Allianz Australia Insurance Limited v Chahine
[2025] NSWPICMP 214
•27 March 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Chahine [2025] NSWPICMP 214 |
| CLAIMANT: | Joumana Chahine |
| INSURER: | Allianz Australia Insurance Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Matthew Jones |
| MEDICAL ASSESSOR: | Himanshi Singh |
| DATE OF DECISION: | 27 March 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; motor accident on 17 July 2019; review of Medical Assessment Certificate (MAC); rear-end collision; medical dispute related to whether the degree of permanent impairment of the psychological condition was greater than 10%; various medical opinions up to 2023 supported claimant suffering from a major depressive disorder; examination findings which included the claimant’s self-reporting and the clinical features apparent at that examination such as interaction, co-operation, attentiveness, movements, and formal thought processes conveyed through her speech; the Medical Assessors were of the view that there was no psychiatric condition present; other relevant and important matters in reaching this conclusion include the claimant’s reported history of symptomatology; Held – claimant no longer suffers from psychological condition; MAC revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel revokes the certificate dated 9 October 2023 and issues a new certificate determining that the claimant does not suffer from a psychological condition and an assessment of the degree of permanent impairment is not required. |
REASONS
BACKGROUND
Ms Joumana Chahine (the claimant) suffered injury on 17 July 2019. The claimant was stationary at traffic lights when her vehicle was rear ended by the insured vehicle.
Allianz Australia Insurance Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Chahine any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The present dispute is whether the claimant’s “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 MAI Act.[1]
[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. 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.[2]
[2] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Nagesh and dated 9 October 2023. The Medical Assessor concluded that the motor accident caused a major depressive disorder, and the degree of permanent impairment was assessed at 15%.[3]
[3] Insurer’s bundle, p 22
The details of that medical assessment certificate are set out later in these Reasons.
THE REVIEW
The application for referral of the medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission 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 (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 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 and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The insurer provided a bundle of documents in response to the Panel’s initial direction. The claimant provided a bundle comprising three pages. On 5 February 2025 the Panel met and advised the parties that:
“The Commission staff has unsuccessfully attempted on several occasions to contact the claimant’s representatives concerning the filing of her bundle.
The claimant is again directed to file a paginated indexed bundle of documents relied upon in the review by close of business, 14 February 2025. Absent any response, the Panel will assume that the claimant does not rely on any further material other than what has been received as set out above.”
The claimant subsequently provided a bundle in response to the further direction.
ASSESSMENT UNDER REVIEW
The Medical Assessor provided a medical assessment certificate determining that the motor accident caused a major depressive disorder.
The Medical Assessor concluded that the previously diagnosed major depressive disorder was in remission at the time of the motor accident. No deduction was for the pre-existing psychiatric condition based on an assessment of 0% impairment.
Assessments of Class 3 were made for “social and recreational activities” on the basis that the claimant was socially withdrawn, “concentration” on the basis that the claimant described her attention concentration is poor and easily distracted at work and for “adaptation” on the basis that the ability to work as a beauty therapist was limited to 15 hours per week.
MATERIAL BEFORE THE REVIEW PANEL
The parties provided separate bundle of documents.
PRE-ACCIDENT RECORDS
The pre-accident clinical records of the general practitioner (GP) are difficult to read. There are references to the claimant’s then husband being physically and verbally abusive in May 2016[9] and an unhealthy home environment in January 2017.[10]
[9] Insurer’s bundle, p 49.
[10] Insurer’s bundle, p 50.
In May 2017 the claimant reported dizzy spells which the GP thought were anxiety related. Lovan was prescribed at that time. In May 2019 the claimant had migraine headaches, complaint of back pain exacerbated by recent cold weather, neck pain and increased anxiety.[11]
[11] Insurer’s bundle, p 54.
An EEG was performed on 31 May 2017 following two episodes of a “horrible feeling”. The relevant history was that the claimant had depression anxiety and took Lovan. The EEG was normal.[12]
[12] Insurer’s bundle, p 59.
In June 2017 Dr Schwartz, neurologist opined that the claimant had vestibular migraine exacerbated by anxiety, stress and depression. The doctor noted that the claimant was then under psychiatric care and on Lovan.[13]
[13] Insurer’s bundle, p 60.
In May 2019 the claimant received chiropractor treatment for thoracolumbar facet pain.[14]
POST MOTOR ACCIDENT
[14] Claimant’s bundle, p 95.
General practitioner and treating records
The claimant attended her GP on 17 July 2019 following the motor accident reporting shock and anxious with neck pain.[15] A clinical note dated 14 September 2019 refers to a mental health plan and referral to a psychiatrist.[16]
[15] Insurer’s bundle, p 55.
[16] Claimant’s bundle, p 80.
In August 2019 the claimant commenced physiotherapy for whiplash associated disorder, Grade 2, bilateral shoulder muscle sprain and mechanical lumbar spine pain.[17]
[17] Claimant’s bundle, p 179.
An MRI scan of the cervical spine dated 20 November 2019 showed mild spondylitic change with small central disc protrusions at C4/5 and C5/6 with no significant neural compression.[18]
[18] Claimant’s bundle, p 195.
An X-ray and ultrasound of the left shoulder dated 27 November 2019 was normal.[19]
[19] Claimant’s bundle, p 189.
An MRI scan of the cervical spine dated 12 February 2020 showed a left paracentral disc bulge at C5/6 causing minimal impression of the exiting left C6 nerve root.[20]
[20] Claimant’s bundle, p 91.
In December 2020 the GP noted symptoms of lethargy, low concentration, poor sleep and referred the claimant for psychological treatment.[21] Subsequent GP records refer to similar symptoms of lethargy and poor concentration.[22]
[21] Insurer’s bundle, p 57.
[22] Claimant’s bundle, p 59 and p 61.
A referral from Dr Awada dated 28 October 2021 to Ms Hayek, psychologist, noted that the claimant developmental health issues after a divorce in 2018 which was exacerbated by the motor vehicle accident when the claimant sustained significant neck and back injuries. The GP noted that the claimant was on Lovan 20 mg “with good help”.[23]
[23] Claimant’s bundle, p 232.
An MRI scan of the lumbar spine dated 10 January 2022 showed minimal broad-based bulging and degenerative osteophytic lipping in the lower thoracic spine and marked facet joint arthrosis at the L4/5 and L5/S1 levels.[24] The scan was similar to the earlier scan dated 21 September 2019.[25]
[24] Claimant’s bundle, p 177.
[25] Claimant’s bundle, p 187.
In April 2022 Ms Hayek, psychologist, noted the claimant was engaging well in psychological treatment but complained of significant pain in the neck, lower back and left shoulder. The psychologist recommended referral to an exercise physiologist or physical therapist to manage pain.[26]
[26] Claimant’s bundle, p 209.
In July 2023 the claimant commenced an exercise program for her physical injuries.[27]
[27] Claimant’s bundle, p 211.
Qualified opinions
Dr Peter Whetton, psychiatrist was qualified by the insurer and provided a report dated
16 April 2021.[28] Dr Whetton noted the pre-existing condition which arose from a divorce in 2018. The claimant was placed on a “small dose of antidepressants”. At the time of the accident the claimant remained single, did not trust men and had no desire for a new relationship being focused on her three children.[28] Insurer’s bundle, p 32.
Dr Whetton noted that the motor accident caused physical injuries to the neck, back and shoulders and the claimant had ongoing pain and limitations in her functioning. The doctor diagnosed the claimant with a major depressive disorder.
Dr Whetton assessed class 2 for all ppsychiatric impairment rating scale (PIRS) categories.
Dr Andrew Keller, occupational physician, was qualified by the insurer and provided a report dated 11 April 2021.[29] The doctor noted ongoing constant lower back pain and symptoms of anxiety.
[29] Insurer’s bundle, p 62.
Dr Keller opined that multiple investigations of the spine and left shoulder showed no acute traumatic injuries attributable to the motor accident. The doctor opined that there was observed evidence of voluntary exaggeration although noted that further psychological treatment was outside his area of expertise.
Dr Michael Hong, psychiatrist, was qualified by the claimant and provided a report dated
22 March 2021.[30] The doctor opined that the claimant suffered from chronic back pain and diagnosed major depressive disorder. In respect of capacity for work, Dr Hong opined:[31]“My view is that she could undertake work, but her work capacity is certainly less than before the accident, and she is not likely to go beyond 15 hours a week. She can cope with an established clientele that she knows well, but she would find having many new customers to be very difficult, as the demands of interpersonal interaction will likely distress her.”
[30] Insurer’s bundle, p 70.
[31] Insurer’s bundle, p 75.
Dr Hong assessed permanent impairment due to psychiatric injury at 15% with class 3 ratings for all PIRS categories except travel and self-care.
SUBMISSIONS
Claimant’s submissions dated 5 December 2021[32]
[32] Claimant’s bundle, p 4.
The submissions sought an assessment of permanent impairment due to psychological injury relying on the opinion of Dr Hong dated 22 March 2021.
The claimant noted the physical injuries caused by the motor accident and supported by a certificate of capacity dated 18 July 2019 were neck whiplash injury, lumbar spine strain, bilateral shoulder strain and anxiety.
The claimant referred to the medical assessment certificate issued by Medical Assessor Parmegiani dated 24 September 2020 which determined the claimant’s psychiatric injury was not a minor injury.
The claimant referred to Dr Hong’s opinion in some detail. She otherwise submitted that the insurer’s focus on the claimant’s ability to care for her children does not consider the full extent of the claimant’s loss which “should be considered holistically”.
Claimant’s submissions dated 27 November 2023
These submissions opposed review of the medical assessment certificate.
The claimant submitted that Medical Assessor was clearly aware of the claimant’s pre-accident employment, treatment and psychological symptoms.
The claimant submitted that the clinical notes in 2019 are “illegible” and should not be taken as evidence as contrary to the Medical Assessor’s finding that the claimant’s major depressive disorder was in remission at the time of the motor accident.
The claimant submitted that it was not the task of the Medical Assessor to make any findings in relation to physical injury as this was outside his area of expertise. She noted that “some of the depressive features of the claimant’s illness are attributable to her pain experience” and this was “hardly controversial”.
The claimant submitted that the insurer’s attack on the various assessments of the PIRS categories was an impermissible submission in an attempt to obtain a more favourable result such as speculating what the impact of “raising three boys” might have on matters such as concentration levels.
Claimant’s submissions dated 10 February 2025[33]
[33] Claimant’s bundle, p 1.
These submissions were largely a repeat of the previous submissions opposing leave to review the medical assessment.
Insurer’s submission dated 22 December 2021[34]
[34] Insurer’s bundle, p 12.
The insurer noted that Medical Assessor Parmegiani in September 2020 had diagnosed the claimant suffering major depression caused by the motor accident.
The insurer referred to the opinion of Dr Peter Whetton, psychiatrist, who provided a report dated 16 April 2021 and assessed impairment at 5%. It submitted that this assessment of impairment was correct.
The insurer referred to the well-documented documented pre-accident history of anxiety which was not referred to by Drs Hong, Whetton or Parmegiani. It submitted that the claimant reported anxiety on 30 January 2009, and this continued in the clinical notes until May 2019.
The insurer noted the report from the Department of Neurophysiology dated 31 May 2017 which referred to depression and anxiety and that the claimant took Lovan. It also referred to the report of Dr Schwartz dated 23 June 2017 which showed a two-year history of headaches and dizziness which exacerbated anxiety, stress and depression.
The insurer submitted that many of the clinical entries post-accident referred to anxiety arising from physical injuries and were to be disregarded. The insurer referred to the report of Dr Keller dated 11 April 2021.
The insurer emphasised the history obtained by Medical Assessor Parmegiani that the claimant was extremely limited since the COVID-19 pandemic and that since the separation and divorce, the claimant and not become engaged in other relationships as a matter of choice.
The insurer referred to the history obtained by Medical Assessor Parmegiani that:
(a) the claimant showered daily;
(b) the COVID-19 pandemic had an adverse effect on the ability to socialise but that she maintained contact with her family in Lebanon weekly;
(c) the claimant drove unassisted in the local area and travelled by train into the CBD to attend work;
(d) the claimant had a good relationship with her children, and
(e) the claimant was not involved in a close relationship and had no intention of finding someone in the future.
Insurer’s submissions dated 3 November 2023[35]
[35] Insurer’s bundle, p 2.
These submissions sought leave to review the Medical Assessment.
The insurer submitted that the Medical Assessor had an incorrect history as to the claimant’s pre-accident employment which affected the assessment of at least two PIRS ratings. The insurer noted that the claimant was working 15 – 25 hours per week prior to the accident as a beauty therapist.
The insurer submitted that the history that the claimant had the ability to concentrate limited to five minutes was inconsistent with other histories. It was submitted that this history was inconsistent with working 15 hours per week and raising three boys.
The insurer submitted that the history related to psychological counselling was incorrect as the claimant only had three or four treatments after the motor accident which she did not find beneficial.
The insurer submitted that there was an absence of regard to the submission that the psychological condition was secondary to pain in accordance with the opinion of Dr Keller. The insurer noted the claimant had pre-accident back and neck problems.
The insurer submitted that the Medical Assessor recorded an incorrect history as to the claimant’s pre-existing depression which was present in 2019. Reference was made to clinical records of the GP which initially referred to anxiety in January 2009, were ongoing and to reports of psychological symptoms in August 2018 and May 2019.
It was noted that the report from the Department of Neurophysiology stated that the claimant had depression and anxiety and was prescribed Lovan.
The insurer noted that the travel distance to work should be at least 25 to 30 minutes each way and this indicated an assessment of class one for travel was appropriate.
The insurer otherwise noted that the post-accident symptoms did not differ from the pre-accident symptoms raising issues of causation.
RE-EXAMINATION
The Panel determined that the claimant be re-examined by both Medical Assessors. The examination report is as follows:
“THE EXAMINATION
The examination was undertaken via audio-visual link through the MS Teams platform organised by PIC. Present for the examination were the medical examiners:
Dr Himanshu Singh and Dr Matthew Jones. Ms Chahine was alone in her solicitor’s office. Also present via audio-visual link was Arabic interpreter, Malak Hijazi, (NAATI) National Accreditation Authority for Translators and Interpreters No. xxxx. Ms Chahine communicated for the most part in English, however the interpreter was there for occasional clarification.
CONSENT AND CONFIDENTIALITY
Ms Chahine was informed that the assessment was not confidential in nature and that the assessment certificate would be read by others. She was also informed that the medical assessors were not able to provide any treatment or advice. Ms Chahine understood the limits of confidentiality and agreed to continue with the assessment voluntarily.
INTRODUCTION
Ms Chahine is a forty-four year-old woman living in rental accommodation in Bexley, where she has lived for approximately one year. She lives there with her three sons, aged thirteen, nineteen and twenty-one. Her youngest son is in high school in Year 8. The older two sons are both working for NDIS companies, one working with injured patients and the other with aged care clients. All her sons are reportedly well.
Ms Chahine is not currently in a relationship, however, was in a relationship for approximately five months, and this ended approximately four months ago.
Ms Chahine is currently employed working in an eyebrow salon in Ashfield. She has worked there for approximately three years. She works casual hours, approximately fifteen hours per week. The exact number of hours depends on client appointments. She usually works between four and six hours on any given workday. Ms Chahine commented that for the last year or so she has had problems with focusing and remembering and that this became noticeably worse in the last year or so.
Ms Chahine also receives other income from Centrelink related to being a single mother. She has received some single parent benefits since she separated from her husband in 2015. She no longer has contact with her ex-husband. Soon after separation her ex-husband would have care of their sons every week or so, however he remarried and now will only have phone-calls with his sons.
CURRENT MEDICATIONS
Ms Chahine reported that she is taking an antidepressant, Lovan (fluoxetine), a 20mg tablet at nighttime which assists her with sleep. She reported she was previously taking Panadeine Forte, for pain, however she found this very strong for her. She changed therefore to an over-the-counter pain medication, Nurofen Plus, however she reported she cannot take too much of this because of stomach pains and nausea that she develops.
Ms Chahine reported that she started taking Fluoxetine in 2012 when she was having relationship problems with her ex-husband. She took it for about a year then stopped it and ‘everything was good.’ She recommenced it in 2015, around the time of her separation from her ex-husband. After separation, Ms Chahine felt more pressure and responsibility on her as she had no family here in Australia. She reported she was taking half a tablet and only every second day at that stage, and it made her feel relaxed. Following the motor vehicle accident this was increased to one tablet a day.
PRE-ACCIDENT FUNCTIONING
Prior to the accident, approximately five and a half years ago, Ms Chahine was working for an eyebrow clinic called Benefit Company in Pitt Street in Sydney. She was working casually, about fifteen hours per week, and also receiving single mother’s Centrelink benefits. Apart from working on eyebrows the company would also retail beauty products.
Ms Chahine reported that at that stage her mental health was ‘good.’ She was enjoying work, looking after her children, and said she was going to the gym four days a week.
PSYCHIATRIC HISTORY
Apart from having been prescribed an antidepressant in 2012 for about a year and then again in 2015, Ms Chahine reported she saw a psychologist in 2012, Carol Hayek, for approximately two years. She then stopped seeing her for seven years and recommenced seeing her following the motor vehicle accident.
Ms Chahine denied any other history of mental health problems. She denied any family history of mental health problems.
MEDICAL HISTORY
Ms Chahine denied any significant medical diagnoses in the past, or having taken any regular medications of significance. She denied any surgical history. She denied any medication allergies.
SUBSTANCE USE HISTORY
Ms Chahine reported she does not drink alcohol, nor does she take recreational drugs. She has no problematic gambling history. She denied any history of smoking tobacco or vaping, including argileh. She denied any history of addiction to prescription medications. She does not ingest excessive caffeine, having only one coffee per day.
FORENSIC HISTORY
Ms Chahine denied any criminal history. She denied any history of work-related injuries or worker’s compensation. She had not been involved in any other compensation or litigation processes. She commented that this was her first motor vehicle accident.
PERSONAL AND DEVELOPMENTAL HISTORY
Ms Chahine was born in Lebanon, in Beirut, where she grew-up. She is the second of four children, having two sisters and a brother. Currently, one sister and her brother live in Lebanon and the other sister lives in Brazil. One of her sisters has three children, the other sister has just married. She had her wedding in Brazil and Ms Chahine did not attend. Her brother has no children.
Ms Chahine’s parents are still together and both are generally well, however both have diabetes. They have retired. Her mother worked as a cleaner when Ms Chahine was younger, and her father worked in a number of different jobs including as a chef and running a petrol station.
Ms Chahine believes she had a normal birth and had no major illnesses as a youngster. She understands she walked and talked at developmentally appropriate times and commenced her early schooling without incident. She commenced school at the age of four or five. She attended a local government primary school, which she described as very good. She also attended a local government high school and completed all of her secondary schooling, finishing at the age of nineteen. She described herself as in the middle academically. She also enjoyed playing basketball, had no behavioural disturbance, and had friends.
Ms Chahine’s family is of Druze origin, however they are not strictly religious.
Following high school, Ms Chahine met her ex-husband. He was born in Australia and went back to Lebanon to marry. They were married in Lebanon. She came to Australia at the age of nineteen or twenty and has always lived in Sydney whilst here. Ms Chahine initially studied after the government facilitated 600 hours of English studies. She had her first baby when she was twenty-one or twenty-two. She did not work in Australia in the early years and when her children were young, she studied online Certificates II and III in English and later, about ten years ago, she studied a Diploma of Beauty Therapy at TAFE.
Ms Chahine’s marriage lasted eighteen years. A recent relationship of a few months has been her only other romantic relationship.
Since commencing work, Ms Chahine has only worked for the two companies, both specialising in eyebrows.
HISTORY OF THE MOTOR ACCIDENT
Ms Chahine confirmed the date of accident as 17 July 2019. She had picked up her children from school and was driving on Forest Road. She recalls that there was a traffic light in front of her. The car in front of her stopped, so she came to a stop and was talking with her children. After only about ten seconds, the car behind her hit her car, “very strong.” Ms Chahine’s car moved forward and hit the car in front. She remembers that just before the accident the atmosphere was very relaxed, and the children were laughing amongst themselves.
Ms Chahine remembers that immediately she felt like there was ‘fire on [her] back’ and she started shaking. She remembers that she did not know what to do in the event of an accident and she simply ‘copied the person in front.’ Her son took a photo of the other drivers’ licences. She remembers feeling worried about the children.
Ms Chahine reported no police or ambulance attended the accident scene and her car was ultimately fixed.
HISTORY OF SYMPTOMS AND TREATMENT FOLLOWING THE ACCIDENT
Ms Chahine reported that her general practitioner, Dr Awada, has his surgery one street away from where the accident occurred. She and her sons went to see Dr Awada, who examined them, and he organised x-rays for her and her children. With respect to her children, she reported they had neck pain and headaches for about two weeks, the insurance company funded some physiotherapy, and ultimately they were fine.
With respect to Ms Chahine, she recounted that initially her back felt warm and the accident was ‘a shock.’ She experienced some lower back pain. Ms Chahine also experienced neck and left shoulder pain. Her left shoulder improved after receiving some physiotherapy, however the neck pain continues to be intermittent.
Ms Chahine’s lower back pain was significant. She said she was taking painkillers every day, however had to continue to look after her children and go to work. She said she normally likes to be very active, clean and cook for her children.
Ms Chahine reported that her lower back pain is worse at night and said she cannot roll left or right and has to sit-up and move if she wants to turn over. When she does re-arrange her position, she then cannot sleep for half an hour. She reported her sleep is disturbed and she feels tired the next day. She said she still wakes about once a night but when things were bad this would happen three times a night, when she would have to wake-up in order to change positions.
Ms Chahine reported with respect to her lower back, she has pain every day. She reported she will take painkillers. She can complete all her normal day-to-day activities, however, has to take breaks.
Ms Chahine underwent physiotherapy, however this stopped after a while. When she did undergo physiotherapy, she felt good for a week or so after an appointment, then the pain would come back. She completed all the sessions she was allocated and finished some time last year.
Ms Chahine has not had any surgery or injections related to her injuries. She has asked her GP to have a cortisone injection because she has heard that this might help.
With respect to any exercise, Ms Chahine tries to walk. She will still go to the gym, attempting to go two times a week. She however cannot do all the exercises she used to. She has had to adapt what exercises she performs.
From a mental health perspective following the accident, Ms Chahine reported that, apart from feeling initially shocked, she has noticed that her driving experience is different. She said she feels scared, but it does not interfere with her capabilities for driving. However, she finds that she looks in the mirror if she is coming to a stop. Ms Chahine also reported that her neck hurts and she finds it hard to turn her neck to see other cars in traffic.
Ms Chahine reported that soon after the accident she was unable to sleep properly.
Ms Chahine also reported that she feels nervous and gets angry very readily. She remembers that soon after the accident she was not able to play with her sons, for example play soccer with them. She stopped playing soccer and riding bikes with her sons because of pain, and that made her feel sad. She also reported she is worried about being in pain for the rest of her life. She reported that she used to feel very strong and now she does not. It does not feel like she is ‘[her] anymore’. She remembers that at the time of the accident her boys’ primary and high schools were next to each other so she could drive them in one trip. She said she had to drive her children to school and back at the time.
Ms Chahine reported that all these problems, and her pain twenty-four hours a day, makes her feel depressed. She said it makes her feel weak and that her ‘personality was always active’ and she ‘always liked to do something’.
Ms Chahine started seeing Carol Hayek, psychologist, again, about three or four weeks after the accident. She continues to see her every three or four weeks. Soon after the accident it was every week or so.
Ms Chahine has not seen a psychiatrist for treatment. Her GP increased the Lovan from half a tablet to one tablet daily.
CURRENT SYMPTOMS
Ms Chahine was asked about how her mood was lately. She reported that sometimes she feels good and then quickly feels bad. She said that this happens even around her sons, and they sometimes notice a change in her mood. She said her mood changes for no reason and these changes can occur once a day, once every two days, or once a week. She reported she can be okay for most of the week, be speaking and laughing with her children, go to another room, and her mood ‘goes bad for no reason.’ Ms Chahine was asked how long this mood state lingered and she said she will have to go outside or change rooms as she feels unable to stay in the same place when this mood shift occurs. She reported it can last for ten or fifteen minutes.
Ms Chahine was asked if she had any fear or anxiety about any other circumstances apart from driving, and she said that she wants to work and learn more and wants to improve in the future, however she has pain, and her brain tells her that she cannot do anything with pain. She said she experiences symptoms of anxiety and depression when she feels like that. Ms Chahine confirmed that she had not seen a pain specialist or attended a pain clinic.
Ms Chahine will go to bed between 10.00pm and 11.00pm. She takes her antidepressant in the evening and tends to go to sleep straight away after this. Lately she will wake once in the evening to change positions.
Ms Chahine reported that when she has a depressed mood it makes her feel like sleep. She said she feels like sleeping for long periods however when she wakes up, she feels nauseous and not like herself. Most mornings she will wake-up and get out of bed around 7.30am, and most nights she will be awake for about thirty minutes in the middle of her sleep.
When asked about her appetite, Ms Chahine reported that when her mood is bad her appetite is decreased, but she will most often eat normally. She has noticed she craves sugar. She reported her current weight is around 78kg. Her normal adult weight is around 68kg, and she was about 71kg before the accident. Ms Chahine reported her height is 172cm (BMI approximately 26 which is considered just above the normal weight range). She said that she has had a gradual increase in weight since the accident, a little over a kilogram a year. She believes the reason she has put on weight is because she is unable to go to the gym. She remembers that soon after the accident she was not even able to walk far and if she walked for over twenty minutes, she would get lower back pain. She said she now tries to walk around the house and tries to go to the gym. She said however she is unable to hold weights, and she cannot do sit-ups.
Ms Chahine reported she is tired on most days and when she is at home, she can fall asleep easily.
When asked what Ms Chahine would like to do if she had no back pain, she said she would go to the gym again and attempt to lose weight. She reported she would also like to do another course and open up her own business. She said that she could also travel and do more things with her children. She reported she cannot travel currently because it is “too much for [her].” She said she even has problems travelling locally. She said if she goes to the beach with her sons, she can go for one or two hours but cannot stay there all day. She said if she goes to the pool with her sons, if the water is too cold, she cannot swim because her back hurts. She said she is not able to go for bushwalks in the Blue Mountains with her children. She said if she does go on a holiday she will only stay in the hotel, however her sons like to do activities.
CURRENT FUNCTIONING
Ms Chahine reported she has contact with her family members overseas. She has made a couple of friends in Australia. She met two during her English study when she was first here, and they are still friends. She said she has no other friends. She will occasionally speak with her friends over the phone, however they have five or six children and are very busy. She reported she does not like to go and see her friends when their husbands are home, and her friends are unable to leave their children to come out and socialise.
Ms Chahine was asked what activities she did during an average day, and she reported that she takes her youngest son to school in the morning, then comes home and has a small sleep. She will then clean the house and cook for the children. She will sometimes watch a movie, unless they are very long, or read a book and then later pick-up her son from school. The school is a five-minute drive away.
Ms Chahine will drive to work, which takes forty minutes when there is a lot of traffic, however on the return journey it only takes about fifteen minutes because the traffic is less.
Ms Chahine reported her sons help around the house. She however does all the cooking, and her sons tend to like food such as pasta and steak.
Ms Chahine is completely independent with respect to her self-care and personal hygiene such as showering, dressing and grooming.
Ms Chahine has a driver’s licence and can drive without restriction, however, experiences some anxiety in traffic. She does not use public transport. The usual places she drives are to school and to work, and her local shops which are ten minutes away.
Ms Chahine reported that she would like to work more hours if she was able. She would like to complete more study, for example learning further beauty treatments such as Botox injections, cosmetic procedures or laser treatments. She is wary of doing more study because if she completes the study and then is unable to do the work, it would be a waste of effort. She said she can study currently but is scared regarding her pain in her future.
MENTAL STATE EXAMINATION
Ms Chahine was a female of Middle Eastern appearance who appeared slightly overweight. She wore a pink t-shirt, black leggings and she had long dark hair which was predominantly tied back and appeared mildly styled. There were no gross signs of neglect. She was observed at some distance at the end of a boardroom table. She was polite, cooperative and attentive and displayed no abnormal movements. Her speech was normal, predominantly in English, and there was no evidence of formal thought disorder or delusional thought processes. She denied any thoughts of self-harm or thoughts of harm to others. When asked about her mood, she said she felt good at the beginning of the assessment, but not so good at the end as she had had to remember everything that has happened to her. Her affect (expressed emotion) was highly reactive, congruent and appropriate. She was able to brighten in her affect and was responsive to humour. Her narrative was somewhat pain focused. There was no evidence of perceptual abnormalities consistent with psychosis. Her cognition, insight and judgement appeared intact in the context of the assessment. Rapport was excellent and Ms Chahine spoke openly and freely.
SUMMARY
Ms Chahine reported a narrative and presented at assessment as consistent with having no active, ongoing psychiatric disorder. The psychological symptoms she spoke of were entirely consistent with, and proportional to, her experience of pain and the effects of that. She did indicate that she had some degree of nervousness while driving, however this did not limit her functioning. She had worries about her future. She remained independent with respect to her self-care and personal hygiene, her ability to look after her children, and her ability to work at her pre-injury job and hours. She appears to have maintained the couple of friendships she has developed in Australia. She is not currently in a relationship but did form a brief relationship since the motor vehicle accident, however this has subsequently ended.
From Ms Chahine’s reported narrative, it was clear that she did not have a pre-accident mental health diagnosis, nor any particular psychiatric impairment. Her mental state examination and report of recent symptoms was not consistent with a major mood disorder such as major depressive disorder or persistent depressive disorder. Although she experienced some anxiety whilst driving, she was not phobic with respect to this. She did not have symptoms consistent with post-traumatic stress disorder. She did not have sufficient anxiety to justify a diagnosis of generalised anxiety disorder.
The assessors discussed Ms Chahine’s reported narrative and presentation at assessment and concluded that she did not currently satisfy diagnostic criteria for any recognised psychiatric illness and there was no permanent psychiatric impairment. She did report ongoing pain and physical limitations, however these were outside the areas of expertise of the medical examiners.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[36]
[36] Section 7.26(6) of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[37] and Insurance Australia Ltd v Marsh.[38]
[37] [2021] NSWCA 287 at [40], [41] and [45].
[38] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the detailed examination findings made by both Medical Assessors with the additional further short observations.
We are conscious that the claimant has been previously assessed as having a psychiatric condition including by Medical Assessor Parmegiani who assessed a major depressive disorder. Medical Assessor Nagesh in October 2023 made a similar diagnosis. Other medical practitioners including Dr Whetton and Dr Hong in 2021 formed opinions at that time that the claimant suffered from a psychiatric condition.
We are not bound by these opinions however have considered these at part of our conclusion of the claimant’s present condition.
However, it is not unusual that a person can recover from the effects of a motor vehicle accident. The accident, whilst significant at the time, was not of such severity that the effects of the psychological condition may continue over an extended period. The accident occurred in July 2019, and it is six years since the rear end collision. The other medical reports are somewhat dated and do not represent the present situation.
Based on the examination findings which included the claimant’s self-reporting and the clinical features apparent at that examination such as interaction, co-operation, attentiveness, movements and formal thought processes conveyed through her speech, the Medical Assessors were of the view that there was no psychiatric condition present. Other relevant and important matters in reaching this conclusion include the claimant’s reported history of symptomatology which is discussed by the Medical Assessors in their examination report.
Our conclusion based on the reported symptomatology and the mental state examination is that the claimant is not suffering from a psychiatric condition. As there is no ongoing finding of a psychological injury, there is no need to undertake an assessment of permanent impairment.[39]
[39] Jarvis v Allianz Australia Insurance Ltd [2022] NSWSC 161.
CONCLUSIONS
The certificate issued by Medical Assessor Nagesh on the degree of permanent impairment is revoked. The new certificate is attached at the commencement of these Reasons.
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