loss, anxiety and depression for years, mood stable. Beyondblue counselling. No suicidal ideation reported. No self-harm behaviour. cognition normally. Not agitated.
17/10/23, appetite normal, mood stable, feels well, sleep normal, 88kg and BMI 28.7
Comment: we discussed some of the GP records in 2023, suggested some improvement in his psychological health and losing weight successfully (but Dr Christopher Canaris' report seemed to suggest a deterioration in symptoms in a similar timeframe). Mr Buestami said he may have improved a bit here and there, but it was not sustained.
Several general practitioner letters and care plan, noted Mr Buestami is having treatment for anxiety and depression. From Dr Shirjeel Malik.
Mr Buestami's statement 4/3/2022, said he tried to sing at the suggestion of his psychologist, after his suicide attempt in 2021, he recalled attending St John of God hospital group, and they discussed his singing. Singing provides a temporary escape for him. He covers his eyes to sing. He discussed his Facebook photographs and singing.
Dr Christopher Canaris IME psychiatrist wrote 7/7/23, which was 10 months after Medical Assessor Shen’s assessment where he assessed him at 19%. He reassessed Mr Buestami. He spends his days at home “mostly sleeping and playing game on the internet – also singing – I used to sing a lot – I try to sing – I like only the sad songs, and I cry again...”. I asked him if he could tell me what he did on his computer. He replied, “I play games...”. I asked if he could tell me what games. He looked perplexed and said, “Dragon something – I can’t remember – I play it every day”. He does not go anywhere on his own but gets taken out by “the social worker” who takes him out walking and to lunch which he enjoys. He would not go anywhere on his own and came here driven by his wife. His presentation remains consistent with a diagnosis of posttraumatic stress disorder and persistent depressive disorder (dysthymia) with a persisting major depressive episode and melancholic and possible psychotic features. He provided a PIRS 3,3,3,3,3,5, and said there was no pre-existing impairment. The total WPI was 27%, after 1% treatment uplift.

Comment

The Panel found Mr Buestami less impaired than Dr Canaris as he has the capacity for independent living and the Panel rated his self-care and personal hygiene as 2.
The Panel noted Dr Canaris was not aware of his ongoing recreational activities and had he been aware, he may have rated his social and recreational activities less impaired.
The Panel also identified a subsequent psychological injury and rated travel less impaired.
Mr Buestami has reasonable concentration, persistence and pace, as evidenced by his ongoing activities day-to-day and on the day of assessment and the Panel rated 2.

Determinations

Diagnosis and reasons

Mr Buestami has a complicated history with a traumatic childhood, with adverse experiences at his home and at school. There was no apparent psychiatric injury until the first accident in 2002, when he developed chronic post-traumatic stress disorder and anxiety and depressive symptoms and received treatment. He subsequently made a full recovery and returned to work full time with no apparent psychiatric impairment for many years until the second accident (the subject accident) in 2017.
He developed symptoms consistent with post-traumatic stress disorder, which is conceptualised as a recurrence of the previous post-traumatic stress disorder. Whilst the subject accident involved a relatively minor accident, it was frightening for a vulnerable individual like Mr Buestami, and sufficient to cause a return of post-traumatic stress disorder with anxiety and depressive symptoms.
He continued driving in the first two years after the subject accident, with some trauma symptoms, depression and anxiety symptoms, and maintained overall independence. However, after
He then had a subsequent injury from a dog bite, he developed symptoms consistent with an adjustment disorder, he lost the ability to go out on his own due to his fear of being attacked.
Mr Buestami has been isolated over time and has been able to find people with similar interests online and play computer games and sing, and has adapted to the physically undemanding online world to a degree. The Panel considered he suffered a recurrence of PTSD from the subject accident, and this has not resolved.
The Panel consider for the purpose of WPI assessment, Mr Buestami's psychological condition has stabilised, and the level of psychological functioning is not likely to alter to a significant degree, with or without treatment in the next 12 months, and MMI has been reached

Issues for the Review

Section 58(1)(d) of the MAC Act, involves a determination of two issues:
(a) whether the injury (was) caused by the motor accident, and
(b) the degree of permanent impairment of the injured person that has resulted from the injury.

Causation

The Panel notes the test of causation referred to in cl 1.6 of the Guidelines:
“Causation is defined in the Glossary at page 316 of the AMA4 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 is necessary to verify both of the following:
(a)The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
This, therefore, involves a medical decision and a non-medical informed judgement.”
Sections 5D and 5E of the Civil Liability Act also apply to the MAI Act, see Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13.
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372 (Briggs) his Honour Justice Wright confirmed that the relevant legal test in relation to causation does not require scientific certainty. It is not to be determined on the basis of scientific certainty, but on the balance of probabilities. 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.
We adopt the reasoning in AAI Ltd v Hoblos [2023] NSWPICMP 210 that the psychological condition is evaluated in determining whether the motor accident caused or materially contributed to a psychiatric condition, albeit by way of aggravation.
The diagnosis of Post-Traumatic Stress Disorder under DSM-5 requires satisfaction of various criterion, which are separately referenced back to the trauma. Given the requirements under DSM-5 for the assessment of Post-Traumatic Stress Disorder, we accept that each criterion must be caused by the motor accident.
The DSM-5 in relation to post-traumatic stress disorder includes:
“A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
1.Directly experiencing the traumatic event(s).
2.Witnessing, in person, the event(s) as it occurred to others.
3.Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
4.Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse).
Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.
B. Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
1.Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).
2.Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s).
3.Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.)
4.Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
5.Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).”
There are further criterion in C, D, E, F, G and H.
We found that the factual position in relation to Mr Buestami was:
(a)    he has a complicated history with a traumatic childhood, with adverse experiences at his home and at school;
(b)    following the first accident in 2002 he developed chronic post-traumatic stress disorder and anxiety and depressive symptoms, and received treatment
(c)    he subsequently made a full recovery and returned to work full time with no apparent psychiatric impairment for many years;
(d)    prior to the accident in 2017 he had no significant psychiatric condition or impairment;
(e)    following the accident in 2017 he developed a recurrence of post-traumatic stress disorder;
(f)    following a subsequent injury from a dog bite, he developed symptoms consistent with an adjustment disorder and continues to have post-traumatic stress disorder from the subject accident, and
(g)    since that further incident Mr Buestami has been isolated over time.
The description of the accident recorded by Medical Assessor Yu Tang Shen is consistent with that recorded by Medical Assessor Jones and Medical Assessor Hong.
Medical Assessor Yu Tang Shen had identified exacerbation of major depressive disorder, with current major depressive episode, with symptom exaggeration, ongoing grief related to the death of his mother and complex post-traumatic stress disorder related to his childhood adversity.
The Panel subsumed his anxiety and depressive symptoms as a result of part of his current post-traumatic stress disorder.
Dr Malik reporting the claimant’s psychological conditions include chronic complex post-traumatic stress disorder, major depression and generalised anxiety disorder. The Panel subsumed his anxiety and depressive symptoms as a result of part of his current post-traumatic stress disorder.
We accepted that the claimant had developed an adjustment disorder after a dog bite, and developed further psychiatric impairment which has been set aside as it was unrelated to the subject accident.
It is clearly not contended that the claimant had exposure to actual or threatened death, or sexual violence.
We had to consider whether the claimant experienced “exposure to serious injury”.
We accepted that the claimant experienced “exposure to serious injury” in that he is a particularly vulnerable individual and the subject accident was sufficient to be considered a serious injury to a vulnerable individual .
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimants account of the accident and the claimants account of the symptoms.
We reviewed the various medical opinions provided.
It was apparent that at the time of the accident the impact with the vehicle was unexpected. The impact was not insignificant. We accepted that the claimant was exposed to serious injury.
Medical Assessor Jones and Medical Assessor Hong made a medical determination that the motor accident could have caused or contributed to the injury, post-traumatic stress disorder.
Medical Assessor Jones and Medical Assessor Hong accepted that within the terms of DSM-5 TR the claimant was exposed to serious injury.
We accepted the medical determination of Medical Assessor Jones and Medical Assessor Hong that the motor accident could have caused or contributed to the injury, post-traumatic stress disorder.
We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the injury, post-traumatic stress disorder.
The Panel made a factual determination in the circumstances of the motor accident that the claimant was exposed to serious injury.
The Panel accepted that following the accident in 2002 the claimant had made a full recovery and returned to work full time with no apparent psychiatric impairment for many years until the second accident in 2017.
The Panel notes the claimant was a vulnerable individual with a past history of psychiatric symptoms but was not actively symptomatic at the time of the motor accident. The Panel regards the motor accident as being more than a minor contributing factor to the claimant’s current psychiatric condition.
The Panel accepted that following a subsequent injury from a dog bite, he developed symptoms consistent with an adjustment disorder.
The Panel found that this adjustment disorder was not caused by the motor accident.
The Panel was satisfied the subject accident caused a psychological injury that has not resolved, the Panel concluded there is more than a negligible contribution from the subject accident to Mr Buestami's current psychological injury.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the injury, a recurrence of post-traumatic stress disorder was satisfied.
We accepted, on the balance of probabilities, that the motor accident did cause the injury, a recurrence of posttraumatic stress disorder.
The Panel finds that but for the accident the claimant would not have developed this condition.
The Panel was satisfied on the balance of probabilities that the accident was a necessary condition of the recurrence of the posttraumatic stress disorder.

Permanent Impairment

The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (AMA 4). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 should be followed.

Degree of permanent impairment Psychiatric Impairment Rating Scale

Category	Class	Reason for Decision
Self Care and Personal Hygiene	2	Mr Buestami said he showers twice a week without prompting, and explains he does not go anyway and feels clean, therefore, he does not see the need to shower more regularly. He said he showers more if he goes out more. He successfully lost weight with a healthy diet and tries to have a healthy lifestyle to live longer. He attends to shopping online. This is almost a class 1. He is capable of independent living without regular support from a psychological perspective.
Social and Recreational Activities	2	He continues to enjoy regular recreational activities on his own and with people, mostly online. His recreational activities have been overall reduced since the accident.
Travel	2	Mr Buestami is anxious when he leaves home and can go out independently. He gave up driving due to his anxiety. His subsequent psychological injury caused unrelated travel impairments, which are set aside. He did not have a fear to go out alone, before the dog attack, and this impairment is not an aggravation of the earlier injury as there was no prior fear related to dogs.
Social Functioning	3	Mr Buestami's relationship with his wife ended due to the effects of injury from the subject accident, although they still live together. He has lost friends since the accident and made new friends online. The relationship with his general family has deteriorated but remains intact.
Concentration, Persistence and Pace	2	Mr Buestami reported having reduced concentration. He can focus on intellectually demanding tasks for more than 30 minutes, as the assessment process is an intellectually demanding task, and his capacity to learn new songs then perform, and being able to focus on playing online games, are all intellectually demanding tasks, and he can perform these more than 30 minutes.
Adaptation	4	Mr Buestami continues to engage in some life roles, predominately online activities, around 20 hours per fortnight.
List classes in ascending order: 2,2,2,2,3,4
Median Class Value: 2
Aggregate Score: 15
% Whole Person Impairment: 8 %

*%WPI ^{= Percentage Whole Person Impairment}

Degree of permanent impairment Psychiatric Impairment Rating Scale
Psychiatric Impairment Rating Scale - Pre-existing/subsequent impairment

He achieved full remission and his pre-MVA WPI was 0%.
He developed an adjustment disorder after a dog bite, and developed further psychiatric impairment which has been set aside as it was unrelated to the subject accident.

Effects of Treatment

The Panel determined that the effects of treatment were 1%
There has been symptomatic relief and no significant improvement with treatment.
The final WPI is 9%.

Conclusions

The Panel finds that the claimant does satisfy the DSM-5-TR criterion for post-traumatic stress disorder.
As the Panel has come to a different conclusion to Medical Assessor Yu Tang Shen, the Panel will therefore revoke his certificate.
The Panel is of the view that the claimant’s WPI should therefore be assessed as post-traumatic stress disorder impairment of 9%.
As the Panel has come to a different conclusion to Medical Assessor Yu Tang Shen, it follows therefore that his certificate must be revoked, and a fresh certificate given.

[2024] NSWPICMP 647

12 September 2024