Allianz Australia Insurance Limited v Burai
[2024] NSWPICMP 140
•8 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Burai [2024] NSWPICMP 140 |
| CLAIMANT: | John Burai |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 8 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 1 May 2021 at Coffs Harbour; dispute as to whether claimant suffered PTSD, which is a non-threshold injury, as a result of the accident; issue as to causation; insurer referred to a subsequent “near miss” accident and/or alleged substance abuse as more likely/proximate causes; Panel satisfied that claimant’s PTSD caused by accident; Held – certificate of Medical Assessor Chew confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The Review Panel confirms the certificate of Medical Assessor Gerard Chew dated 10 November 2022. |
STATEMENT OF REASONS
INTRODUCTION
John Burai (the claimant) was injured in a motor accident on 1 May 2021 at Coffs Harbour. He was a front seat passenger in a four-wheel drive vehicle that was being driven by his partner (the accident). The claimant immediately feared for the life of his partner. It had been raining and the road was wet. As the claimant’s vehicle was about to navigate a slight bend in the road, the driver at fault lost control of his on-coming vehicle, which began to fishtail and drift. There was a head-on collision. The claimant immediately feared for his partner’s life. Ambulance and police officers attended the scene. The claimant has nightmares about the incident. He has felt depressed, angry, upset and on edge since the accident. He has avoided driving in the area where the accident occurred and is unable to drive trucks at all. The claimant suffered physical injuries which are the subject of a separate medical dispute. About a month after the accident, the claimant had a near-miss accident, and has been unable to work since then. He has ongoing pain.
Allianz (the insurer) insured the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant damage and statutory compensation benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in dispute is whether the claimant sustained post-traumatic stress disorder, caused by the motor accident, which was not a minor (threshold) injury for the purposes of the MAI Act.
ASSESSMENT UNDER REVIEW
The present application is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of the review was conducted by Medical Assessor Gerald Chew on 10 November 2022. Medical Assessor Chew was to assess whether the claimant suffered a psychological injury which is a minor injury under Schedule 2 s 2(e) of the MAI Act. Medical Assessor Chew certified on 10 November 2022 as follows:
The following injury caused by the motor accident:
is NOT A MINOR INJURY for the purposes of the Act.
- Post-Traumatic Stress Disorder
THE REVIEW
The application for referral of the assessment and certificate of Medical Assessor Chew for review was made by the insurer on 15 December 2022, within 28 days after the parties were issued with the original certificate of the medical assessment for which the review is sought.
The insurer submitted that the certificate is incorrect in a material respect and, accordingly, sought a review pursuant to s 7.26 of the MAI Act. In seeking a review, the insurer relied on the following submissions:
(a) Section 1.6(3) of the MAI Act states that “minor psychological or psychiatric injury” is (subject to this section) a psychological or psychiatric injury that is not a recognised psychiatric illness.
(b) Section 1.6(4) of the MAI Act states that the Regulations may include and exclude specified injuries. The Regulations state at Schedule 1 cl 4(2) that acute stress disorder and adjustment disorder are included as a minor psychological or psychiatric injury for the purposes of the MAI Act.
(c) Clause 5.1 of the Guidelines provides: “the assessment of whether a psychiatric illness is present must be made using the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), Fifth edition, 2013, published by the American Psychiatric Association.”
(d) The claimant failed to abide by Procedural Direction PIC 6 by not providing evidence of psychiatric injury.
(e) The Medical Assessor failed to address whether the claimant’s psychological injury arose as a result of the subject accident. Further, the Assessor does not give reasons for finding that the post-traumatic stress disorder was caused by the accident, not the near-miss accident which occurred a month later.
(f) The Medical Assessor failed to set out the path of reasoning for providing a diagnosis of post-traumatic stress disorder in accordance with the Diagnostic and Statistical Manual (DSM-5).
(g) The assessor has not addressed criterion A of the DSM-5 criteria for a diagnosis of post-traumatic stress disorder, being exposure to actual or threatened death, serious injury, or sexual violence.
(h) The Medical Assessor has not set out the negative alterations in cognitions and mood associated with the traumatic event that were experienced by the claimant as required under criterion D of the DSM-5. Two or more of the negative alterations at pages 271 and 272 of the DSM-5 must be evidenced.
(i) The Medical Assessor has not set out the ways in which the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
(j) The Medical Assessor has not directly attributed the claimant’s inability to work to psychological sequelae so as to demonstrate that the psychological symptoms give rise to a functional impairment.
(k) The Medical Assessor has not demonstrated that the claimant’s psychological injury arising from the accident gives rise to a clinically significant functional disturbance.
(l) The Medical Assessor has not set out the path of reasoning for finding that the disturbance is not attributable to the physiological effects of a substance (eg. medication, alcohol) or another medical condition.
For those reasons, the insurer submitted that there is a reasonable cause to suspect that the medical assessment was incorrect, in a material respect (s 7.26(2) of the MAI Act).
The insurer’s review application was opposed by the claimant. Briefly, the claimant submitted as follows:
(a) Not providing evidence of any psychiatric injury is not a valid ground for review in submitting that there is reasonable cause to suspect that the Medical Assessor erred in his assessment.
(b) The subject accident was significant in nature, as is evident from the dashcam footage, that was made available to the Medical Assessor prior to his assessment. It is clear that the claimant’s persisting symptoms are causally related to the subject accident, of which the Medical Assessor was satisfied.
(c) It is not necessary for the Medical Assessor to provide reasons as to how he reached his determination for each respective criteria for a diagnosis of post-traumatic stress disorder in the DSM-5.
(d) The Medical Assessor’s certificate addresses the nature of the subject accident, it’s impact on the claimant’s psychiatric state and his persisting symptoms.
(e) The Medical Assessor would have turned his mind to the criteria of post-traumatic stress disorder in the DSM-5 when reaching his determination whether or not the claimant presents with “minor” injuries as a result of the accident.
(f) There is no reasonable cause to suspect that Medical Assessor Chew erred in his assessment of the claimant.
For those reasons, the claimant submitted that the insurer’s review application should be dismissed.
President’s delegate, Stephanie Wiggan, issued a Determination of an Application for Review of a Medical Assessment on 16 January 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated to be that it appears the Medical Assessor has not provided a clear path of reasoning concerning the assessment of injury, and thus how he arrived at the ultimate determination.
Accordingly, the application was accepted and was referred to the Review Panel, which is to determine whether or not the claimant sustained a major depressive disorder/post-traumatic stress disorder, as a result of the accident, which is not a threshold injury, for the purposes of the MAI Act.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
THRESHOLD INJURY
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the MAI Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft-tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is 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 the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
a.comprehensive accurate history, including pre-accident history and pre-existing conditions;
b.a review of all relevant records available at the assessment;
c.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 are used to support the assessment should correspond with symptoms and findings on examination.”
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“…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 is 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
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 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 is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
‘Causation means that a physical, chemical or biological 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:
1.The alleged factor could have caused or contributed to worsening of the impairment which is a medical determination.
2.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 judgment.
6.7There is no simple common test of causation that is 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 is a contributing cause, which is 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 is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material:
· submissions dated 4 November 2021 in relation to application for medical assessment;
· claimant’s further submissions dates 23 November 2021 in relation to application for medical assessment, and
· submissions dated 30 December 2022 in reply to insurer’s review application.
Briefly, the claimant submitted that the accident was significant in nature, as is evident from the dashcam footage. The claimant submitted that Medical Assessor Chew was satisfied his complaints and persisting symptoms are causally related to the accident. It is submitted for the claimant that Medical Assessor Chew would have turned his mind to the criteria of post-traumatic stress disorder in the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5) when making his determination. It was submitted that Medical Assessor Chew’s diagnosis of post-traumatic stress disorder was appropriate. The claimant’s submissions do not refer to a subsequent near miss incident, occurring about a month after the accident. That incident is referred to by Medical Assessor Chew at page 3 of his certificate under the heading HISTORY OF SYMPTOMS AND TREATMENT following the motor accident.
· Dashcam footage of accident.
· Certificate of Determination – Internal Review dated 15 October 2021.
The insurer’s decision-maker noted that the claimant described his injury as “flashback of the crash” and that his general practitioner (GP) failed to diagnose a psychiatric/psychological injury in accordance with the DSM-5. The decision-maker further notes that the Return to Work and Recovery Assessment Report documented that:
“When asked further regarding these flashbacks, Mr Burai reported that he was fine and that they were just fleeting moments. Mr Burai reported that he was fine and did not require treatment”.
The insurer’s decision-maker concluded that, based on the available evidence, the claimant did not sustain a psychiatric disorder, in accordance with the DSM-5 criteria, for his injury to be accepted as non-threshold.
· Clinical notes of Australian Psychology and Wellness.
These describe the course of treatment from 9 March 2023 by Verity Stoker, clinical psychologist, upon referral from Dr Win Hein. Ms Stoker records that, upon presentation, the claimant had diagnostic markers moderate on depression, mild for anxiety and moderate for stress as a result of significant stressors.
The insurer relied upon the following material:
· insurer’s submissions dated 15 December 2022 in support of Review Application (previously summarised), and
· insurer’s submissions dated 10 December 2021 to minor injury dispute (previously summarised).
The Review Panel notes that those submissions were prepared by the insurer’s decision-maker who conducted the internal review.
The insurer provided no medical evidence in support of its decision to classify the claimant’s psychiatric injury as a threshold injury for the purposes of the MAI Act.
RE-EXAMINATION
The joint examination report of Medical Assessors Baker and Hong is as follows:
“Reasons
1. Who attended the assessment?
Video assessment.
Mr Burai was assessed alone. His wife and parents-in-law were also at home.
Drs Baker and Hong were in their Sydney offices.
History2. Psychosocial history and pre-accident history
In terms of developmental history, Mr Burai was born in Australia and grew up with his parents, being the youngest of four siblings. Both parents have passed away. He reported growing up with ‘good and bad’ experiences. He said that he was at times beaten up at school and had to fight back, and he was expelled at age 14 years. He did not know why other students picked on him. Mr Burai said that at home, sometimes his brother and his father would beat him up for no reason. Once he left school, he worked as a plasterer for several years and also did labouring work. He did some truck driving. By age 27, he had purchased a semitrailer. He predominantly performed truck driving work since then, with intermittent plastering work.
When Mr Burai was about 16, he was in a car accident. He has a vague memory and thought that he was probably a passenger. This accident was likely before he had a learner's license. He remembered that the other car was an Austin Ute. He had gaps in his memory and recalled that he woke up a few hours after that accident. He was in Grafton Hospital for maybe a week. He suffered depression and anxiety, but did not receive any psychological or psychiatric treatment.
Mr Burai does not have a confirmed psychiatric diagnosis and has no pre-existing psychiatric impairment.
In terms of medical conditions, he has high blood pressure since his teenage years. He has asthma. He does not have cardiac, liver or thyroid disease.
He is not aware of a family history of mental illness.
He does not have a forensic history.3. History of the motor accident
On 1 May 2021, Mr Burai was in a 4-wheel-drive as a front seat passenger and his wife was driving. He recalled seeing a car up the hill. As it came down the hill, the car slid and turned about 180 degrees, as it crossed the midline into the other side of the road. He recalled it was a white Ute with a cage in the back. Then the rear of the car that had lost control slammed into the front of Mr Burai’s car. Mr Burai feared the cage from the other car would crash into the cabin. This did not happen. Later on, the police told him that the other car had skidded 70m before striking his car.
Mr Burai does not think he lost consciousness from the accident. He reported there was no airbag installed in his vehicle. Mr Burai reported that he had that he was wearing a seatbelt and was locked in during the collision. He suffered low back pain, particularly on the right, and has leg pain from the accident. He said that he remembered thinking that his ‘legs would go’ meaning that his leg would be damaged or could be broken, and he was frightened seeing the cage coming through his windscreen.
Immediately after the accident, he remembered telling his partner to turn off the car and he exited to check for damages, but he had to go around the front because there was a guardrail in the back and he could not go through the back. He opened his wife’s door and she was feeling sick, so they put a blanket on the ground and she lay down waiting for the ambulance. There was a man that came and helped, and disconnected his car battery.
Mr Burai discovered the other driver in the accident was a learner driver. When he spoke to the supervising driver, who was an older man, he told Mr Burai that he had no insurance. Mr Burai remembered being enraged with ‘steam coming out of my ears’ and recalled that the other driver was being difficult with him.
Mr Burai was taken to Coffs Harbour Hospital with his wife and discharged the same day. He said he has not had surgical treatment. He has not sustained fractures, but he is still having lower back pain and right shoulder pain.
Mr Burai reported that his wife has not been well physically and psychologically since the accident.4. History of symptoms and treatment following the motor accident
Mr Burai was initially having nightmares every night, and this improved, but nightmares still happen intermittently even now. The dreams are about the car coming down the hill with the back or the cage coming towards him. Mr Burai was the passenger, he had no control and could not get out of the way, of the incoming cage.
Mr Burai was exposed to a life-threatening situation and he described this triggered a fear response, and he developed the full syndrome of Posttraumatic stress disorder.5. Details of any relevant injuries or conditions sustained since the motor accident
Mr Burai estimated having taken a week off work after the subject accident and then returned to his usual driving work.
About a month later, Mr Burai had a near miss on the road whilst truck-driving. He was in his semitrailer and reported that he was going to the mines to pick up rubber tubes and it was 4 a.m. The road was busy as many miners were going to work. He was in Muswellbrook and he thought he may have been driving 60 to 80kph. There was a car that suddenly drove towards him and he had to swerve out of the way. There was no actual collision. He recalled the other car just kept going and did not stop. He recalled being ‘shaken up’ by the near-miss experience and he continued driving. There were two other workers in a company car behind him. They saw the near-miss and later they laughed at him.
Mr Burai was upset by their behaviour. He finished the deliveries and could not remember whether he drove to Sydney or Brisbane. He said he did not take time off on the day of the near miss. He did not see a doctor in relation to the near-miss. After the near-miss, he kept thinking ‘the same thing has happened all over again’. He was further upset by the other workers laughing at him. He ruminated and felt negative and angry.
Mr Burai pushed himself to go to work. Because of increasing back pain, he had taken increasing time off work and eventually, he stopped work altogether. This was approximately three months after the accident.
During the first three months after the subject accident, while he was still working as a truck driver, he recalled he was ‘not feeling right’ psychologically. He kept seeing images of the subject accident and did not want to drive, but he pushed himself due to financial obligations and having to work. After the near-miss, he had heightened anxiety and became more ‘wary’ about other drivers on the road. Since that time his driving anxiety has not subsided. Mr Burai thinks he first saw a General practitioner for psychological care around six months after the subject accident. He reported by that time, he felt he could not cope, he was waking up shaking, sweating, he could not sleep and he kept remembering the accident. His wife told him that he needed to calm down.
Mr Burai also described an incident in late 2023, when there was a truck that pulled out in front of him too fast and he became irritated by the other driver, to the point he wanted to get out of the truck and confront the other driver, but the other driver would not get out and then took off. His wife was in the car. He said this was out of character for him. He explained because of memories about the subject accident and because this was a very similar situation, it got on top of him and he had an angry outburst at the other driver.6. Current symptoms
Since the accident, Mr Burai has not experienced major improvement psychologically, although his nightmares have subsided. His main worry is people on the road and other cars can come and collide into him. He is especially anxious when people swerve on the road.
Mr Burai described dysregulated emotions with elements of anxiety, depression and anger.
He reported having low moods and negativity most of the time, and an inability to enjoy things he would normally enjoy.
He has been ruminating about bad things, and described being negative in his thoughts.
He described having reduced concentration and memory overall.
He reported having low energy levels.
He described depressive cognitions.
He reported having gained 10kg after the subject injury due to inactivity. He said he never eats junk food.
He reported having chronic sleep difficulties, due to pain and nightmares and he would toss and turn.
He has intrusive memories and flashbacks.
He cannot control his worrying thoughts.
He has been irritable. He said he yelled a lot after the subject accident and his wife made comment about his yelling, and now he is better and more ‘mellow’.
Mr Burai denied having had suicidal ideation.7. Current and proposed treatment
Mr Burai is currently taking:
·Anti-hypertensive medication
·Hay fever treatment
·Nurofen as needed for pain
Mr Burai does not wish to have psychiatric medication treatment. He had a referral to Dr Andrea Rose and did not proceed with it.
Mr Burai initially consulted Verity Stoker but did not relate to her and then he started treatment with Peter Lindsay, another psychologist, recently every 2 to 4 weeks, for around 1 year now.
Mr Burai has not had a psychiatric admission.
There are no proposed treatments.
Clinical Examination8. Mental State examination
Mr Burai wore glasses and was in his singlet. He had short greying hair and appeared tanned. He has limited psychological-mindedness and vocabulary. Some terms were explained and some questions were repeated to ensure comprehension. He engaged well with the assessment process. He was moderately restricted in his affect range and reactivity and smiled appropriately. He was not thought disordered and at times spoke in a terse manner.
Mr Burai did not report any suicidal thought. He did not demonstrate any psychotic symptoms or delusional ideas. His judgment was normal, and he was insightful into the injury. He appeared anxious and agitated when remembering the cage of the car coming towards him. His concentration span was reduced by this memory, and he required a brief period to calm himself.9. Current functioning
Mr Burai is 57 and living with his wife, who is a homemaker. They live in a self-contained part of the house which belongs to his parents-in-law, who also live in the same house.
He reports he can drive locally and to Coffs Harbour, about 40 minutes away. He does not want to drive further and generally only drives when he or his wife has medical appointments.
He said he does not do much day today. He cleans up the yard and mows the lawns. He buys fuel for the lawnmower and said the lawnmower does not need any maintenance. He uses the whipper-snipper. He cooks, predominately doing barbecues.
Mr Burai finds himself "’getting a bit lazy’ and not wanting to do the usual home maintenance. He attends to the garbage.
Mr Burai had many friends in Melbourne and he moved to Townsville in his 30s and lost contact with them. In the past few years, he has one close friend and reported the relationship is fine.
He normally likes to drive his truck, and does not belong to a club and does not go to truck shows. He normally enjoys camping and fishing, and he stated his psychologist suggested he return to camping and fishing but he has not gone back to it. He described motivation problems, with anxiety and depressive symptoms affecting his capacity to enjoy.
Mr Burai has a caravan but has not taken a trip for quite a while. He said he does not interest in doing anything now.
Mr Burai reported that his alcohol use has not changed much since the accident and his alcohol intake fluctuated over time. He can drink two or three cans a day and sometimes it can be six, and he stated it has been the same pattern for a few years. He does not use recreational drugs.
Mr Burai was previously married and has two adult children from that relationship. The marriage lasted about 30 years and ended about eight years ago, after having separated a couple of times. He then had a partner for three years. Five years ago he met his current partner and they then married.10. Comments of consistency
There was no inconsistency identified. Mr Burai was able to provide a history supported by his dash-cam footage of the motor accident. the footage of the motor accident was provided with this referral. The content of the video footage was consistent with Mr Burai’s report.
Review of Documentation11. Summary of relevant documentation
Application for personal injury benefits form noted a car spun and came onto Mr Burai's side of the road with the back hitting his car front on. He developed physical symptoms and also some trouble breathing.
Several Certificates of capacity have been noted. The initial Certificate only noted low back pain post MVA, and being referred for physiotherapy and he was certified unfit for work from 15 August 2022 due to a physical injury by Dr Winhein, GP. A later Certificate of capacity dated 5 December 2022, that he suffered PTSD as well, and was referred to Psychologist, Ms Stoker, and Psychiatrist, Dr Andrea Rose, and he has no work capacity.
Patient health records noted no other relevant contributing factors.
GP letter to psychologist Ms Stoker, 5 December 2022, noted PTSD due to MVA, for trauma focused counselling.
GP records: 3 January 2023, noted Mr Burai declined to see a psychiatrist, will see a psychologist. 4 August 2022, AUDIT score 2, indicating no alcohol use problem.
Depression, anxiety and stress scale (DASS) self-reported symptoms and frequency, and scores have been noted on 9 March 2023, where he scored 8, 4, and 12.
Ms Stoker’s handwritten notes, from the first assessment noted the subject accident and being moody with increased irritability, wakes up tired, with fear and stress, hypervigilant, triggered when driving past the spot of the accident. Wished he had been driving, guilt, anger, increased isolation from friends, no past history recorded. Having three light beers.
Several reports from Ms Stoker to the GP, noted similar history with chronic pain, grief, anger, wakes up tired, extreme anxiety.
Dashcam footage has been noted.
Determinations12. Causation and reasons
Mr Burai described childhood disruption, with difficulties at school and home, and had behavioural changes leading to disciplinary infractions, and he was expelled from school. At age 16 years, he had a significant car accident and developed some depression and anxiety symptoms but has never developed a distinct psychiatric injury nor did he need psychological or psychiatric treatment.
Mr Burai has been a truck driver for most of his adult life, and after the accident on 1 May 2021, which involved a front-end collision at more than 60kph. He suffered significant back pain and also developed anxiety driving and ongoing hypervigilance related to other drivers.
A month after the subject accident, he had a near-miss on the road which further heightened his driving anxiety and negative cognitions about other drivers.
Another incident happened late in 2023, when a truck driver pulled out in front of him and engaged in a similar behaviour to the driver in the subject accident. He became extremely angry and wanted to confront the other driver.
After the subject accident, Mr Burai described the onset of persisting negative beliefs about other drivers, mood swings and negative moods, impacting predominantly his social and recreational activities, and to a lesser degree, his capacity as a driver.
Mr Burai eventually developed the full syndrome of Post-traumatic stress disorder. His psychological symptoms were already evident after the accident and before the near-miss. Mr Burai’s symptoms were originally caused by the subject accident. The near-miss simply accelerated the evolution of PTSD. The near-miss was not the primary cause of his psychological injury. The Panel concluded the subject accident was a precondition to the reaction he experienced from the near-miss. The subject accident alone, was sufficient to cause his psychological injury. The psychological injury was present before the near-miss. Therefore, the subject accident is the major causal factor in his current psychiatric injury.
In summary, the Panel is satisfied as to causation, for the following reasons:·The claimant was exposed to a motor accident that could have caused severe injury.
·The claimant was first symptomatic after the accident and before the ‘near miss event’.
·The claimant said at the assessment, in relation to the ‘near miss’ – ‘nothing happened’.
·The subject accident caused a more than negligible change in the claimant’s mental state, with his becoming symptomatic after the subject accident.
·The “near miss” at most could have aggravated the post-traumatic stress disorder caused by the subject accident.
·The aggravation was in the form of the claimant’s being taunted by co-workers who, as truck drivers themselves, have experienced many near misses in their careers.
13. Diagnosis and reasons
The Panel assessed Mr Burai in relation to the subject accident on 1 May 2021.
Mr Burai's psychological symptoms have fulfilled criterion A to H of the DSM-5 TR diagnostic criteria for PTSD:
Criterion A was fulfilled as the subject incident was a major traumatic incident, specifically it was a front collision and he recalled seeing the cage from the other car coming towards him at reasonably high speed, he had no control as a passenger and was ‘shaken up’ by it, and that anxiety has not subsided completely over time.
Criterion B was fulfilled, as he has developed recurrent, involuntary, and intrusive distressing memories of the subject MVA, symptoms consistent with flashbacks and nightmares related to the accident and intense and prolonged psychological distress when exposed to MVA-related triggers, including subsequent similar road incidents.
Criterion C was fulfilled as he described avoidant behaviour related to the memory of the subject accident and triggers associated with the subject MVA. He also tried to avoid driving, but pushed himself due to financial reasons.
Criterion D was fulfilled, as he has negative alterations in cognitions and low moods associated with the subject MVA, including persistent and exaggerated negative beliefs about the other drivers on the road, persistent negativity and low moods and markedly diminished interest and participation in his usual recreational activities.
Criterion E was fulfilled, as he has marked alterations in arousal and reactivity associated with the subject MVA, including irritability with verbal aggression, towards his wife and the other driver on the road, hypervigilance when driving, exaggerated startle response, and sleep disturbance.
Criterion F was fulfilled as the above symptoms have lasted more than 1 month.
Criterion G was fulfilled as his psychological symptoms cause clinically significant distress with impairment in his social functioning due to irritability, and in recreational functioning due to loss of interest and motivation.
Criterion H was fulfilled as his trauma-related symptoms are not attributable to the physiological effects of a substance or another medical condition.”
FINDINGS
The Review Panel finds that the claimant suffers from a post-traumatic stress disorder, caused by the accident, as a matter of medical determination.
The Review Panel also finds that the claimant suffers from a post-traumatic stress disorder, caused by the accident, as a matter of factual non-medical determination.
The Review Panel finds that the claimant’s post-traumatic stress disorder, caused by the accident, is not a threshold injury, for the purposes of the MAI Act.
CONCLUSIONS
In reaching these conclusions and findings, the Review Panel has attempted to apply the principles of causation, as explained in Briggs (above).
For these reasons, the Review Panel confirms the certificate of Medical Assessor Gerard Chew dated 10 November 2022.
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